Battlelines drawn over new seismic survey on the West Coast

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An imminent court battle is on the cards after an Australian subsurface exploration data company did not respond to a legal letter of demand to suspend the start of its seismic blasting programme on the West Coast on Saturday.

On Thursday, the Legal Resources Centre (LRC), acting on behalf of small-scale fishers on the West Coast, gave Searcher Seismic until 6pm on Friday to undertake not to start its seismic survey programme “unless and until an environmental authorisation has been granted under the National Environmental Management Act (Nema) and until the proceedings brought by our clients are finalised”.

LRC attorney Wilmien Wicomb wrote that if Searcher Seismic failed or refused to provide such an undertaking, “we are instructed to bring an urgent application in the high court to interdict Searcher from conducting any activities pursuant to and in terms of the unlawful permit”.

The letter was also addressed to Mineral Resources and Energy Minister Gwede Mantashe and the department’s director general, advocate Thabo Mokoena, the Petroleum Agency South Africa (Pasa) and the Minister of Forestry, Fisheries and the Environment Barbara Creecy. None had responded by Friday.

Searcher Seismic has been awarded a reconnaissance permit by Pasa to undertake a multi-client speculative 2D and 3D seismic-survey programme to search for oil and gas deposits over a number of petroleum licence blocks off the West and South-West coasts, for 55 days and up to 180 days.

Wicomb noted how, in the absence of a valid environmental authorisation and permit, Searcher Seismic’s activities and operations pursuant to the permit are unlawful. “Our clients intend to institute the necessary legal proceedings to challenge the decision to grant the permit.”

The letter described how Richard Spoor Attorneys is representing We Are South Africans in the matter. The latter is a civil society movement that aims to connect and rebuild communities and to defend constitutional rights. 

Wicomb said the fishers “have an interest in preserving the natural environment of the West Coast, which is the source of their livelihoods”.

Last month, in the high court in Makhanda, the two legal firms were successful in obtaining an urgent interdict, on behalf of communities, that forced Shell to suspend its controversial 3D seismic survey on the Wild Coast, pending a legal challenge of its environmental authorisation. 

A petition by We are South Africans against Searcher’s seismic programme, which was approved in May last year, has garnered more than 8 000 signatures, and highlights its concerns about potential harmful effects on the marine environment and on the region’s tourism and fishing sectors.

Gilbert Martin, the founder of We are South Africans, said in a statement on Friday evening: “We feel insulted and can confirm that the people of South Africa are insulted by their complete lack of response and that none of the departments, nor their agencies, nor Searcher Seismic would provide documentation to us transparently or consult with us and pushed this through in the holiday period in South Africa …  

“We are taking multiple mattters legally now … and will no longer tolerate the delinquency and incompetence of our government. The line has been drawn in the sand.”

The LRC’s letter noted that, in a letter dated 15 December 2021, Searcher Seismic gave notice that the mineral resources department had granted the company a reconnaissance permit pursuant to an application in terms of the Mineral and Petroleum Resources Development Act. The permit was effective from 6 December. 

“The permit itself has not been provided. The letter announced that Searcher Seismic is permitted to undertake a seismic survey programme off the West Coast from 15 January 2022. We note that the letter is dated 15 December 2021, but it is not known to us who this letter was sent to and/or whether and where any other notification was published. 

“We note further that the letter is dated the day before a public holiday in South Africa, the Day of Reconciliation, a day which marks the end of the working year and the beginning of the festive season for many members of the public. Consequently, this notice would have gone unnoticed by most interested and affected persons.”

In terms of the Mineral and Petroleum Resources Development Act, Nema and their regulations, an environmental authorisation is a prerequisite for a reconnaissance permit, the letter stated. 

“As a necessary part of both the permit application and the environmental authorisation process, Searcher was required to properly consult with interested and affected parties, including our clients. Searcher failed to do so when applying for the permit and has not yet consulted with such parties prior to commencement of its seismic survey programme.”

Neither Pasa nor Searcher Seismic responded to the Mail & Guardian by the time of publication. 

In a public notice on 15 December, Searcher Seismic said it had a history of effectively conducting marine seismic surveys with successful environmental outcomes, attained from rigorous operating rules and environmental risk assessment planning and management. 

Its reconnaissance permit was granted on the approval of its submitted environmental management programme, which encompassed an assessment of the potential negative effects on marine fauna and fisheries active in the area “along with the identification of measures to avoid and mitigate these potential impacts”, as provided from independent specialists. Searcher Seismic said the approval process included a formal 30-day public review and commenting period prior to the permit’s approval. 

As stipulated in the approved report, the exploration company said, the seismic vessel will be fitted with passive acoustic monitoring (PAM) technology, which detects animals through their vocalisations by using 24-hour dedicated PAM observers. “The survey will also be monitored by marine mammal observers and a fisheries liaison officer will be on board for the duration of the survey to assist with on water communications.”

Earlier this week, the Scientific Advisory Group on Emergencies’ subcommittee on marine ecology and risk mitigation, which is part of the Academy of Science of South Africa, issued an advisory on the use of deep sea seismic surveys to explore for oil and gas in South African waters. 

It said no seismic survey should be conducted in local waters without a preceding comprehensive environmental impact assessment (EIA) report based on the latest science. “EMPs [environmental management programmes] should never be considered a valid and legitimate substitute for comprehensive EIA reports.”

Seismic surveys, it said, have been implicated in altering the behaviour of marine life such as whales and dolphins attempting to escape airgun surveys. Several other disruptions to marine biota have been documented, including altered penguin behaviour and the decimation of larval krill populations, which are crucial prey for species such as humpback whales. 

“In controlled experiments, negative impacts on zooplankton have been documented more than 1km from the sound source; a significantly wider reach than the predicted 10m impact range,” according to the advisory. 

“Despite such potentially harmful consequences, no formal research on the effects of seismic surveys have been conducted in South Africa and the exact effects on the marine environment — and by default the people who depend on marine resources — remain largely unknown.”