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Take your dynamite and shove it where the sun don’t shine — for ...

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Take your dynamite and shove it where the sun don’t shine — for now

High court interdicts companies from continuing West Coast seismic survey pending outcome of internal appeal

Journalist
Some of the litigants who took on the ministers of mineral resources and energy and environment, forestry and fishers, as well as businesses.
VICTORY Some of the litigants who took on the ministers of mineral resources and energy and environment, forestry and fishers, as well as businesses.
Image: Philani Nombembe

The Cape Town high court has issued an interdict against those involved in the controversial seismic survey off the West Coast.

Judge Daniel Thulare handed down judgment on the matter on Tuesday afternoon.

Small-scale fishers, indigenous communities and individuals hauled the ministers of mineral resources and energy and environment, forestry and fisheries, as well as Searcher Geodata (UK), Searcher Seismic (Australia), the Petroleum Agency SA and BGP Pioneer, to court regarding the granting of permission for the survey.

Small-scale fishers said they were not consulted, while environmentalists feared the survey might have a dire impact on marine life. On February 7, Thulare granted the litigants an interim interdict against Searcher Seismic, stopping the blasting off the West Coast from Cape Town to Namibia.

The parties returned to court on Thursday to slug it out.

Only Searcher Geodata and Searcher Seismic put up a fight in court. The ministers and the other companies said they would abide by the court’s decision.

The minister of mineral resources and energy granted the seismic survey permit on May 18 2021, leading the litigants to also launch an internal appeal against it. The Western Cape government followed suit.

On Tuesday, Thulare interdicted the companies from continuing the seismic survey pending the outcome of the internal appeal. He also slapped Searcher Geodata and Searcher Seismic with a costs order.

The judge described the mindset of environmental consultant Jeremy Blood, who oversaw the consultation process on behalf of the researcher, as “worrying”.

Blood prepared the environmental management plan (EMP), with Thulare saying he, and by extension Searcher, “did not deem the small-scale fisheries along the West Coast as directly affected”.

He said Blood relied on his company’s database and information from Capricorn Marine Environment to compile “an interested and affected party database for the survey”.

“The newspapers, email notifications, publication on the website and filing [of] hard copies at libraries clearly targeted those with access thereto,” the 22-page judgment reads.

“This was further limited to English and Afrikaans speakers who could read, and in other instances only those with technological devices. The isiXhosa speaking, although the language is one of the three official languages of the Western Cape province in terms of policy, were simply disregarded.

“The illiterate and the poor were, by design of the methodology, excluded,” it continues.

“Only the commercial fishing sector was deemed to be worthy to be properly consulted. In a meeting with SLR, the commercial fishing sector [was] favoured with an overview of the project proposal and the reconnaissance permit process [was] presented with key findings from the draft EMP and ... provided with an opportunity to raise questions or issues of concern.”

The litigants told the court they could have heard the notification about the survey if it was aired on community radio stations, “if Searcher truly wanted to ensure that they were included in the consultation process”.

“It could have advertised in isiXhosa, English and Afrikaans [on] both commercial and community radio stations and in print media,” the judgment reads.

“Further, it could have called community meetings. These were but some of the multiple ways in which Searcher could have reasonably facilitated the process of consultation to make it meaningful. Searcher did none of these.”

The litigants alleged that Searcher outsourced its obligation to consult to an NGO. They accused the company of “simply ticking the box in an attempt to get away with formal compliance, with no regard [for] the substance of the duty to consult”.

“The communities and individuals who were impacted and were likely to be impacted by the survey had a right to be consulted,” the judgment reads.

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