- A South African court has blocked the continuation of a seismic survey for oil and gas off the country’s west coast.
- The judge agreed with fishing communities and civil society organizations that Australian geoscience company Searcher’s consultation process excluded fishing communities.
- The ruling is the latest successful challenge to a prospecting permit on the basis that it denied local communities their right to participate in environmental decisions.
For the second time in just over two months, a South African court has acted to stop a seismic survey for oil and gas off the country’s west coast.
On March 1, the Western Cape High Court in Cape Town ruled against Australian geoscience data supplier Searcher after the judge concluded that the company did not adequately consult with local communities before starting seismic testing in January this year. The company also did not have an environmental authorization (EA). The ruling confirms an interim interdict granted in early February.
“We are very happy about this judgment and that it so strongly recognizes our rights in terms of the Constitution,” Christian John Adams, a fourth-generation fisher from St. Helena Bay, told Mongabay in an interview. Adams, who is the first applicant in the case, said he was particularly satisfied about the judge’s “strong points relating to our culture and the fact that the company didn’t consult us.”
In his ruling, Judge Daniel Thulare noted that the company had not only regarded local fishing communities as unaffected by the prospected seismic activities, but it had also excluded people through the use of language and the choice of media to disseminate information.
Describing the mindset of the consultant who led the project at SLR Consulting, the firm hired by Searcher to carry out the environmental assessment, as “worrying,” Thulare pointed out that isiXhosa-speaking people “were simply disregarded,” even though the language is one of the three official languages of Western Cape province.
“The illiterate and the poor were by design of the methodology excluded,” read the judgment.
Carmen Mannarino, from the Masifundise Development Trust, a civil society organization that works with fishing communities in South Africa, highlighted the significance of the decision: “It was very important that the judge upheld the constitutional principle that everyone is equal in front of the law and that there is no group that has more rights to be consulted than others,” she told Mongabay in an interview.
Prospecting permit also challenged
Masifundise and the fishers are now getting ready for Part B of the application, challenging the prospecting permit granted to Searcher by the South African Petroleum Agency (PASA) in May 2021.
“The second part is looking at whether the permit was lawful in the first place and whether the department is actually allowed to issue these kinds of permits,” Mannarino said, adding she expects the case to be heard only later this year. In Part B, the applicants argue that the minister for mineral resources and energy should not have allocated an exploration right without ordering a full environmental impact assessment. Here too, they say, the consultation process was inadequate and the company did not obtain an environmental authorization as required by the Mineral and Petroleum Resources Development Act (MPRDA) and the National Environmental Management Act (NEMA).
For civil society actors and coastal communities, the Searcher interdict marks another remarkable victory as mining-affected communities turn to legal action to defend their rights to consultation and participation in decisions about the environment.
In December, a court in the country’s Eastern Cape province blocked oil giant Shell from conducting a seismic survey along the Wild Coast after a similar court application.
“Thulare’s judgment sets precedent in terms of the obligation to include small-scale fisheries equally in consultations for any mining development applications that might impact them,” Jackie Sunde, a researcher from the University of Cape Town, told Mongabay.
The South African government has issued a rapidly growing number of exploration licenses over the past 10 years as it moves to develop an offshore oil and gas industry, part of what it calls Operation Phakisa.
Earlier this week, the Department of Fisheries, Forestry and Environment (DFFE) released a draft document of the “Ocean Economy Master Plan” for comment. According to Sunde, the document “neglects to include the small-scale fishers equitably while highlighting the agriculture, oil and gas, shipping and the ocean transport sectors.”
Growing precedent supports coastal communities
More applications challenging prospective permits are already underway.
Sunde recently lodged an appeal against an environmental authorization granted by the Department of Mineral Resources and Energy (DMRE) to South African company Belton Park Trading 127 to prospect for diamonds, gemstones and various sorts of minerals and metals off the upper West Coast. The environmental impact assessment for that authorization was compiled by SLR Consulting, the same company that prepared Searcher’s.
Separate appeals against the permit were filed by two other researchers from the University of Cape Town and the Western Cape Department of Environmental Affairs and Development Planning (DEADP).
They argue that the department has failed to assess the cumulative impacts of “multiple and sometimes overlapping survey, prospecting and mining activities on the offshore area along the West Coast.”
While the Belton case deals with the larger question of the effects of mining-related activities in the coastal waters, local participation plays again a key role. “All over the coast, we have seen an ongoing attempt by companies to bypass the communities,” Mannarino said.
Thulare’s Searcher ruling could be decisive for future cases, Sunde said. The judgment will impact not only the Belton appeal, but also action regarding the Ocean Economy Master Plan. “The ruling provides guidance in order for us to ask for a moratorium until the time that small-scale fishing in coastal communities are adequately consulted, and consulted in a meaningful way,” she said.
Correction (07/03/22): a previous version of this article wrongly stated that the Masifundise Development Trust was is an applicant in the case; Masifundise works in support of the fishers who have challenged the environmental authorization.
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