The land and the sea

Communities whose land is being targeted for exploration by oil and gas companies are increasingly using the courts. South Africa points to good lessons for social movements about allying with the law.

Protestors outside the Gqeberha High Court, South Africa © Claire Martens.

Recent court victories won by communities in South Africa against oil and gas companies, like Shell, suggest that while the law is a limited tool of social change, courts have become battlegrounds for political struggles and open doors to spaces where further political action can prosper.

The United Nations (UN) Secretary-General has called for an end to our addiction to fossil fuel extraction in light of the current climate emergency. We can no longer afford to classify it as a zero-sum game where development is pitted against the environment. Instead, a re-balance must be struck between these interests.

Notably, the tide of corporate accountability seems to have shifted. This is significant in light of the ongoing battle to get a binding business and human rights treaty off the ground at the UN level. Interestingly, courts have begun to refer instead to soft-law instruments such as the United Nations Guiding Principles (UNGPs), which is a framework for corporate accountability. The Hague District Court recently drew on the UNGPs when it ordered Royal Dutch Shell PLC to reduce its group-wide carbon dioxide emissions by 45% of 2019 levels by 2030. This judgment was handed down just a few days after the International Energy Agency called for an immediate end to all new oil and gas projects in its report on the proposed pathway to net zero by 2050.

Two seminal cases in South Africa show that communities are leading the struggle against climate change, capitalist extraction and corporate impunity. The courts in both of these opinions pull back the curtains on the various ways that corporations disenfranchise, ignore, and suppress local communities by design. Despite these obstacles, the strength, solidarity, and interconnectedness of the communities prevails.

Both cases deal with proposed seismic surveys on the east and west coasts of South Africa. A seismic survey is the first step in exploring for offshore oil and natural gas resources. It is used to determine where there are oil and gas deposits under the seabed and also to find areas for carbon capture and storage. The survey involves a vessel towing dozens of air guns that fire or blast in regular intervals. The sound travels downwards and outwards and reflects back to the receivers, which map the seabed for oil and gas. The airgun sound “emissions’” can be between 220-260 decibels at the source. It is difficult to make a surface comparison, because sound travels farther and faster in water. But, to contextualize this, a jet plane taking off would produce 120 decibels, fireworks produce 140 decibels, and most sound louder than 150 decibels can burst a human’s eardrum, while 185-200 decibels can kill a human being.

The sound from the blasting is significant as the ocean is an acoustic world. Because water is a dense medium, sound travels farther and faster underwater, and most marine life depend on vibrations and sound cues for basic biological functions. These include communication, feeding, courtship, mating, and navigation. Scientists have found that harms from seismic blasting can affect marine animals both directly, by causing lethal harms and indirectly, by causing sublethal harms. These sublethal or “secondary” harms include increased stress and changes in behavior, which may lead to decreased reproductive activity, foraging, and immunosuppression. Ultimately these harms can result in reductions in survival, which have devastating effects for ecosystems, the same ecosystems that coastal communities rely on. One expert, Dr Rice, analogizes that an industry-scale seismic survey presents the equivalent of organisms living through a continuous 4-6 month thunderstorm—a phenomenon that does not occur in nature.

Seismic exploration on the Wild Coast

Reinford Sinegugu Zukulu is a resident of Baleni Village in the Amadiba traditional community, on South Africa’s Eastern Cape “Wild Coast.” His  community successfully stopped Shell’s proposed seismic blasting in nearby coastal waters. In early September, the Makhanda High Court set aside the decision to award an exploration permit to Shell and its partner, Impact Africa. The permit would have allowed the companies to carry out a seismic survey along the Wild Coast. For Zukulu, the court ruling is indicative of an important historical context:

Unlike other coastal stretches in South Africa, indigenous people have maintained continuous possession of this land despite waves of colonial and apartheid aggression. This is no accident. Our ancestors’ blood was spilt protecting our land and sea. We now feel a sense of duty to protect our land and sea for future generations, as well as for the benefit of the planet.

Zukulu, who deposed to the founding affidavit in the Wild Coast Communities’ case, sets out the intimate relationship that his community has with the land and sea. The concept of intergenerational equity is central to their community practice, and directly linked to their spiritual and cultural connection to the ocean. Their model of indigenous environmental stewardship has allowed them to preserve the delicate ecosystem of the Wild Coast for generations.

The Wild Coast communities have a vested interest in the conservation of the ocean because it is inherently connected to their survival. Seafood is a vital part of a sustainable diet of the Xolobeni community, which records among the lowest rates of hunger in the country. It also provides them with income, as they sell their catch to tourists. Similarly, fishing is integral to the Dwesa-Cwebe community, among the poorest in the country, and one struggling against the state for land rights and sustainable development. Importantly, South Africa’s  Supreme Court of Appeal previously recognized that they are holders of customary fishing rights. Despite this ruling, Shell did not consult the community prior to carrying out its seismic survey.

What the applicant communities have so eloquently expressed about the link between the environment and development was previously confirmed by the Constitutional Court judgment in the Fuel Retailers case:

… [D]evelopment cannot subsist upon a deteriorating environmental base. Unlimited development is detrimental to the environment and the destruction of the environment is detrimental to development. Promotion of development requires the protection of the environment. Yet the environment cannot be protected if development does not pay attention to the costs of environmental destruction. The environment and development are thus inexorably linked …

The judgement from the Makhanda High Court also provides a scathing critique of the Minister of Mineral Resources and Energy, Gwede Mantashe, who previously referred to the applicant communities’ opposition to extractivist-models of development as “apartheid and colonialism of a special type, masqueraded as a great interest for environmental protection.” This is particularly ironic considering that the court held that Shell failed to meaningfully consult the affected communities, and instead, like their colonial predecessors, only consulted traditional monarchs who, they argued, spoke for all their “subjects.” Notably, the court emphasized that there is no space in our constitutional democracy for a top-down approach whereby traditional monarchs are consulted as if they have the authority to speak for, or unilaterally make decisions on behalf of their communities.

Instead, in finding that the decision was procedurally flawed, the court rightly noted that “meaningful consultations consist not in the mere ticking of a checklist, but in engaging in a genuine, bona fide substantive two-way process…” Impact Africa and Shell fell short of this standard, effectively disenfranchising important stakeholders, where they: 1) used a flawed process to identify potential stakeholders; 2) used public outreach in newspapers to which affected communities would not have access; 3) employed, as noted above, a top-down approach; and 4) utilized technology that was not accessible to the affected communities.

The court could have ended the case there. Instead, it went further. First, the court employed the precautionary principle (an established international law principle stating that where there is uncertainty about potential harm resulting from certain conduct, a cautious approach should be adopted) to determine that the failure to independently consider the anticipated harm to marine and bird life along the coast was unlawful. Second, the court found that decision failed to consider the communities’ cultural and spiritual rights and their rights to a livelihood. Lastly, the communities further argued that they were particularly concerned about the effects of climate change. As a coastal community who are dependent on the land and sea to sustain their livelihood, they have already felt the effects of climate change with weather patterns becoming more extreme and droughts more frequent having severe consequences for their livestock and agriculture.

While Shell shilled the tired line that climate change and food security are not relevant considerations for the granting of an exploration right, especially when weighed against the alleged prospective economic benefits of oil and gas extraction, the intervening applicants, including environmental organizations, highlighted that even if we discover oil and gas reserves, they cannot be burnt if we are to comply with our international climate change commitments.Thankfully, the court saw through Shell’s self-serving narrative and even found that despite statements of promises of jobs and economic prosperity in their Environmental Management Program—Shell failed to substantiate these claims with evidence. Additionally, the court held that had Minister Mantashe taken a comprehensive assessment of climate change and the right to food security, he “may have very well” concluded that the awarding of a permit to prospect for oil and gas was neither “needed nor desirable.” Nonhle Mbuthuma, the chairperson of the Amadiba Crisis Committee, noted that the case was not only about ensuring human rights over profit, but also: 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 … as coastal communities we have relied on the sea for centuries, and we are glad that the judge has recognized that our ocean livelihoods must not be sacrificed for short term profit.

Seismic exploration on the west coast

In January 2022, a month after the Wild Coast Communities secured their interim-interdict against Shell, another seismic survey was commencing, this time off the west coast. Searcher Seismic, a company with ties to the UK and Australia and with interests in gas and oil exploration, had begun seismic surveys relying upon a consultation process that the Cape Town court subsequently found, similar to Shell,  “simply ticked the box … with no regard to the substance of the duty to consult” and “deliberately marginalized” the voices and concerns of the impacted coastal community. The consultation process resulted in a decision that could irreparably harm “marine and bird life, food security, their livelihoods and their cultural rights.”

The west coast fishing communities put up expert evidence relating to the potential harms from seismic surveys, including to marine life and important ecosystems. They argued similarly for the court to adopt the precautionary principle, and were able to obtain an interim interdict in February 2022. In response, Searcher cynically offered to move its survey 150km offshore—ignoring the interconnectedness of the ocean ecosystem, as well as the traditional migratory path of the Snoek. As the fishing communities made clear:  “daais nog innie snoek se highway” (“that’s still in the snoek’s highway”). If Searcher had bothered to consult them, they would have known that the proposed zone was in the migratory path. Even an expert report contained in the company’s Environmental Management Program incorrectly chartered the migratory path of the snoek, which was pointed out by community fishers, who have expert knowledge of the waters.

West coast fishing communities in South Africa have faced a multitude of struggles, impacted and shaped by both colonialism and apartheid. Many families were forcibly removed from their sea-adjacent fishing cottages and denied access to natural resources under the draconian policies of the apartheid regime. Despite these obstacles, they have continued their tradition of fishing for generations. Some fishers in these communities can trace their lineage to the Khoi and San fishers, whose practices were recognized by the Dutch colonists as early as 1652. Solene Smit, one of the applicants in the case who describes herself as a west coast visservrou (fisherwoman) considers the ocean her pride and joy, and the gift she will pass to future generations. She tells of the importance of snoek to her community’s culture; how it features in traditional dishes, such as pickled fish, which is customary over the Easter period. Significant to the west coast communities is the  annual “snoek run,” which Rosie Shoshola, a fisherwoman, describes as a special time, when the west coast “community comes alive” and the air is filled with excitement as fishers and vlekers (fish processors, traditionally women) head to the harbor. Cultural practices, such as the reading of the yellowtails intestines, helps the women in the community anticipate the snoek run and whether it will be a successful run.

Similar to the Wild Coast communities, the fishers on the west coast have also seen the impacts of climate change—particularly in the migratory patterns of fish, due to changes in sea temperature. Wilfred Poggenpoel, 80 years old and a fisher his entire life, says that every year he has to go further offshore to catch fish.

Despite the community winning the court interdict, Searcher continued surveying, but just outside of the territorial waters of South Africa. Then, tearing a page from Shell’s playbook, the company resorted to emotional blackmail. They made claims they were suffering financial losses in the millions, and this was harming South Africa’s economy, but provided no evidence to substantiate such claims.

This alleged loss was of course relative to the devastating effects that could potentially have occurred had the seismic survey gone ahead.The resilience of the west coast communities secured them a victory March 1, when Judge Thulare granted an interdict halting Searcher’s seismic survey for failing to consult the affected communities. In his judgment, Thulare J emphasized that Searcher was the architect of its own demise, stating: Uzenzile akakhalelwa (self-inflicted harm deserves no sympathy).

Shortly after the ruling, Searcher went full-steam ahead back to England and released a statement that it was abandoning the permit and considers South Africa “univestable.” That was short lived, however, as Searcher has recently returned to South Africa to apply for exploration on another permit. The fight for the west coast communities continues.

Bravery and hope

The sea and its marine resources symbolize important history and heritage, especially for communities on the Wild and west coasts, who rely on the ocean for survival. It is both significant and meaningful that courts have begun to recognize that the rights of these communities to meaningful consultation can never be trumped by commercial considerations of governments or multinational corporations.

And while these communities have often received (conditional) public support, they also face significant backlash and have been on the receiving end of multiple-attacks from all segments of society. Frustratingly, they have been characterized as “anti-development.” This is a common criticism, even parroted by government officials. In a country with significantly high levels of poverty and unemployment, the criticism of a community that wishes to protect their rights and the interests of society is both misplaced and delusional.

The struggles of Wild Coast and west coast fishers highlight the interconnectedness of people and the planet. From these communities we learn  how to be better advocates for the planet, how to speak about inter-generational equity, and also live it, how to fight for justice by not separating ourselves from the environment. They practice the essence of participatory democracy by advocating for community-driven development, for bottom-up development. We owe them our endless support because they have illustrated what resilience, bravery and hope looks like in the face of despair.

About the Author

Priyanka Naidoo is a candidate attorney working in the land program at the Legal Resources Centre, Cape Town. Her other interests include cats, coffee and constitutional law.

Natalie Barefoot is a senior attorney at Earthjustice who tackles international ocean issues with the belief that legal protections should be earth-oriented, community-inspired, and respect all living beings.

Further Reading