An Australian-owned geological data firm says it is proceeding with its 2D/3D marine seismic survey programme for oil and gas in the Orange Basin along the West Coast because it has the required regulatory approval in place.
This is contained in Searcher Seismic’s response to a letter of demand from the Legal Resources Centre (LRC), on 13 January that it provides an undertaking to suspend the start of seismic blasting between the South-African Namibian border and Cape Agulhas on 15 January or face legal proceedings in court as it does not have environmental authorisation.
The LRC is representing small-scale fishers on the West Coast while Richard Spoor Inc Attorneys is representing civil society movement We Are South Africans, in the matter.
Roy Barendse of law firm Cliffe Dekker Hofmeyr, who is representing Searcher, told the LRC in a letter dated 14 January that Searcher had submitted its application for a reconnaissance permit in terms of the Mineral and Petroleum Resources Development Act (MPRDA) on 30 April last year, which was accepted in May.
“Our client’s application for a reconnaissance permit was therefore pending as at June 11 2021 when the 2021 amendments to the environmental impact assessment (EIA) regulations of 2014 came into effect,” he wrote. “Accordingly, the transitional arrangement contained in regulation 30 of the 2021 EIA regulations applied to our client’s application for a reconnaissance permit and the statement is patently incorrect.”
Searcher’s letter on 15 December was sent to all registered interested and affected parties in compliance with its approved environmental management plan, which prescribes that all interested and affected parties be notified of the commencement of the seismic survey 30 days prior to such commencement, he said.
Searcher, he said, would not provide an undertaking to suspend commencement of the seismic survey. “Our client is in possession of the required regulatory approval to proceed with the seismic survey and as such … is under no legal obligation to suspend commencement of the seismic survey.” It would oppose any proceedings that may be instituted in the High Court.
But in its response, LRC attorney Wilmien Wicomb said Searcher’s assertion that it may blast the West Coast without an environmental authorisation is “simply incorrect.
“Section 24F of the National Environmental Management Act (Nema) prohibits the commencement of a listed activity without an environmental authorisation. Activities conducted under reconnaissance permits became listed activities on 11 June 2021. Searcher argues that regulation 30 of the EIA amendments regulations of June 2021 is a relevant transitional arrangement.
“This is incorrect. Regulation 30 only applies to applications submitted in terms of the EIA regulations pending at June 2021. It is common cause that there was no pending application by Searcher under the EIA regulations.”
In addition, Searcher, had “offered no answer” as to why it did not obtain an environmental authorisation prior to receiving its reconnaissance permit as required by the MPRDA. “Searcher failed to comply with a peremptory requirement to obtain a reconnaissance permit. The decision to award Searcher a reconnaissance permit was unlawful patently.
“It is simply no answer to argue that Searcher has an approved EMP report under the MPRDA. There is no basis under any law whatsoever for such applications to be made, much less approved, after December 2014. Particularly where the EMPr is only furnished to interested and affected parties on the eve of the blasting with no provision for comment to the regulator much less any provision for an appeal.”
If Searcher commences blasting without an environmental authorisation, it will be acting unlawfully, she said, with Nema providing that commencing a listed activity without authorisation is a criminal offence. “The permit it received was granted unlawfully.”
Wicomb urged Searcher to reconsider its “decision to engage in unlawful blasting” until part A of the communities’ interdict application is heard and to provide an undertaking on this by Monday at 4pm.
“Should Searcher not offer this undertaking our instructions are to persist in seeking an urgent interdict against Searcher’s unlawful conduct with a punitive costs order … The communities are also considering laying criminal charges against Searcher and its directors should they commence with blasting activities without an environmental authorisation.”
A petition by We are South Africans against Searcher’s seismic programme
has garnered over 9400 signatures.
Last week, the Scientific Advisory Group on Emergencies’ sub-committee on marine ecology and risk mitigation, which is part of the Academy of Science of South Africa, issued an advisory on the use of deep sea seismic surveys to explore for oil and gas in South African waters.
It said that no seismic survey should be conducted in local waters without a preceding comprehensive EIA report based on the latest science. “EMPs [environmental management plans] should never be considered a valid and legitimate substitute for comprehensive EIA reports.”
Seismic surveys, said the advisory, have been implicated in altering the behaviour of marine life such as whales and dolphins attempting to escape airgun surveys. Several other disruptions to marine biota have been documented, including altering penguin behaviour and decimating larval krill populations, which are key prey for species such as humpback whales.
“In controlled experiments, negative impacts on zooplankton have been documented more than 1km from the sound source; a significantly wider reach than the predicted 10 m-impact range. Despite such potentially harmful consequences, no formal research on the effects of seismic surveys have been conducted in South Africa and the exact effects on the marine environment – and by default the people who depend on marine resources – remains largely unknown.”
*This article has been updated.