Farmers show their determination against shale gas in Supreme Court of Appeal
20 May 2019
The Supreme Court of Appeal in Bloemfontein heard arguments last week by Agri SA's provincial affiliate, Agri Eastern Cape, regarding the legality of technical regulations for fracking previously promulgated by the Minister of Mineral Resources.
“In the absence of satisfactory information about the availability and treatment of water to sustain a fracking and shale gas industry in South Africa, Agri SA cannot support government’s apparent appetite for a full-scale gas industry in this country,” says Janse Rabie, Agri SA’s Head of Natural Resources.
The Department of Mineral Resources has approached the Appeal Court after Agri Eastern Cape, together with a group of interested landowners, were victorious in the Grahamstown High Court in Makhanda in October 2017 when Judge Gerald Bloem found that only the Minister of Environmental Affairs had the powers to make such regulations. Agri Eastern Cape opposes the Department's appeal.
"Farmers and landowners in the Karoo have been fighting against planned shale gas developments in the Karoo and elsewhere in the country since January 2009. The case is proof of farmers' determination to remain resolute against fracking after more than a decade."
"One must have stamina to withstand these international oil companies," said attorney Derek Light, who acts on behalf of Agri Eastern Cape. "I have the greatest respect for farmers and their representative bodies for their decision to protect agriculture, workers and food security."
The Appeal Court has reserved judgment in the matter.
Agri SA will continue to strive for the advancement of the interests of every farmer.
Background information
Farmers and landowners in the Karoo have resisted the Applications of large international oil companies (Shell, Bundu and Falcon) for shale gas exploration rights utilising the contentious hydraulic fracturing ("fracking") process since January 2009 through the offices of Derek Light Attorneys of Graaff-Reinet.
Doug Stern (President of Agri Eastern Cape) and farmer Lukie Strydom were flown to the USA to gain first-hand knowledge of the impacts of fracking on agriculture, courtesy of BKB.
Having tenaciously resisted and successfully warded off the first two applications of Bundu they persisted in their opposition to the third application of Bundu and subsequently, the application by Falcon and Shell which collectively extended over hundreds of thousands of square kilometres in the Southern Karoo.
Farmers were concerned about the potential negative impacts of fracking on groundwater, air quality, human and animal health which they anticipated might undermine agriculture and tourism in the area.
The persistent resistance by landowners of the process lead to the current moratorium imposed by the Minister of Mineral Resources on new applications and had the further positive effect that Government had a strategic environmental assessment performed to seek specialist input from suitably qualified specialists on all of the issues raised by landowners, which said study was peer reviewed by international experts.
As a direct consequence of the opposition by farmers and landowners to the process exploration rights have not yet been awarded to any of the three applicants.
In September 2012 Cabinet took a policy decision, having accepted the report of the Government's Task Team, to allow exploration for shale gas, but to not allow the utilization of fracking until it could be properly regulated. The Task Team together with the relevant Ministers were tasked to formulate regulations to properly regulate the said activity.
The Task Team formulated draft Regulations which the Minister published for comment and ultimately promulgated on the 3rd of June 2015, purportedly in terms of the Mineral and Petroleum Resources Development Act.
Acting upon the advice of their legal representatives, individual landowners and district farmers unions brought an application to the High Court in Grahamstown on the 20th of November 2015 requesting the High Court to review the Minister's decision to promulgate the Technical Regulations to regulate fracking on the following grounds:
1. That the Minister was not empowered to make the Regulations and acted ultra vires his powers in terms of the MPRDA, the power to make the Regulations being reserved to the Minister of Environmental Affairs in terms of the "One Environmental System" (the Minister's power to regulate environmental aspects of mining were removed by amendments to the applicable legislation in 2008 and 2013).
2. That the Minister had failed to consult on the issues relating to banned substances utilising hydraulic fracturing with a consequence that the procedure was unfair and therefore open to be set aside on constitutional grounds.
The Minister of Mineral Resources opposed the landowners’ applications and Judge Bloem ruled in favour of the landowners in a judgment handed down on the 17th of October 2017. The Regulations were set aside, and the Minister was directed to pay the costs of the application.
In the interim the action group, TKAG supported by AfriForum brought a similar application in the North Gauteng High Court. This application was dismissed with costs.
The Minister of Mineral Resources appealed to the Supreme Court of Appeal (having been granted leave to appeal by Bloem J) against the judgment obtained by the farmers and agricultural unions.
TKAG and AfriForum appealed against the judgment of the High Court and the two appeals were consolidated and heard by the Supreme Court of Appeal on Thursday the 16th of May 2019.
The Court has reserved Judgment having heard argument from Adv Andrew Breitenbach S.C. (assisted by Adv Mias Schreuder) on behalf of landowners and the legal representatives of the Ministers of Mineral Resources and Environmental Affairs and ultimately also, the legal representatives of TKAG and AfriForum.
The arguments advanced by Counsel for landowners, Adv Breitenbach S.C, on the issues of legality and the fact that the Minister acted ultra vires his powers were compelling and well received.
The parties were also requested to deliver argument to the Court as to whether or not the making of Regulations by the Minister constituted administrative action amenable to review under the Promotion of Administrative Justice Act, or whether it was amendable to review under the common law/constitutional grounds. It is hoped that this issue will be resolved by the judgment to be handed down by the Supreme Court of Appeal in due course.
Whilst the legal representatives for landowners were confident of a positive outcome, they cautioned that it was premature to anticipate the outcome and that the Court's role in this process should be respected until judgment is delivered in due course.
Derek Light attorney emphasized the fact that landowners had been tenacious in their resolve to oppose hydraulic fracturing for more than a decade. They had been supported in their efforts by Agri Eastern Cape and Agri SA and this unified approach has made it possible to be effective in their opposition to these harmful exploration and production activities.
"One must have stamina to resist these large, wealthy international oil companies and I have the greatest respect for farmers and their representative bodies for their resolve to protect agriculture, those employed therein and food security", Light said.
Issued by Janse Rabie, Agri SA Policy Head: Natural Resources, 20 May 2019
