Zoning bombshell could scupper Karoo fracking

MickeyD

MickeyD

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“The Minister of Mineral Resources’ decision to lift the moratorium on hydraulic fracturing or “fracking” does not entail that we are likely to see drill rigs erected in the Karoo any time soon” says Justin Truter, head of Werksmans Attorneys’ environmental law practice.

Truter is representing one of the objectors to the fracking exploration applications on whose land two energy companies, Shell and Bundu Gas and Oil, believe deposits of natural gas may be embedded deep underground in the shale rock. He also successfully represented the Western Cape provincial environment Minister in a landmark mining case that was decided in the Constitutional Court earlier this year*.

“A number of hurdles still need to be cleared by the applicants. Although most of the focus by objectors has been on environmental concerns, a further, potentially more significant obstacle has recently arisen. In February this year, the Constitutional Court upheld the earlier findings of the Cape High Court and the SCA that mining activities entail a land use which, if inconsistent with a property’s zoning, would require the rezoning of the land or a temporary departure from the land’s zoning before the mining activities may commence, notwithstanding any mining right or permit held under the Minerals and Petroleum Resources Development Act (MPRDA). Depending on the nature and extent of certain exploration or prospecting activities, the same legal principle may apply.”

Unlike other forms of exploration, there is little difference between the exploration and the actual production processes when it comes to fracking. In Truter’s view, both exploration and production will constitute a land use for the purposes of the Land Use Planning Ordinance (LUPO) which, if inconsistent with a property’s zoning, will necessitate that it be rezoned to an appropriate zoning or that a temporary departure from the designated zoning be granted, notwithstanding any exploration right held under the MPRDA.

“And herein lies the rub…” according to Truter “…most of the land in the 90 000km2 exploration area is zoned rural or agricultural which does not permit fracking as a land use and furthermore, under LUPO only a land owner may apply for a temporary departure to permit a land use which is inconsistent with the land’s zoning. Ordinarily it is also only a land owner who may apply to rezone his land.”

“There may be a handful of landowners willing to have their land rezoned or a temporary departure granted to permit fracking but for most, this is unlikely to be an attractive option,” Truter says. “Fracking and its associated activities is an invasive form of exploration with potentially significant environmental impacts which represents the antithesis to why most of the landowners in the Karoo acquired their land in the first place.”

Without the cooperation of the landowners, companies wanting to explore for shale gas through fracking have three other options – none of them easy.

Between a rock and a hard place

“One alternative is for the mining applicants or the Minerals Minister to approach the provincial government to amend the zoning scheme regulations.

Another alternative is for the mining company or Minerals Minister to request the Provincial Minister or municipality to invoke their powers to rezone land.” Truter says.

“This could be achieved, but involves a lengthy and thorough process of consultation with land owners and affected communities as well as stakeholder and public participation processes. Any decision to amend the zoning scheme or rezone land contrary to the wishes of affected landowners is likely to be challenged on review in the courts which would bring about further delays and may be overturned.”

The third alternative is for the Minerals Minister to invoke her powers under section 55 of the MPRDA and expropriate the land if it is necessary for the achievement of the objects of the Act.

“Considering the size of the exploration area, the cost implications of this would be prohibitive in our view,” he says simply. “Any expropriation will almost certainly also end up being challenged on review in the courts by affected land owners.”

Regardless which route is ultimately followed, it is clear that the lifting of the moratorium on fracking is but the first step in a series of lengthy processes that will be required before any fracking can commence in the Karoo.

Considering the constitutional issues at stake, the Constitutional Court is likely to be the final arbiter on the matter and be called upon to undertake the difficult balancing act that sustainable development demands – balancing the potential environmental, social and economic impacts and benefits of shale gas exploration by hydraulic fracturing.

*Maccsand (Pty) Ltd versus City of Cape Town and others; Minister for Mineral Resources and Swartland Municipality
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Source: http://www.werksmans.com/virt_media/zoning-bombshell-could-scupper-karoo-fracking/
 
"One alternative is for the mining applicants or the Minerals Minister to approach the provincial government to amend the zoning scheme regulations".





... and we know that both the DA and ANC supports fracking. Bastards!
 
Hopefully they'll overcome that hurdle and get fracking going. They must just make sure South Africa reaps the financial benefits.
 
Agreed! :D.

No-one thinks fracking is a selfless act of altruism.

But then neither is what you do to earn a living (correct me if I'm presuming too much - perhaps you don't charge for what you do, relying only on gifts?).

Financial reasons are probably the best reasons for fracking, or for building cellular networks, or computers, or pretty much anything of any economic import. Can't think of a better one.

But I know you are really saying that fracking is per se and in and of itself wrong.

You could use exactly the same arguments and reasons against pretty much all mining or even farming.

In the end it's a weighing of upsides and risks, of benefits and harms.

Like pretty much anything we do.

Where the line lies is seldom easy to agree on.

Personally, I'm a great supporter of a clean any healthy environment. I pick up litter in the street, and berate anyone who chucks stuff out of their window. And that's not speaking about much larger environmental issues. As an aside, I run my house and business on renewable (solar pv). I really do care, and not just verbally.

I live in the Karoo.

I also happen to support fracking. Provided it's done responsibly and with due regard to property rights, larger social and community rights, and of course the environment.

It is my considered opinion that the benefits far outweigh the disadvantages. And yes, I've seen Gasland and all the videos.

And no. I don't have the slightest financial interest in the fracking and related industry. Just an ornery concerned citizen who also happens to live in the Karoo.
 
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I supported the idea of fracking but after seeing those recently posted video links i changed my stance against such reckless devastation of the land.

Arthur said:
Agreed! :D.

....... Provided it's done responsibly and with due regard to property rights, larger social and community rights, and of course the environment.
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Therein lies the problem. The cost of cleaning up and the varied results of the outcome and effects of fracking depending on the geological underground structures is the big problem and if the American Corporate giants are failing so miserably what would the useless ANC allow given their poor historical history of corruption in our government?
 
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biometrics said:
The consumer isn't going to see 1c.
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Oh, so you expect free shares or a handout?


Provided we can keep a corrupt Caesar's grubby paws away, the benefit to South Africans will come via the market, largely through increased economic activity and better-than-otherwise prices. It's exactly the same with mining, agriculture, oil exploitation, nuclear energy, dams, roads, sewage systems, telecommunications networks, etc, etc, etc.

If the people who do these things don't make a reasonable profit, they won't be done. So I don't begrudge them their profits.

If you think the state can or will ensure a fair distribution, I have news for you, and I point to the record. Only a truly free market can do that.
 
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MickeyD said:
1. Ka-ching
2. Kick-backs
3. They live nowhere close to the fracked area.
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Nothing will be allowed to scupper Karoo fracking because, just like the arms deal, e-tolling and other high value projects, the ability to siphon off a fat percentage of loot will be the only deciding factor when decisions are made.

The consequences of fracking will only become apparent several years after starting and, by then, the initiators will be long gone with their cut and if the entire area ends up like Chernobyl nobody who benefited will give a toss.

In another thread, but in the same vein, is a discussion about farmers being relieved of 50% of their land for the supposed benefit of the workers but the real reason is access to the funds generated by this racket.
 
You are quite possibly right about Caesar's motives.

Whether fracking can cause a Chernobyl in the Karoo is of course mere conjecture.

But I agree with your main point.
 
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