ONO appeals against Searcher Seismic Surveys off the west coast
Oceans Not Oil lodges an Appeal, in terms of section 43(1A) of the NEMA, against the decision of the Minister of Mineral Resources and Energy, as delegated to the Director-General, to approve the Searcher Geodata 3D seismic reconnaissance in Block 1518. (Exploration Right 12/1/043 pertains)
This letter serves as an appeal against the decision to grant the proposed speculative three-dimensional (3D) seismic survey by Searcher Geodata UK Ltd (hereafter Searcher) off the Western and Northern Cape coasts of South Africa, 256 km offshore of St Helena Bay, extending north along the western coastline to approximately 220 km offshore of Hondeklip Bay over a number of offshore oil and gas licence blocks – including blocks 12/1/274 ER, 12/1/343 ER, 12/1/339 ER and “Open Area”. The aforesaid authorisation was awarded despite ongoing risks of “social unrest” and unmet recommendations that the project only go ahead after meaningful consultation, local research, education, and awareness-raising has been done in the project-affected communities.
Oceans Not Oil is a coalition of 32 organisations and individuals whose ultimate objective is the cessation of seismic exploration and oil and gas exploitation off our coastline. It is an emancipatory and conservation imperative engaging public support and South African policymakers to build an economy beyond gas and oil (with its consequence to its marine life and intangible heritage, small-scale and commercial fisheries, the tourism, recreation and hospitality industries) and deal with climate change vulnerability that is the legacy of gas and oil
We request that the decision to award the reconnaissance authorisation be reconsidered and set aside and that the seismic activity be suspended pending the completion of the appeal process/procedure.
It is our contention that the awarding of the authorisation as aforesaid is premature, with regard being had to the following, inter alia:
- Failure to comply with a mandatory and material procedure – Promotion of Administrative Justice Act, 2000 (Act 3 of 2000) Section 6 (2)(b)
a) The MPRDA does not enable authorisation of non-exclusive multi-client seismic acquisition. Section 74 subsection (1)(a) to (c) of the MPRDA defines the ’holder’ of a reconnaissance permit or exploration right as meaning ‘the person to whom such right or permit has been granted or such person’s successor in title’. Also s74(2)(b), of the MPRDA states requirements of a reconnaissance application include that, “no other person holds a technical co-operation permit, exploration right or production right for petroleum over any part of the area”.
Searcher is not the holder of the rights to blocks 12/1/274 ER, 12/1/343 ER, 12/1/339 ER, therefore Searcher holds these permitting rights unlawfully. The Minister must therefore provide the public with the provisions within the law that justify:
i.the Petroleum Agency SA (PASA)’s ability to accept the application, and
ii. how these authorisations meet the procedural requirements prescribed in the applicable legislation have been satisfied while not being lawfully held and stand in contravention of the MPRDA.
2. Degree of significance of heritage resources not recognised by recommended mitigation
a) It has been made clear in previous cases and in the SIA and the HIA that “the communities and majority of local people are opposed to the project“. In the Christian John Adams & Others (13 applicants) v Minister of Mineral Resources and Energy & Others. (2022, March 1) court interdict to halt the first proposed 2D and 3D surveys, and other articulations of dissent, small-scale fishers & associations, civil society and the public have protested 1518 EIA rhetoric has served unjustly as a rationale for halting livelihoods in times of economic difficulty and impacting their marine-related intangible cultural heritage. The effects to their intangible heritage and relation to the sea remain, whether impacts occur close or far from shore.
b) The Heritage Impact Assessment (HIA) report noted that,
“The significance of such intangible and living cultural heritage features can potentially have a combined heritage grading of Grade II or even Grade I through further research. However, grading inevitably implies the investigation into and consideration of a Provincial or Heritage declaration of significance for a largely intangible cultural heritage. This is problematic as the NHRA provides for the proclamation/declaration of place, objects, or structures as Provincial or National Heritage Sites and only refers to intangible/living heritage relating to such place, objects, or structures.”
In other words, were the unique ethos and identity of specific places linked with fishing villages; oral history; popular memory; cultural traditions; indigenous knowledge systems; rituals; beliefs; and practices (e.g., fishing techniques) associated with the ocean more tangible? This intangible heritage could be deemed, through further research, “of the Highest Heritage Significance”, meaning “heritage resources with qualities so exceptional that they are of special national significance.” (HIA, 9.1 Heritage Summary). Therefore proposals for mitigation by “ensuring reduction of impacts on fish species” which “should indirectly positively impact the potential negative impacts on the cultural heritage of the communities to be impacted” (HIA. p.51), are inconsistent with the degree of significance of, and makes a mockery of, spiritual and cosmological value that the sea holds for coastal, fisher, indigenous and First People communities. This poorly defined approach used by the heritage specialist limits the ability of authorities to make informed decisions by making no distinction between quantitative and qualitative inputs (Government of the Western Cape: Department of Environmental Affairs and Development Planning Guidelines for Involving Heritage Specialists in EIA Process).
c) The HIA provides no clear ‘renewable energy alternatives’ recommendations (Government of the Western Cape: Department Of Environmental Affairs And Development Planning Guidelines for Involving Heritage Specialists in EIA Process) despite small-scale fishers being clear they are keen to work with government to establish renewable energy alternatives.[i]
d) Instead of recognizing the essential role of the community in identifying and safeguarding heritage resources, while calling for respect for intangible and living heritage (Government of the Western Cape: Department Of Environmental Affairs And Development Planning Guidelines for Involving Heritage Specialists in EIA Process), the recommendation from the heritage specialist is for Searcher to re-assess post-survey, the effects on the identified communities and their intangible cultural heritage as well as of related economic damage and losses, and human development impacts and based on the outcomes of this assessment.
The precautionary approach mandates maintaining the status quo unless there is sufficient information to realistically determine impacts.
e) Heritage specialists, PGS, “specialise in providing tailormade heritage solutions to the mining, water and oil and gas industries”, which includes over 60 grave relocation action plans and management. [ii] The politics of relocation of African ancestral graves shares similarities with the 1518 project, in that it has implications contrary to the constitutional rights of South Africans to have their heritage and culture protected. Communities stand to lose “their intangible possessions; ancestral connection, identity, heritage and belonging because of mining” (Skosana, 2022). Oceans Not Oil requests that the HIA study be peer-reviewed by a consultant recognised as independent of the mining industry by her/his/their peers. Therefore, the HIA and SIA should be reconsidered and set aside.
f) Oceans Not Oil disputes the Minister’s claim that seismic survey technology “is generally regarded as non-intrusive in nature” (3.2 Key findings) and has not applied his mind to the dispossession which covers the loss of the incorporeal experienced by local communities. Concerns regarding impacts to intangible heritage were evident in both these recent cases, of which the Minister will be aware:
i. Christian John Adams & Others v Minister of Mineral Resources and Energy & Others. (2022, March 1) Case No. 1306/22 in the High Court of South Africa Western Cape Division, Cape Town.
g) The ElAR/EMPr fails in mitigating non-market impacts to the complex transformative relationship between cosmologies of the ocean, heritage values and practices held by first and indigenous people and communities relevant to this application. This bias disqualifies I&APs from procedurally inclusive and fair decision-making processes.
3. ElAR/EMPr directives/requirements not included as conditions by Minister
a) Section 24(4)(a)(ii) of the National Environmental Management Act, 1998 dealing with Environmental Authorisations states,
(4) Procedures for the investigation, assessment and communication of the potential consequences or impacts of activities on the environment –
(a) must ensure, with respect to every application for an environmental authorisation—
ii) that the findings and recommendations flowing from an investigation, the general objectives of integrated environmental management laid down in this Act and the principles of environmental management set out in section 2 are taken into account in any decision made by an organ of state in relation to any proposed policy, programme, process, plan or project;
The SIA (Section 22.214.171.124) of the BA Report gives a strong directive, failing which will result in “significant delays and increase the risk for social unrest”:
i. Searcher should initiate discussions in their industry. The SIA states that the seismic survey industry as a whole should reassess their position and social licence to operate as an industry in a South African context and conduct a Strategic Environmental Assessment (SEA) of the impact of the industry and embark on an awareness-raising and education campaign. Having meetings was not deemed sufficient. Participatory processes and workshops where communities can engage in experiential learning are suggested.
ii. If the social risks and potential damage to cultural and indigenous rights are considered the impact on the social fabric of already vulnerable communities may be significant. From a social perspective, the project can only be recommended after meaningful consultation, local research, education, and awareness-raising being adequately undertaken in the project-affected communities.
In light of the above, the Minister should reconsider the decision and set aside, until such time that the social mitigation measures have been implemented and the communities are sufficiently informed and educated to able to engage with the application in a meaningful manner.
iii. The Fisheries Specialist Report makes recommendations to avoid surveying during the three months of peak fishing activity for the pelagic longline sector – these being the months of May, June and July. Without this being conditional the survey could seriously impact fishing activity. Oceans Not Oil requests the Minister include this level of detail in the Record of Decision.
The Minister should reconsider the decision and include directives (3.i., 3ii & 3iii) as requirements for approval.
4. No Go alternative not properly assessed.
a) The Minister (Key finding 3.5) agrees that although no-go alternatives were identified, no in-depth assessments were carried out. Given that it impinges directly on the decision to either proceed with the project, or not to do so, it is construed as a misleading attempt to skew the outcome of the EIA process.
b) There are strategic and economic reasons to re-evaluate identifying oil and gas resources with a view to further exploration and production (International Institute for Sustainable Development, 2022). The Minister did not properly assess the alternative of no surveys based on international gas phase-out pressure; reduced funding, increased cost of capital, carbon tax, trade taxes, etc and that gas functions in the electricity sector are already outcompeted, or expected, based on trends.[iii]
c) The Minister did not apply his mind given the existential issues of lasting harm to the biodiversity and climate systems of our entire planet by the ongoing consumption of fossil fuels, which of necessity require ongoing reconnaissance for the same, it is trite that the long-term benefits of eliminating GHG emission generation should be considered via the No Go option. That the link between this project, whose sole purpose is reconnaissance for the expansion, and sustained use, of fossil fuels, and these existential threats, have not been made with the effect to produce a comprehensive ‘no-go’ option, renders this ElAR/EMPr not fit for purpose. On this basis alone the authorisation should be reconsidered and set aside.
Oceans Not Oil respectfully submits that the ElAR/EMPr is inherently flawed and that the Minister contravened section 6(2)(e)(iii) of PAJA by failing adequately to consider the “no-go” option.
Lack of consistency in time-frame application for the ElAR/EMPr impacts assessments renders them unreliable. Environmental and social impacts are measured only during the reconnaissance operations, whereas the justification for the survey project impacts into the future beyond the project. This creates a complete lack of parity for any rational comparison of effects and makes the significant ratings therefore irrational and skewed.
Therefore, the decision must thus be reconsidered as it is based on information in parts and not as the full duration of the process.
6. Motivation for Need and Desirability fails to meet the requirements of the EIA
a) EIAR/EMPr states its primary purpose is to “give effect to precautionary measures” and support “on-going proactive mitigation and the duty of care to the environment” (BAR, p.1.).
The need and desirability of the project have not been addressed according to guidelines[iv] (Guideline on Need and Desirability, 2017 from the Department of Forestry, Fisheries and the Environment) wherein it states, “it must be decided which alternatives represent the “most practicable environmental option”, which in terms of the definition in NEMA and the purpose of the EIA Regulations, are that option that provides the “most benefit and causes the least damage to the environment as a whole, at a cost acceptable to society, in the long-term as well as in the short-term.”
Therefore, the Minister has thus not applied his mind to relevant considerations, and the decision must be reconsidered.
7. Repeated, Persistent and Cumulative Exposure Impacts
EIMS have confirmed (in response to Oceans Not Oil comments on BAR) that the cumulative assessment assumes the worst-case scenario of three surveys (Searcher, TGS Geophysical Company and GX Technologies Corporation) occurring simultaneously during the summer survey window in 2022/23. This assessment is guesswork at best since there have never been three seismic surveys within the same stretch of ocean occurring simultaneously within South Africa’s EEZ before. A more systematic examination of unintended consequences needs attention by the DMRE before concurrent surveys can take place. Therefore, the Minister has thus not applied his mind to relevant considerations and the decision must be reconsidered.
8. Need and Desirability
Relevant considerations to climate change implications have not been taken into account, and the Minister did not apply his mind. The effects of conducting reconnaissance whose sole imperative is the ultimate output of fossil fuel emissions, will not align with the third instalment of the IPCC’s Sixth Assessment Report (AR6) requiring “immediate and deep” cuts in emissions everywhere. Scientific consensus in IPCC reports (Rogelj et al., 2018; Masson-Delmotte et al., 2019) warns that continued oil and gas production exacerbates the problem of global warming. Mitigation which is crucial to limit changes in the climate system, ocean warming, its consequential acidification (National Academy of Sciences Committee on the Science of Climate Change, 2001) and oxygen loss (Laffoley & Baxter, 2019), sea level rise and ocean biodiversity loss (Laffoley & Baxter, 2019), due to greenhouse gas emissions, should be centralised within the scope of this study.
For all the above reasons we reiterate our request that the decision to grant the authorisation referred to above be reconsidered and set aside.
ACCESS FULL DOCUMENTATION OF THIS APPEAL HERE.
[i] Payi, B. (2022, Mar 6 ). Small-scale fishers tell Searcher to go and never return. Weekend Argus. https://www.iol.co.za/weekend-argus/news/small-scale-fishers-tell-searcher-to-go-and-never-return-dec6f6dc-bfe0-4112-bdb8-bc4df5b8cde6)
[ii] See the PGS Heritage website : https://www.pgsheritage.com/company-structure/#1524660416404-5f122b5d-8487
[iii] Halsey, R. Bridle, R and Geddes, A. (2022).Gas Pressure: Exploring the case for gas-fired power in South Africa. International Institute for Sustainable Development. https://www.iisd.org/system/files/2022-03/south-africa-no-need-for-gas.pdf
[iv] DEA (2017), Guideline on Need and Desirability, Department of Environmental Affairs (DEA), Pretoria, South Africa.
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