South Africa: Another Seismic Survey Legal Battle Looms for South Africa #AfricaClimateCrisis

(file photo).
14 January 2022

Cape Town — Environmental activists are preparing for another legal battle against a planned seismic survey. This comes less than a month after the Makhanda High Court granted an interdict against oil giant Shell over its intended exploration of the Wild Coast off the province of the Eastern Cape.

West coast sighted for for planned seismic survey

Now, Searcher Seismic -  a geoscience data provider serving petroleum and mining companies - seeks to conduct a 2D and 3D seismic rectification project between the Namibian border and Cape Agulhas. The Australian data supplier was granted a reconnaissance permit by the Petroleum Agency SA (PASA) in May 2021. According to PASA, a Reconnaissance Permit allows the holder to undertake geological, geophysical or photogeological surveys and any remote sensing techniques. Following their victory against Shell, environmentalists are preparing for another legal battle.

In an interview with Cape Talk's John Maytham, Gilbert Martin - founder of We Are South Africans - said that the lack of media coverage regarding Searcher's plan compared to Shell's could be explained by the fact that the permit was granted in late November 2021 before becoming active in early December when most people were on holiday and thus potentially less focused on current affairs. Martin added that economic difficulties, coupled with that of Covid-19 and governmental corruption revelations were also factors that resulted in the public not noticing the development.

However, Martin took action shortly after the permit's activation. "Just after Christmas, we investigated and contacted experts and spoke to legal advisors to get our head around what was going on and we only basically started on the 31st of December getting a legal action plan together, promoting it and asking people if they knew this [the survey] was happening again," he said.

Martin went on to say that the government pushing the survey "underneath the radar of the people'' was tragic and a seemingly backhanded kind of deal. Maytham then asked whether aspects of the Shell case could be applied to that of Searcher's. This included the fact that the lack of proper consultation along with the application of the National Environmental Management Act (NEMA) were critical factors resulting in the awarding of the interdict against Shell. "When Shell's application went under Section 76 of NEMA ... This company applied under Section 74 for reconnaissance and exploration, which is a completely different application.

''We've never been against the development of any of our natural resources, there are just three very important points: One, consult the people of South Africa. Two, follow due process and provide correct information so that people can make informed decisions, and three, don't cater to politically connected companies." Legal action against Searcher was being prepared, Martin added.

Court case to follow the same path as that of Shell?

It remains to be seen whether this next legal saga will repeat any of the events of the against Shell. In that case, Grahamstown High Court Judge Avinash Govindjee dismissed a previous interdict application that was in favour of Shell, saying that "irreparable harm" to marine species was not proved by the applicants, which included Greenpeace. In 2014, a government decision granted Shell permission to pursue seismic scanning of the area situated over 20km off the Eastern Cape coast, resulting in a cascade of opposition that lasted more than seven years. The latest stand against the corporation's plan of using high-decibel airguns to map potential oil and natural gas deposits.

While Shell claimed to be operating within the bounds of the law, due to its stakeholder consultation process as part of the Environmental Management Programme during 2013 and passing an Environmental Compliance audit, a case was argued that a "loophole" was exploited by the petroleum corporation.

The return of Australian mining interests to South African shores

Searcher Seismic marks the second major case of an Australian company with mining interests targeting resources off the South African coastline in less than a year. This comes after Mineral Commodities Ltd (MRC) - which been steeped in controversy for several years following its pursuit of two South African mining ventures - sought to mine titanium in Xolobeni on the Wild Coast of the Eastern Cape province and the Tormin mineral sands project on the West Coast in the Western Cape. Coverage of the mining giant's operations - particularly that of Xolobeni, where opposition by local residents resulted in severe police action - saw the eventual targeting of six South African individuals whom MRC alleged defamed the company in their public criticism. This resulted in a protracted Strategic Litigation Against Public Participation (SLAPP) suit.

Under the common law,  there is the recognition that SLAPP is an abuse of process as argued by the defendants:

  • If the court finds the common law is deficient then there could be a decision to narrowly develop the case law, an alternative suggested by the defendants;
  • That SLAPP suits are recognised under the common law but Parliament should be passing anti-SLAPP legislation.

In February 2021, Western Cape Deputy Judge President Patricia Goliath ruled that the defamation action brought by Australian mining interests against six South Africans constitutes a Strategic Litigation Against Public Participation (SLAPP) suit. In her judgment, Goliath found that SLAPP was a viable defence for the activists and public interest lawyers against the mining companies' claims. The defendants in this case hailed the judgment as a victory for free speech.

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