Shale gas licences likely to be further delayed by litigation

17 May 2017

It has been reported that government is intending awarding shale gas exploration licences as early as September 2017. While this may be the case, we anticipate that, given the environmentalist and community opposition, exploration activities are likely to be delayed as these groups seek to exhaust all legal remedies to prevent these projects from proceeding. As has been seen in other infrastructure projects in South Africa, objector groups have successfully delayed the commencement or completion of these projects using these legal remedies. There is little that applicants for exploration rights can do to avoid these groups appealing or reviewing decisions. What they can do, however, is minimise the veracity of these groups' claims by ensuring that their environmental impact assessment process is thorough and without procedural defects. This is particularly relevant in the public participation process.

Consultation and the resolution of disputes during this process may be difficult (if not impossible) given the polar views of the environmentalists and communities when compared to the exploration right applicants. This is compounded by the fact that environmentalists / communities tend to adopt a "no-development" attitude and are unwilling to compromise, as to compromise undermines their objectives to protect the environment. Although agreement may be impossible to achieve there are legal and procedural techniques that can be used when creating and implementing a public participation procedure to reduce the risk of appeals and build a working relationship between the parties. Time and resources should be spend in developing and initiating this process to avoid extended delays in developing or operating these projects.

Issued by Matthew Burnell, Director Environmental at Herbert Smith Freehills, 17 May 2017