Zaamwani appeals phosphate clearance over lapsed 2013 deadline

Agriculture and fisheries minister Inge Zaamwani has lodged an official appeal against an environmental clearance permit granted to Namibian Marine Phosphate’s (NMP) Sandpiper project, arguing that the company missed a statutory deadline and that her ministry was excluded from consultations, denied access to reports and prevented from commenting on important environmental information.

Environmental commissioner Timoteus Mufeti granted the environmental clearance certificate (ECC) last month, on 5 August.

Zaamwani, who says she learnt of the decision through social media on 7 August, appealed Mufeti’s decision in a 21 August legal letter to environment minister Indileni Daniel.

Sandpiper's mining licence 170 was granted on 26 July 2011, while the Environmental Management Act came into operation on 6 February 2012, the appeal states.

Zaamwani wants the ECC 2503102 set aside and NMP’s application dismissed.

She has also asked for the ECC to be suspended pending the appeal and questioned whether NMP obtained separate permission to conduct operations that could interfere with fishing.

Zaamwani argued that NMP had to apply for environmental clearance or seek an extension by 5 February 2013 but did neither.

“The second respondent [NMP] did not apply for the grant of an environmental clearance certificate by 5 February 2013 and did not apply for the extension of the one-year period as contemplated by section 57(1) of the Act,” her appeal states.

Zaamwani argues that the relevant authorisation consequently expired by operation of law.

“There was therefore no basis for the first respondent [Mufeti] to consider and grant an application by the second respondent for an environmental clearance certificate,” the appeal reads.

NMP received an earlier clearance in September 2016, but the environment minister set it aside that November and ordered further consultations.

Environment spokesperson Vilho Hangula yesterday confirmed that the ministry had received the appeal from the agriculture ministry. “We can’t say much,” Hangura added.

Consultation failures alleged

Zaamwani alleges that Mufeti failed to consult the ministry responsible for fisheries and marine resources when deciding whether an environmental assessment was required and determining its scope, procedures and methods.

The appeal says this breached sections 33, 35 and 44 of the Environmental Management Act and Article 18 of the Constitution.

“The first respondent’s decision-making process in relation to the second respondent’s application for an environmental clearance certificate is void ab initio for want of compliance with the consultation requirements peremptorily prescribed by the Act,” the appeal states.

Mufeti allegedly also failed to notify Zaamwani of a public hearing.

“The first respondent erred and/or misdirected himself both in law and in fact by failing to give notice of the public hearing at all to the appellant,” the documents say.

The fisheries ministry commented on NMP’s October 2022 environmental impact assessment and environmental management plan in February 2023. Zaamwani alleges that the respondents did not disclose subsequent reports dated 3 March and 30 July 2023 for further comment.

“The final EMP report is dated June 2024. This report was never provided to the appellant for comment by the first and/or second respondents".

Zaamwani also challenges conditions requiring NMP to establish a complete environmental baseline, conduct new surveys, determine impact thresholds and formulate responses to breaches after receiving clearance.

“The vague, contradictory and unlawful conditions cannot cure the defects in the assessment and decision. They instead demonstrate that the first respondent had not completed the enquiries necessary for a lawful grant.”

Stay sought

The environment ministry was also informed that Zaamwani supports an application by the Confederation of Namibian Fishing Associations to suspend NMP’s clearance until their appeals are decided. The confederation appealed on 12 August and applied for the suspension the following day.

"That support is directed to preserving the status quo and the practical efficacy of the pending appeals,” the attorney general’s office said in a 1 September letter to Daniel.

The letter warned that dredging within an active fishing area could cause irreversible damage.

“If operations commence before the appeals are determined, the resulting effects on the seabed, marine living resources and fisheries may be difficult or impossible to reverse, and the appeals may be rendered nugatory,” the letter states.

Zaamwani has separately asked the mines and the mining commissioner whether NMP obtained permission under section 52(1)(f) of the Minerals Act, which prohibits mining operations that interfere with fishing or marine navigation without prior ministerial approval.

“Our client is instructed, as a matter of fact, that NMP has neither applied for nor obtained permission under section 52(1)(f),” the attorney general’s office said.

Zaamwani wants confirmation that no application was received and no permission granted. If either exists, she wants the documents disclosed immediately. The attorney general gave the mines ministry until the close of business on 3 September to respond.

NMP’s October 2022 assessment acknowledges that demersal fishing occurs through bottom trawling in parts of mining licence 170 and that the proposed dredging would have operational and cumulative effects on the fishing industry.

Daniel must decide both Zaamwani’s appeal seeking to have the approval set aside and the fishing industry’s application to suspend it pending the appeal. The Environmental Management Act empowers Daniel to review Mufeti's decision and determine whether the clearance should remain operative in the meantime.