By Staff reporter
WINDHOEK, April 28 — On April 26, the Minister of Environment, Forestry and Tourism heard arguments for and against the decision by the Environmental Commissioner (EC) to amend an Environmental Clearance Certificate (ECC) 0091 held by Reconnaissance Energy Namibia (Pty) Ltd (REN). The Ncumcara Community Forest Management Committee, Muduva Nyangana Communal Conservancy Management Committee, Katope Community Forest Management Committee, and the Kavango East and West Regional Conservancy and Community Forest Association (the Appellants) lodged an appeal on June 22, 2022, in terms of section 50 of the Environmental Management Act, Act 7 of 2007 (EMA).
After numerous correspondences and two separate postponements, the Minister finally heard the matter on April 24, 2023. The hearing was held in the ministerial boardroom on the 2nd floor of the Ministry of Environment, Forestry and Tourism before the Honourable Minister, Mr. Pohamba Shifeta, and allowed one witness for the Appellants and one witness for the respondent to present oral evidence in support of their claims. After approximately 9 hours of hearing testimony and legal submissions, the Minister stated that parties should expect his finding in May 2023.
The primary objection against the EC’s decision to grant an amendment focused on the law that requires the listed activities proposed by REN to be authorized and approved by the Environmental Commissioner. The Appellants argued that this may only be done by way of further impact assessments for an additional Environmental Clearance Certificate, and not merely by making amendments to an existing one where cumulative impact is not considered. Furthermore, the Appellants contended that the Environmental Commissioner acted ultra vires (beyond his powers) and failed to comply with the provisions of Section 39 of the EMA, in approving the amendments to REN’s ECC 0091. Moreover, the EC should have gone through the entire process he went through for the initial application when considering an amendment, including community/public engagement and input. That means the amendment application cannot be used to circumvent the requirements of the EMA. While a notice was sent out to the public and stakeholders, only previously registered members were allowed to make comments. There was limited public participation, surely discriminatory action and limitation of the democratic right to participate.
In addition, the Appellants made submissions about the inadequacies of the environmental impact assessment, particularly on how it addressed and mitigated potential environmental impacts and their exclusion from participation in the decision-making processes. However, since exploration activities that could cause these impacts have already been carried out by REN, the issues related to environmental management are now considered a theoretical exercise because the damage is already done.
In opposition, REN argued that the Environmental Commissioner, when amending the ECC, acted under section 39 of the EMA and in line with his general powers conferred to him. The Respondents are of the view that the EC’s decision may be wrong in law, but on the facts before the Minister, there is no basis for dismissal of the decision.
Background: When the EC requires an application to be made for an amendment of an ECC under section 39 of the EMA, in considering such an application for amendment, the EC should take into consideration the same aspects that it took into consideration of the initial application. While a notice of such a request to amend was published, it only allowed previously registered interested parties to make comments despite the amendment seeking authority to conduct activities beyond that identified under the existing ECC under 0091 and despite it affecting more community members.
Despite submissions made, particularly around the lack of public consultation and the inadequacies of the environmental impact assessment undertaken in the first application, the EC failed to consider such and granted the amendment of the permit. This decision was met with strong criticism from various stakeholders, including environmental groups, community organizations, and concerned citizens. Many felt that the EC had prioritized the interests of the company over the well-being of the local community and the environment. As a result, protests and demonstrations were organized, and legal action was taken to challenge the decision. The issue became a topic of national debate, with many calling for greater transparency and accountability in the regulatory process. Despite these efforts, however, the amended permit remained in place, and the company was able to continue its operations with minimal interference. – Namibia Daily News
