Appeal Against TGS : Minister complicit in decisions that exacerbate the climate crisis

We refer to the provisions of the Mineral and Petroleum Resources Development Act (“MPRDA”) and the provisions of the National Environmental Management Act (Act 107 Of 1998) as Amended, read with the provisions of PAJA and the Constitution, the latter of which enshrines the right to a healthy environment and, more importantly for the purposes of this appeal, provides for the right to administrative action that is lawful, reasonable and administratively fair.

We request that the decision to award the Environmental Authorisation for Exploration Right 12/1/040 be reconsidered and set aside and that the seismic and/or exploration activity be suspended, pending the finalisation of this appeal process and any further appeal and alternatively review process. It is our contention that the award of the permit as aforesaid is, inter alia, premature, regard being had to the following:

1. NEED AND DESIRABILITY OF THE PROJECT  

Climate change impacts of the proposed development were not fully and comprehensively assessed and/or considered prior to the issuance of the environmental authorisation by the Mining Minister and hence the decision should be set aside in terms of section 8 of the Promotion of Administrative Justice Act4 (“PAJA”).

a) Sustaining the Wild Coast NPC & Others v Minister of Mineral Resources and Energy & Others, High Court of South Africa, Eastern Cape Division, Makhanda – Case No. 3491/2021, has not been drawn upon to produce a climate impact assessment that does not make the irrational, artificial distinction between oil exploration and production since both are phases in a single process to find useable hydrocarbon reserves. Without such an assessment, there is a severely understated existential risk to present and future generations. Therefore all relevant considerations were not before the decision-maker, as contemplated under Section 6(2)(e)(iii) of the Promotion of Administrative Justice Act.

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). These reasons include 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 (Halsey, Bridle. R, & Geddes 2022)

2. SEISMIC SURVEYS ARE INVASIVE

The BAR/EMPr defines seismic surveys as “non-invasive” 

a) Seismic surveys are listed activities demanding mitigation according to South African law because the noise and pressure waves generated by them spread quickly, occur every 10 /12 seconds, can be lethal or create injury, intrude on the activities of a significant amount of species for months at a time, effect the marine soundscape up to 4000kms away (Purdon 2018; Hildebrand 2005) from the source and can affect the internal organs, and so reproduction, of various species. There is no way to minimise the traumatising sound or pressure generated from the seismic survey and no way to remedy their effects.

b) The idea that seismic surveys are non-invasive has been tested in South African courts and 2 judgements to date have applied a risk averse and precautionary approach, which takes into account the limits of current knowledge about the consequences of decisions and actions and have terminated the seismic surveys (Bloem 2021; Thulare 2022).

c) The 3D survey area overlaps with areas mapped as Critical Biodiversity Area 1 (CBA 1): Natural and Critical Biodiversity Area 2: (CBA 2) Natural. Approximately 32.25 % of the proposed 3D survey area is covered by CBA 1 and CBA 2. The decision to allow TGS to conduct the survey in these CBAs stands counter to the purpose of the CBAs, therefore failing to conform to the National Environmental Management Act principles of sustainable development, and warrants review.

d) The Mining Minister 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 DG will be aware:

• Sustaining the Wild Coast NPC & Others v Minister of Mineral Resources and Energy & Others, High Court of South Africa, Eastern Cape Division, Makhanda – Case No. 3491/2021 
  
• 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. 
  

Accepting that seismic surveys are a non-invasive technology is both irrational and unreasonable. There was, therefore, material non-compliance with the mandatory preconditions of section 24O(1) of NEMA which requires the consideration of all relevant factors in reaching a decision on environmental authorisation.

3. REPEATED, PERSISTENT OR CUMULATIVE EXPOSURE IMPACTS 

There has been a failure to give effect to the general objectives of integrated environmental management in relation to sound pollution management.

a) The compounding effects of multiple abiotic and biotic stressors associated with multiple 3D surveys being undertaken concurrently is understated. TEEPSA DWOB; Searcher and GX Technology Corporation all have pending applications which overlap the TGS proposed survey area and may occur simultaneously. The risks associated with compounded behavioural disturbance and how chronically-present sound could constitute a threat to populations by changing behaviour and distribution, regularly, at critical times and in critical areas. Parsons et al. (2009) warn that some of the more insidious and potentially devastating impacts arise through long- term, repeated, persistent or cumulative exposures.

b) The judgement in Adams, C.J., Steenbergs Cove Small Scale Fishing Community, Aukatow Small Scale Fishiries Cooperative, W. Poggenpoel, R. Shosola, Coastal Links Langebaan, S. Smit, et al. 2022. C.J. Adams & others. v Minister of Mineral Resources and Energy & Others, (2022) Case (1306/22) 1–23 found that the apprehension of irreparable harm by the applicants was well founded, since the potential for cumulative impacts from multiple surveys was not taken into account.

4. NO FORMAL ANALYSIS OF IMPACTS ON LIVELIHOODS 
There is a failure to consider the lack of empirical work done to establish the footprint of this expansive operation to substantiate claims of economic development, job creation, economic stimulus and details of how TGS’s survey will uplift the socio-economic circumstances of most South Africans.

a) The National Development Plan (Republic of South Africa 2017) proposes that Strategic Environmental Assessments (SEA) should be conducted in order to plan for sustainable use of the ocean environment, yet there has been neither a sector-wide, nor a project level, independent Strategic Environmental Assessment (SEA) conducted. A SEA is a critical way to anticipate, avoid and manage risks to people and the environment. It flows directly from the Constitutional right to an environment not harmful to health and wellbeing. Without a SEA project level environmental assessment remains uncomplemented by considerations fully adapted to policies, plans and programmes that minimize potential ecosystem harm measured against environmental baselines, or by having established indices for evaluating economic and social considerations, whilst taking into consideration the regional ocean systems. 

b) A cost benefit analysis not been undertaken for the TGS 1520 application. There is a failure to analyse the social welfare effects of a loss of harvest, accumulation of damage to ecosystems, or an oil spill, rising levels of dissatisfaction over imbalances in the distribution of impacts and the trade-offs of displacement on artisanal and small-scale operations in the fisheries/ aquaculture/ tourism sectors which play a crucial role in poverty reduction and the livelihood of poor communities in coastal areas. Nor is there reference made to how these affected parties might be compensated.

5. NO-GO NOT PROPERLY CONSIDERED
The Mining Minister did not properly consider representations from I&APs that proceeding with fossil fuel exploration is a blatant violation of the Paris Agreement signed by the South African government and goes against what the best available climate science recommends, namely limiting hydrocarbon energy options to create a sustainable, resilient and equitable future for all; and did not consider alternatives, in particular the “no-go option”, being the abandonment of the project entirely and developing renewable energy sources in the interests of effective mitigation of climate change. 

a) Three offshore oil and gas related court cases to date, have taken the ministers (DMRE and DFFE) and developers to court to demand the minister engage the ‘no-go’ option to stop development before it starts. The applicants represent a large number of communities and organisation and they span South Africa’s coastline (North East, East and West Coasts):

i. South Durban Community Environmental Alliance et al. V Minister of Environment, Forestry and Fisheries & Others, (2021, June 14) Case No. 29433/21 in the High Court of South Africa Gauteng Division, Pretoria; https://drive.google.com/file/d/12loY5RLGd0CGRoMrc2pn7kt4yohkCWxS/view

ii. Sustaining the Wild Coast NPC and Others vs. Minister of Mineral Resources and Energy and Others. (2021, December 28) Case No. 3491/2021 in the High Court of South Africa Eastern Cape Division, Makhanda/Grahamstown. https://cer.org.za/wp-content/uploads/2021/12/SWC-v-Shell-Wild-Coast-Seismic-Blasting-Interdict-28.12.2021.pdf  

iii. Christian John Adams & Others v Minister of Mineral Resources and Energy & Others. (2022, March1) Case No. 1306/22 in the High Court of South Africa Western Cape Division, Cape Town. https://cer.org.za/wp-content/uploads/2022/03/Adams-and-Others-v-Minister-of-Mineral-Resources-and-Energy-and-Others-ZAWCHC-24.pdf  

To continue expanding fossil fuel exploration, dismissing climate impacts and ignoring local communities in South Africa and around the world who are suffering the consequences of the climate emergency, makes the Mining Minister complicit in choices that exacerbate the climate crisis.

Photo cred: West Coast Living