/ 26 January 2022

West Coast seismic battle heads to court

St. Helena Bay, Western Cape Province, South Africa.
Aerial view of the western side of St. Helena bay looking towards Stompneus point.

Christian Adams grew up believing that the sea must be respected and that it is a “part of us”. 

“I grew up knowing that communities of the West Coast depend on the sea for their lives and livelihoods and that the sea and fishing was what made us who we are as people of the West Coast,” said Adams, who comes from a long line of proud fishers and lives in Steenberg’s Cove in St Helena Bay.

But, he says, this way of life is under threat from the harmful effects of large-scale industrial developments along the coastline and, increasingly, in their waters. 

Searcher GeoData, a UK subsurface exploration data firm, has been awarded a reconnaissance permit for a multi-client speculative 2D and 3D marine seismic survey programme to search for oil and gas deposits under the seabed in the Atlantic Ocean across the West Coast.

On Friday, Adams was among 14 applicants who filed an urgent application in the Western Cape high court to interdict the Australian-based Searcher Seismic, Searcher Geodata and its seismic vessel BGP Pioneer.

Court interdict

The first and second respondents in the matter are Mineral Resources and Energy Minister Gwede Mantashe and Forestry, Fisheries and Environment Minister Barbara Creecy and the Petroleum Agency South Africa, respectively.

The applicants include the Steenberg’s Cove Small-Scale Fisheries Cooperative, Aukatowa Small-Scale Fisheries Cooperative, Coastal Links Langebaan, civil society movement We Are South Africans and the Green Connection. They are represented by the Legal Resources Centre and Richard Spoor Attorneys.

On Monday, Searcher, which has started the survey despite the legal challenge against it, filed a motion to oppose the urgent interdict application. In a letter to the applicants’ attorneys on Monday, Searcher’s lawyer, Roy Barendse of Cliffe Dekker Hofmeyr, said the respondents “will in fairness require a minimum of two calendar weeks within which to prepare answering affidavits”. 

“It appears that the applicants have been aware of the survey in question since early January 2022. It has taken the applicants considerable time to prepare and launch this application. The applicants are seeking to allow the respondents six calendar days within which to file an answering affidavit … There are around eight substantive expert reports included in your client’s papers, which all require detailed responses.”

In its response, the applicants’ legal team said the timelines are reasonable. “It is Searcher’s refusal to give such an undertaking that has forced the West Coast communities to litigate on an urgent basis,” wrote LRC attorney Wilmien Wicomb.

“We are instructed to again tender a slower timetable if Searcher provides an undertaking to immediately desist from their seismic blasting activities, pending the finalisation of the interim interdict application.”

No meaningful consultation’

Searcher, said Adams, had not made any “meaningful attempts” to consult small-scale fishers despite being obligated to do so by the Mineral and Petroleum Resources Development Act and the National Environmental Management Act.

Although its environmental management plan (EMP) acknowledges the seismic survey overlaps with the commercial fishing sector, there is no acknowledgment of the “profound effect” it will have — whether conducted as a 2D survey, a 3D survey or both — on the small-scale fisheries sector. 

This, Adam said, includes Searcher’s “flawed understanding” in its EMP that the small-scale fisheries sector only works close to the coastline and is unlikely to range beyond three nautical miles (5.6km) from the coastline. “The EMP declares that there will be no impact on this sector when in fact we often venture 15 nautical miles and further from the coastline because the snoek and some other species no longer come closer to the shore as they used to.” 

The EMP, he said, does not acknowledge “that we target snoek, the most central species to our livelihoods on the West Coast. Searcher doesn’t know this because it hasn’t consulted the applicants at any stage.”

In his supporting affidavit, Christiaan Mackenzie said he and other fishers were being affected by climate change. “We now experience more bad weather with a lot of thick mist, wind, strong currents and this reduces the number of sea days for us in a month. This is why we worry about the impact of these changes and the mining on our livelihoods and on the ocean … We are not office workers. We have to be able to go to sea.”

Searcher has not responded to the Mail & Guardian but said it had the required regulatory approvals in place. In its public notice in December, it said its reconnaissance permit was granted on the approval of its submitted EMP, which encompassed an assessment of the potential effects on marine fauna and fisheries active in the area “along with the identification of measures to avoid and mitigate these potential impacts” as provided by independent specialists.

Snoek impacts

The route that Searcher’s seismic vessel BGP Pioneer proposes to follow tracks the migratory route of snoek.

In his expert report, submitted as part of the application, Professor Moeniba Isaacs, of the Institute for Poverty, Land and Agrarian Studies, said the granting of the permit “will be at the expense of the livelihoods of impoverished and marginalised small-scale fishers”, as keystone species like snoek are critical to fisher livelihoods, income and food and nutrition security.

Harm to marine life

In another expert report submitted, marine scientists Dr Jean Harris, Dr Jennifer Olbers and Dr Kendyl Wright, said that based on peer-reviewed scientific literature, it is clear that physical damage to marine animals, including soft tissue damage, embolisms, haemorrhaging and other life altering changes have been directly linked to the kind and level of sound emitted during this nature of seismic surveys.

They noted how while “soft starts” mitigation for seismic impacts are likely to reduce the effects on highly mobile large animals, this is unlikely to be adequate for the many species prevalent in the area during the austral summer months and are unable to avoid the array or leave the area because of their lower mobility such as smaller turtles, penguins, invertebrates, some fish species and zooplankton.

There is conservation concern for beaked whales, which are particularly sensitive to human-caused noise, including seismic surveys, they said. The south and West coasts are hosts to eight species of beaked whales. Searcher’s proposed seismic survey activities “are highly likely to both disturb and have an adverse effect on marine protected areas, critical biodiversity areas and ecologically or biologically significant areas.”

Not against development

In his affidavit, Gilbert Martin, the founder of We Are South Africans, said it was not against any form of development. “But decent development that provides meaningful benefits to all South Africans will never happen without informed consultation.”

Martin said based on statements by political economist Professor Patrick Bond, “the effects of the gas would actually increase the costs … and have a larger effect on the earth’s climate and put us out of COP26 goals, resulting in climate sanctions that will subsequently affect other industries that export and import”.

On January 10, Martin wrote a letter to the Australian government raising concerns about Searcher’s planned survey. On Monday, he received a response from its department of foreign affairs and trade, which noted how it could not comment because the matter is subject to ongoing legal proceedings. “The Australian government has the time … to respond to us,” said Martin. “This is a slap in the face of the people of South Africa, and us, who are yet to hear from our own government.”