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Centre for Environmental Rights – Advancing Environmental Rights in South Africa

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Comment on Draft Upstream Petroleum Resources Development Bill, 2019

The Draft Upstream Petroleum Resources Development Bill, 2019 was published for comment on 24 December 2019 (Notice 1706 of 2019, Government Gazette No. 42931).

On 21 February 2020 the Centre for Environmental Rights submitted comments  on the draft Bill in the Centre’s own name and on behalf of our clients, groundWork and Earthlife Africa. Supplementary comments were lodged on 5 August 2020.

Our overall submission is that the Bill should not proceed in its current form, if at all. Legislation governing petroleum resources must only be put in place to ensure a just transition from fossil fuels to clean renewable energy.

Our main submissions are summarised below:

  • The Bill is a replication of the MPRDA, without consideration of the problems arising out of the MPRDA which are recreated in the Bill.
  • Despite this, crucial objectives of the MPRDA have been removed, including issues surrounding the State’s obligation to protect the environment, the need for transformation and community development imperatives.
  • The Minister has failed to consider the implications of the Bill in the context of the climate emergency. South Africa, and the African continent generally, is extremely vulnerable to the impacts of climate change. Temperatures in the region are increasing at twice the rate of the global average. It is the government’s constitutional imperative to protect South Africans against the impacts of climate change. This includes investing in abandoning fossil fuels and not putting frameworks in place that facilitate or accelerate new fossil fuel development such as gas infrastructure.
  • The Bill does not make adequate provision for consultation with parties interested in and affected by the activities contemplated by the Bill, or for access to information by those parties, and therefore fails to give effect to the constitutional rights to fair administrative action and access to information. This will lead to a range of problems, including exposing the Bill to a number of legal challenges.
  • The powers and obligations afforded/imposed on the Minister under the Bill are problematic.
    • Firstly, the Minister is not granted a discretion to award permits and rights contemplated under the Bill – if certain criteria are met, the Minister is obligated to grant these permits and rights.
    • Secondly, the Minister has irregularly sought to violate the One Environmental System (OES) in the Bill and encroaches into the sphere of environmental regulation, thereby encroaching into the territory of the Minister of Environment, Forestry and Fisheries.

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Section 24of the Constitution of the Republic of South Africa, 1996

Everyone has the right to an environment that is not harmful 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 justifiable economic and social development.

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