The search for gas resources in South African territorial waters: an environmental law perspective

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Abstract

Between 2021 and 2022, a number of court cases dealt with communities trying to prevent gas reconnaissance and exploration in the territorial waters of South Africa. In the first case, the Makhanda High Court in the Eastern Cape decided in favour of Shell. The case was instituted by environmentalists who were concerned about Shell’s exploration activities in the Wild Coast area (Border Deep Sea Angling Association v Minister of Mineral Resources and Energy (3865/2021) [2021] ZAECGHC 111) (3 December 2021). The court found that the applicants did not provide sufficient scientific evidence that the exploration activities will cause damage to marine life. Shell indicated that they had conducted approximately 325 seismic tests across the world and 35 in South African territorial waters without receiving any report of damage to marine life. Shell’s proposed activities led to protests all over the country. In a subsequent application, also in December 2021, the opponents of exploration won their case in Sustaining the Wild Coast v Minister of Mineral Resources and Energy [2022] 1 All SA 796 (ECG). In 2022, the applicants in Adams v Minister of Mineral Resources and Energy (1306/22) [2022] ZAWCHC 24 (1 March 2022) successfully opposed an application for a reconnaissance permit (Adams case). In September 2022, the opposition launched a third case opposing exploration on the Wild Coast (Sustaining the Wild Coast NPC v Minister of Mineral Resources and Energy [2022] 4 All SA 533 (ECG)). The arguments in these cases correspond in some instances but differ in other respects. While the first case dealt with environmental and technical legal arguments, the other three cases focused more on public participation, the precautionary principle, the fact that the applicants did not apply for an environmental authorisation, the non-application of the National Environmental Management: Integrated Coastal Management Act 24 of 2008 (NEMICMA), climate change considerations, as well as cultural arguments. The courts did not consider all of these arguments or pronounced on them, but decided the cases are based on a lack of proper consultation.

The search for oil and gas is opposed worldwide. The protest is launched against the use of fossil fuels, rather than a radical move to renewable energy sources. In South Africa, members of cabinet disagree about the use of fossil fuels vis-à-vis renewable energy sources. The Minister of Mineral Resources and Energy views opponents to gas exploration as opponents to development. At the end of 2022, gas was again proposed as a solution to the South African energy crisis and the inability of Eskom to deliver electricity.

South Africa signed the Paris Agreement of 2015 and must accordingly reduce its greenhouse gas emissions. In addition, South Africa should strive for sustainable development and the protection of the environment. Sustainable development proposes a balance between socio-economic interests and the environment. Government is therefore obliged to ensure that the environmental impacts of gas reconnaissance, exploration and production should be considered in a holistic and integrated manner in each phase of its lifecycle. This must be balanced with the possible advantages and disadvantages that exploration and production may have for socio-economic and cultural interests. In the 2022 Wild Coast case, the court stated that the respondents’ allegation that the projects will provide jobs and improve the economy was not substantiated. The court stated that exploration and production are connected and should not be considered separately. This is also clear from the description of the petroleum right in the Upstream Petroleum Resources Development Bill [B13-2021] that will replace exploration and production rights.

The president appointed a climate committee that must investigate a just transition to sustainable energy sources. The committee published the Just Transition Framework in July 2022, which indicates a move away from fossil fuels to renewable energy. There is only one mention of gas, providing that the exploration for gas should not divert resources from the introduction to renewable energy. The Integrated Resource Plan (IRP2019) states that gas is an alternative to coal and that it should contribute to South Africa’s future energy mix. The use of gas is therefore still controversial.

The main act that regulates gas exploration and production is the Mineral and Petroleum Resources Development Act 28 of 2002 (MPRDA). This act cannot be studied in isolation and should be read with the National Environmental Management Act 107 of 1998 (NEMA). This article discusses the legal framework before and after 2014, when environmental authorisations for exploration and production rights became enforceable. Since 2021, an application for environmental authorisation is also required for certain reconnaissance activities. The Minister of Mineral Resources and Energy approves the reconnaissance, exploration and production right applications as well as the environmental authorisation in terms of the NEMA. Subsequent to 2008, the legislation was amended to provide for the One Environmental System. The implementation thereof is, however, still subject to challenges.

Over and above the MPRDA and the NEMA, several other statutes find application. These include, amongst others, the NEMICMA, the National Environmental Management: Biodiversity Act 10 of 2004, the Marine Living Resources Act 18 of 1998, and the National Environmental Management: Protected Areas Act 57 of 2003, which all fall under the auspices of the Department of Forestry, Fisheries and the Environment. The Marine Spatial Planning Act 16 of 2018 provides for an integrated approach in deciding where development could take place in future. The erection of platforms and possible sea pollution are under the auspices of the Department of Transport. In this regard the Dumping at Sea Control Act 73 of 1980 and the Marine Pollution Control and Civil Liability Act 6 of 1981 apply.

This article discusses the legislation that deals with offshore gas exploration and production from an environmental law perspective. It refers to court decisions to illustrate the implementation of the legislation. One of the most important findings of this study is that the silo approach to gas exploration and production may give rise to tension and litigation. An integrated approach to decision making on matters relating to gas is proposed, considering, amongst others, matters relating to socio-economic development, environmental and other principles, culture, public participation with communities, biodiversity, spatial planning, and climate change.

Keywords: energy law; environmental law; gas exploration; gas production; gas reconnaissance; interdicts prohibiting gas exploration

 

  • This article’s featured image was created by Ben Wicks and obtained from Unsplash.

 

Lees die volledige artikel in Afrikaans:

Die soektog na gasbronne in Suid-Afrikaanse gebiedswaters: ’n omgewingsregsperspektief

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