One thing we have learnt since we began our fight against unconventional gas exploration is that it is hard for ordinary people like us to understand all the jargon and legalese. Environmental practitioners and lawyers speak differently from us! Remember Jane Weston’s letter pointing this out – Good Day Mr Hemming?
The latest judgement on the Exploration Right ER317 in Northern KZN illustrates this point. Fortunately, a couple of our volunteers (who do understand) have read it carefully and prepared this summary to make it easier.
Rhino Oil and Gas fracking application faces a set-back.
The judgement in Normandien Farms (Pty) Ltd v The SA Agency for Promotion of Petroleum and Exploitation S.O.C. (PASA) and others, 3 May 2017, in the Western Cape Division of the High Court of South Africa
For anyone following the highly-contested issue of gas exploration and extraction , currently being pursued in the Karoo, KZN, Mpumalanga, Free State and North West, last week’s High Court judgment will be of interest. It will set back the company’s hopes to commence with exploration.
The prospecting for, and extraction of gas, is regulated in South Africa primarily by the Mineral and Petroleum Resources Development Act – the ‘MPRDA’ – and the National Environmental Management Act – ‘NEMA’.
Normandien Farms, (a company owning several farms in Northern KwaZulu Natal on which it operates timber farming and bottling of water) sought relief on the grounds that the first respondent (PASA) had failed to notify it, as an affected party, that an application for an exploration right[1] in the area had been lodged by Rhino Oil & Gas. Subsequent to the acceptance by PASA of the application, Rhino Oil & Gas, had obtained and submitted to PASA a scoping report[2] and was in the process of compiling an Environmental Impact Assessment Report. At some stage PASA sought to rectify its admitted failure to provide proper notice to Normandien by publishing a notice in the Provincial Gazette. This notice did not fall within the time prescribed for the giving of notices as set out in the Act.
The court ruled in favour of Normandien Farms, finding a) that the time periods set out in the Act were strict and could not be deviated from, and b) that the applicant had been prejudiced, in that, lacking notice of the application, it had not been able to participate in the consultation processes set out in the MPRDA.
The Court accordingly set aside the acceptance of the application for an exploration right, and interdicted Rhino Oil & Gas from submitting an Environmental Assessment Report and Environmental Management Programme to PASA.
So where does this judgement leave the parties? Essentially, back at square one, for although the present process is null and void, there is no bar to Rhino Oil & Gas recommencing with a fresh application for an exploration right.
Nevertheless, a strong message has been sent out to the extractive industry that the Courts will expect strict compliance with time periods set out in the Act and that the opportunity for proper participation and consultation in the process will be afforded to affected parties. And this is a rare drop of good news for conservationists and environmental activists fighting for land and social justice in South Africa.
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[1] Incorrectly referred to at [10] of the judgement as an ‘environmental right’.
[2] In terms of Regulation 21 relating to the National Environmental Management Act, 107 of 1998.
