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Rights of West Coast fishing communities vindicated by...

Maverick Citizen

OFFSHORE EXPLORATION OP-ED

Court vindicates the rights of West Coast fishing communities to be consulted before seismic surveys

Activists from Extinction Rebellion and Oceans not Oil protest in Cape Town against the seismic survey off the West Coast. (Photo: Gallo Images / Daily Maverick / Victoria O’Regan)

‘Unlimited development is detrimental to the environment and the destruction of the environment is detrimental to development.’ – Constitutional Court

On 10 December 2021 the Minister for Mineral Resources and Energy, Gwede Mantashe, called environmental activism “apartheid and colonialism of a special type”, in response to local communities’ opposition to seismic surveys. Almost three months later, the Western Cape High Court painted a very different picture in its 1 March 2022 judgment granting an interdict to halt a seismic survey off the west and south-west coast of South Africa. 

The court found that the seismic survey proposed by Searcher Seismic, a multinational with Australian and British ties, was designed in a way that excluded the voices and concerns of coastal communities. Additionally, they found that the survey could potentially cause irreparable harm to these communities and ecosystems, from small marine life such as zooplankton to larger marine mammals such as whales.  

The seismic survey off the west and south west coast of South Africa would involve a vessel towing airguns which blast high-level, low-frequency sounds at the seabed at regular intervals. This is done in order to scan the ocean floor for potential oil and gas reserves. 

According to expert evidence, the noise levels that are released into the ocean are only rivalled by undersea volcanic eruptions and undersea earthquakes. Notably, while seismic surveys have been ongoing globally for decades, the cumulative impact on marine and bird life is not fully understood. There is, however, some indication that seismic surveys have had an impact on the breeding and migratory patterns of some marine life.

The interdict was a huge victory for the applicants, who comprised small-scale fishing communities who have fished off the coasts of the Western Cape for generations and for whom fishing is not just an economic means, but a way of life. 

The Case before the Western Cape High Court

The issue for determination before the Western Cape High Court was an application for an interim interdict (Part A) which would have prohibited Searcher from continuing with the seismic survey until a court was able to determine whether the Reconnaissance Permit granted by Minister Mantashe was unlawful (this is the subject of the review in Part B of the application). 

The requirements for an interim interdict in South African law are as follows: 1) a prima facie right; 2) apprehension of irreparable harm; 3) the balance of convenience favours the granting of the interim interdict and 4) that the applicant has no other satisfactory remedy. 

The communities contended that the decision to issue the permit was unlawful and liable to be set aside on two grounds: 

  1. That Searcher was obliged to consult the applicants who had a direct and material interest as affected communities when they applied for the permit. Despite this, there was no meaningful consultation undertaken by Searcher.
  2. In terms of both the Mineral and Petroleum Resources Development Act (MPRDA) and the National Environmental Management Act 107 of 1998 (NEMA), Searcher was obliged to obtain the correct environmental authorisation prior to commencing with the seismic survey – which it failed to do.

While these arguments relate specifically to Part B of the Application, they were nevertheless of importance to the court for the determination of the balance of convenience. 

One of Searcher’s main arguments falsely pitted development and investment against the environment and affected communities’ constitutional rights. Here, they attempted to misconstrue what South African law requires in terms of striking a balance between the protection of the environment and the need for social and economic development. 

Instead, the Constitutional Court has held in the Fuel Retailers case that “…development cannot subsist upon a deteriorating environmental base. Unlimited development is detrimental to the environment and the destruction of the environment is detrimental to development.”

What our constitution actually envisions is development that is people-centred and sustainable, while also promoting social and economic interests.

The court found that Searcher failed to acknowledge the impact that the survey will likely have on snoek, centrally important to the livelihoods of small-scale fishing communities. 

The Applicant Communities

The history of this West Coast community is largely intertwined with South Africa’s past and has been shaped by both colonialism and apartheid – traditional fishing communities who were forcibly removed from their fisher cottages by the apartheid government due to racially discriminatory laws, but nevertheless continued their tradition of fishing as had been done by generations before them. 

The origins of these communities can be traced back to the Khoi and San fishers who were then later joined by the Malay slaves which eventually led to the estabishment of the West Coast fishing hamlets. 

Christian J Adams, the first applicant in the case, recalls being told that even Van Riebeek recognised the expert fishing skills of the indigenous people of the Cape when the Dutch colonialist arrived in 1652 to set up a “refreshment station”. Shortly after, Van Riebeek issued an edict that the fish caught by the local population be used to provision the station. 

This began the lengthy tradition of fishing along the Cape as it exists today. With the growth of the Cape Colony, enslaved Malay people brought along unique fishing skills which enmeshed with the skills of the indigenous peoples over time. Over the next century, the Cape of Good Hope was largely dependent on the fish provided by locals of Saldanha, Langebaan and St Helena Bay on the West Coast. 

Christian recalls catching his first lobster on his own when he was around five or six years old. His grandfather, however, had advised him to put it back as its shell was too soft and it was a female lobster carrying eggs. This is one of the many instances he remembers of being taught to care for the marine resources of the West Coast. Subsequently, Christian grew up believing that the sea was to be respected as it was a part of them. He aptly puts it that fishers of every community “know each rock and reef” in their ocean.

Solene Smit was also an applicant in the case. She describes herself as a West Coast “visservrou”, and says the ocean and marine environment is her pride and joy, and a gift to pass on to the next generation. Her passion is preparing traditional fish dishes, such as curried fish, which is customary over the Easter period in the Western Cape. Solene recalls the resilience of the West Coast fishing community who have been impacted greatly by the racist aparthied fishing management system as well as the fact that prior to 1994, small-scale fishers were not legally recognised.

Rosie Shoshola is the fifth applicant. She was born and bred in Lambertsbaai and her childhood memories have been shaped by the sounds and smells of the West Coast Fisheries. 

Rosie recalls the importance of the “snoek run” on the West Coast. “It’s a very special time in our community, when we come alive. The air is always filled with excitement as the boats come in and the buyers, or laganas as they are known down at the harbour, start negotiating a price,” she remembers fondly. 

To Rosie, the sea is her life. It enables her to make a living and also provides a place of solace. 

Wilfred Poggenpoel, who is now 80 years old, can similarly trace back his memory of fishing to his early childhood. Over time he has seen the impact of climate change on the migratory patterns of the fish and for him, the proposed seismic survey could have had devastating effects on the ability of the local community to continue their tradition of fishing and providing for their families. 

For all the individual applicants, who represent the communities, fishing is all they have known: the men go out to sea to fish, the women “vlek” the snoek, and even children are taught from an early age how to be guardians of the marine resources. Over the years, the community members have developed practices, such as the reading of the intestines of the yellowtail while “vlekking” (a process that involves the gutting and cleaning of the fish shortly after it is caught) to predict when the snoek run is coming and if it will be a good run. 

For Christian, Solene, Rosie and Wilfred, as with many other community members, the sea is an inseparable part of their identity as people of the West Coast. 

The sea and its marine resources symbolise an important part of history and heritage, especially for the communities on the West Coast, who have relied on the ocean for survival. Their right to meaningful consultation can never be trumped by commercial considerations on the part of government or even multinational corporations. 

Searcher had ignored the applicant communities at its own peril, and in the words of Judge Daniel Thulare in paragraph 41 of the judgment: “Uzenzile akakhalelwa” (self-inflicted harm deserves no sympathy). DM/MC

 Priyanka Naidoo is a candidate attorney at the Legal Resources Centre, Cape Town. 

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  • Priyanka well done on an important win. But, if you go back to Setlogelo you will find that the test is as stated by Govindjee, namely:
    a) A clear right or, if not clear, that they have a prima facie right;
    b) That, if the right is only prima facie established, there is a well-grounded apprehension of irreparable harm if the interim relief is not granted and the ultimate relief is eventually granted;
    c) That the balance of convenience favours the grant of an interim interdict; and
    d) That they have no other satisfactory remedy.
    It is not necessary to show a well-grounded or reasonable apprehension of harm if a clear right is established because that is implicit in the breach of the clear right. This is, I believe , the finding that Judge Thulare eventually made despite relying on the shortened version of the test. It is indeed a triumph for the right to be consulted. The sting in the tail for environmentalists is that the Department of Environmental affairs ignores this right when making laws. It also makes the consultation provisions in NEMA, NEMBA and other environmental laws liable to be set aside as unconstitutional. This is probably a good thing as NEMBA as those laws would look very different if there was proper consultaion.

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