Victory for West Coast fishing communities as court blocks seismic blasting

• The Western Cape High Court has ruled an interdict on seismic blasting off the West Coast will remain in place.
• Judge Daniel Thulare found that the consultation process Searcher followed excluded small-scale fishers.
• A legal review of the reconnaissance permit for the seismic survey will be heard at a later stage.

A high court has ruled that an interdict of a seismic survey off the West Coast will remain in place.

Judge Daniel Thulare delivered the ruling at the Western Cape High Court on Tuesday.

The interdict will apply, pending the outcomes of a legal challenge of the reconnaissance permit granted for the survey in May 2021.

West Coast fishing communities in January launched the main application to have the high court interdict the seismic survey by Australian geoscience data company Searcher.

The applicants argued that they were not consulted on the survey and do not believe Searcher has the required environmental authorisation to conduct the survey. Searcher has disputed this in its court papers.

In his judgment, Thulare took issue with the consultation process followed by Searcher, especially the limited reach it would have in terms of accessing small-scale fishers.

He noted that the mindset of the environmental consultant of SLR Consulting, which conducted the consultation process on behalf of Searcher is "worrying":

The illiterate and poor were excluded from consultation, while only the commercial fishing sector was deemed "worthy" to be consulted, Thulare found.

Citing the applicant's case, Thulare said that the absence of consultation posed a risk to marine and birdlife and the communities whose livelihoods and food security depend on the ocean. Communities argued that the failure by Searcher to consult them - meant the seismic survey was unlawful.

• READ | Constitutional rights should trump Searcher's profits, court hears

In the judgment, Thulare noted that Searcher's Environmental Management Plan (EMP) did not interrogate the importance of snoek to small-scale fishers and the potential impact to them. "Searcher's EMP understanding of the small-scale fishers was flawed… Snoek was central to the food security of the West Coast fishers, including small-scale fishers," he said.

The seismic survey would potentially impact food security and the right to food.

Livelihoods affected

"The survey would be at the expense of the livelihoods of impoverished communities of small-scale fishers, which Searcher had deliberately marginalised," Thulare said.

He added that climate change had changed the ability to catch fish and that the survey would contribute to limited catches, causing small-scale fishing to collapse.

The reconnaissance permit expires in November. Searcher argued it would not be "financially feasible" for the company to apply for a new permit. In its court papers, Searcher said that an interim interdict would lead to a loss of R405 million, and further loss of investment to the South African economy.

Searcher's VP Alan Hopping previously told Fin24 that it is unlikely the company would pursue more seismic surveys in South Africa, given business uncertainty. This is the first seismic survey the company has conducted in South Africa.

But West Coast communities argued that their constitutional rights outweigh Searcher's commercial interests.

Thulare similarly pointed out that harm caused by the infringement of constitutional rights cannot be "quantified, measured or weighed." 

He cited South African experts that warned that without further research, environmental impact assessment and evidence of a proper EMP, blasting would result in indignity of poverty, work, culture and the indignity of the rights of small-scale fishers being disregarded. "The harm is irreparable," said Thulare.

The judge also considered the costs Searcher calculated to illustrate the harm it would face from loss of profit and contractual breaches. But Thulare said that Searcher did not set out evidence to demonstrate how it arrived at costs.

"I could not even estimate that cost and I am unable to appreciate harm if any, arising out of the interdict, especially where there is evidence that Searcher is carrying out the survey in the West Coast outside South African waters …," Thulare said.

Thulare noted that applicants merely sought for the rule of law to be upheld. "They are asking that the effects of the survey on the environment, appropriate public participation in decisions that may affect them and their environment receive consideration as provided by law."

Searcher is liable for the costs of the application.