New Minister dismisses Biodiversity Law Centre’s appeal against Karpowership Richards Bay environmental authorisation

Photo: BusinessLive 31 May 2024

Minister Dion George has dismissed an appeal filed by the Biodiversity Law Centre on 22 November 2023 against the environmental authorisation (EA) issued for the Karpowership project in Richards Bay.

The Biodiversity Law Centre (the BLC) is most disappointed with the outcome, and in particular, the potentially problematic approach to biodiversity offsets it entrenches. The Minister has effectively endorsed the controversial agreement concluded between Karpowership and Ezemvelo KZN Wildlife (Ezemvelo) in September 2023 in terms of which the company purchased Madaka Game Farm and donated it to Ezemvelo ostensibly to ‘offset’ the biodiversity loss that the project will cause to the sensitive estuarine environment of Richards Bay harbour.

In its appeal, the BLC argued that the scheme created by the EA, namely a “like-for-like estuarine offset, and an “out-of-kind” offset in the form of Madaka Game Farm, was problematic for a number of reasons, including: failure to describe what residual impacts were to be offset; how purchasing Madaka would compensate for impacts to estuarine ecosystems; and absence of a comprehensive offset report.

The dismissal of this ground of appeal accepts the arguments of Karpowership and the decision maker, including that key information pertaining to biodiversity offsets need only be provided after the EA decision is made, and that otherwise all relevant information was before the decision maker. The BLC remains concerned that the Minister does not appear to have thoroughly interrogated the offset scheme presented.  Similarly, it is concerning that the appeal decision appears to have endorsed a biodiversity offset where its basis, terms and implementation have not been publicised (and which appears not to have been considered by the competent authority).  This is contrary to the principles of accountability and transparency essential to biodiversity governance and the critical oversight role of the Minister as appeal authority.

The remaining grounds of appeal relating to inadequate public participation, failure to adopt a precautionary approach, and the issuing of a conditional EA, were also, concerningly, dismissed.

Given the uncertainty around the continuation of the Karpowership projects, the BLC is considering its options in terms of next steps.

In the interim, the BLC has written to Energy Minister Kgosientsho Ramokgopa requesting an update on the status of Karpowership’s projects in South Africa.

The appeal decision and letter to Minister Ramokgopa are included below.