Apprehension of Harm by seismic surveys well founded – Searcher Seismic stopped until taken on review
Searcher Geodata UK and Searcher Seismic (Australia) lost their appeal today (1 March 2022) to continue seismic operations pending the review of the interim interdict brought by West coast small-scale fishing communities, indigenous communities, NGOs Green Connection and Coastal Links Langebaan and other interest groups, against their seismic survey application looking for offshore oil and gas.
Justice Daniel Thulare has ruled that the environmental consultant’s, SLR Consulting, methodology of consultation actually excluded the small-scale fishers, and only included commercial fishers invited to the public participation meetings. According to Thulare’s judgement, Searcher do not yet have Environmental Authorisation nor can what they submitted be deemed Environmental Impact Assessment. Searcher, and by association SLR, were reminded that all are equal before the law in South Africa and that offshore oil and gas has significant material consequences for the fishers. SLR worked with their own interested and affected party database for the survey, deeming the small scale fisheries along the West Coast not directly affected. All SLR’s notifications biased those with access to data and newspapers. “The IsiXhosa speaking, although the language is one of the three official languages of the Western Cape Province in terms of policy, were simply disregarded. The illiterate and the poor were by design of the methodology excluded.”
Justice Thulare noted that it was not possible to know whether seismic survey blasting would not result in unacceptable degradation or damage to the environment without engaging meaningfully with interested and affected parties. The cumulative effect of multiple applications and their operation of seismic surveys on the coastline was not considered by Searcher’s environmental management plan. Thulare highlighted the plight of seals, which are dying in their thousands and that it was not advisable to add to their duress, despite the link to surveys not being established. He further cited that mitigation equipment is really only useful if marine mammals are vocalising, and excludes those many species (turtles, fish etc) that don’t emit directional sounds. Impacts of the blasting on threatened seabirds, younger fish, turtles and cetaceans were underplayed and Thulare believes a precautionary approach was necessary. The EMP failed to acknowledge behavioural traits of fish and snoek, which move up and down the water column in 24 hrs to forage, which could expose them to direct injury or mortal impacts. The centrality of snoek to small scale fisherfolk for food and livelihood security on the West Coast was not considered, nor was the cultural history of this fishery, nor even economic “spin-offs” of the “advancement of this tradition”. Thulare acknowledged the “survival of the fishing industry is a matter of national importance”.
Searcher took a calculated risk for its operational costs, loss of profit and possible contractual breaches if any,
“”Uzenzile akakhalelwa” (self-inflicted harm deserves no sympathy). It was Searcher’s choice to use the days on which no legal business could be done or which did not count for legal purposes, to pursue consummation of its activities for the survey. Whilst warned by the applicants of the issues around its survey when the festive season ended, Searcher made a conscious election to disregard the applicants again and sent the vessel, BGP Pioneer, into the sea and commenced with its survey on 24 January 2022, without an environmental authorization in their hands, and having not consulted with the small scale fishers. The applicants had warned Searcher about the constitutional implications of its conduct and the apprehended impact that its conduct would have. Searcher refused to not commence with the survey until the issues raised by the applicants were ventilated. Searcher cannot be heard to complain of the labour pains of the birth of the consequences of it not showing approval of the applicants’ plea.”
Justice Thulare found that the apprehension of harm by the applicants was well founded and dismissed the appeal by Searcher with costs.
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