Southern Cape Land Committee
groundWork (Friends of the Earth South Africa)

FRACKING: LEGISLATIVE UNCERTAINTY UNDERMINES PUBLIC CONSULTATION ANNOUNCEMENT

George, Western Cape, 8 September 2014 – As of last week, the commencement of changes to the National Environmental Management Act (NEMA) may have left the Minister of Mineral Resources without authority to make environmental regulations for fracking. This function may now belong to the Minister of Environmental Affairs. With the Department of Mineral Resources’ (DMR) recent announcement that public consultation on draft regulations for shale gas exploration will commence this month, the Southern Cape Land Committee (SCLC) [1] and groundWork [2] commend the department.

Phumelelo Booysen, Project Officer at SCLC states:

“While public consultation is critical to maintaining a democratic society, this is undermined if a decision has already been taken by government on what is being consulted. This seems the case in South Africa regarding fracking, as President Zuma pronounced in his State of the Nation Address that shale gas is central to the government’s energy plan. We urge the government to meaningfully listen to people’s concerns and not just use these meetings to ‘tick a box’. ”

However, an additional concern is that the publication of final regulations by the Minister of Mineral Resources may be unlawful.  

The Proposed Technical Regulations for Petroleum Exploration and Exploitation were published in terms of section 107(1) of the Mineral and Petroleum Resources Development Act, 2002 (MPRDA). Paragraph (a) of this subsection was repealed by section 77 of the MPRDA Amendment Act, 2008 when it commenced on 7 June last year. The repeal of this paragraph was suspended by operation of section 11 of the Interpretation Act pending the commencement of a legislative provision that replaces it.

Arguably, section 24(5)(b)(vi)-(x) of the National Environmental Management Act, 1998 (NEMA), which came into force last week, replaces section 107(1)(a) of the MPRDA and therefore finally executes the repeal of this section. This section provides (or provided), in relevant part that:

“The Minister may, by notice in the Gazette, make regulations regarding- 

(a)
(i)  the conservation of the environment at or in the vicinity of any mine or works;
(ii) The management of the impact of any mining operations on the environment at or in the vicinity of any mine or works;
(iii) The rehabilitation of disturbances of the surface of land where such disturbances are connected to prospecting or mining operations;
(iv) The prevention, control and combating of pollution of the air, land sea or other water, including ground water, where such pollution is connected to prospecting or mining operations…”

 

Section 24(5)(b)(vi)-(x) of NEMA provides as follows:

“(5) The Minister [of Environmental Affairs], or an MEC with the concurrence of the Minister [of Environmental Affairs] may make regulations consistent with subsection (4) – …
(b) laying down the procedure to be followed in respect of – …
(vi)  the management and control of residue stockpiles and deposits;
(vii) consultation with landowners, lawful occupiers and other interested and affected parties

(viii) mine closure requirements and procedures, the apportionment of liability for mine closure and the sustainable closure of mines with an interconnected or integrated impact resulting in a cumulative impact;
(ix) financial provision; and
(x) monitoring and environmental management programme performance assessments.”

The organisations call on the government to clarify the current legislative uncertainty and furthermore to re-instate a moratorium on shale gas exploration before the public consultation commences.

Thereafter, the government needs to undertake to do the following:

 

FOOTNOTES

[1] The Southern Cape Land Committee works with excluded communities in the Southern Cape and western regions of the Eastern Cape towards agrarian transformation. SCLC’s vision is for a vibrant and sustainable countryside where there is no poverty, people are living lives of dignity, family values and community culture are upheld, the environment is protected and there is a more equitable access to and control over natural resources and opportunities www.sclc.co.za
[2] groundWork is an environmental justice organisation working with community people from around South Africa and increasingly in Southern Africa on environmental justice and human rights issues focusing on Coal, Climate Justice and Energy, Waste and Environmental Health. groundWork is the South African member of Friends of the Earth International www.groundwork.org.za

CONTACTS

Southern Cape Land Committee:
Phumelelo Booysen
Programme Officer
Tel (w): 044 803 9900/01
Tel (m):
Email: phumi_booysen@telkomsa.net

groundWork:
Bobby Peek
Director
Tel (w): 033 342 5662
Tel (m): 082 464 1383
Email: bobby@groundwork.org.za