Four environmental and human rights organisations have filed an urgent interim-interim interdict against Shell in the Eastern Cape Division of the Grahamstown High Court to prevent the fossil fuel company from starting seismic testing along the ecologically diverse and sensitive marine environment of South Africa’s Wild Coast.

The testing was due to start on December 1.

The interdict was supported by environmental law firm Cullinan & Associates, which delivered a certificate of urgency to the registrar on November 29.

Acting Judge Avinash Govindjee’s directive was received in the afternoon, which saw the matter as urgent, and determined that, in relation to the interim-interim interdict, applicants were to issue and file papers on the same day.

Additionally, respondents who intend to oppose are to deliver notice of opposition and answering affidavit by 16:00 on November 30, and applicants are to deliver a replying affidavit, if any, by 13:00 on December 1.

Applicants and opposing respondents are now required to file heads by 13:00 on December 1.

The matter will subsequently be heard in Grahamstown and argued virtually at 14:00 on December 1.

The applicants are Border Deep Sea Angling Association, Kei Mouth Ski Boat Club, Natural Justice and Greenpeace Africa.

SUMMARY OF GROUNDS

The applicants’ view is that the start of the seismic exploration activities is prima facie unlawful until Shell has applied for, and obtained, the necessary environmental authorisation in terms of the National Environmental Management Act (Nema).

The applicants also believe the decision-making process amounts to unjust administrative action since interested and affected parties were not informed of the granting of the exploration right or given an opportunity to appeal it.

The public were also not notified of the two applications to renew the exploration right.

POTENTIAL IMPACTS

The vessel would, for five months, fire air guns every ten seconds through 6 011 km² of ocean surface, firing extremely loud shock wave emissions that penetrate through 3 km of water and 40 km into the Earth’s crust below the seabed.

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, the applicants argue.

The Wild Coast’s pristine beaches and biodiversity attract millions of tourists every year, and seismic surveys have previously been linked to decreased sightings of marine life and decreased catch rates for commercial fishing, they add.

The planned seismic survey, and planned activity thereafter are said to have direct and dire impacts on social, economic and cultural rights, and ultimately the right to self-determination of the communities of eXolobeni, Nqamakwe and Port Saint Johns, which depend heavily on eco-tourism and fishing for livelihoods and subsistence, and who safeguard this land as sacred and deeply connected to their identity and heritage, the applicants state.

Further, the applicants say the mitigation measures proposed by Shell are “wholly inadequate for South Africa’s most diverse coastline” and that it will cause irreparable harm to whales, dolphins, crayfish, endemic reef fish, fish larvae, turtles, birdlife and zooplankton.

SHELL’S RESPONSE

On November 23, Shell Downstream South Africa sent responses to questions from Engineering News about their seismic survey practices.

Shell noted that it has “long experience in collecting seismic data and the welfare of wildlife is a major factor in the stringent controls we use, strictly following the international guidelines of the Joint Nature Conservation Committee. These are based on decades of global scientific research. We take great care to prevent or minimise impacts on fish, marine mammals and other wildlife”.

It confirmed that no seismic operations will take place in marine protected areas (MPAs).

There is also a buffer area around MPAs where no seismic activities may take place, it added.

“Mitigations in this survey will include an exclusion zone of 500 m around the sound source that is continually monitored 24 hours a day by independent marine mammal observers on board, who conduct visual inspections during daylight hours to maintain the exclusion zone.”

Further, it noted that passive acoustic monitoring would be done 24 hours a day during the survey to account for any deep-diving species in the area, as well as to provide information during hours of darkness and/or poor visibility.

The exclusion zone of 500 m around the sound source means that no animals will come into the near vicinity of the sound source. If any animal enters the exclusion zone of 500 m, operations are immediately shut down. A pre-watch must be conducted for at least 60 minutes to confirm there is no marine animal within the exclusion zone before operations can start.

Further, on start-up, the sound is increased slowly to allow any animals in the surrounding area to gradually move away from the sound source, Shell Downstream South Africa said.