Judgement reserved in ReconAfrica’s environmental clearance certificate vs environmentalists case
By Clifton Movirongo.
The Minister of Environment, Forestry and Tourism Hon Pohamba Shifeta recently reserved judgement after hearing arguments for and against the decision by the Environmental Commissioner to amend an Environmental Clearance Certificate (ECC) 0091 held by ReconAfrica after the Economic and Social Justice Trust, Kavango Conservancies and Community Forest Associations appealed the decision last year.
Shifeta will soon deliver his findings in the case, with parties expected to learn of his verdict later this month. This is according to Corinna Van Wyk from the Department of Land, Environment, and Development of the Legal Assistance Centre.
According to her, as affected and interested members of the public, 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) appealed on 22 June 2022, in terms of section 50 of the Environmental Management Act, Act 7 of 2007 (EMA).
It comes after numerous correspondences and two separate postponements, the minister finally heard the matter on 24 April.
Van Wyk said that the hearing, held in the ministerial boardroom on the 2nd floor of the ministry’s building before Shifeta, allowed one witness for the Appellants and one witness for the respondent to present oral evidence in support of their claims. She added that after approximately 9 hours of hearing testimony and legal submissions, the Minister informed the parties to expect his findings later this month.
She said, “The primary objection against the environmental commissioner’s decision to grant an amendment focused on the law that requires the listed activities proposed by Recon Energy Namibia 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.”
She stated that the appellants contend that the Environmental Commissioner acted ultra vires and failed to comply with the provisions of Section 39 of the EMA, in approving the amendments to ReconAfrica’s ECC 0091.
“Moreover, the Environmental Commissioner should have gone through the entire process for the initial application when considering an amendment, including community and 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,” she pointed out.
She also said the appellants made submissions about the inadequacies of the environmental impact assessment, particularly 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 ReconAfrica, the issues related to environmental management are now considered a theoretical exercise because the damage is already done, according to Van Wyk.
In opposition, ReconAfrica 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. Van Wyk said the respondents are of the view that the Environmental Commissioner’s decision may be wrong in law, but on the facts before the minister, there is no basis for dismissal of the decision.
Meanwhile, Rinaani Musutua of the Economic and Social Justice Trust bemoaned the fact that ReconAfrica’s irregular process disempowers Namibians. “If the precedent is allowed to stand, it limits the government’s ability to safeguard environmentally sensitive areas and vulnerable communities,” Musutua said, adding that ReconAfrica has not found the resource they told investors was a ‘no-brainer’ and are being sued by shareholders.
Van Wyk emphasized that despite submissions made, in particular 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 ECC 0091.
She added: “In addition to the appeal lodged by the community forests and conservancies on June 22, 2022, the appellants also attached a request for urgent attention from the Minister (in terms of Section 50(6)) to decide to stay the amendment of the ECC, which was being appealed. That would have stopped all activities by REN under that particular clearance certificate to provide the community with the right to be heard and for the Minister to determine whether the decision was correct.
“However, the minister failed to acknowledge such an application. The appellants then approached the High Court to consider the decision to stay the amendment. The High Court denied the application, stating that it did not have the jurisdiction to make such an order and that the application should have requested the High Court to compel the Minister to decide to stay the amendment.”
Furthermore, Van Wyk said that as a result, the request to stay the activities authorized under the appeal was unsuccessful. “The appeal of the decision to grant an amendment, after a full year of lodging, is still pending. However, the activities to clear land and continue exploration activities under the amended ECC, continue, denying the communities the opportunity to exercise their right to be heard in a timely manner,” she said.