Urgent interdict filed to block Shell’s Wild Coast seismic survey

On the eve of Shell’s controversial 3D seismic survey off the sensitive Wild Coast, a group of environmental and human rights organisations have filed an urgent court application to stop the petroleum giant in its tracks.

The applicants, who are being represented by law firm Cullinan & Associates, are the Border Deep Sea Angling Association, the Kei Mouth Ski Boat Club, Natural Justice and Greenpeace Africa.

On Monday night, they filed an urgent “interim-interim” interdict in the Eastern Cape division of the high court to stop Shell from embarking on its months-long seismic testing between Morgans Bay and Port St Johns, which is due to begin on Wednesday.

In a joint statement, the applicants said the commencement of the seismic exploration activities was “prima facie unlawful until Shell has applied for, and obtained” the necessary environmental authorisation in terms of the National Environmental Management Act.

“We also believe that the decision-making process amounts to unjust administrative action since interested and affected parties were not informed of the granting of the exploration right nor given an opportunity to appeal it. The public were also not notified of the two applications to renew the exploration right.”

‘Interim-interim’ interdict

The matter will be heard in Grahamstown and argued virtually at 2pm on Wednesday.

“The normal procedure [is], if you think that some kind of authorisation has been granted incorrectly, you would approach the court to review it and set it aside, but normally then one would have applied at the same time for an interim interdict until the court has decided on whether the authorisations are lawful,” Cormac Cullinan, the director of Cullinan & Associates, told the Mail & Guardian.

“What’s happened here is because we needed to act so very quickly because they’re [Shell] about to start, we said to the court, ‘Can you interdict them from starting until such time as we’ve finished completing our legal papers to make a proper application to review and set aside the decisions.’ And then we would also ask again for an interim interdict for a longer period. So it’s the kind of thing you do when it’s super urgent,” Cullinan said. 

“If we are successful tomorrow afternoon the judge will say they may not commence, but he will probably only set it for a short period of time, by which time we have to come to court with proper papers and argue the case more fully.”

Cullinan said all the communities along the Wild Coast, including Xolobeni, want to be involved in the litigation: “If we can put a spoke in the wheels and stop it for a few days, they will also institute litigation and will join with us.”

In addition to Shell Exploration and Production South Africa, the other respondents are Mineral Resources and Energy Minister Gwede Mantashe; Forestry, Fisheries and Environment Minister Barbara Creecy; Impact Africa Limited and BG International Limited. Shell acquired a 50% interest in the exploration venture last year, with the rest held by Impact Africa.

Marine life disturbed

Shell’s seismic vessel, the Amazon Warrior, will “for five months, fire air guns every 10 seconds through 6 011km² of ocean surface, firing extremely loud shock wave emissions that penetrate through 3km of water and 40km into the Earth’s crust below the seabed”, according to the applicants.

“Marine life on the sensitive Wild Coast would be disturbed and destroyed with many sea creatures like whales, dolphins, seals, penguins, sharks and even crabs and tiny shellfish being negatively impacted by the blasts in the coming months.”  

In an affidavit, Lagi Toribau, the interim executive director of Greenpeace Africa, said Shell’s efforts “will not cease” at exploration. “They have every intention to extract and refine any oil or gas resources they may find along the Wild Coast. As such the risk of water pollution remains a very real threat …

“The Wild Coast has not been spared in the scourge of oil spills in our oceans, having experienced an oil spill merely a month before the planned seismic activity. The wellbeing of marine life and communities remain threatened by the risk of oil spills that is inevitable when working with fossil fuels.”

Large concentrations of marine mammals 

According to the World Wide Fund for Nature South Africa (WWF SA), the coastline has some of the largest concentrations of marine mammals in the world, among them humpback whales and dolphins. “It is also home to dozens of endemic species, a host of marine and coastal habitats, and pristine estuaries. It also forms part of a unique transition zone with elements of subtropical and warm temperate systems. 

“The sardine run that can be seen along this coast — sometimes called ‘the greatest shoal on Earth’ — is unequalled in scale and spectacle, and almost certainly worthy of global heritage status.”

Toribau’s affidavit describes how the planned seismic survey “will have dire and direct impacts” on the socioeconomic standing of the communities of Xolobeni, Nqamakwe and Port St Johns, which depend heavily on ecotourism and fishing for their continued survival. 

Seismic activity and noise have proven to have drastically negative effects on marine biodiversity and wellbeing, Toribau said. 

The exploration rights area is home to a multitude of marine-protected areas: the black mussel cracker, stonebream and South Africa’s national fish, the galjeon, among others, are indigenous to the region and “may be lost forever” because of “these unnecessary activities”.

The Wild Coast’s pristine beaches and biodiversity attract millions of tourists every year. “Seismic surveys have been linked to decreased sightings of marine life and decrease catch rates for commercial fishing. Their subsequent absence from our marine environment will have direct and dire consequences on the livelihoods of these communities,” Toribau said. “The needs of these communities far outweigh the interests of carbon majors such as Shell.”

Climate risks

According to the applicants, they intend putting expert evidence before the court to expose how “irrational and socially unjust” it is for Shell to continue looking for more oil and gas reserves when the reserves already discovered “cannot be used without causing catastrophic climate change”, particularly in light of the Dutch court ruling ordering Shell to reduce its greenhouse gas emissions by 47% within this decade.

“This flies in the face of the government’s responsibility to protect and safeguard human rights and the environment,” said Pooven Moodley, the executive director of Natural Justice. “It also undermines our government’s obligation under the Paris Agreement to mitigate the climate crisis for people now, and for future generations, and contradicts the commitments made at the recent COP26 in Glasgow to lower emissions and advance a just transition.” 

Robyn Hugo, the director of climate change engagement at shareholder activist organisation Just Share, said Shell and Impact Africa are relying on an assessment and public participation process that is more than eight years old.

“The survey’s severe impacts — on our ecologically diverse and sensitive environment and on affected communities — cannot be sufficiently mitigated,” Hugo said. “But even if they could, it is extraordinarily difficult to understand why Shell is pursuing the search for offshore oil and gas reserves, which are arguably already stranded assets. Allowing this to go ahead is irrational and opens the government and companies up to substantial litigation risks.”

Shell’s response

Shell told the M&G that it has noted the application filed in relation to its planned seismic survey off the Wild Coast and confirmed that it intends to respond.

“We are committed to safety and compliance, and have met all the obligations of the regulations. As a responsible and leading global operator, we apply stringent controls and international best practice guidelines to our operations. 

“These best practice procedures are well established and in line with the latest worldwide research. South Africa has already had many similar surveys safely completed off our coastline by Shell and other operators,” Shell said. 

“We have completed all necessary stakeholder engagement related to the planned survey. Shell also participates in joint industry programmes, including [the] sound and marine life joint industry programme, which is at the forefront of leading research for sound in the marine environment.

No response from ministers

According to the applicants, the mitigation measures proposed by Shell are “wholly inadequate for South Africa’s most diverse coastline and will cause irreparable harm to whales, dolphins, crayfish, endemic reef fish, fish larvae, turtles, birdlife and zooplankton”.

Natural Justice said on Friday that, despite countrywide protests against Shell, petitions and multiple legal letters sent to the ministry of mineral resources and energy and ministry of forestry, fisheries and the environment, “concerning our rightful request to halt the commencement of seismic surveys” by Shell and Impact Africa, there had been no response from the departments.

In response, Albi Modise, Creecy’s spokesperson, told the M&G: “Exploration rights and the extension of those rights are issued under the Mineral and Petroleum Resources Development Act. 

“The administration of the Act is the mandate of the minister responsible for minerals [and] resources. Any query regarding the procedures followed in issuing the exploration right or the extension of that right must be directed to the department of mineral resources and energy.”

Creecy, Modise said, received the correspondence from Cullinan & Associates on 23 November requesting the minister issue a directive under section 28 of the National Environmental Management Act and a coastal protection notice in terms of the National Environmental Management: Integrated Coastal Management Act. “The requests and the reasons for the request have been studied and the minister will respond in due course,” Modise said.

The mineral resources and energy department did not respond to the M&G.

Significant effects

In his affidavit, Tyrone Gower, the president of the Border Deep Sea Angling Association, said the exploration rights for the seismic surveys were granted without adequate public participation “and a wide range of individuals, local communities, civil society organisations and businesses are strongly opposed to the seismic surveys and exploration activities proceeding and have united in opposition to them”.

Gower said the seismic survey will involve extremely loud underwater explosions or discharges (220 decibels according to the environmental management programme) at intervals of up to 10 to 20 seconds. “Shell and Impact Africa intend to continue with this for 24 hours per day for four to five months,” he said. 

“The explosions or discharges are sufficiently strong to cause major disruption or damage to a larger range of animals, including various fish species, marine mammals, such as whales and dolphins, turtles, crustaceans and other creatures. They are also expected to kill the eggs of fish and squid that are carried southwards by the Mozambique current through the intended survey area.”

The seismic surveys, Gower said, are proposed to be undertaken in extremely close proximity to several marine protected areas, and to overlap with the protea banks and sardine route ecologically and biologically significant areas. “The seismic survey area also lies in close proximity to several critical biodiversity areas.”

John Luef, also of the association, told the M&G that the region’s waters are home to endemic species such as the red steenbras, seventy-four and wreckfish, as well as many other fish species, including the endangered dageraad, which are on the verge of total collapse. 

The planned blasting will take place in and adjacent to their breeding grounds, he said. “They are found here more than anywhere else along our coastline by a long way. What guarantees have we got that those species won’t be affected? And what about the millions of species on the seafloor — how will they be able to swim away from these blasts?” he asked.

Incompatible developments

WWF SA said it was concerned about the mounting threat of “incompatible developments” along the Wild Coast and that it does not believe that the development of an expanded fossil gas industry is necessary for South Africa’s energy mix transition, adding that it is not aligned with the country’s recent climate commitments at COP26.

“In a world of rampant climate variability where nature loss is rapid and often catastrophic, the Wild Coast is a unique natural asset. The Wild Coast is largely rural and undeveloped and the people who live here are dependent on the biodiversity for their livelihood mainly from consumptive use and tourism-related activities,” WWF SA said.  

The department of forestry, fisheries and the environment, it said, has allocated 57 fishing rights to small-scale fisher co-operatives along this coastline. 

“Communities along the Wild Coast are justifiably concerned about the promises that are being made while it is unclear who the real beneficiaries of these proposed developments will be. Too often, distant shareholders have little knowledge or interest in the inevitable consequences of incompatible development, and some will come at the expense of local people and nature.” 

Countrywide protests are planned for Sunday 5 December.

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Sheree Bega
Sheree Bega is an environment reporter at the Mail & Guardian.

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