Werner Menges | The Namibian | 14 August 2017
THE minister of environment and tourism’s decision to set aside an environmental clearance certificate that gave the go-ahead for the start of marine phosphate mining in Namibian waters has come under attack in the Windhoek High Court.
The attack on a decision by the minister of environment and tourism, Pohamba Shifeta, to set aside an environmental clearance certificate issued to a company planning to start a controversial marine phosphate mining project off the Namibian coast came on Thursday last week, in oral arguments heard by judge Shafimana Ueitele in an appeal to have Shifeta’s decision reversed.
A fundamental breach of the company Namibian Marine Phosphate’s right to a fair hearing had taken place before Shifeta decided on 2 November last year to set aside the environmental clearance certificate that the environmental commissioner had granted to the company two months earlier, senior counsel Reinhard Tötemeyer, representing Namibian Marine Phosphate (NMP), argued.
Tötemeyer charged that an appeal process against the granting of the environmental clearance certificate to NMP took place behind the company’s back after NMP was not notified that an appeal hearing was to take place, with the result that NMP was not present at such a hearing at the end of October last year.
Since NMP was not given a chance to be heard before the minister took his decision on an appeal against the granting of the certificate to the company, the appeal process was fundamentally flawed, Tötemeyer argued.
He added that Shifeta’s decision to set aside the environmental clearance certificate was mainly based on a finding that sufficient public consultations did not take place before the certificate was granted. However, had NMP been given a chance to be heard, the company would have informed the minister that extensive public consultations, in fact, did take place before it received the certificate, Tötemeyer also argued.
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.
The company’s plan to start the world’s first marine phosphate mining project in Namibian waters has drawn fierce opposition from environmentalists and the Namibian fishing industry, who fear that mining activities could cause serious and long-term harm to the country’s marine resources and endanger fishing activities.
Shifeta’s decision to set aside the certificate was taken after a public outcry and an appeal that a community activist, Michael Gaweseb, lodged against the granting of the certificate.
Senior counsel Vincent Maleka, representing the minister, argued that regulations issued in terms of the Environmental Management Act do not prescribe a procedure that Shifeta had to follow with an appeal against the granting of a certificate, and did not require that an appeal hearing had to take place or that affected parties had to be present at a hearing.
NMP and Gaweseb were not treated differently during the appeal process, Maleka also argued.
Gaweseb’s lawyer, Uno Katjipuka-Sibolile, argued that NMP was not excluded from the appeal process. The company was notified of the appeal and made submissions that the minister took into account before he made his decision, she said.
Since NMP was complaining of alleged procedural shortcomings in the appeal decided by Shifeta, it should have asked the High Court to review the minister’s decision, rather than appealing against the decision regarding the Environmental Management Act, Katjipuka-Sibolile also argued.
Judge Ueitele reserved his judgement after hearing the oral arguments. He said he would try to have his judgement ready by 15 December, or earlier if possible.
NMP is also involved in another pending High Court case about its marine phosphate mining plans. In the other matter, three Namibian fishing industry associations and a fishing company are asking the court to declare the mining licence that was issued to NMP in July 2011 as invalid.
That case was last week postponed to 12 September for a further case management hearing to take place.