Another Tick in the Box

SHELL CHUCKED: The Extinction Rebellion say bye to Shell. Photo Nicky Newman / graphic Spike

Judge Gerald Bloem dismissed the application with costs, which means the interim interdict remains in place pending an upcoming application to deal with Part B of the application by East Coast communities to set aside Shell’s exploration rights.

According to Attorney Ricky Stone from Cullinan and Associates, who has driven much of the legal process, Shell and the DMRE could now petition the Supreme Court of Appeal (SCA) on the strength that their application for leave to appeal was dismissed. The SCA could decide to hear this appeal, or decide to refer it back to a full bench for further deliberation.

However, as Stone points out, this is not good timing for Shell and the DRME because the hearing over Part B has been set for 30 May, "so it would make little sense to proceed. Their best chance would be to go strong when Part B of the original interdict is heard".

Part A dealt with the initial application to stop the seismic survey pending further review (Part B) into the legitimacy of the exploration rights given that the law changed (8 December 2014) after the rights were given by the DRME in 2013.

"Their original argument was that they should be allowed to continue because they had been granted the rights before the law was promulgated requiring Environmental Impact Assessments as part of NEMA regulations (National Environmental Impact Assessment and Management)."

TOXIC DILUTION: The fossil fools suffered another body blow to the bloodied bow. Graphic Spike

According to the governmental regulatory document explaining the law: "In terms of the Bill of Rights, included in the Constitution of the Republic of South Africa of 1996, everyone has the right to have the environment protected and to live in an environment that is not harmful to human health or well-being. Legal instruments developed to ensure that this right is given effect to, include, inter alia, the EIA regulations promulgated in terms of the ECA and the NEMA."

The nub of the law is that: "NEMA requires that an environmental authorisation be issued by a competent authority (CA) before the commencement of a listed activity in terms of the Environmental Impact Assessment Regulations Listing Notices for Basic Assessment or scoping & Environmental Impact Assessment. The purpose of these regulations is to avoid negative impacts on the environment or where they cannot be avoided, ensure mitigation and management of the impacts to acceptable levels, while optimising positive environmental impacts."

This is the crux of the argument, says Stone, in that you cannot conduct seismic survey or any other mining activity that currently requires adherence to the current law even if permission was granted before the law was passed.

"Part B deals with the hearing for a Final Interdict because they don't have an Environmental Authorisation in terms of NEMA to commence the survey, which we say they need. Part B also calls for a judicial review hearing to set aside the granting of the Exploration Right and/or the renewals of that Right based on many grounds, such as insufficient public participation, and failure to take other laws (such as the NEM: Integrated Coastal Management Act) into account," Stone said.

A team of national and international lawyers are working to stop seismic surveys around the coast. Please use and share the following link to donate via The Green Connection:

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