SA holds its breath as judge decides on Shell

The fate of South Africa’s Wild Coast is up in the air as activists wait for the court to decide whether or not to institute an urgent interdict to stop Shell from surveying the ocean floor for oil and gas.

Who has won and lost in the environmental battle over the seas off South Africa’s Wild Coast will be known on Friday 3 December when Acting Judge Avinash Govindjee will rule in the high court in Makhanda on whether or not to interdict Shell from conducting a seismic survey to explore the seabed for oil and gas.

The issue has riled South Africans. Four environmental and human rights organisations have applied for an interim interdict – barring Shell from taking to the seas as scheduled at the start of December – pending the outcome of a legal bid to review the relevant ministers’ decision to give the multinational oil and gas company exploration rights.

While argument proceeded in court, the Amazon Warrior survey ship was standing by in the Eastern Cape.

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Govindjee said he was aware of the urgency of the matter, but needed a day to properly consider the issues.

The Border Deep Sea Angling Association, Kei Mouth Ski Boat Club, community and environmental law non-profit Natural Justice and Greenpeace Africa launched the legal application. In it, they say Shell’s seismic activities are unlawful because the company does not have the necessary environmental authorisation in terms of the National Environmental Management Act. 

They allege that the government did not inform interested and affected parties that it was granting the exploration right or give them an opportunity to appeal it. The public were also not notified of the two applications to renew the exploration right.

Flora, fauna and residents

The effect on marine life, flora and fauna along the Wild Coast, which has many protected marine reserves, would be devastating, particularly in December when migrating humpback whales traverse the area, they say.

The Amazon Warrior would, for five months, fire air guns every 10 seconds through 6 011km² of ocean surface, sending shock wave emissions across kilometres of water.

“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.  

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“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 decreased catch rates for commercial fishing,” the applicants say.

The undertaking would have a dire impact on the social, economic and cultural rights of the communities of Xolobeni, Nqamakwe and Port St Johns, which depend heavily on eco-tourism and fishing for their livelihoods and subsistence. And mitigation measures proposed by Shell are wholly inadequate, they say.

Burden on the applicants

Shell has hit back. It says there is no evidence that seismic surveys have any impact on marine populations and that a “buffer zone” will ensure that no animal is in the vicinity of the sound source.

But the main argument before Govindjee on Wednesday 1 December was whether or not the matter is urgent. On this, both sides agreed. If it was not urgent, then the interdict application should be struck from the roll.

Advocate Adrian Friedman for Shell said the application had been brought with “inordinate haste”, when the authorisation for the survey had existed for some time.

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“Shell has spent millions of dollars to get to today. The applicants have to show real prejudice. 

“There is often a temptation in matters like this that we should be dismissive of financial prejudice, especially with big companies … That commercial interests of private companies must yield to this supposed environmental interest and that of the public. And to conclude that even if there is the slightest of doubt, then the conduct must be interdicted.

“But this is the entirely opposite approach of what the law requires. Our law puts the burden on the applicant.”

Delays could achieve eco outcome

Friedman said that, at best for the applicants, they had known for at least a month that Shell was making final preparations for the survey. He added that 35 other such surveys have been done in South Africa, and more than 300 around the world, with no expert evidence of causing harm.

“There is nothing to suggest that something catastrophic is going to happen,” he said.

“This case was brought on less than 36 hours’ notice, on the basis that there is some unique and profound prejudice … that the world will collapse … But all we have is speculation. The allegation of irreversible damage is not substantiated. It is grossly exaggerated.”

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He said that even an interim interdict would be final, in effect because weather conditions mean the survey has to begin. And that on balance, there was more prejudice to Shell and to the country.

“Shell has said if it cannot conduct the survey now, it may have to abandon the whole project … walk away. One cannot overturn the entire process on speculation.”

Shell ignores caution

Advocate Willie Duminy argued on behalf of the applicants that the project’s environment management plan cautioned against undertaking the seismic survey in December, but that Shell is ignoring this.

He said that contrary to law, “interested and affected” people had not been notified.

What is different about this survey as opposed to those conducted in other areas in South Africa and the world, he said, could be summed up in two words: Wild Coast. This is a unique sensitive environment and it “made no sense” to make comparisons.

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He denied that the applicants were being “lazy” in only applying for the interdict now – an “outrageous” allegation – as “we were collecting documents, finding the right people to talk to … We wrote [to Shell] requesting an undertaking, but it was met with the claim of having a right … They said, we won’t delay. We won’t consult. We will do what we are entitled to do and do your worst.”

Despite accepting that the application should be struck from the court roll if Govindjee found the matter not urgent, Duminy said that “even the merest hint of prejudice to marine species is enough to justify an interdict … but we submit we are in the game with that. We have crossed the threshold.”

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