Janse Rabie, Head: Natural Resources, Agri SA, 18 October 2017
Government’s intention to proceed with a shale gas industry through hydraulic fracturing (commonly known as fracking) was dealt a significant blow on Tuesday, 17 October 2017, when the Eastern Cape High Court retrospectively set aside the 2015 decision by the Minister of Mineral Resources to enact Regulations for Petroleum Exploration and Production (commonly known as the Fracking Regulations). The Fracking Regulations, which have been in place since June 2015, were regarded as a vital statutory requirement for the granting of shale gas exploration and production rights in South Africa.
The application for the review and setting aside of the Fracking Regulations was brought by the President of Agri Eastern Cape, Douglas Stern, together with 15 other applicants, including the Graaff-Reinet, Cradock, Jansenville and Buffelshoek Agricultural unions.
In reaching his decision, Judge GH Bloem accepted the undisputed major possible impacts of fracking and shale gas development with respect to air, soil and groundwater contamination due to uncontrolled gas or fluid flows arising from blow-outs or spills, interception of naturally occurring fractures and fissures, well failures, corrosion of casings, cementing failure, leaking fracturing fluid and uncontrolled waste water discharge.
Advocates for the applicants argued that the Minister of Mineral Resources was not authorised to make the Fracking Regulations, that it contravened the provisions of the National Environmental Management Act and the National Water Act and that their making was procedurally unfair. The Court agreed. It also made an adverse costs order against the Minister of Mineral Resources.
The Court further took issue with the Minister of Mineral Resources’ enactment of the Fracking Regulations which unilaterally amended an agreement with the Minister of Environmental Affairs and Minster of Water Affairs in terms of which the regulation of the environmental impacts of mining have since September 2014 fully been regulated in terms of the National Environmental Management Act.
In commenting on the judgement, Douglas Stern commended the efforts of the Eastern Cape agricultural community in persevering with their continued opposition to fracking in that province.