By Tileni Mongudhi
WINDHOEK-DUST around Namibia’s marine phosphate mining debacle is refusing to settle, with the fishing industry taking the battle to court despite the environment minister temporarily suspending an environmental clearance certificate given to Namibia Marine Phosphate.
Namibia’s Minister of Environment and Tourism Pohamba Shifeta announced two weeks ago that he was reversing his ministry’s decision to award an Environmental Impact Assessment clearance certificate to Namibia Marine Phosphate (NMP) to start mining off the Namibian coast near Walvis Bay.
Shifeta has maintained that his decision to reverse the granting of the licence is not a concession of any wrong-doing but that he was doing so in the public’s interest.
Despite Shifeta’s decision to give the public six more months to make opposing submissions, the fishing sector went ahead and instituted legal action against the government.
The Confederation of Namibian Fishing Associations, Namibia Hake Association, Midwater Trawling Association of Namibia and a fishing company Omualu Fishing are all listed as applicants in the suit. They dragged the Environmental Commissioner, the Environment Minister, the Fisheries Minister, the Mines Minister, the Attorney General and Namibia Marine Phosphate to court.
Court documents obtained by The Southern Times show that the fishing sector is challenging the legality of the government’s decision to issue NMP with an EIA clearance certificate and is further asking the High Court of Namibia to nullify the said EIA clearance certificate. Confederation of Namibian Fishing Associations’ Chairman, Matti Amukwa, wrote an affidavit which lays out their case. They argued that Environmental Commissioner Teofilus Nghitila has no legal grounds to issue the EIA clearance certificate. They further argue that NMP had not legally applied for an EIA clearance certificate and that the company was in fact operating with an invalid mining licence.
Amukwa stated that NMP was granted their mining licence number 170, valid from July 13, 2011, to July 12, 2031, by the Minister of Mines and Energy. The licence was granted subject to conditions imposed by the minister at the time. The conditions were that within six months of the licence being issued, an EIA over the area covered should be forwarded to the Minister of Mines and Energy.
The company was also supposed to come up with an environmental management plan, which was to be agreed upon by both the Ministry of Mines as well as Environment.
“Remarkably, this was not done,” says Amukwa. The six-month period lapsed on January 8, 2012, without any EIA being approved by the government and in fact there is no evidence that an EIA was submitted to the Ministry of Mines. This alone, according to Amukwa, should nullify Namibia Marine Phosphate’s mining licence.
During that period, the Environmental Management Act, which requires environmental clearance applications to be directed to the Environmental Commissioner and the establishment of an Environmental Commissioner, did not exist and only took effect on February 6 that year. The Environmental Management Act did, however, make provisions for those who had licences to conduct mining activities approved prior to its enactment. Section 57 made provisions that those who had authorisation to mine before the Act came into being had one year to apply with the Environmental Commissioner’s office for an EIA through the mines ministry.
Amukwa said this was also not done and that even when considering section 57 of the Environmental Management Act, Namibia Marine Phosphate’s mining licence should have expired on February 6, 2013, due to noncompliance with the law.
He also contested Nghitila’s involvement in the process as illegal because NMP, having been granted a mining licence before the Act, should have done its application through the Ministry of Mines and Energy.
By granting the EIA clearance certificate in September, Nghitila also went against the Namibian constitution as well as a number of international treaties that Namibia is party to, Amukwa argued.
He mentioned the United Nations Convention on Biological Diversity of June 1992 and the Benguela Current Convention of 2013.
The fishing sector’s court application was preceded by media reports, last week, of the environment ministry, including Nghitila, and government attorneys contradicting each other. Government attorneys conceded to lawyers representing the fishing sector that the process leading to the Nghitila awarding Namibia Marine Phosphate an EIA clearance certificate did not comply with the law and procedures governing the Environmental Management Act.
Nghitila responded a few days later, rejecting the government lawyers’ comments and said the law was followed and that everything was done above board.