A Windhoek High Court judge yesterday dealt a significant blow to Namibian Marine Phosphate (NMP) when he issued an order declaring that the outfit is not in possession of a valid environmental clearance certificate and is therefore not entitled to undertake mining activities. The possibility of phosphate mining on Namibia’s seabed has sharply divided opinions in recent years.
Judge Harald Geier’s judgement came after several postponements on an application by the Confederation of Namibian Fishing Associations (CNFA), the Namibian Hake Association (NHA), Midwater Trawling Association (MTA) and Omualu Fishing.
The parties brought an application last year to the High Court for a declaration that the licence issued to NMP in 2011 lapsed and is thus invalid and of no force and effect.
The order Judge Geier made reads: “NMP not having applied in the prescribed manner for an environmental clearance certificate during the relevant time – and –currently – in any event being without an environmental clearance certificate – is hereby declared – in accordance with the provisions of Section 57, as read with Sections 27(1) and (3) of the Environmental Management Act of 2007 – not to be entitled to undertake a listed activity until such time that it has obtained a valid environmental clearance certificate in relation to such activity or activities.”
The judge also granted NMP an order to delete certain passages in the founding affidavit of Matti Amukwa, the chairman of the CNFA, on the basis that it is hearsay evidence.
He further ordered the applicants to pay the costs of the strike application on the basis of one instructing counsel and two instructed counsels and NMP to pay the rest of the costs on the basis of one instructing and three instructed counsels.
The applicants claimed that NMP – jointly owned by Namibian Knowledge Katti and Omani businessman Tariq Al Barwani - had not complied with the applicable mineral licence conditions in terms of which it had to submit an environmental impact assessment and an environmental management plan report within six months from the date of issue of its mining licence when it submitted a “draft report” in this regard on the last day of the prescribed six month period and a “final one” outside the time window created by the applicable condition.
Geier said in his view what was submitted was in fact a “draft report” and that the relevant condition did not contemplate the filing of a “draft report” and that NMP was thus in breach of the relevant mining condition.
He further said the question is on what authority did NMP continue to collect samples from the seabed as the Act only allows a licence holder to undertake a “listed activity” – an activity listed on the licence – for a period of one year and that such a person wishing to continue with a “listed activity” must apply for an environmental clearance certificate (ECC) before its expiry.
Only when such a person applied for the certificate may they continue with the “listed activity” until the application has been dealt with.
In the case of NMP, the judge said, the only authorisation it had to carry out “listed activities” was the conferral of the licence and it was incumbent on them to apply for an ECC which they failed to do and is thus without an ECC and not entitled to undertake any “listed activities”.
The judgement will undoubtedly ruffle feathers in the mining sector.
An article recently published by the Chamber of Mines of Namibia stated that developing Namibia’s marine phosphate resources, coupled with a fully integrated fertiliser industry are optimally aligned to national development agendas.
“A Namibian phosphate industry will create local value addition of raw materials before they are exported, thereby building and promoting regional value chains, bilateral cooperation and continuous reform of the business environment to become more competitive. A phosphate industry provides potential for critical upstream, downstream and side-stream linkages for the Namibian economy, through value addition, integrated business development, logistics services, power, water, skills development and research,” the chamber’s article reads.
According to the chamber of mines, phosphate mining has the potential to generate more than N$18 billion for Namibia on an annual basis.
On the other hand, the fisheries industry and unions are vehemently opposed to establishing a phosphate mining operation, arguing that Namibians are committed to responsible and sustainable management of renewable resources.
The unions fear that the 16 000 jobs in the fishing industry could become vulnerable if seabed mining for phosphate is allowed.