Shell’s planned seismic testing to search for oil and gas deposits in the sensitive waters off the Wild Coast will cause significant harm to the environment and the livelihoods, culture and heritage of communities living along the region.
This is detailed in the second legal challenge mounted against the petroleum giant’s planned 3D seismic survey to explore for hydrocarbon reserves beneath the seabed between Morgan Bay and Port St Johns in the Eastern Cape.
The application for an urgent interdict was filed in the Makhanda high court last week by small-scale fishers from the Amadiba, Cwebe, Hobeni, Port Saint Johns and Kei Mouth communities, who are joined by Sustaining the Wild Coast and All Rise Attorneys for Climate and the Environment. They are jointly represented by the Legal Resources Centre and Richard Spoor Attorneys.
The respondents are the ministers of minerals resources and energy and the environment, forestry and fisheries; Shell Exploration and Production South Africa, Impact Africa Limited and BG International Limited.
The applicants have asked the court to halt Shell’s seismic blasting pending the outcome of their challenge of Shell’s assertion that it is legally entitled to commence with the operations. Not only will the seismic survey be harmful, they argue, it is unlawful, because Shell does not have an environmental authorisation to conduct the exploration right in terms of the National Environmental Management Act (Nema).
“The Wild Coast is a place of stunning natural beauty,” said Sinegugu Zukulu, the director of the nonprofit organisation Sustaining the Wild Coast, in his founding affidavit. “Unlike other coastal stretches in South Africa, indigenous people have maintained continuous possession of this land, despite waves of colonial and apartheid aggression.
This is no accident, Zukulu said. “Our ancestors’ blood was spilt protecting our land and sea. We now feel a sense of duty to protect our land and sea for future generations, as well as for the benefit of the planet.”
The matter will be heard next Tuesday by the high court in Makhanda before acting judge Avinash Govindjee. On Friday, Govindjee dismissed an application for an urgent interdict by the Border Deep Sea Angling Association, Kei Mouth Ski Boat Club, Natural Justice and Greenpeace Africa, who sought to stop Shell’s seismic exploration from proceeding on 1 December.
The applicants, he ruled, had failed to convince him that there was a “well-rounded apprehension of irreparable damage to marine life” with their submissions relating to the detrimental effect of the seismic testing on the environment, and marine life in particular, being “speculative at best”.
‘We’ve never been approached’
In his founding affidavit, Mncedi Mhlangala, the chairperson of the Dwesa Cwebe Communal Property Association, said: “Despite where our community is located, and despite the extraordinary importance that not only the [Dwesa-Cwebe] marine-protected area (MPA), but the ocean adjacent to our land hold for us, to the best of my knowledge, we have never been approached by any of the respondents to provide information on the plans to conduct seismic surveys along our shore.
The government had declared these waters an marine-protected area and “no take” zone in 2000 and “insisted that the area was so precious that we could not go near it” Mhlangala said, adding: “It is extraordinary to me that the same government is now willing to allow the respondents to blast the ocean near our protected waters with seemingly none of the concerns they had before for the protection of the MPA.”
Like their ancestors, local communities, he said, have known and used a range of fish and other intertidal resources “since time immemorial. The proposed seismic surveys, which I am advised have not been granted the requisite environmental authorisations, threaten to disrupt the very fundamentals of our daily lives.”
In his affidavit, Zukulu stressed the urgency of the matter. “Shell is about to start firing incredibly loud air guns in our sea every 10 seconds, or has started already. This conduct is harmful and plainly unlawful. None of the applicants were aware of the 2013 application for an exploration right. I only came to learn of the plan to conduct the seismic study from media reports in early November 2021, and other applicants learned later.”
Should an interim interdict not be granted and the blasting go ahead in the absence of an environmental authorisation as planned, there will be irreparable harm on two levels, he said. “Firstly, this disrespect for our ocean and our culture by a corporation [that] has failed to even consult us will cause irreparable harm to us on a spiritual and cultural level through upsetting our ancestors.
“Secondly, even from the MPRDA’s [Mineral and Petroleum Resources Development Act] limited environmental process back in 2013, the EMPr [environmental management programme report] reveals harm that will occur from the blasting. This harm is purportedly planned to be mitigated, but cannot be denied.”
The land and sea are central “to our livelihoods and our way of life”, Zukulu said. “Over generations we have conserved them, and they have conserved us. This is not merely a matter of nutrition and income, though it certainly is that. Some of our ancestors reside in the sea, and our traditional healers and pastors use the sea to heal us and to connect us with God.”
Multinational corporations “now wish to blast our sea every 10 seconds for five months with air gun bursts between 220 and 250 decibels — louder than a jet plane taking off — that will be heard underwater more than 100km away. They want to do this for one reason — to look for oil and gas that they can profit from while worsening the planet’s climate crisis.
“They are entitled to apply for permission to do so, and should receive the approvals if they can meet the Nema requirements. But that is not what they are doing. After receiving an exploration right without any meaningful community engagement eight years ago, they are now rushing to blast our seas without any environmental authorisation under Nema on a month’s notice.”
Significant knowledge gaps
The application is supported by a joint statement from two marine experts, Dr Simon Elwen and Dr Tess Gridley, who said the environmental management programme report had significant knowledge gaps regarding the impact of seismic surveys on marine life.
Unlike the report, they said, the precautionary approach set out in the National Environment Management Act suggests that “a lack of knowledge on impacts should weigh against the survey, not in favour of it”. They highlight numerous studies that have been published since the report that better explain the harm that will result from the seismic survey.
The Amadiba area, Zukulu said, as well as the entire Wild Coast, is an area of profound environmental significance. “The Agulhas current renders the ocean off the Wild Coast one of the richest marine environments in the world and also renders it highly risky for mineral extraction. An oil spill in the vicinity of this powerful current would be a catastrophe for the entire east coast of South Africa and particularly to the residents of the coastal villages of the Eastern Cape.”
‘We stand to lose a lot, gain nothing’
Residents of the Wild Coast “stand to lose a lot and gain nothing from the exploitation of offshore fossil fuels, Zukulu said, while grassroots, community-owned and managed ecotourism is “alive and well and growing” along the Wild Coast.
“Visitors come from all over the world to enjoy our stunning land. They come to swim in the sea and our famous waterfalls that fall directly into the ocean … to witness the world-famous sardine run and the shoals of predator fish and mammals that follow the sardines.”
Shell did not respond to the Mail & Guardian, but last week it said that it 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.”
On its website, Shell described how 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 South Africa’s energy security and the government’s economic development programmes.
“We aim to minimise the impact of our projects on the environment and to be a good neighbour wherever we work, by contributing to the well-being of neighbouring communities. We work closely with them to manage the social impacts of our business activities, address any concerns about our operations, and enhance the benefits that we are able to bring.”