On 30 May 2022, the Makhanda High Court in South Africa’s Eastern Cape reserved judgment in response to an application to set aside Shell’s Wild Coast exploration right in its entirety. While awaiting judgment to be delivered, this is what is at stake.
The entire issue of prospecting or production for oil, gas or any other substance in the little understood marine environment has to start with how to safeguard it against potential damage. To achieve this, baseline research is required to show what the environment is like before prospecting or exploitation activities take place.
Without a baseline, as well as a credible, scientific environmental impact assessment (EIA), and proper engagement with all stakeholders and affected communities, how do you ensure sound, legal practise will be followed, or, in the worst case, how do you begin to prove damage after the fact? Without a baseline you are essentially giving companies that are granted exploration or production rights a free pass.
The issue currently being decided in the Makhanda High Court is whether Shell, which is prospecting for conventional gas using seismic surveys within 6,011km2 of the Wild Coast of South Africa, is legally obliged to conduct an EIA in terms of a permit issued to them by the then Department of Mineral Resources (DMR) in April 2014.
In February 2022, the Makhanda High Court dismissed Shell’s appeal against the interdict obtained on 28 December 2021 by the communities against seismic blasting off the Wild Coast. The interdict therefore remained in place pending an application by the Dwesa-Cwebe, Amadiba and Port St Johns communities and environmental organisations to set aside Shell’s exploration right in its entirety, which was heard on 30 May 2022. The court reserved judgment, and did not specify when judgment would be delivered.
The aim of Shell’s seismic exploration survey is to detect the presence of shale gas in the seabed in the survey area. The thing is, this is a particularly sensitive area, close to five of South Africa’s declared marine protected areas (MPAs). It raises environmental, food security and sustainable development concerns.
Today, we know enough about the impact of seismic surveys and the interconnectedness of the ocean to be able to say that there is no basis to the oil-and-gas companies’ claim that they can limit their survey to 100 km². The scientific reality is that it extends far beyond here.
Adding to the concern is that the exploration right is only the beginning of the process. Once gas is detected, Shell would be able to apply for a production/ exploitation permit, which would allow them to physically extract the gas. As such, the risks of serious and irreversible environmental harm should mining commence, would increase exponentially.
Many countries have called for a moratorium to be placed on the commencement of deep seabed mining in areas beyond national jurisdiction, currently regulated by the International Seabed Authority (ISA), precisely because the environmental impacts, which some have described as irrevocable, cannot be prevented or managed.
Seismic surveys involve the use of air guns to detect the presence of shale gas deposits in the seabed. A growing body of scientific research reveals these surveys have been shown to alter the behaviour of marine life. This includes attempting to escape the range of the air guns, causing significant declines in the catch rates of commercial fish; stopping endangered whales from vocalising – which is necessary for mating; and significantly reducing zooplankton abundance.
Long-term loss of marine mammal biodiversity off the coast of Brazil has been blamed on seismic surveys, and fishers in certain parts of the world, such as Norway, have successfully been able to claim compensation for lost fishing opportunities caused by seismic surveys. In many parts of the Atlantic Ocean, seismic surveys have been banned.
On top of this, we do not have the baseline research, and we still know very little about the marine environment. For example, scientists are only now beginning to understand the chemical and genetic richness of microbial benthic communities living as deep as 2.5km under the sea floor. These can potentially provide us with much needed medicines, such as new generations of antibiotics that some have estimated can sustain the human race for the next hundred years.
One of the problems with seismic surveys is they can apparently penetrate the seabed as deep as 100kms, potentially causing irreversible damage to those sensitive and valuable ecosystems. In addition, until fairly recently we thought that life can only survive in the presence of light through a process of photosynthesis. However, these benthic communities support life in the absence of light through a process known as chemosynthesis. This discovery has people rethinking about how life originated on Earth, with some concluding that current thinking might be completely wrong.
Prior to 2014, the environmental aspects of mining activities were regulated by the Mineral and Petroleum Resources Development Act (MPRDA) under the DMR, while all other activities having an environmental impact were regulated by the National Environmental Management Act (NEMA) under the then Department of Environmental Affairs (DEA). In the 2012 Constitutional Court case of Maccsands v City of Cape Town, the Court ruled that the acquisition of mining rights did not trump the need for an environmental authorisation (EA) from the DEA. Following that decision, the One Environmental System (OES), which requires applicants for mining rights to also conduct an EIA in terms of NEMA, was established in December 2014.
This was an attempt to streamline the parallel but separate processes provided by the MPRDA and NEMA. However, the entire process was to be administered by the DMR, which begs the question: Is the fox in charge of the hen house, so to speak?
While this is problematic in itself, the issue at present revolves around the fact that Shell’s exploration permit was granted prior to the establishment of the OES. Shell is of the view that it should not be obliged to conduct an EIA because it was not a legal requirement when it first applied for its permit in 2013and that the permit granted in April 2014 by the DMR is the equivalent of an EA granted by the DEA.
The applicants claim that the planned seismic survey will cause serious and irreversible harm to the marine environment. While this is not easy to prove, considering the dearth of research into the impact of seismic surveys in South African waters, a strict application of the precautionary principle needs to be applied. This widely accepted principle of international environmental law and recognised in South African law, requires that where there are threats of serious or irreversible harm, preventative action in the face of uncertainty needs to be taken; more commonly known as erring on the side of caution.
As such, the applicants argue that Shell should be required to conduct an EIA, based on the best available science, which has advanced considerably since Shell’s permit was granted. This should be conducted by marine experts, not individuals who only have expertise in conducting EIAs for terrestrial mining activities. Only highly experienced marine experts who understand the intricacies of our marine environment would be appropriate.
It is also argued that affected parties, such as local fisher communities, were not adequately consulted, a claim that Shell refutes. The DMR claimed that it was not legally required to notify affected parties that the permit had been granted, despite the fact that hundreds of South Africans registered as interested and affected parties during the consultation process of 2013. Proper public participation in making decisions of this magnitude is essential, including all interested and affected parties and communities such as fishers, and urban and rural coastal communities. Minister of Mineral Resources and Energy, Gwede Mantashe’s met with traditional leaders from six kingdoms in the Eastern Cape in May this year but this does not constitute full public participation.
The whole issue needs to be openly and transparently addressed in a process that requires adherence to existing regulatory frameworks, not only at the national level, but at the international level as well. South Africa is a party to several international instruments that are relevant to exploration and exploitation of marine resources, including the United Nations Convention on the Law of the Sea (UNCLOS), Convention on Biological Diversity, Convention on the Conservation of Migratory Species of Wild Animals (CMS), Abidjan Convention, and Nairobi Convention.
In particular, UNCLOS, which is binding on South Africa, provides in Articles 192, 206 and 1(1)(4), respectively, that “States have the obligation to preserve and protect the marine environment”, that when States “have reasonable grounds for believing that planned activities under their jurisdiction or control may cause substantial pollution of, or significant and harmful changes to the marine environment, they shall, as far as practicable, assess the potential effects of such activities on the marine environment and shall communicate reports of the results of such assessments”. Pollution of the marine environment is defined as: “the introduction by man, directly or indirectly, of substances or energy [including sound pollution] into the marine environment, including estuaries, which results or is likely to result in such deleterious effects as harm to living resources and marine life, hazards to human health, hindrance to marine activities, including fishing and other legitimate uses of the sea, impairment of quality for use of sea water and reduction of amenities”.
The South African government has a legal duty to manage and monitor our natural resources in an environmentally responsible way, reducing negative impacts on the natural environment as far as possible. At the same time, it is obliged to ensure South Africa’s economic development. However, it should not even be a debate, and particularly so in this era of climate change, that this must be done in an environmentally sustainable way.
Opinion by Heather Dugmore, with input from Professor Patrick Vrancken and Tanya Wagenaar, both from the Faculty of Law, Nelson Mandela University
Professor Patrick Vrancken leads the SARChI Chair in the Law of the Sea and Development in Africa, Faculty of Law, Nelson Mandela University. He is the convenor and one of the facilitator of the Ocean Governance Masters’ programme and Editor-in-chief of The Law of the Sea – Contemporary Norms and Practice in Africa.
Tanya Wagenaar lectures environmental law in Nelson Mandela University’s Faculty of Law and is the facilitator of the marine resources module in the Ocean Governance Master’s programme.