The power of mineral resources and energy minister Gwede Mantashe to ram through environmental authorisations to explore, seismic blast and then drill and produce oil and gas is headed onto a legal battleground.
News of a litigation task team working in the background to find a legal strategy to halt all existing and future exploration and production rights applications pending a better solution, emerged on Friday on the 198-member WhatsApp group Seismic Protests 2023 and 113-member Save the Wild Coast group on Friday.
The online comments came from leading environmental lawyer Ricky Stone of Cullinan & Associates and were made in the wake of Thursday’s announcement that TotalEnergies EP SA (Teepsa) (Pty) Ltd was on Monday granted an environmental authorisation by Mantashe’s department of mineral resources and energy (DMRE) to drill up to five exploration wells in Block 5/6/7 — in a 10,000km² area 60km to 170km offshore of Cape Town and Cape Agulhas.
The notification of the environmental authorisation was received by the attorneys and members of the public on Thursday.
Stone said: “There is a rather stellar litigation task team running a strategy forming process in the background, though I can’t say (for many reasons) who it’s members are for now, but rest assured they’re the right ones.
“Much thought is most definitely going into a single legal strategy and case that halts all existing and future exploration and production right applications.”
He said Thursday’s authorisation gave TotalEnergies the go-ahead to simply to see if there was enough oil or gas to produce in the decades to come.
If so, then the next application would be for full-force production.
More alarming was the application by TotalEnergies to start producing oil and gas from below the seabed in exploration blocks 11B and 12B in the area from Mossel Bay to St Francis Bay.
“The well flaring/flowing/testing has already been completed, and now they are applying to produce oil and/or gas.
“That application is still to undergo a further round of public participation.
“They have completed their basic assessment, with interested and affected parties (I&APs) commenting.
“Now the competent authority, the DMRE, must decide whether they can go to the next phase, which is a full environmental affect assessment, which will then be subjected to public participation.”
Stone told Off Track, in a lengthy interview, that the authorisation to drill off the Cape contained no comment on the public participation process because 99% of public comments were hostile to the exploration.
Stone’s firm is representing the EMS Foundation, established by Tjaart and Louis Steyn, to advance and protection rights and general welfare of wild animals, children, elderly people and other vulnerable groups in SA and Africa.
He said EMS had attended the Teepsa’s public meetings about blocks 5, 6 and 7.
“They analysed the comment and response report and could see that the overwhelming majority — 99% — had concerns and objections. Only one percent supported the blocks 5, 6, 7.
He said an internal appeal was already being drawn up and would be submitted to an “appeal administrator” who is in minister Barbara Creecy’s department of forestry and fisheries and the environment, even though DMRE has the power over all environmental authorisations that relate to his department.
“There is some hope and faith that minister Creecy may uphold a well-considered and crafted appeal,” Stone said.
“I do have instructions and will be submitting an internal appeal on behalf of the EMS Foundation.”
The response would look at procedural aspects, whether public participation was adequate, issues of the “social licence to operate” argument — which is coming into public and government life in SA and already is becoming law globally — about mining vs the interests of indigenous, community-owned land, Stone said.
The UN has insisted there should be free prior informed consent before mining can happen, he said.
He explained the new move: “The community that is directly affected has to give a social license to operate.
“That should be sufficient; if communities don’t want it then they [the miners] should not be entitled to go ahead.”
He said Teepsa’s Cape authorisation was stiff, standard “box-ticking stuff”.
It was clear that the decisionmaker had not applied their mind. Nothing was said about objections and comments.
He said the application to produce oil off Mossel Bay to St Francis highlighted a major problem in law and government.
“The majors [fossil fuel corporations] only do what the law allows them to do.
“It is government’s strategy to explore for oil and gas which needs to be shifted and we are working hard to craft strategic litigation to put a halt to all of this, whether it be the promulgation of the marine spatial plans, or to constitutionally challenging the DMRE’s right to be the competent authority with respect to Nema (National Environmental Management Act of 1998).”
He said the DMRE had the power to issue environmental authorisations to every industry in the country, even though the competent authority was the department of forestry, fisheries and the environment (DFFE).
“This is a clear conflict of interests. The DFFE is the ministry that regulates and enforces Nema, how could you ever expect a department whose mandate is to secure energy resources to explore for oil and gas to every rule otherwise.
“The DMRE will approve every single one no matter how solid the objections during the application process.”
This issue would lead to a constitutional challenge, he said.
He said last week’s authorisation was “one step closer to having an oil and gas company start producing oil and gas”.
“More significant is TotalEnergies’s application to start producing in 11B and 12b.
“It is on the near horizon. There could well be oil rigs and pipelines laid.”
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