15 June 2017

Namibia: Slow Progress With Legal Attack On Ocean Mining

A CASE in which three Namibian fishing industry associations are challenging the granting of a mining licence to a company planning to mine seabed phosphate off Namibia's coast was again postponed in the Windhoek High Court this week.

With the latest postponement - the fourth since the case was filed at the start of November last year - judge Harald Geier on Tuesday ordered the environmental commissioner and the ministers of environment and tourism, fisheries and marine resources, and mines and energy to provide Namibian Marine Phosphates (NMP) with documents the company first requested from them two months ago.

The documents, which should be provided to NMP by the end of June, relate to the company's applications to be granted a mining licence and environmental clearance certificate, and the environmental impact assessment that was carried out on behalf of NMP before the environmental commissioner granted it an environmental clearance certificate in September last year.

The environmental clearance certificate would have allowed NMP to proceed with mining seabed phosphate in a part of the Atlantic Ocean about 120 kilometres south-west of Walvis Bay. However, after a public outcry over the granting of the environmental clearance certificate, the minister of environment and tourism, Pohamba Shifeta, upheld an appeal against the decision to issue the certificate and set it aside on 2 November last year.

NMP has reacted to that decision by lodging an appeal in the Windhoek High Court. NMP's appeal, which is a separate case from the one being dealt with by judge Geier, is now scheduled to be heard on 7 July.

In the case before judge Geier, the Confederation of Namibian Fishing Associations, the Namibian Hake Association, the Midwater Trawling Association of Namibia, and the company Omualu Fishing want the court to declare the mining licence issued to NMP in July 2011 as invalid.

In documents filed with the court, the three fishing industry associations and Omualu Fishing argue that a 20-year mining licence issued to NMP in July 2011 became invalid after the company failed to comply with one of the conditions, that it had to provide the Ministry of Mines and Energy with an environmental impact assessment report within six months of the licence being issued.

The four applicants are also arguing that if the mining licence did not lapse in January 2012 as they claim, it ceased to be valid a year after the Environmental Management Act came into operation in February 2012. In their view, the law stipulates that anyone wishing to engage in activities such as marine phosphate mining should have applied for an environmental clearance certificate within a year after the law came into operation. This NMP did not do, they allege.

NMP and the minister of mines and energy have given notice that they will oppose the application of the three fishing associations and Omualu Fishing. However, they have not yet filed court papers setting out the grounds for their opposition.

The matter was on Tuesday postponed to 18 July.

In the appeal that is scheduled to be heard on 7 July, NMP claims that the earlier appeal which resulted in Shifeta's decision to set aside the environmental clearance certificate was filed late in terms of the regulations issued under the Environmental Management Act.

Other grounds of appeal that NMP relies on include an argument that the company was not notified of the appeal lodged against the granting of the environmental clearance certificate, and that it was not given an opportunity to be heard before Shifeta made his decision.

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