FRACKING – A LEGAL FRAMEWORK FOR THE DEBATE - by Peter Kantor
The well-publicised outcry against the proposed fracking (hydraulic fracturing) natural gas exploration project in the Karoo will hopefully fuel a much-needed debate on the responsibilities of the state in its role as guardian of our natural environment. At what risk of environmental harm can our government allow exploration for natural gas in the Karoo? What can one do about the concerns about environmental harm in the face of incomplete scientific knowledge?
The Shell Exploration Company B.V. has applied for exploration rights in terms of the Mineral and Petroleum Resources Development Act (MPRDA), to explore for natural gas in three areas of the Karoo covering a total of 90 000 km². The method of exploration involves fracking, which is drilling deep below the surface and pumping water and chemicals under high pressure that fracture the shale rock formation to help to release any natural gas that might be there. Shell’s application has met with vocal resistance for various reasons, mostly to do with protecting the environment, including water aquifers and resources, and there has been talk of taking the matter all the way to the Constitutional Court.
To set the debate in a legal framework, section 24 of the Bill of Rights in our Constitution gives everyone the right to an environment not detrimental to their health or well-being, and to have the environment protected, for the benefit of present and future generations, through reasonable legislative and other measures that -
- prevent pollution and ecological degradation
- promote conservation; and
- secure ecologically sustainable development and use of natural resources while promoting economic and social development.
The MPRDA and the National Environmental Management Act (NEMA) are two of a number of legislative measures designed to give effect to this constitutional right. Other more specific laws cover things like water, biodiversity, air pollution, waste, protected areas, heritage resources, spatial planning, health, and so on. The MPRDA asserts the sovereignty of the state over all mineral and petroleum resources, but also gives the state the important role of custodian of the environment in order to strike a balance between development and conservation. It has a constitutional duty to secure ecologically sustainable development and use of natural resources.
The MPRDA gives anyone the right to apply for a right to explore for a mineral in a piece of land, no matter who owns the land. The applicant submits an application for an exploration right followed by an environmental management programme, and must notify and consult with affected parties. Other rights, such as prospecting, mining and production can also be applied for under the MRPDA, and the Act promotes the exploitation of the country’s mineral wealth. It also provides for the equitable distribution of mineral resources. Once granted, mineral rights are a type of property right, and property rights also enjoy constitutional protection.
The Petroleum Agency of South Africa (PASA) is authorised to decide Shell’s application and the MPRDA states it must grant the exploration right if certain criteria are fulfilled. One criterion is that an environment management programme (EMP) has been approved by PASA, and the MPRDA prescribes what the EMP must contain. This includes an investigation, assessment and evaluation of the impact of the exploration on the environment, on socio-economic conditions of those directly affected, and on heritage resources in the national estate. It does not specify the grounds on which an application may be turned down and PASA may in its discretion accept the EMP.
However, that discretion must be exercised in the light of the Constitution and other relevant legislation and the common law. Our mining legislation has a history of having its own environmental controls and at present these are still the responsibility of the Minister of Minerals and Energy, not the Minister of Water and the Environment, though in due course this will shift in order to avoid this obvious conflict of interest.
Shell’s consultants, Golder Associates, drew up and recently put out for public consultation ‘Draft Environmental Management Plans’ for the three areas. The comment period has now closed and the final reports were submitted to PASA on 12 April 2011. Affected parties have a right to access relevant information, to submit their own information and representations, to have these considered, and to comment further on any new substantive information in the final environmental management plan. The constitutional right to administrative justice also includes the right to have the prescribed processes followed lawfully, and to a decision on the exploration application that is reasonable and justifiable.
There is no precise legal test for what level of risk of harm to the environment is acceptable when it comes to granting an exploration right or a mining right in general. Environmental management best practice requires unacceptable risks to be red-flagged. Mining is well known to be detrimental to the environment, and this gives rise to duties to mitigate harm and rehabilitate afterwards. NEMA creates a legal duty of care to prevent significant pollution or degradation of the environment, and sets out guiding principles.
To read Peter Kantor's complete article, click here.
Peter Kantor is an advocate of the High Court of SA and the national chairman of the Environmental Law Association in South Africa. He is also a well known labour lawyer and the author of Siber Ink's Commentary on the Rules of the CCMA, a third edition of which will be published in 2011, and a co-author with Barney Jordaan and Craig Bosch of the forthcoming second edition of Jordaan & Stelzner: Labour Arbitration.