Shell judgment a blow for activists

The oil company will proceed with its search for oil and gas off South Africa’s Wild Coast after environmental groups failed to convince a judge of the severity of its impact on marine life.

Shell can proceed with its seismic survey to explore for oil and gas off South Africa’s environmentally sensitive Wild Coast. 

This is the upshot of acting Judge Avinash Govindjee’s ruling in the high court in Makhanda on Friday 3 December. He dismissed the urgent application by four environmental and human rights organisations for an interdict to stop the survey ahead of a planned judicial review of the government’s decision to grant the company exploration rights.

In essence, the judge ruled, their submissions about the detrimental impact of the survey on the environment and marine life were “speculative at best”.

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“I accept that the applicants are of the firm view that the survey will cause irreparable harm. But objectively speaking, a reasonable apprehension of irreparable harm [if the interdict is not granted ahead of the review] has not been established.”

The judge said that even the applicants’ expert – on a promise of further testimony “in due course” – only went so far as to label Shell’s assertion that the survey would have no environmental impact on the area as “misleading”.

He said the applicants had also not shown that the mitigation programme Shell outlined was inadequate or that the oil company would not adhere to the mitigation measures, as it was obliged to do by law.

Buffer zones

The Border Deep Sea Angling Association, Kei Mouth Ski Boat Club, community and environmental law non-profit Natural Justice and Greenpeace Africa claimed Shell did not obtain the necessary environmental authorisation. They alleged that the government did not inform interested and affected parties or the public about granting the exploration right or two applications to renew the company’s right to explore off the Wild Coast.

Shell said the application had been brought with undue haste after it had already invested millions of dollars to gain approval and planning for the survey.

It claimed that seismic surveys are “standard practice” in South Africa and around the world, and that there is little chance of harm to marine life when proper mitigation processes are applied. Shell added that it would apply a 5km buffer zone around protected marine areas along the Wild Coast, even though the law only requires a 2km zone.

It said there would be 24-hour acoustic monitoring and that independent marine mammal observers would conduct visual inspections.

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Govindjee said there was no evidence before him to show that Shell would not comply with its obligations. “Weighing financial consequences against environmental harm is an invidious task,” he said.

While the Constitution promises protection of the environment, the government granted Shell these exploration rights a number of years ago and has renewed them.

Govindjee said the applicants failed to convince him that there was a well-reasoned apprehension of irreparable harm if the interdict was not granted.

He did, however, comment on the prospects of the review application. He expressed doubt as to whether the applicants would succeed in getting the government’s approval of the 2014 exploration right or its first renewal set aside, because of the passage of time and as the issue is now moot.

Their challenge against the most recent renewal of the exploration licence “holds the best prospects of success”, he said. This is because though Shell notified interested and affected parties, there was a seeming lack of “genuine” consultation and an audit, required by law, had not been done by an independent body.

New interdict application

The environmental groups said they were dismayed by the ruling but would support the Wild Coast communities that applied for a new interdict on Thursday 2 December, allegedly on the grounds that Shell does not have the proper environmental authorisation for the survey and that small-scale fishing communities were not consulted. 

They are also considering appealing parts of Govindjee’s ruling.

“The application had to be made on a hyper-urgent basis [as a result of Shell’s actions and the inaction of Minister of Mineral Resources and Energy Gwede Mantashe], which meant that it had not been possible for experts to finalise detailed reports and affidavits by the time the application was launched,” said the groups.

Greenpeace Africa will continue to support the nationwide resistance to this exploration project through legal avenues, said senior climate and energy campaign manager Happy Khambule.

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“The outcome is very unfortunate,” said Natural Justice executive director Pooven Moodley, “especially since the judge did not recognise the urgency of the interdict and the immediate threat the seismic surveys pose to the environment, marine life and local communities. We will continue to fight them on the beaches and in court.”

John Luef from 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.”

Shell said it would proceed with the seismic survey in line with its approvals and permits.

The company has been served with the fresh interdict application, but the court has yet to schedule the hearing.

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