Lawyers say a ruling that holders of mining rights in certain provinces cannot mine until the land has been zoned, in effect puts on hold any proposed "fracking" in the Karoo

SUE BLAINE

A CONSTITUTIONAL Court ruling last week that holders of mining rights in certain provinces cannot mine until the land has been zoned, in effect puts on hold any proposed "fracking" in the Karoo, environmental lawyers said yesterday. This is even if Mineral Resources Minister Susan Shabangu grants applications for prospecting or mining rights.



SA’s large untapped shale gas resources — estimated to be the world’s fifth-largest at 485-trillion cubic feet — under the ecologically sensitive Karoo cannot be explored to determine economic viability without using hydraulic fracturing (fracking), a controversial gas extraction method.

Several petrochemical companies have applied for exploration rights, sparking intense debate across the country.

If Ms Shabangu lifted the moratorium on fracking, and granted fracking applications, no exploration or production could occur in provinces where the Cape Land Use Planning Ordinances applied until the land had been appropriately zoned, said Justin Truter, an environmental lawyer and director at Werksmans Attorneys.

"To complicate matters even further for the exploration companies, it is ordinarily only the landowner that can apply to rezone his property, although the relevant ordinances do also provide for rezoning at the instance of the local authority or provincial authority, subject, obviously, to proper stakeholder and public participation and potentially also compensation," he said.

Derek Light, who represents about 300 landowners in the Karoo who are opposed to fracking — including businessman Johann Rupert and Princess Irene of the Netherlands — and Agri Eastern Cape, said that the court ruling was "wonderful" and "a big step forward for us". The petrochemical companies have applied for exploration rights over about 220000km² of the Karoo, and the landowners represented by Mr Light own a "sizeable portion" of that land, he said.

"We’re talking thousands of square kilometres … one client alone owns 35000km²," he said.

Fracking has been banned in almost 100 places across the world, including six countries. The process was linked to two minor earthquakes in England this month.

"Companies will have to see if a group of landowners will allow rezoning, or apply to amend the zoning law," Mr Truter said.

This would require extensive public participation that was "likely to be opposed at every corner", otherwise they would have to apply to expropriate land, which would mean proving that doing so was in the public interest, he said.

Natural gas has been hailed worldwide as a replacement fuel for coal. The integrated resource plan for electricity has proposed that gas contribute up to 6% of all new electricity generation.

Democratic Alliance water and environmental affairs spokesman Gareth Morgan said the Constitutional Court’s decision was "a victory for decentralised planning".

But he said he was concerned that the geographic size of individual gas exploration and production licences might have "severe impact on municipalities’ integrated development plans. The court has now confirmed, quite correctly, that there are shared responsibilities between different spheres of government when it comes to planning and zoning."

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