By Jennifer Whittingham and Anna James
This time last year Small-Scale Fishers, lawyers, activists, and community-based organisations were celebrating the court ruling granting an interdict to halt a propose seismic survey along the West Coast. West Coast small-scale fisher leaders worked with lawyers and the High Court to object to this activity which essentially invites further ocean mining to an already overmined west coast, putting livelihoods and culture at risk for the benefits of extract fossil fuel industry.This echoes the similar mobilisation and court case on the east coast against a seismic survey by shell. The resulting judgements not only halted potentially harmful activities but set vital precedents for the importance of cultural heritage and the ocean as well as meaningful participation in decision making.
A year later, the very same company has been given authorization to do a seismic survey again (See reasons for decision on Oceans Not Oil website). Searcher has just been granted an environmental authorization to do a seismic survey along the west coast. This authorization was granted on 6 January so you would be forgiven for missing the announcement…
As a coastal justice collective, we feel a deep sense of disappointment at this decision; it defies the hard won justice fought by ocean defenders just a few short months ago. It yet again indicates the tireless expansion of oil and gas developments currently underway along our coastline.
At the news of this authorisation many of us asked, why don’t we go back to court? The answer is that, this particular application is located much further away from small-scale fishing grounds making it a harder case to fight. In addition, the applications for oil and gas are so numerous that there are not enough resources to have court battles for each of them. This makes us think that perhaps we need to focus on a plethora of coastal justice strategies at this stage.
Such strategies should emerge from active solidarity relations with people living on and with the coast, from black and brown communities who have been systematically marginalized from the extractivist South African economy that seems hell bent on carving up and dishing out rights to foreign companies, block by block. Building organization and resistance from this level is to strengthen a genuine participation in decision making about the multitude of struggles that communities face in addition to the assault of oil and gas developments.
While another court case was not possible, it was possible to write an appeal. We joined organizations such as Oceans not Oil in doing one (you can read our appeal below). An environmental appeal is a small but significant act in the plethora of strategies to fight injustice along the coastline.
While it is daunting to appeal an authorization, it is possible! An appeal is a procedure written into South African Environmental Law that enables anyone to appeal an environmental authorization. This is the blog that we wish we could have read prior to drafting this.
What did we learn writing our appeal?
We couldn’t believe how laborious it was. Even as a recently graduated PhD student and a current PhD student who are rooted in the environmental sciences and environmental education, it really challenged us! It required intensive study of the environmental impact assessment process and a careful crafting of the “grounds for appeal” in terms of either the process or a relevant piece of legislation. Knowing the relative privilege we hold in time and access to documents and familiarity with report writing, we wondered how others were supposed to do this.
We learnt that, unfortunately, an appeal needs to be articulated in a very different way to ‘Phantsi oil and gas’ which is a valid objection, sounding loud and clear from numerous protests against exploitation of our ocean commons. We learnt that it also couldn’t be an African eco-feminist essay about the violence of the cartesian divide and the importance of relationality with the more-than-human. We needed to spell out clearly very specific concerns about the application keeping in mind the government audience (See below for grounds of appeal). The appeal is an ‘inside’ strategy that appeals to the existing laws (which also serve to condone oil and gas development) to reconsider a decision.
Once submitted, each appeal must be responded to by the applicant (the party applying for the authorization), which means that the more numerous these appeals, the more time they must spend responding to our concerns. Appeals also act as a paper trail of objection to these authorisations for oil and gas mining coming fast and furious to South Africa’s coastline. If we have enough of them over time, we could build a stronger case for a strategic reconsideration of oil and gas development.
So, if you have time, and concern about a development close to you, you should do one!
What is an appeal?
An appeal is a submission to the department of Environmental Forestry, Fisheries and Environment (DFFE) challenging an environmental authorisation. It is stipulated in NEMA (Section 43). This small act is tiresome and time consuming and requires the reading and understanding of a lot of heavily technical writing and reports written in English. See for example the documents for the latest seismic survey authorisation (here is a link to all the documents) and here is the link to the Basic Assessment Report). This is despite the fact that these processes should be available to everyone and anyone in South Africa who objects to an environmental authorisation.
Why write an appeal?
- You know there are good reasons why this decision should not be made – this is what the appeal process is for.
- Appeals have (a small amount of) power when lots of people submit them because they need to be responded to by the applicants who put the reports together (BAR guidelines DFFE). This has a stalling effect and also contributes to more rigorous participation in decisions that affect our well-being.
- Appeals become a record of objection. If we have enough of these over several applications, we may have grounds for a bigger court objection.
‘Grounds for appeal’ common across many authorisations
We have to make a mind shift from “No this is not right!!” to really laying out clearly, plainly and with reference to legislation – why this environmental decision should not have been made – these are known as “grounds for appeal”.
It was helpful for us to think of the ‘grounds for appeal’ like critical post boxes into which we put our concerns. The post boxes usually relate to a specific law or policy that the consultants and those they are representing are bound to. They also overlap with recurring issues in environmental decision making such as failure to consider projects in relation to other developments nearby (cumulative impacts) or the exclusion of people who will be affected by the development (public participation). If you can find the right post box for your concern and you can make reference to laws or ecological questions, it makes the appeal stronger! It is important to remember that while these ‘grounds’ are common across different projects, you must tailor them to the specific project you are objecting to. We have concluded each post-box section with a probing question.
Post Box 1: Failure to adequately consider uncertainty relating to potential impacts on marine ecology and fisheries: scientists on both sides of the argument agree that seismic surveys pose some harm to marine life. What they differ on however is the intensity of the harm and the extent to which the harm can be managed and minimised. There are relevant and peer-reviewed scientific papers on the harm that seismic surveys pose to marine life but because some of these studies are either not on the specific species, or in the specific area of the seismic survey there is some uncertainty as to the harm that this particular seismic survey will bring. But importantly, the Precautionary Principle states that lack of evidence of harm should not be a sign that there is no harm and asks the governance structures to exercise caution in the face of scientific uncertainty. In this authorisation we see the opposite; the lack of evidence of harm is used as a stamp of approval to move ahead with the project.
Scientists have told us that not enough is known about the impacts of seismic surveys on important marine species on the West Coast including zooplankton upon which many other species depend but also the hearing impairments and movement of African penguins, whales, dolphins, leather backed turtles, gannets, snoek, and sharks and rays. Some of these animals are critically endangered while others are sensitive to impacts, all of them are critical to the West Coast ecosystem.
Probing question here is: How does the application treat scientific uncertainty?
Post Box 2: Failure to conduct meaningful and adequate public participation: NEMA requires that
“[P]articipation of all interested and affected parties in environmental governance must be promoted, and all people must have the opportunity to develop the understanding, skills and capacity necessary for achieving equitable and effective participation, and participation by vulnerable and disadvantaged persons must be ensured.”
The public participation report in the BAR we appealed, did not seem to forfil this NEMA clause. In the report, it was clear that members engaged in the process felt strongly that their questions were not being answered by the consultants and the specialists. The focus of the public participation process seemed to be limited to the notification and inclusion of comments, which does not reach the requirements set out in NEMA (National Environmental Management Act) and there is little evidence of what the consultants did to enable meaningful participation in this application. Small-scale fishers all along the West Coast did not feel that their sector had been adequately understood and engaged with and therefore could not be considered for potential damaging impacts. Little effort was made by the consultants to provide transport to IAPS (Interested and Affected Parties). Incidentally, many who participated in the public participation expressed clear objection to this activity.
Probing question: How were all potentially interested and affected people enabled to participate in this application? Did they have skills and capacity to engage with the information? Where languages are taken into consideration? Looking at the list was this “equitable and effective” public participation? Were vulnerable and disadvantaged groups included? Finally, were the concerns of the public genuinely taken into account in the reports?
Post Box 3: Failure to consider the connection between a seismic survey and the impacts of subsequent developments if oil and gas deposits are found: the application states that the discovery of oil and gas off the shore will be desirable for South Africa. However, they also claim that they are not required to present the impacts of oil and gas as this application is only for the seismic survey. They cannot have it both ways! The claim that oil and gas are necessary for South Africa’s energy transition must be considered against the climate impacts of this in the context of the climate emergency we are in (see here for comment on avoiding temperature rise by 1.5dC) as well as the failure to adequately support the development of other energy sources. In addition, the question of “who will benefit” and “who will bare the costs” of the seismic survey and any subsequent oil and gas development is not considered.
Probing question: Who benefits from this application? Who bears the costs?
Post Box 4: Failure to strategically consider this seismic survey and any subsequent development in relation to other extractive activity along the coastline: this BAR did not strategically consider the West Coast as an area that is already under such intensive mining activity. The West Coast is experiencing intensive mining activity from Saldanha bay all the way up to Namibia, and yet no strategic assessment of the cost of this development has been done. This is in contravention to our National Marine Spatial Planning Act, the White Paper on National Environmental Management of the Ocean (2014).
Probing question: What is the place of relevance to this application? What else is going on there? Does the decision take into account the cumulative impacts upon the whole social-ecology of the area?
These were just some of our post boxes into which we put our wide ranging concerns. There were more and while it’s likely that these will be applicable in future appeals, it’s important to adapt them to the specific project that you want to appeal.
Next we share some suggested steps in the process before an appeal dictionary and relevant legislation for applications along the coast.
How to write an appeal
- Do you have the time? If you are sat in the walls of academia, it’s often difficult to see or feel like your work is having an impact. Writing an appeal is a (fairly) simple way to heighten your impact as a scholar-activist. Consider what we said about where appeals sit in the broader struggles for coastal justice and decide if you have the time and if the effort is worth-it, especially if you join others.
- A problem shared is a problem halved. Consider inviting some colleagues to do the appeal with you. You can divide and conquer the appeal process by dividing up the supporting documentation. Play to your strengths and decide on roles and responsibilities: who will dive into which reports? Then set a time-line with the deadline for appeals in mind.
- Understand the BAR and its supporting documents. An authorisation decision is often based upon receipt of; (1) the main report upon which the decision was based; (2) the specialist reports; (3) the appendices. You should be able to find these on the website of the consultants.
- What are your concerns about the authorisation? Whilst reading the reports with your critical lens, jot down all your immediate worries highlighting evidence from the reports as you read. Remember page numbers!
- A strong appeal links evidence to relevant policies and legislation. Ask yourselves; (1) what is said in NEMA that is relevant to your concerns?; (2) what is said in the Marine Spatial Planning Act?; (3) are there any relevant conservation concerns surrounding the application? (Think ESBAs, CSAs, MPAs!)
- Post Boxes.
- Creating your ‘Grounds for Appeal’. Now it’s time to build your different post boxes into which you can put all of your concerns – backed up by evidence found in the report AND linked to relevant legislation. See our appeal below for an example.
- Formatting & Sending.
- Transfer all your post boxes into the official appeals document: one post box = one ground.
- Whilst you need to send the appeal document to the email address mentioned in the appeal document, it’s also a requirement to send the appeal to all I&APs. This is complicated but if you have Gmail, there is an easy way to send a mass email.
- EA (Environmental Authorisation): the stamp of approval given by the relevant government department that allows the applicants to go ahead with the project they applied for.
- EIA (Environmental Impact Assessment): a process of evaluating the likely environmental impacts of a proposed project or development
- IAP (Interested and Affected Parties): people who have a concern about a development, project, policy or action and who need to be consulted during the process of decision making
- BA (Basic Assessment): a requirement for environmental authorisation, it is an investigation into issues and potential impacts of a proposed activity. A BAR is the Basic Assessment Report that represents that assessment.
- DFFE (Department of Forests, Fisheries, and Environment)
- DMRE (Department of Mineral Resources and Energy)
- Public Participation: as defined in NEMA (section 1): “In relation to the assessment of the environmental impact of any application for an environmental authorisation, means a process by which potential interested and affected parties are given opportunity to comment on, or raise issues relevant to, the application”
- Precautionary Principle: The precautionary principle exists in the NEMA principle relating to sustainable development: ”that a risk-averse and cautious approach is applied, which takes into account the limits of current knowledge about the consequences of decisions and actions”.
- Applicant – The company who is applying to undertake an activity for which Environmental Authorisation is needed.
- Cumulative Impacts – impacts from the sum and the interaction effects of multiple development projects on an environment.
These are pieces of legislation, many of which include quite progressive principles for environmental democracy, which you can use to build your grounds for appeal.
- NEMA (National Environmental Management Act)
- Public Participation: section (2)(4)(f)
- Precautionary Principle: section 2(4)(a) (vii)
- Principles of Sustainable Development: sections 2(3) and 2(4)(a)
- National Marine Spatial Planning Act
- Section 5 specifically relates to any activities taking place in the ocean.
- Integrated Coastal Management Act
- Chapter 6, Part 5 (53) Consultation and public participation
- Chapter 7, Part 1 (58) Duty to avoid causing adverse effects on coastal environment
- Chapter 7, Part 3 (63) Environmental authorisations for coastal activities
- Small-Scale Fisheries Policy (Link to the strawfish)
Wild Coast NPC and Others versus the Minister and Others, Judge Mbehenge