Supporters of environmental non-governmental organizations gathered in front of the Shell station in Cape Town's Newlands district protest against seismic survey activities planned by the oil company Shell between Cape Town's beaches in Morgans Bay and Port St Johns in Cape Town, South Africa on December 04, 2021. (Photo by Xabiso Mkhabela/Anadolu Agency via Getty Images)
Shell, Impact Africa and Minister of Mineral Resources and Energy Gwede Mantashe have been granted leave to appeal a landmark ruling earlier this year that blocked seismic surveys for offshore oil and gas exploration on the ecologically sensitive Wild Coast.
In its judgment on Tuesday, the Eastern Cape high court granted the companies and Mantashe leave to appeal the whole judgment of the Makhanda high court on 1 September, to the supreme court of appeal. This followed a leave to appeal the hearing, which was held on 28 November.
What are seismic surveys?
Seismic surveys are used by mining companies to find and estimate the size of offshore oil and gas reserves, according to the South African Association for Marine Biological Research. A ship tows multiple airgun arrays that emit thousands of high-decibel explosive impulses to map the seafloor and rock strata.
Hydrophones attached to long cables pick up the signal reflected off the seafloor. Based on the return time of the reflected or refracted impulses to the hydrophones, the underlying structure of the ocean floor can be mapped in 3D.
Makhanda ruling
In its 1 September judgment, the Makhanda high court found that the exploration right granted by the minister to allow Shell to conduct the seismic surveys was unlawful.
Its order set aside the exploration right granted to Impact Africa in 2014, which was later transferred to Shell, and set aside the subsequent renewals of the exploration right as it found that these had been granted unlawfully. The court, too, agreed with arguments put forward by Wild Coast communities and NGOs fighting the exploration that Mantashe’s department had not considered the potential harm to anglers’ livelihood, people’s cultural and spiritual rights and the effect of climate change.
The legal challenge was brought by the nonprofit, Sustaining the Wild Coast, Wild Coast communities, Wild Coast small-scale anglers and All Rise Attorneys for Climate and the Environment, represented by the Legal Resources Centre and Richard Spoor Attorneys. Natural Justice and Greenpeace Africa were represented by environmental law firm Cullinan and Associates.
Latest ruling
According to Tuesday’s judgment, the applications for leave to appeal and leave to cross appeal (by the applicants) “do not pass muster; the appeal sought has no reasonable prospects of success”.
But the court found that “the parties agree that this matter is of significant importance and requires ventilation by the supreme court of appeal. We also agree.”
Both the leave to appeal and the leave to cross-appeal were granted.
In their appeals, Shell, Impact Africa and the minister had cited the delay by the local groups and NGO partners in the bringing of the review and whether the local groups and the NGO partners should have pursued an internal appeal to the minister prior to approaching the court — as is required by the Promotion of Administrative Justice Act. They, too, had argued that they followed the letter of the law in consulting the public, and could not be held to higher standards than that.
The applicants, meanwhile, had sought leave to cross-appeal the Makhanda high court’s decision not to consider whether Shell and Impact Africa required an environmental authorisation before starting their seismic survey. In the September judgment, the court declined to rule on the declarator as it found it unnecessary since the exploration right was set aside.
‘Extraordinary importance’
Shell did not respond to the Mail & Guardian, but told news platform Energy Voice, it welcomed the court’s decision.
Wilmien Wicomb, of the Legal Resources Centre, said: “Given the novelty and significance of the judgment and its extraordinary importance for communities around the country that bear the brunt of extractivism and climate change, it is in the public interest for the supreme court of appeal to rule on the matter. The battle for our clients continues.”
Government’s seismic testing research
Albi Modise, spokesperson for the department of forestry, fisheries and the environment, said the effect of ocean-based seismic surveys on marine protected areas and on the fishing industry “remains a major issue” in the public domain.
“To ensure mitigation measures protect both our ecosystems and our fishing resources, the department has developed a research programme on seismic surveys and their impacts in our local waters.”
The scientific investigation is being undertaken in a collaborative approach with other relevant national research institutions, he said. It is expected that some preliminary results of various desktop studies and other advanced scientific work will be available during the first quarter of 2023.
Modise said there are various components of the investigation that will be reported on an annual basis or as soon as major findings can be reported.
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