A group of four environmental and human rights organisations who lost their legal challenge to stop Shell’s controversial search for oil and gas in the waters of the sensitive Wild Coast say their fight to safeguard the marine environment is “far from over”.
On Friday morning, the high court in Makhanda gave the petroleum company the green light to proceed with its 3D seismic survey.
Acting Judge Avinash Govindjee, of the Eastern Cape division of the high court, dismissed the application for an urgent interdict, which was brought on a hyper-urgent basis on Monday night by the Border Deep Sea Angling Association, Kei Mouth Ski Boat Club, Natural Justice and Greenpeace Africa, to try to stop Shell’s four to five month seismic exploration from proceeding on 1 December.
The applicants, Govindjee said, had failed to convince him that there was a “well-rounded apprehension of irreparable damage to marine life” in the waters between Morgan Bay and Port St Johns where the seismic testing is to take place.
The applicants had argued that the underwater seismic blasting would “disturb and destroy” whales — particularly migrating humpback whales in the region — dolphins, seals, penguins, sharks, crabs and tiny shellfish.
In his judgment, Govindjee said the applicants’ submissions relating to the detrimental effect of the seismic testing on the environment, and marine life in particular, were “speculative at best”.
“Counsel for the applicants was reduced to reliance on the low significance of harm mentioned in the environmental management programme report [EMPr],” he said, reading an expert affidavit by Tess Gridley, a leading marine scientist, submitted as part of the applicant’s case, and which promised further expert testimony.
“It says no more than the following: ‘I’m of the view that the assertion that there remains no evidence that sound from properly mitigated seismic survey has any significant impact on any marine populations is misleading. Acoustic disturbance in the ocean can have serious effects at multiple levels from the individual to the population and even ecosystem affects if multiple species are affected’.”
Govindjee said the applicants’ contentions of a reasonable apprehension of irreparable harm had not been established for Shell’s exploration of potential hydrocarbon reserves beneath the seabed.
“There is, in addition, no basis in the papers to suggest that the detailed mitigation strategy emanating from a 600-page EMPr is inadequate or to gainsay that Shell will implement the promised range of mitigation measures and do so properly. Indeed Shell is obliged to do so in terms of the EMPr to ensure its activities remain in the low-risk band.”
He said there is “no merit” in the suggestion that the EMPr must be read to prohibit seismic surveying in the month of December, when migrating humpback whales were moving along the Wild Coast.
“The EMPr provides that all other mitigation measures must be stringently enforced in the event that surveying during December takes place. This is consistent with the part of the EMPr dealing with physiological injury to cetaceans, which were the focus of much of the argument.
“The available information indicates that the animal would need to be in close proximity to operating airguns to suffer actual physiological injury. Being highly mobile, the EMPr assumes they would avoid sound sources at distances well beyond those at which injury is likely to occur. This does not suggest there’s no risk to marine species at all. But that is not the test.”
If the interdict was granted, Shell would miss its opportunity to complete the survey within the current seismic window. “This could have a range of consequences including compromising its interest in the exploration right and resulting in breach of its contractual obligations. This all contributes to its concerns relating to the millions of dollars of expenditure that has been incurred in preparation for the survey,” said Govindjee.
“Weighing massive financial consequences against any potential environmental harm, even at the likely lowest of levels, is an invidious task. Given the paucity of information as to the likelihood of environmental harm, the balance of convenience favours Shell.”
Shell said it welcomed the court’s decision, “which will help move this seismic survey forward in accordance with its regulatory approval and permitting”.
“Shell has long experience in collecting offshore seismic data and has taken great care to prevent or minimise potential impacts on fish, marine mammals and other wildlife. We have conducted an environmental study in line with regulatory requirements and obtained legal permits to carry out the activity,” the company added.
It said South Africa is highly reliant on energy imports for many of its energy needs: “Should viable resources be found offshore, this could significantly contribute to the country’s energy security and the government’s economic development programmes.”
Greenpeace Africa said the court decision “to allow Shell to continue with its plans to destroy the Wild Coast is very disappointing”.
“Not only will the blasting destroy precious biodiverse ecosystems, but it will also destroy the livelihoods of local communities, all in the name of profit. We will continue to support the nationwide resistance against Shell and pursue the legal avenue to stop Shell,” Greenpeace’s senior climate and energy campaign manager, Happy Khambule, said in a statement.
Pooven Moodley, executive director of Natural Justice, said the fight to safeguard the Wild Coast was not over.
“Our bigger struggle for climate justice, and to resist oil and gas drilling in South Africa and across the entire continent is far from over,” he added.
Govindjee found that the applicants had successfully established that there had been no undue delay in bringing the case and the urgency of the matter justified the departure from the usual rules so that the matter could be heard urgently. In this regard, he had taken account that “the public interest in this case is palpable”.
In his analysis of how the law should be applied to the facts of this case, Govindjee expressed doubts as to whether the applicants would succeed in reviewing and setting aside the grant in 2014 of the exploration right, given how much time had elapsed, or of the first renewal application because the lapsing of that renewal meant that the issue was now moot.
But, in relation to the second renewal application, he found that the applicants had succeeded in establishing that they had prima facie prospects of success due to the apparently inadequate public participation.
“This is based on my sense of the actual extent of public participation and the need for effective consultation, which requires more than notice alone,” Govindjee said.
According to the applicants, the application had to be made on a hyper-urgent basis “as a consequence of Shell’s actions and the inactions of the minister of mineral resources and energy, which meant that it had not been possible for experts to finalise detailed reports and affidavits by the time the application was launched”.
John Rance, the chairperson of the Kei Mouth Skiboat Club, described the judgment as “unthinkable. The seismic survey may go ahead, but there’s going to be one helluva shindig before mining starts.”
John Luef, of the Border Deep Sea Angling Association, said: “We are extremely disappointed with the outcome of this hearing. This is not the end, we will continue to fight for our local people, their heritage and the environment. We call on South Africans to stand together and protest this invasive and environmentally harmful seismic survey, as well as any future mining plans.”
The Democratic Alliance’s head of forestry, fisheries and the environment, Dave Bryant, said it was essential that the blasting project be meticulously monitored to ensure that any changes or effect on the coastal environment were immediately reported.
“The protection of the Wild Coast’s fragile marine environment is crucial. There are four marine protected areas along the coast, and whales use this coastline to calf during the summer. It remains to be seen how the blasting will impact both the marine life and the many people dependent on the sensitive environment for their livelihoods.”
Meanwhile, on Thursday, people living along the Wild Coast comprising small-scale fishers from Amadiba, Cwebe, Hobeni, Port St Johns and Kei Mouth, filed their application for an urgent interdict against Shell in the Makhanda high court, asking it to halt Shell’s seismic survey, pending the outcome of their challenge of the company’s assertion that it is legally entitled to commence with the operations.
They said that the commercial and recreational fishing sectors were consulted over Shell’s plans, but small-scale fishers, “who are the custodians of the resources Shell seeks to explore”, were ignored.
They are joined by two civil society organisations working in the area — Sustaining the Wild Coast and All Rise Attorneys for Climate and the Environment — and are jointly represented by the Legal Resources Centre and Richard Spoor Attorneys.
Nonhle Mbuthuma, spokesperson for Amadiba Crisis Committee, said: “[The] dismissal of the case does not discourage us, it makes us more determined to fight. Our community is busy putting together its own impact assessment on the real effect of the seismic surveying on people, sea life and our livelihoods. We will use this information to fight more and ensure that we save our oceans.”
The second application for an interdict will be heard on 14 December.