Environment minister Barbara Creecy must get involved in impact assessments involving the energy sector

Spurred by growing public opposition to the Shell seismic blasting operations off the Wild Coast, opposition MPs found common ground on Tuesday in calling on national environment minister Barbara Creecy to take over full legal responsibility for regulating the damaging environmental impacts of the oil, gas and mining industry — including seismic surveys off the South African coastline.

Whereas the Department of Forestry, Fisheries and the Environment (DFFE) is responsible for authorising all significant development activities (from the construction of nuclear power stations to building housing estates or cellphone towers), the Department of Minerals Resources and Energy (DMRE) still authorises and regulates all mining, oil and gas exploration under the government’s Operation Phakisa oceans economy initiative.

Critics have previously likened this regulatory regime to a situation where the fox is in charge of the henhouse.

Following a briefing on Operation Phakisa to the National Assembly’s portfolio committee on environmental affairs, Democratic Alliance MP Dave Bryant said it was disturbing that Minister Creecy had remained aloof from the current protests against the Shell seismic survey off the Wild Coast, apparently on the basis that she had no legal power to intervene.

In a media statement on 22 November, Creecy’s department said Shell’s seismic survey had been authorised under mining laws, and not by her department  

Because the Minister of Mineral Resources and Energy was responsible for the administration of the Mineral and Petroleum Resources Development Act, she was therefore not legally mandated to consider the application or to make a decision on the authorisation of the seismic survey.

Based on the presentation to the committee promoting offshore oil and gas exploration, Bryant said he was intrigued as to how fossil fuel exploration was tied in with protecting the environment and sustainable fishing.

“We need to ensure that the (environment) department considers the impacts of offshore exploration,” he said, asking what would happen in the event of a catastrophic oil leak, or from potentially negative impacts on marine life and fishing communities due to seismic blasting.

As Creecy was not at the meeting, Bryant said he wanted to ask Deputy Minister Maggie Sotyu whether she believed that further environmental impact studies should have been done before the Shell venture was authorised.

“All we seem to hear is a focus on oil and gas. Why is there not more focus on hydro and offshore wind power generation?”

Narend Singh (IFP) said that given the current concerns over Shell’s Wild Coast exploration, he wanted to ask Creecy whether she should consider going back to Cabinet to reflect on revising the current legal regime where the mining department was responsible for regulating environmental issues.

“You can’t expect the Department of Health to build houses, or the Department of Education to promote tourism.

"The Department (of Environment) needs to take back its rightful role of dealing with all environmental impact assessments for environmental issues,”  Singh said.

Creecy’s department needed to assert itself and take back responsibility for its primary mandate on environmental issues, said Singh. As things stood now, the department was “abrogating its responsibility to someone who does not have the expertise” to deal with matters such as environmental impacts of seismic surveys.

Cheryl Phillips (DA) suggested that South Africa was being seen as a “pariah that will put our environment at risk”.

“It’s embarrassing when our own environment minister can’t say anything to stop something that affects the environment.”

Nazier Paulsen (EFF) said he agreed with Bryant’s suggestion that the portfolio committee should also be acting in the interests of a sustainable oceans economy that was much more than simply offshore fossil fuel exploration.

“We need responses from the deputy minister on allowing this (seismic blasting) to continue.”

In response to Bryant’s question on the need for further environmental studies on the potential impacts of the Shell seismic testing, Sotyu said, “I would rather not say my own views because the matter is still in court”.

In response to Singh’s call for a Cabinet review of the legal and regulatory regime for mining and fossil fuel environmental approvals and regulation, Sotyu said MPs had the right to request a policy review and further research on the role of the environment department. She would discuss this request with Creecy.

The latest calls for revisiting this policy issue follow numerous similar calls from other quarters.

Environmental scholar and activist Dr David Fig, for example, has previously questioned why South Africa appeared to remain trapped in an undemocratic industrial paradigm that gave primacy to its minerals and energy sector.

Speaking in 2012, Fig noted that all major development proposals were subject to an EIA authorisation process regulated by the Department of Environment Affairs.

The sole exception was the mining sector, which was exempt from the normal rules and governed by a less rigorous in-house approval process by the Department of Mineral Resources, whose main mandate was to promote mining.

There had been a ministerial agreement in 2008 to transfer the EIA approval process for mining to the environment department in an 18-month handover process, but that initiative had stalled.

Environmental law scholars Jeremy Ridl and Ed Couzens also voiced strong concern in 2010 in a law journal article in which they questioned why the mining industry was still not subject to normal EIA law requirements, given the immense environmental damage caused by extractive industries.

Ridl and Couzens noted that when new environmental regulations came into effect in 2006, they contained two concessions to the mining industry. 

First, implementation of the regulations was delayed until April 2007 for mining operations; and, second, the Minister of Minerals and Energy Affairs remained the decision-maker for a limited period.

“Subsequent to this, however, it was to become apparent that the mining industry was not content with the situation and that it sought greater autonomy. After apparently extensive negotiations between former Minister of Minerals and Energy Affairs (Buyelwa Sonjica) and former Minister of Environmental Affairs and Tourism (Marthinus van Schalkwyk), the National Environmental Management (NEMA) Amendment Act was promulgated in 2009. 

Ridl and Couzens warned: “It must, however, be of grave concern for the potential efficacy of the new regulations that it is the Minister of Mining that will be responsible for initial authorisations, and that the Minister of Water and Environmental Affairs will play a role only at the appeal stage. Appeals, of course, are by their nature notoriously difficult to win — relying heavily, as they do, on procedural objections.

“While no environmentalist would argue that EIA is a perfect tool, it does provide us with arguably the best tool that we have yet found to ensure development considerations do not override environmental protection.” DM/OBP

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