KAVANGO regions community forest and conservancy organisations that tried to get a court order to stop further oil and gas exploration activities by the Canadian company ReconAfrica in Namibia should have first waited for a decision from the environment minister on an appeal that they lodged with him.
This finding is at the core of a judgement in which the organisations' attempt to halt the planned exploration drilling activities of the company Reconnaissance Energy Namibia (Recon) was dismissed in the Windhoek High Court on Friday.
Judge Thomas Masuku dismissed an application by the organisations against the environmental commissioner in the Ministry of Environment, Forestry and Tourism, the minister of environment, forestry and tourism, the minister of mines and energy, the commissioner of petroleum affairs, the attorney general, Recon and the National Petroleum Corporation of Namibia (Namcor), and ordered that the applicants should pay the respondents' legal costs in the matter.
Masuku made this order after concluding the applicants in the matter did not show their case had to be heard urgently, and the High Court did not have the power to make the orders for which they applied.
He noted that in terms of the Environmental Management Act, someone dissatisfied with an environmental clearance certificate issued by the environmental commissioner can lodge an appeal to the environment minister.
The dissatisfied party can also ask the minister to suspend the commissioner's decision until the appeal has been heard and decided.
The management committees of the Ncumcara and Katope community forests in the Kavango West region and the Muduva Nyangana communal conservancy in Kavango East, and the Kavango East and West Regional Conservancy and Community Forest Association informed the court that they lodged an appeal to the environment minister after environmental commissioner Timoteus Mufeti on 15 June this year approved an amendment of an environmental clearance certificate issued to Recon in August 2019.
The organisations were asking the court to restrain Recon, of which ReconAfrica is a 90% shareholder and Namcor a 10% shareholder, from continuing any oil and gas exploration activities in the Kavango regions.
They also wanted the court to order that the environmental commissioner may not allow Recon to drill new exploration wells in terms of the environmental clearance certificate granted to the company.
The four applicants wanted those orders to be in force while they pursue an appeal against Mufeti's decision to approve an amendment of the environmental clearance certificate granted to Recon in August 2019.
According to the applicants, the amendment to the certificate that was approved by Mufeti would allow the company to drill an additional four exploratory wells, but was approved without interested parties, like the communities living in the areas where the wells are planned to be drilled, having been consulted or given an opportunity to be heard before Mufeti made his decision.
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Recon's exploration activities in the Kavango regions have been met by an outcry from environmentalists in Namibia and internationally, based on fears that eventual oil or gas production activities could result in the environmental destruction of the Okavango River delta basin, which is an important ecological area.
Masuku found that the Environmental Management Act gives the minister of environment the exclusive power to decide whether a decision of the environmental commissioner should be suspended while an appeal to the minister is pending.
The court is excluded from exercising that power the act grants the minister, but the court can later be asked to review a decision made by the minister, or if the minister fails to make a decision the court can be asked to compel him to make one, the judge said.
The applicants were represented by Legal Assistance Centre lawyer Corinna van Wyk.
The environmental commissioner, the two ministers and other governmental respondents were represented by Sisa Namandje.
Dennis Khama and Gerson Narib represented Recon and Namcor respectively.
