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General Information and News Monitoring

of interest...

Fracking update

Recently the Department of Mineral Resources (DMR) granted Environmental Authorisations (EA) to Rhino Oil and Gas Exploration South Africa (ROG) for natural gas exploration across four provinces, totalling 2.4 million hectares of land. Whilst there are currently two applications in KZN, so far only the authorisation across Northern KZN has been granted.

The public is only given 20 days from the date of the notification of the granting of the authorisation to appeal.

Strategically united against the applications, Agri SA on behalf of Kwanalu and each affected provincial union, submitted an appeal for each of the EA’s granted.

In terms of the National Environmental Management Act (NEMA), EA’s are a prerequisite for granting exploration rights for natural gas in terms of the Mineral and Petroleum Resources Development Act.

ROG’s consultants, SLR have said the intended exploration activities will not include any actual hydraulic fracturing at this stage. However, the current regulatory regime governing oil and gas development in South Africa grants the holder of an exploration right the exclusive entitlement to apply for and be granted a production right which may well ultimately result in full-scale fracking.

Whilst this was taking place another win took place in the courts – the Fracking Regulations were set aside by the Eastern Cape High Court.

Government’s intention to proceed with a shale gas industry through fracking was dealt a significant blow on Tuesday, 17 October 2017, when the Eastern Cape High Court retrospectively set aside the 2015 decision by the Minister of Mineral Resources to enact Regulations for Petroleum Exploration and Production – or Fracking Regulations, as it is commonly known.  The Fracking Regulations, which have been in place since June 2015, were regarded as a vital statutory requirement for the granting of shale gas exploration and production rights in South Africa.

In reaching his decision, Judge GH Bloem accepted that there are undisputed major possible impacts of fracking and shale gas development with respect to air, soil and groundwater contamination due to uncontrolled gas or fluid flows arising from blow-outs or spills, interception of naturally occurring fractures and fissures, well failures, corrosion of casings, cementing failure, leaking fracturing fluid and uncontrolled waste water discharge.

Advocates for the applicants argued that the Minister of Mineral Resources was not authorised to make the Fracking Regulations, that it contravened the provisions of the National Environmental Management Act and the National Water Act and that their making was procedurally unfair.  The Court agreed.  It also made an adverse costs order against the Minister of Mineral Resources.

The Court further took issue with the Minister of Mineral Resources’ enactment of the Fracking Regulations which unilaterally amended an agreement with the Minister of Environmental Affairs and Minster of Water Affairs in terms of which the regulation of the environmental impacts of mining have since September 2014 fully been regulated in terms of the National Environmental Management Act.

Should you wish to contribute to the legal initiatives being undertaken which will benefit not only agriculture but all, please contact Kwanalu on email: info@kwanalu.co.za or 033-342 9393.