February 28, 2018
By Jay Caboz
In the latest bout of the nine-year fight by farmers to stop fracking in a semi-arid area of South Africa, a small-town lawyer has delivered a right hook.
It was a career defining moment that will live with lawyer Derek Light for the rest of his life: listening as Judge Gerald Bloem in the Grahamstown High Court, in South Africa’s Eastern Cape province, ruled that fracking in the Karoo region was unlawful. It was the punch Light had been waiting years to throw and it sent a battered and bruised government back to the drawing board.
“[The feeling] was overwhelming. You are viewed as a bunch of country people just making a noise. So when you go in a court, on an aspect that is nationally important and it’s got complex legal issues, and the court finds for you, you’re vindicated,” says Light.
This January marked the ninth anniversary when this quiet, unassuming, small-town lawyer and a handful of farmers challenged multi-million-dollar oil corporations and the South African government to stop hydraulic fracturing in their backyards.
“I always say to people I’m not a banner-waving green extremist, I’m a lawyer. What we want is a lawful process and our rights not to be unlawfully hinged… [we] are not just a bunch of country idiots behaving in an unreasonable fashion,” says Light.
For Light, it has meant years slogging through snail-paced proceedings and stockpiling mountains of paperwork from his offices in Graaff-Reinet, situated in the heart of the Karoo.
“When they change a law in parliament in line with what you called for, then you start getting ticks on the box and saying the last eight years have been worth it,” he says.
This was all because of three areas of concern the farmers had with the fracking regulations.
“The obvious issue farmers had was with the potential impact of the environment that shale gas development, that hydraulic fracturing, might have. The second was that the legislation was inadequate to cater for such a development, so we were concerned there was a lack of legislation and regulation. Then thirdly, and this is interconnected, we were concerned that there was a lack of knowledge on the process, a lack of knowledge on the receiving environment and therefore an inability to determine the potential impact,” says Light.
Light and the 400 Karoo landowners won their court case on October 17 because government failed to follow its own law. The Department of Mineral Resources (DMR) went beyond their authority and published fracking regulations relating to environmental and water usage matters, when it did not have the power to do so, the court found.
“It will mean the ministers of mineral resources, environmental affairs and water affairs will have to go back and do their job properly,” says Light.
It also means another vital lifeline for anti-fracking farmer Doug Stern, who has been farming sheep near Graaff-Reinet for the past 45 years, and was the first to lay the case against government.
“Derek doesn’t get the accolades he deserves. That man has virtually singlehandedly handled this anti-fracking campaign in my view. He’s been backed by strong businessmen, but he’s been able to gather a very strong team to supply him with information that he can use very effectively. Thanks to him largely we’ve been able to keep these cowboys at bay and protect the environment,” says Stern.
“We found so many loopholes in the regulations that government put forward that we felt we had to fight it. It was a significant victory that sends government back to the drawing board and forces them to relook at their regulations. In that time we are buying time and hoping that research into renewable energy will advance at a rapid rate.”
Stern, who is also the president of Agri Eastern Cape, a private association representing more than 3,000 farm owners in the province, was one of the initial farmers to stand up against fracking in 2009.
“Who knows what damage would be done if we had allowed them to do exploratory drilling? If you look at the statistics, at the animal stock numbers of South Africa, a third of those are found in this province. We are an agriculture province through and through. If we start allowing industries like mining to impact on our environment we stand to lose a lot of our animal producing country, which will then impact again on our food security.”
Stern is one of the few farmers in the area to have seen the impact of fracking firsthand. He went to Pennsylvania, United States, as a guest of anti-fracking groups.
“My experiences in America were horrifying and I knew we couldn’t allow this to happen in this country. We had to make sure that they weren’t granted any exploratory lisenses.”
This is not the first time Light has stepped into the ring. In 2011, he and the farmers raised concerns and convinced government to place a moratorium on fracking in the Karoo. This led to government setting up a multi-disciplinary task team to investigate the potential impacts and benefits of hydraulic fracturing.
The report identified significant gaps in research before regulations of exploration of shale gas could proceed. Light and the farmers then called for a full Strategic Environmental Assessment (SEA) before any further exploration could begin. Farmers claimed there were too many unknowns around the impact of fracking on Karoo’s highly sensitive aquifer system from which boreholes are part of their primary water resource.
Nevertheless, government, in August 2012, chose to lift the moratorium and allow exploration of shale gas, but that they would not allow hydraulic fracturing to take place unless it was properly regulated.
“Government was concerned that if it did not allow the process to proceed, it could be a lost opportunity,” says Light.
“The sad part of the policy decision was that they took a decision notwithstanding the fact that they were uninformed, which we joined issue with. We welcomed the fact that they wanted to revisit the legislation, but we joined issue with the decision that they continued to proceed under circumstances under where they couldn’t take an informed decision.”
It would take government another three years, until June 2015, to submit the next round of regulations. By this time, an important amendment was made to South African law in June 2013, under the Mineral and Petroleum Resources Development Act No. 28 of 2002 (MPRDA) and in line with the National Environmental Management Act of 2008. This amendment allowed Light and the farmers to win their case with the DMR, which they say overstepped its authority.
“Unfortunately it was an attempt by the minister to publish regulations that were all encompassing, it dealt with exploration and production and all other potential impacts to do with fracking,” says Light.
To make matters worse, when the DMR published its regulations, it did so without an SEA from the Department of Environmental Affairs. This joint operation produced a 165-page document detailing the uncertainties of fracking and took two years to complete.
“A team of 200 specialists authored work, peer reviewed by 19 international specialists… In each chapter, the scientists made a list of scientific unknowns which the science militated against proper decision making,” says Light.
Light says one of the recommendations of this report was that at least 52% of the areas in question could not be fracked because of their sensitivity and more importantly that no water was be used in the Karoo because it was a limited resource.
“Also, what was said to be a massive economic benefit bringing 400,000 jobs to the country, the report said otherwise. It said fewer than 3,000 jobs would be created and of that only 900 locally,” says Light.
In the meantime, the government, through the Department of Science and Technology, also commissioned a report to determine South Africa’s technical readiness to support a shale gas industry. This was published in 2016 in partnership with the Academy of Science of South Africa and concluded, “much needs to be done to put in place a clear legislative environment and a rigorous regulatory and monitoring structure which will ensure that operators, in using their exploration and production lisences, apply best-practice technologies that are fully compliant with the rules and regulations governing the industry.”
“The good news is that there is research being done. It is clear that the initial reserves, which were stated by the oil companies and their advisors, and therefore government, have been overstated. Therefore the cost of producing shale gas, particularly in the context of the Karoo geology, is not viable,” says Light.
While the fight for the Karoo is well underway, the fight for national regulation is just about to begin. It is ironic that while research, millions of dollars and time have been spent to protect the Karoo from fracking, it may proceed in any case on a national level.
This is because while there is a moratorium over the Karoo, this does not apply to the rest of the country. Beyond these borders, farmers now face similar cases where applications have been lodged by oil and gas companies for petroleum and gas exploration in the KwaZulu-Natal, Free State, Gauteng and North West provinces.
Although the applications do not specify fracking, Light is concerned with the rising number of applications.
“Which is what we predicted would happen. If there was shale gas in this country, and if they did allow shale gas development on well-field situations on large reserves, it would cover probably 60% of this land’s surface,” says Light.
Sungu Sungu Gas, in 2015, placed bids to explore in KwaZulu-Natal and Free State in an area 565,000ha and was halted in 2016 in the Pietermaritzburg High Court on the grounds it did not consult land owners adequately. In July 2017, it withdrew its exploration application completely.
In May 2017, the Pietermaritzburg High Court ordered Rhino Oil and Gas Exploration South Africa to stop all exploration in an 8,000km2 area after it was found that the Petroleum Agency of South Africa (PASA) had flouted the procedure process. This is just a small part of their applications, which stretch across five provinces and 78,876km2.
“What the general public and government must realize is that agriculture is the cornerstone of their food security program and we can’t jeopardize that in any way whatsoever… Even the politicians have to eat. Everybody has to eat,” says Stern.
Meanwhile, back in the Karoo, Mosebenzi Zwane, the former minister of DMR, told Reuters they are studying the court order.
“We remain committed [to shale gas exploration]. We will study the outcome of the court and decide where we go,” says Zwane. “We are talking about first fracking licenses being granted in 2019 if all goes well.”
The rematch could begin later this year, as the DMR was granted leave to appeal at the Supreme Court of Appeal and have filed notice to appeal.
If unsuccessful, the government could face the arduous task of drafting new regulations in line with the High Court ruling, again.
“What we have fought for since 2009 is to achieve a better legislative framework with better regulation. That process is not complete and we will continue to ensure that if shale gas development ever occurs, then it occurs lawfully and it occurs with proper regulation in force,” says Light.
“You need stamina. It’s a long process,” he says with a smile.
One thing that living in the Karoo has taught Light is how to box smart and wait for the right moment to deliver a stunning right hook.
A Fracking Fight Since 2009
It started in 2009, when Econometrix, South Africa’s largest independent macroeconomic consulting firm, believed there was 485 trillion cubic feet of natural gas. The government and energy companies took this as gospel to support their case to open up the Karoo for fracking.
They pegged the Karoo as the $100-billion answer to Africa’s energy crisis, saying there would be enough gas to make it the world’s fifth largest resource – enough to fuel the country’s economy for up to 30 years and create thousands of jobs.
No one really knows how much shale gas there actually is. Researchers have only begun to explore its potential and exploration can take up to five years to conclude.