Shell has long been one of those international giants regarded as being “too big/rich to lose”. But “the times they are a-changing”: Shell has, for now at least, been bested by a group of indigenous people on the Wild Coast who, despite the odds, decided to stand up for their rights, unassisted by government or politicians. These groups have succeeded in obtaining a court order banishing the oil giant from continuing its exploration for oil and gas along their coast until such time as the indigenous people’s approval has been lawfully sought and obtained. In addition, several environmental and animal rights issues still remain to be addressed by Shell on the basis of scientific evidence, rather than just the MD’s say-so. While Shell’s new vulnerability is noteworthy, so is the fact that the rudely aggressive backing of a senior ANC cabinet minister afforded the oil giant no protection. Many around the world will be taking note. – Martin Welz
Today the Grahamstown High Court in Makhanda ordered Shell to immediately cease its seismic blasting along South Africa’s Wild Coast, pending the hearing of a more substantial court application for which a date is yet to be set.
Shell and the Minister of Mineral Resources and Energy were ordered to pay the legal costs incurred by the indigenous groups on the Wild Coast who had applied for the interim interdict.
The Minister of Mineral Resources and Energy, Gwede Mantashe became jointly liable for the costs after he had at the last minute decided to enter the fray in support of Shell.
It has since been widely noted that Thebe Investment Corp, established 30 years ago as the ANC’s investment arm, owns 23% of Shell in South Africa.
Details of the judgement:
In granting the interdict sought by communities affected by the blasting and supporting civil society organisations, Judge Gerald Bloem said that Shell was under a duty to meaningfully consult with the communities and individuals who would be impacted by the seismic survey, and that based on the evidence provided, Shell failed to do so in the case of the applicant communities who hold customary rights, including fishing rights. They also hold a special spiritual and cultural connection to the ocean. It was thus crucial for Shell to consult these communities and understand how the survey may impact upon them. They did not. The judge found that the exploration right, which was awarded on the basis of a substantially flawed consultation process is thus unlawful and invalid. The applicants’ right to meaningful consultation constitutes a prima facie right which deserves to be protected by way of an interim interdict.
On irreparable harm:
The applicants rely on cultural and spiritual harm; the threatened harm to marine life; and the negative impact on the livelihood of small-scale fishers, arising from the harm to marine life. In its answering affidavit, Shell elected not to deal with the aspect relating to the threat of harm to the applicant communities’ cultural and spiritual beliefs, the applicants allegations in that regard are accordingly undisputed. The applicants also provided a massive body of expert evidence on the threat of harm to marine life, and this evidence establishes that, without intervention by the court, there is a real threat that the marine life would be irreparably harmed by the seismic survey. Against the acceptance of the body of expert evidence, Shell’s denial that its activities will have an adverse impact on marine life cannot be sustained. The judge was satisfied that the applicants have established a reasonable apprehension of irreparable harm to marine life. In addition to the harm to marine life, the applicants have also established how the seismic survey will firstly, negatively impact on the livelihood of the fishers, and secondly, cause cultural and spiritual harm.
Costs:
Since the applicants were successful in obtaining the interim interdict, and because Minister Mantashe also opposed the application, the Minister and Shell are accordingly ordered to pay the applicants’ costs.
Next steps:
Shell has been interdicted from undertaking seismic survey operations pending the finalisation of Part B of the application. A court will need to determine whether or not Shell requires an environmental authorisation obtained under NEMA, when part B of the application is dealt with at a date yet to be determined. The Applicants may also challenge the awarding of the exploration right based on the failed consultation. Shell may appeal the interim interdict, but it will not suspend the order at this stage.
Responses from applicants:
“The voices of the voiceless have been heard. The voices of the directly affected people have at last been heard, and the constitutional rights of indigenous people have been upheld.
This case reminds us that constitutional rights belong to the people and not to government, and that the only way that we can assure that the rights of indigenous people are living – and not just written on paper – is if we challenge government decisions that disregard these rights. This victory is hugely significant because we have made sure that the rights of indigenous communities are kept alive.” – Sinegugu Zukulu, Sustaining the Wild Coast (SWC)
“Today’s judgment marks one of the important milestones in our lifetime as people of not only Pondoland but South Africa, Africa and the world at large. We – the people – we took a stand in fighting against the BULLYING by Politicians, tenderpreneurs, the so called investors who undermine and threaten our livelihoods as ordinary people. The extraction of our natural resources is not a solution for so-called “poverty stricken communities” but a get rich quick scheme of those in power as well as financial control to the greedy Mafias of this world. We are living in borrowed time where money cannot buy their immunity; the mafias must be warned.” – Nobuntu Mazeka, Sustaining the Wild Coast (SWC)Â
“This case is about making sure that profit making does not override human rights. It is about making sure that the voices of rural communities are as important as the voices of the elite. The case is not just about Shell – it is about both protecting human rights and animal rights which are both enshrined in the constitution. As coastal communities we have relied on the sea for centuries – and we are glad that the judge has recognised that our ocean livelihoods must not be sacrificed for short term profit.” – Nonhle Mbuthuma, Amadiba Crisis Committee
“I feel impressed and very, very happy and proud that the court has listened to our voices – the people living on the coast. That for me is a big thing, because most of the time we feel that our government is not interested in listening to us – their people.
Also, winning in this court case means that we are not alone – the courts are with us in protecting our resources – which are the resources of the citizens of all South Africans. A decision against Shell is a decision to protect the ocean – which is ourselves. This is a decision for all citizens of South Africa – not just the residents of the coast. As residents of the coast it is our responsibility to give a shout so that everyone can hear what’s going on around us. And then we work together to protect our resources for future generations so that they can live the life we are living today like our forefathers did. So this judgement is a big win for all of us – citizens and government – the whole of South Africa. I am so happy. Wow!”- Siyabonga Ndovela, Amadiba Crisis Committee
Responses from attorneys:Â
“The case has huge significance in that it shows that no matter how big a company is, it ignores local communities at its peril. This case is really a culmination of the struggle of communities along the Wild Coast for the recognition of their customary rights to land and fishing, and to respect for their customary processes. The Amadiba and Dwesa-Cwebe communities fought for such recognition in earlier cases, and the Makhanda High Court reminded the state and Shell today, once again, that the indigenous rights of communities are protected by the Constitution from interference, no matter how powerful the intruders are.” Wilmien Wicomb, Legal Resources Centre.
Also read:
- Wild Coast interdict: Environmental, human rights groups file appeal against first Shell judgement
- Suspicion of proof insufficient – Shell’s blasted win
- Now Wild Coast tribesmen take Shell to court
