The R4.5 billion development at the River Club site at Observatory has been halted, with a court ruling that developers must “meaningfully consult” with everyone affected.
The interim ban granted by Western Cape Associate Justice Chairperson Patricia Goliath will remain in place pending a review of relevant environmental land use permissions for development on the historically and culturally significant floodplain.
In her ruling, Justice Goliath said the fundamental right to culture and heritage of indigenous groups, particularly the Khoi and San First Nations peoples, was at risk because they had not been properly consulted.
“The order of this tribunal should not be construed as a criticism against development…The central consideration is the issue of appropriate and meaningful consultation with all affected First Nations peoples,” she said. .
“The fact that development has substantial economic, infrastructural and public benefits can never outweigh the fundamental rights of First Nations peoples.”
The development of a “large-scale urban campus”, on the site where the Liesbeek and the Black River meet, began last year. It includes the regional headquarters of Amazon.
The Observatory Civic Association (OCA) and the Goringhaicona Khoi Khoin Indigenous Traditional Council (GKKITC) went to court for the ban, citing trustees of the Liesbeek Leisure Properties Trust, provincial and local government and the Western Cape First Nations Collective as defendants.
The site, which was purchased by the trust for R12 million, is part of a larger area known as Two Rivers Urban Park (TRUP), which was the dominion of the Gorinhaiqua and, according to the claimants, is the only undeveloped remnant of the pastures used in the summer by the Khoekhoe for their cattle.
The claimants said the sites hosted “significant ceremonies and gatherings” and are “memory holders”.
A heritage study commissioned by the provincial government concluded that the entire TRUP area has historic and symbolic value.
Justice Goliath, in her ruling, said any development of the site required consultation with the First Nations group and to that end the provincial Department of Public Works had appointed Rudewaan Arendse of AFMAS Solutions to consult with the First Nations groups. Nations and prepare a report on a local territorial development framework for the TRUP.
However, there were divisions within this group. A development group was created under the umbrella of the First Nations Collective and the GKKITC terminated its engagement with Arendse during the consultation process.
There were further consultations led by Heritage Western Cape which led to a report and several rounds of public comment, which were overwhelmingly negative.
The environmental clearance, which Heritage Western Cape opposed, was issued in August 2020.
Development began in July 2021.
In his affidavit to the court, GKKITC Commissioner Tauriq Jenkins confirmed he was interviewed by Arendse, but said that after the formation of the First Nations Collective to Support Development, opponents were “vilified and mistreated”.
He believed that Arendse had a conflict of interest, and his report elevated the First Nations Collective to “the authoritative voice” and downplayed the cultural significance of the River Club site.
The report referred to Goringhaicona in derogatory terms such as “wanderers and outcasts”, while the group supporting the development had been described as “the traditional guardians of the historic landscape”.
The developers, in opposing the ban, said there had been meaningful consultation and public participation.
They said the community’s cultural aspirations for the site had been taken into account and the development included an indigenous garden for medicinal plants, a cultural and heritage media center and a heritage eco-trail.
Around 60% of the property would be open space, accessible to the public and the Liesbeek canal would be rehabilitated.
They denied favoring the First Nations Collective or obtaining “fabricated consent.”
Any delay in development could render it unviable, leading to job losses, the developers said.
Cape Town was on the promoter’s side. He said any ban would sabotage the only viable opportunity to protect and celebrate heritage resources at the site.
The city said the economic benefits of the project were substantial, the applicants had been given the opportunity to make detailed submissions, and they had no right to veto the development because they were not agree with this one.
Justice Goliath, in her ruling, said the developers had sought to persuade the court that the project was supported by the majority of First Nations groups through the First Nations Collective.
Jenkins had disputed this.
The judge said Heritage Western Cape, in its opinion on the AFMAS report, expressed concern about “the ethics of engagement”.
Other experts agreed with this proposal.
“I am aware of the proponents’ assertion that their consultants have made considerable efforts to engage with First Nation groups. However, in my view, Arendse was in conflict and her position as an objective and trusted expert to facilitate meaningful consultations with those opposed to development was compromised,” she said.
“It is evident from the documents that the Arendse report created tension and deep divisions in at least two First Nations groups…Jenkins’ perception that Arendnse was biased was reasonable under the circumstances.
“Therefore, the AFMAS River Club report is tainted…and I am satisfied that all affected First Nations groups have not been adequately consulted…and those who have been excluded could suffer irreparable harm if construction proceeds. was continuing pending the review process,” she said.
The judge allowed the parties to approach him for further guidance to facilitate an expedited review. DM