|The Centre for Environmental Rights (CER), groundWork and Earthlife Africa have slammed the proposed Upstream Petroleum Resources Development Bill, published for comment by Minerals and Energy Minister Mantashe in late December 2019.|
|By mandating that oil and gas production “must” contribute to the nation’s social and economic development, the government is locking in fossil fuel production for decades to come, when it should urgently be tackling the climate crisis. This means that protecting human health and the environment will once again taken a back seat to unsustainable development.|
|The NGOs argue that the Bill should not proceed in its current form, if at all. Any new legislation governing petroleum resources extraction must give effect to a just transition away from fossil fuels to clean renewable energy sources, not “accelerate” their production, as the Bill states in its preamble.|
- With this Bill, the Minister is trying to accelerate and require oil and gas production when the entire world, including South Africa, urgently needs to do the opposite. The South African government itself has concluded that South Africa, and the African continent as a whole, is extremely vulnerable to the impacts of climate change. Temperatures in the region are increasing at twice the rate of the global average. The Constitutional obligation on the state to protect South Africans against the impacts of climate change require the state to cease facilitating and promoting new investment in fossil fuels such as gas infrastructure.
- The Bill is a replication of the Mineral and Petroleum Resources Development Act, 2002 (MPRDA) but fails to remedy the many shortcomings of the MPRDA, which are simply recreated in the Bill. For example, just like in the MPRDA, the Bill fails to give the Minister discretion to award permits and rights contemplated under the Bill: if certain limited criteria are met, the Minister is obliged to grant these permits and rights. At the same time, crucial objectives of the MPRDA have been removed, including the State’s obligation to protect the environment, the need for transformation, and community development imperatives.
- Although the Bill makes provision for heavy criminal fines (including significant daily fines for ongoing violations; fines based on percentage of turnover), the administrative fines are weak. Oil and gas facilities are both extremely capital intensive and pose enormous risk to the environment – consider the environmental devastation caused by the BP Deepwater Horizon disaster in the Gulf of Mexico. Serious administrative penalties that match the magnitude of this risk are crucial, because our criminal justice system has a poor track record of prosecuting and convicting companies for environmental crimes.
- The Bill should be far more specific about the types of regulations that are required for the Bill, including the need for operators to disclosing fracking components; methane leak detection and repairs; caps on venting or flaring of natural gas; and use of best available technology.
- Environmentally sensitive or protected areas should explicitly be included on the list of areas where exploration and production is restricted. The Minister should also require investigation of no-go areas because of potential harm to the environment and human rights.
- It is worth noting that there appears to be no regard given in the publication of this Bill to the findings of the Strategic Environmental Assessment (SEA) for Shale Gas Development in South Africa conducted by CSIR, SANBI and the Council for Geoscience for a big group of government departments and agencies, including the DMRE, between 2015 and 2017: In particular, the cumulative risks identified in the Scientific Assessment of the Opportunities and Risks – A Summary for Policy Makers, 2nd Edition, published in 2017.
- The Bill creates powers and obligations for the Minister that intrudes into the sphere of environmental regulation, thereby undermining cooperative governance by encroaching into the territory and expertise of the Minister of Environment, Forestry and Fisheries under the so-called One Environmental System.
- The Bill fails to 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.
|The CER has asked the Department of Mineral Resources and Energy (DMRE) to clarify its process for consultation on the Bill. When the COVID-19 lockdown commenced in late March 2020, the DMRE initially cancelled its scheduled consultations on the draft Bill. However, it now appears to be undertaking engagements that can be conducted remotely using electronic platforms. However, the DMRE has not indicated its timeframe for consultations on the draft Bill, nor its schedule for consultations with other stakeholders, including community organisations and communities that would be impacted by petroleum extraction activities.|
|The NGOs continue to call for the Minister to withdraw the Bill, as it is inappropriately and irrationally conceived in an era of climate emergency, and instead to invest resources in the development of policy, capacity and regulation aimed at reducing South Africa’s dependence on fossil fuels and enabling a just and equitable transition to clean energy sources that benefits all.|