MISLED – ONO comments on EIA Amendments
Herewith you’ll find Oceans Not Oil’s submission on Proposed Amendments to the Environmental Impact Assessment (EIA) Regulations and EIA listing Notices. You, too, can submit your comments by the 9th of Feb (for details).
LACK OF TRANSPARENCY IN THE STATED PURPOSE OF THE PROPOSED AMENDMENTS
Oceans Not Oil submits that the Minister of DFFE has misled the public by not disclosing the full implications of the Proposed Amendments. These amendments are purportedly to address mining waste-related matters, yet they extend far beyond this to impact environmental governance, human rights, and the rule of law. Both the National Environmental Management Act 107 of 1998 (NEMA)and judicial precedent (Federation of South African Fly Fisheries v Minister of Environmental Affairs)require transparency in legislative amendments to prevent misleading the public. Meaningful public participation is a legal obligation that is undermined by misrepresenting the true scope of the changes.
THE PROPOSED AMENDMENTS TO REGULATION 39 OF THE EIA REGULATIONS,
Regulations 39(1) requires the proponent of a listed activity, who is not the owner or person in control of land on which the activity is to be undertaken, to obtain the written consent of the landowner or person in control of land before applying for environmental authorisation in respect of such activity.
Regulation 39(2) provides that the requirement to obtain written consent does not apply in respect of:
(a) linear activities;
(b) activities constituting, or activities directly related to prospecting or exploration of a mineral and petroleum resource or extraction and primary processing of a mineral or petroleum resource; and
(c) strategic integrated projects as contemplated in the Infrastructure Development Act, 2014
(d) activities proposed on coastal public property (this section seeks to introduce a new category not requiring written consent).
Oceans Not Oil seeks to substitute regulation 39(2)(b) with the following:
(b) an application for:
(i) mining activities;
(ii) the expansion of a prospecting, exploration, mining or production operation; or
(iii) an activity using fracturing technology.
AMENDMENTS TO REGULATION 39(2)(b)
Oceans Not Oil submits that the proposed amendments to Regulation 39(2)(b) must be aligned with the Interim Protection of Informal Rights to Land Act, 1996 (IPILRA).
Section 2(1) of IPILRA states:
“No person may be deprived of any informal right to land without his or her consent.”
Section 2(4) further provides:
“For the purposes of this section, the custom and usage of a community shall be deemed to include the principle that a decision to dispose of any such right may only be taken by a majority of the holders of such rights present or represented at a meeting convened for the purpose of considering such disposal and of which they have been given sufficient notice, and in which they have had a reasonable opportunity to participate.”
Implications of IPILRA to the proposed amendment:
- Any proposed mining, petroleum, or other listed activity that affects land held under informal or customary tenure requires the free, prior, and informed consent of the affected community. Failure to comply means Environmental Authorisation applications could proceed unlawfully where communities have not provided consent under IPILRA, undermining the legal rights of communities with informal land rights.
- Public participation under the EIA process does not replace the requirement for community consent under IPILRA. Failure to comply means public participation under the EIA process will be conducted improperly in situations where community consent under IPILRA has not yet been granted or has been expressly refused.
- South African law must also align with international legal obligations that require Free, Prior, and Informed Consent (FPIC) for communities impacted by resource development.
These include:- United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) (Articles 10, 19, 28, and 32).
- International Labour Organization (ILO) Convention 169 on Indigenous and Tribal Peoples.
- African Charter on Human and Peoples’ Rights (Article 21: Right to Free Disposal of Natural Resources).
Failure to align Regulation 39(2)(b) with FPIC principles could undermine South Africa’s international human rights obligations and result in legal challenges in domestic and international forums.
South African courts have affirmed that mining and resource development activities trigger IPILRA’s consent requirements. See the case of Baleni & Others v Minister of Mineral Resources & Others where the court stated that:
“[M]ultiple international instruments require that communities such as the applicants have the right to grant or refuse their free, prior and informed consent to any mining development that will significantly affect them.”
The court further recognized that the MPRDA designates the State as custodian of mineral resources on behalf of the South African people and emphasized that:
“Having accepted that the granting of a mineral right constitutes a ‘deprivation,’ the consent requirement provided for in Section 2(1) of IPILRA for such deprivation appears to have been triggered.”
Similarly, the Maledu & Others v Itereleng Bakgatla Mineral Resources (Pty) Ltd & Another case reinforced the principle that:
“[T]he clear purpose of IPILRA is to recognize the right of communities to decide what should happen to their land and that their consent is required before they may be deprived of it.”
These judgments affirm the fundamental principle that communities hold the right to grant or withhold consent before mining and related activities can proceed on their land.
Oceans Not Oil recommends that Regulation 39 be amended to explicitly require that, where applicable, the proponent must obtain community consent, as defined under IPILRA, prior to applying for environmental authorization. Such an amendment would:
- Ensure consistency with IPILRA’s statutory protections.
- Align the EIA Regulations with constitutional and international human rights obligations.
- Uphold judicial precedents affirming the necessity of community consent.
It is submitted that incorporating IPILRA’s consent requirements into Regulation 39(2)(b) is essential to uphold the rights of communities that have historically faced dispossession. This alignment is both a legal necessity and a matter of fundamental justice.
AMENDEMENT TO REGULATION 39(2)(d)
Oceans Not Oil strongly opposes the proposed exclusion of activities on coastal public property from the requirements of Regulation 39(1). This regulation currently states that a proponent of a listed activity, who is not the owner or person in control of the land on which the activity is to be undertaken, must obtain the written consent of the landowner or person in control of the land before applying for environmental authorisation.
The proposed exclusion of activities on coastal public property from this requirement undermines the rights of affected coastal-dependent communities and violates the public trust obligations of the State.
Considering that these communities depend on coastal public property for their livelihoods and food security, have deep historical, cultural, spiritual, and customary ties to the coastal and marine environment and will suffer direct and irreversible harm from listed activities such as mining, petroleum exploration, and industrial development that negatively impact marine ecosystems, these communities must be recognised as persons legally entitled to provide or refuse consent for listed activities affecting their customary and livelihood rights before an application for environmental authorisation can proceed. It is unjust and unlawful to exclude them from the consent requirements under Regulation 39(1).
Oceans Not Oil further submits that government entities responsible for coastal public property must be given the explicit legal authority to grant or refuse written consent for applications under Regulation 39(1). This is essential for the State to fulfil its public trust obligations under the law, which obligations include, but are not limited to:
i. Ensuring that coastal public property is used, managed, protected, conserved, and enhanced in the interests of the whole community.
ii. Taking reasonable legislative and other measures to conserve and protect coastal public property for the benefit of present and future generations.
OFFSHORE SEISMIC SURVEYS TO BE LISTED IN EIA LISTING NOTICE 1
The current EIA Listing Notice 19 requires only a Basic Assessment for offshore seismic surveys under: “21B Any activity including the operation of that activity which requires a reconnaissance permit in terms of Section 74 of the [MPRDA], as well as any other applicable activity as contained in this Listing Notice or in Listing Notice 3 of 2014, required to exercise the reconnaissance permit, excluding:
(a) any desktop study; and
(b) any aerial survey.”
The proposed amendment introduces a new activity under EIA Listing Notice 1:
“21F An offshore seismic survey which requires an exploration right in terms of Section 79 of the [MPRDA], as well as any other applicable activity as contained in this Listing Notice or in Listing Notice 3 of 2014, required to exercise the exploration right.”
Oceans Not Oil submits that offshore seismic surveys should not be included in Listing Notice 1 but should rather be included in Listing Notice 2, requiring a full Environmental Impact Assessment (EIA).
Judicial precedent on the environmental harm caused by seismic surveys confirms that the precautionary principle must apply. In the urgent interdict application against Shell Wild Coast Seismic Survey, Bloem J ruled that:
“Implicit in Shell’s contention that harm caused by marine seismic surveys to marine life is not irreparable and that mitigation measures are implemented to minimise this harm, is an acknowledgment of harm to marine life, hence the mitigation measures.”
The court further noted:
“There is no reason not to accept [the experts’] evidence. That evidence establishes that, without intervention by the court, there is a real threat that the marine life would be irreparably harmed by the seismic survey.”
In the Shell Wild Coast Seismic Survey Main Case Judgment the court found that:
“There is a reasonable apprehension of harm to marine and bird life, and that the mitigation measures proposed by Shell did not adequately manage the threat of harm.”
The court further held that:
“Because of the apparent dispute between the experts as to the adequacy of the mitigation measures minimising the known effects of seismic surveys, it would be incumbent on the decision-maker to invoke the precautionary principle.”
In the Searcher Seismic Survey Urgent Interdict Judgment, Thulare J highlighted:
“Physical damage to marine animals has been directly linked to the kind and level of sound emitted during the nature of seismic survey. This is why mitigation measures are required.”
The judgment also confirmed that:
i. Seismic surveys impact fish populations, disrupting fisheries and affecting food security. Zooplankton, the foundation of marine ecosystems, suffers significant mortality.
ii. Small-scale fishing communities suffer economic and food security impacts due to loss of fish stocks.
Oceans Not Oil submits that it is incumbent upon the Minister to consider environmental sensitivity of offshore environments when determining whether offshore seismic surveys should be listed under EIA Listing Notice 1 or 2.
i. Seismic surveys impact marine life beyond their immediate survey area, affecting Marine Protected Areas (MPAs), Critical Biodiversity Areas (CBAs), and Ecologically and Biologically Significant Areas (EBSAs).
ii. The lack of geographic boundaries in marine environments means that harmful activities can have far-reaching effects.
iii. The precautionary principle requires a higher level of scrutiny for activities that pose scientific uncertainty and risk of irreparable harm.
The proposed amendments fail to protect coastal communities, marine ecosystems, and public interests. Oceans Not Oil submits that the State must uphold its constitutional and international obligations to insist on meaningful public participation to safeguard livelihoods, coastal public property and marine biodiversity.
We hope these comments are received in the spirit of supporting the DFFE in fulfilling its constitutional duties. We kindly request to be kept informed of the DFFE’s response to our input.
Oceans Not Oil 