Centre for Environmental Rights – Advancing Environmental Rights in South Africa

In anticipation of the Minister of Mineral Resources’ decision on exploration licences for shale gas fracking in the Karoo basin, the Centre for Environmental Rights calls for accountable and transparent decision-making that takes into account the environmental and other rights of all South Africans, including, in particular, disadvantaged and vulnerable communities in the Karoo. Such accountable and transparent decision-making would require, at least, the publication of the expert task team report, as well as public hearings on this controversial issue. The Centre also outlines minimum requirements for the task team report in terms of local and international research and experience, and sets out stringent requirements for appropriate regulation of shale gas fracking.

Introduction

1. The Centre for Environmental Rights (CER)’s mission is to advance environmental rights in South Africa, and its vision is to facilitate civil society participation in environmental governance that is stronger, more streamlined, and better legally and scientifically equipped.
2. We note from recent statements made by the Minister of Mineral Resources that decisions on various applications to explore and exploit shale gas resources in the Karoo through hydraulic fracturing are imminent.
3. While the CER does not take a position on the technology of hydraulic fracturing (“fracking”) or any other technology, we are concerned about the environmental impacts of fracking. In particular, we oppose any technology that:
   1. contaminates surface aquifers in the long term;
   2. introduces persistent organic and metallic pollutants into sensitive environments and food chains;
   3. increases our dependence on carbon-intensive energy sources; and
   4. compromises our ability to meet South Africa’s carbon emissions targets.
4. Fracking has the potential of doing all of the above. As such, and given the scale of the proposed shale gas fracking in the Karoo, the authorisation of and investment in shale gas fracking in the sensitive Karoo environment has the potential to have massive ramifications for South Africa and its people.
5. For these reasons, any policy and decision-making around fracking should be facilitated by open and transparent information-sharing and discussion of all the implications, advantages and risks associated with this technology.

What has happened so far

1. Thus far, the process of policy and decision-making around shale gas fracking in South Africa has not met this standard.
   1. Whereas we supported the appointment of an expert task team to advise the Minister of Mineral Resources on a decision whether or not to grant shale gas exploration rights in the Karoo, the secrecy surrounding the identity of task team members, the limited representation of the Departments of Water Affairs and Environmental Affairs, and the terms of reference for the task team has undermined the value and credibility of the task team.
   2. While one would expect the Ministry of Mineral Resources to make such information available voluntarily and proactively to increase public trust in the process, instead civil society organisations and journalists have been forced to use access to information legislation and even court proceedings to access this information.
   3. Both the Department of Mineral Resources (DMR) and the Department of Environmental Affairs (DEA) have refused applications for access to information in relation to fracking decisions submitted by the CER.
      1. An application for access to the Task Team report was submitted to the DMR and PASA on 8 September 2011, and refused by the DMR on 27 September 2011 on the basis that providing the report would “substantially and unreasonably divert the resources” of the DMR and that the CER should contact the “relevant companies” to obtain the information. (This decision was clearly taken before the report had even been compiled.)
      2. On 1 August 2012, the DEA also refused the CER’s request for access to information for the DEA’s own submissions to the expert task team on the basis that “there is a risk that if the information requested is made available, this might impact negatively on or frustrate the deliberations of the Minister of Mineral Resources”. These submissions were referred to in public by the Director-General of the DEA at a media briefing on 2 May 2012.
   4. Furthermore, disadvantaged and vulnerable communities in the Karoo that would be directly and indirectly affected by proposed shale gas fracking have been all but ignored in the decision-making process. In June 2011, the CER and the Wildlife and Environment Society of South Africa hosted a joint environmental rights workshop series on shale gas fracking in 17 towns across the Karoo. The CER reported to the Petroleum Agency of South Africa (PASA) on the findings of these workshops, which included an assessment that urgent additional consultation with disadvantaged and vulnerable communities was required. Despite follow-up, PASA has failed even to acknowledge receipt of these submissions.
   5. We also note that government has made no attempt to conduct a strategic environmental assessment of various energy policy options, and generally speaking public participation in and transparency around energy policy development have been dismal.
2. The Minister of Mineral Resources has in the past publicly indicated her intention to create opportunities for public input into the decision-making process, but as far as we are aware, thus far no such opportunities have been facilitated by her or the Department of Mineral Resources.

What we expect going forward

1. We call on the Minister to improve the quality and credibility of any decision-making around fracking in the Karoo, and in compliance with the statutory environmental management principles[1] applicable to such decision-making by, as a start:
   1. publishing the report of the expert task team, submissions made to the task team and the minutes of all meetings of the task team;
   2. allowing a 90 day period following the publication of the report for the purpose of:
      1. hosting public hearings where interested parties and experts can make public submissions about their support for, concerns about and expertise on the potential impacts of shale gas fracking in the Karoo. These hearings should specifically include the disadvantaged and vulnerable communities mentioned above;
      2. public comments and submissions on the expert panel report; and
   3. extending the moratorium on decisions on fracking applications for at least this 90 day period.
2. At the very least, we expect the report of the expert task team to have taken into account:
   1. key international research on the potential and actual environmental, social and economic impacts of shale gas fracking;
   2. key local research on the potential environmental, social and economic impacts of shale gas fracking;
   3. key research on the hydrological, biodiversity and socio-economic value and sensitivity of the affected areas in the Karoo;
   4. the experiences, approaches and decisions of regulators in countries where shale gas fracking has taken place thus far.
3. Should a decision be made to authorise shale gas exploration and drilling through fracking in the Karoo, the CER will be focusing on the following issues, using all democratic and legal tools available:
   1. ensuring effective participation by disadvantaged and vulnerable communities in all licensing applications;
   2. ensuring that all licensing applications include proper social impact assessments, and a full economic valuation of costs and benefits;
   3. proper regulation of all activities associated with fracking under the National Environmental Management Act, 1998 its Environmental Impact Assessment Regulations, 2010 and the National Water Act, 1998 through appropriately stringent licensing, and potentially through environmental management cooperation agreements;
   4. the provision of resources and training for proper compliance monitoring of all licences, and punitive enforcement action in the case of violations;
   5. provision of adequate financial provision for rehabilitation under the Mineral and Petroleum Resources Development Act, 2002, the National Water Act, 1998 and other relevant legislation;
   6. generally ensuring that effect is given to section 24 of the Constitution, namely the right to an environment that is not harmful to health and wellbeing, and to have the environment protected for future generations.

   For more information about the CER’s work on fracking, click here.

[1] Section 2 of the National Environmental Management Act,1998 as read with section 37 of the Mineral and Petroleum Resources Development Act