Shell can proceed with seismic survey after environmental groups lose urgent court bid

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Protesters at the V&A Waterfront, 21 November.
Protesters at the V&A Waterfront, 21 November.
Brenton Geach/Gallo Images via Getty Images
  • A high court has dismissed an urgent application to block Shell from proceeding with a seismic survey off the Eastern Cape coast.
  • Acting judge Avinash Govindjee said that he was not convinced that there is cause to fear "irreparable harm" if an urgent interdict was not granted.
  • Meanwhile communities on the Wild Coast have also filed an urgent application to block the seismic survey.

A South African high court has dismissed an urgent application to block Shell from proceeding with a seismic survey off the Eastern Cape coast.

The ruling was delivered by acting judge Avinash Govindjee at the Eastern Cape Division of the Makhanda High Court on Wednesday.

Earlier this week, four environmental and human rights organisations - Greenpeace Africa, Natural Justice, the Border Deep Sea Angling Association, and the Kei Mouth Ski Boat Club - filed an urgent application to block the seismic survey, given the alleged harm it would case to the environment and marine life.

The applicants wanted the seismic survey - which will take place off the coast between Morgans Bay and Port St Johns - to be halted until a judicial review of Shell's environmental authorisation is complete.

Shell and the Department of Mineral Resources and Energy - the respondents in the matter - both argued that the applicants failed to demonstrate urgency. Shell's legal counsel Adrian Friedman even suggested that the urgency was "self-created" by the applicants by only filing their court papers this week, days before the seismic survey was due to start.

In his ruling, Govindjee said that he was satisfied that there was no "undue delay" in bringing the application - as the applicants were only made aware of it on 29 October.

The applicants had also challenged the public participation process, claiming that not all interested and affected parties were notified about the exploration right granted to Shell, nor of the two subsequent renewals that followed.

Shell, on the other hand, filed supplementary affidavits on Thursday indicating that "hundreds" of interested and affected parties were notified, including two applicants: Border Deep Angling Association and the Kei Mouth Ski Boat Club.

Environmental harm

In his ruling, Govindjee said that Shell has provided details on compliance with its Environmental Management Programme and the mitigation measures that would be in place for the survey. 

"Given the paucity of information as to the likelihood of environmental harm, the balance of convenience favours Shell," he said.

The applicants "failed" to convince the judge that there is a "well-rounded apprehension of irreparable harm" if the interim relief or interdict is not granted.

"Upon consideration of the affidavits as a whole according to facts and probabilities, the outcomes are the same and I must exercise discretion to reject the application," Govindjee said.

"The question is whether the seismic survey to be undertaken should be interdicted pending final determination of a separate review application. That question has been answered [in the] negative."

The application was dismissed with costs.

In response to questions from Fin24, Shell said that it welcomed the court decision, which will help move the seismic survey move forward, in accordance with its regulatory approval and permitting.

The oil and gas giant emphasised that it has had a long experience collecting offshore seismic data and took great care in preventing or minimising potential impacts on fish, marine mammals and other wildlife.

"We have conducted an environmental [impact] study in line with regulatory requirements and obtained legal permits to carry out the activity," said spokesperson Pam Ntaka.

Ntaka added that if resources were detected offshore, it could help the country's energy security and government's economic development programmes.

Meanwhile, on Thursday, Wild Coast communities lodged an application for an urgent interdict against Shell's exploration - also pending a judicial review of Shell's environmental authorisation. The communities are represented by the Legal Resources Centre and Richard Spoor Attorneys and are joined by two civil society organisations that work in the area - Sustaining the Wild Coast and All Rise Attorneys for Climate and the Environment.

"Small-scale fishers from the Amadiba, Cwebe, Hobeni, Port Saint Johns and Kei Mouth communities say that Shell is not entitled to commence the surveys without getting an environmental authorisation in terms of the National Environmental Management Act," a statement from the Legal Resources Centre read. According to these applicants, Shell's Environmental Management Programme, which was approved under the Minerals and Petroleum Resources Development Act, is "plainly insufficient".

The applicants also indicated that they only learnt of Shell's planned seismic survey in the past three weeks, as petitions and information started circulating on social media. According to the Legal Resources Centre, Shell consulted stakeholders in the commercial and recreational fishing sectors, but ignored small-scale fishing communities.

Shell has confirmed that it received this application and is currently reviewing it. 

*This article was updated to indicate Govindjee is an acting judge.

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