The Western Cape High Court has set aside a prospecting right application, which could have opened the way for fracking in South Africa.
The court’s decision could put the brakes on a number of similar prospecting applications if they followed the same process.
Fracking has not yet been signed off in South Africa. But a company headquartered in the British Virgin Islands, Rhino Oil and Gas Exploration South Africa, has been applying for prospecting rights across millions of hectares of KwaZulu-Natal, the Free State and Eastern Cape. Most of these applications have been granted, including one for 1.6-million hectares in KZN. This covers some 15 000 farms.
These applications, starting in 2015, have all been for the company to see if there is gas lying under the surface across the three provinces. They do not mention fracking, and in media responses and public meetings Rhino has said that fracking is “not envisaged”.
Fracking – a highly controversial extraction technique because of the environmental damage it does – injects chemicals underground under high pressure to crack open rock and thus release gas. It will only be allowed in South Africa when government has finished its technical reports. With little global research on the impacts of fracking on things such as groundwater, these reports were initiated to work out the full impact of the process on water, communities and the environment. In theory, their findings will then lead to debate in Parliament and then a final decision on fracking.
The first of these reports, by the strategic environmental assessment task team, warned that small municipalities would be unable to handle the sudden increase in income – and demand for services – that would come with fracking. Other reports have warned about water pollution.
Those opposing Rhino’s application have argued in public consultation meetings, and in court, that the company’s prospecting applications are the first step to getting fracking in through the backdoor. They argue that if gas is found and can only be taken out through fracking, and that brings short-term economic benefits, the state would likely allow the process to go ahead. This sentiment has seen heated meetings between the company and affected communities across KwaZulu-Natal.
Those communities have, however, been unable to stop the process because the Mineral and Petroleum Resources Development Act gives power to the applicant. In previous investigations the Mail & Guardian has found that, in practice, community objections are only heard during the environmental impact assessment phase. These are then recorded in minutes where the concerns are understated, allowing the Department of Mineral Resources to sign off on mining rights.
But Normandien Farms, a conglomerate of several dozens farms in KwaZulu-Natal, have managed to stop this process for half of the 1.6-million hectares. Instead of objecting and facing the possibility of being ignored, they went to court over a procedural error by the state.
This came about in May 2016, when Rhino put in an application for an exploration right for several properties owned by Normandien. Current legislation means that the state owns any resources below the surface of a property, so can give out rights to exploit those resources. Above ground, Normandien mostly runs forestry plantations and is in the process of building a water bottling plant.
Rhino’s application was accepted by the South African Agency for Promotion of Petroleum Exploration a month after the application. Notice of that was then meant to be sent to magistrates’ courts in the areas where Rhino planned to prospect. Alternatively, they could be published in the provincial gazette or in regional newspapers – in order to publicise the decision and to allow for public consultation.
None of this happened to the level set out by the law. In the few cases where notices were published on the notice board outside a magistrate’s court, they did not contain any information about affected properties.
Normandien argued in court that this meant they were unable to be part of any public consultation; the law gives interested and affected parties 30 days to lodge any objections to a prospecting right. That countdown starts the day the notices go up.
The petroleum exploration agency belatedly published a notice in the KwaZulu-Natal Government Gazette in late December. In its ruling last Wednesday the court said: “This publication, which is clearly an afterthought on the part of the agency, itself constitutes an illegality.”
Given this, the court noted Normandien had been prejudiced because it had to choose between not objecting to the new notice – allowing prospecting to go ahead – or objecting and then giving the whole process legitimacy.
The longer either of these processes took, the harder the court said it would be for any prospecting to be halted. “The longer it takes [to get an objection to court], the more difficult it obviously would be to stop the process.”
The court therefore stopped the entire prospecting process, setting aside Rhino’s initial application to the petroleum agency and everything subsequent to that.
Thanks to the ruling, some 800 000 hectares of land in KwaZulu-Natal are now free from the imminent prospect of being opened up for gas extraction. A similar application is being brought against the remaining 800 000 hectares that Rhino has applied to prospect on.