South Africa: Flaws in Environmental Law to Come Under Spotlight in Shell Court Review

analysis

By Helen Acton

The review of Shell's exploration right, set to be heard on 30 May, will underscore shortcomings in the legislation governing the environmental management of mining. The considerable obscurity in the legislative scheme hinders the effective environmental governance of the industry, with possibly significant ecological or economic consequences.

The review applicants have disputed the legality of Shell's 3D seismic survey operation on the basis that it did not obtain environmental authorisation in terms of the National Environmental Management Act (NEMA) [1]. However, Shell argues that its Environmental Management Programme (EMPr) was approved by the Minister of the Department of Mineral Resources and Energy in terms of section 39 of the Mineral and Petroleum Resources Development Act (MPRDA) [2]. Shell, the Minister of Mineral Resources and Energy, and the Minister of Environmental Affairs contend that this approval excludes the application of NEMA, since it was granted prior to the 2008 NEMA Amendment Act (NEMAA) [3], which introduced the environmental authorisation requirements distinct from the MPRDA.

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