Battle lines drawn
Phosphate mining in Namibia shows no signs of being shelved as the company involved has turned to the courts, accusing the government of delaying tactics.
ELLANIE SMIT
The legal battle regarding a controversial proposal to mine phosphate off the Namibian coast has intensified, with Namibian Marine Phosphate also turning to the courts over the matter.
But the minister of environment and tourism is delaying the proceedings in an appeal lodged against him and four other respondents in the marine phosphate mining saga.
Namibian Marine Phosphate (NMP) has filed a notice of motion at the High Court to appeal a decision by environment minister Pohamba Shifeta to withdraw an environmental clearance licence that had been issued for marine phosphate mining.
The other respondents in the matter are community activist Michael Gawaseb, the environmental commissioner and the secretary to the appeal panel.
Shifeta announced last year November that the environmental clearance granted for offshore phosphate mining would be withdrawn after hearing an appeal made by Michael Gawaseb, who is a trustee of the Economic Social Justice Trust.
The environmental clearance was issued by the environmental commissioner in the Ministry of Environment and Tourism, Theofillius Nghitila, for NMP’s Sandpiper Project, located about 120km southwest of Walvis Bay.
Namibian Marine Phosphate aims to appeal Shifeta’s decision before the High Court on 3 February.
In the meantime the company has filed further documents with the High Court requesting the ministry to deliver the records of Gawaseb’s appeal to the registrar of the court.
That was requested on 8 and the record of proceedings should have been submitted to the court by 21 December. According to the latest documents no such record of proceedings has been delivered and no reply has been forthcoming from the ministry.
“The provision of the record of proceedings is of course a critical requirement for the continued prosecution of the aforementioned appeal. Without it the appeal will not be able to proceed,” NMP stated in the court documents.
Its founding affidavit states that the lodging of the appeal by Gawaseb against the granting of an environmental clearance licence to NMP and the hearing thereof were irregular and improper.
It argues that Gawaseb’s appeal was lodged too late and that the minister erred in hearing the appeal.
According to the affidavit Shifeta also alternatively erred in not dismissing the appeal on this basis.
The affidavit says NMP was not informed of the appeal in terms of the applicable regulations and it was also not informed of the appeal hearing or afforded an opportunity to make representations thereafter.
This violated its rights in terms of the Namibian Constitution as well as its common-law rights, the company claims.
According to the affidavit Shifeta allowed the presenting of evidence and NMP was not afforded the opportunity to question or cross-examine this evidence.
The affidavit also says that Shifeta allowed Gawaseb to make submissions to him and present facts to him in circumstances where the Environmental Act does not allow for or envisage such procedures and NMP was not allowed to object.
It also says the minister did not have the authority to make a finding directing Gawaseb to “invent any form of notifying the public.”
According to the affidavit the minister erred in finding that Gawaseb had the necessary standing to lodge and prosecute the appeal and in not dismissing the appeal.
It says a further error was made by not requesting further information and instead the minister irregularly relied on “inadmissible, irrelevant hearsay and opinion-based evidence with no proper factual underpinnings” and without advising NMP.
It says Shifeta made a mistake in not finding in favour of NMP and making findings that are not tangible by law.
Another case, in which three organisations representing the Namibian fishing industry asked the High Court to set aside the decision to grant an environmental clearance certificate to NMP, and also to declare that a mining licence issued to the company was invalid, was postponed last year.
A case management hearing on the matter is scheduled to take place before Judge Harald Geier on 24 January, by when the parties involved in the case should indicate to the court how the litigation between them should proceed.
The legal battle regarding a controversial proposal to mine phosphate off the Namibian coast has intensified, with Namibian Marine Phosphate also turning to the courts over the matter.
But the minister of environment and tourism is delaying the proceedings in an appeal lodged against him and four other respondents in the marine phosphate mining saga.
Namibian Marine Phosphate (NMP) has filed a notice of motion at the High Court to appeal a decision by environment minister Pohamba Shifeta to withdraw an environmental clearance licence that had been issued for marine phosphate mining.
The other respondents in the matter are community activist Michael Gawaseb, the environmental commissioner and the secretary to the appeal panel.
Shifeta announced last year November that the environmental clearance granted for offshore phosphate mining would be withdrawn after hearing an appeal made by Michael Gawaseb, who is a trustee of the Economic Social Justice Trust.
The environmental clearance was issued by the environmental commissioner in the Ministry of Environment and Tourism, Theofillius Nghitila, for NMP’s Sandpiper Project, located about 120km southwest of Walvis Bay.
Namibian Marine Phosphate aims to appeal Shifeta’s decision before the High Court on 3 February.
In the meantime the company has filed further documents with the High Court requesting the ministry to deliver the records of Gawaseb’s appeal to the registrar of the court.
That was requested on 8 and the record of proceedings should have been submitted to the court by 21 December. According to the latest documents no such record of proceedings has been delivered and no reply has been forthcoming from the ministry.
“The provision of the record of proceedings is of course a critical requirement for the continued prosecution of the aforementioned appeal. Without it the appeal will not be able to proceed,” NMP stated in the court documents.
Its founding affidavit states that the lodging of the appeal by Gawaseb against the granting of an environmental clearance licence to NMP and the hearing thereof were irregular and improper.
It argues that Gawaseb’s appeal was lodged too late and that the minister erred in hearing the appeal.
According to the affidavit Shifeta also alternatively erred in not dismissing the appeal on this basis.
The affidavit says NMP was not informed of the appeal in terms of the applicable regulations and it was also not informed of the appeal hearing or afforded an opportunity to make representations thereafter.
This violated its rights in terms of the Namibian Constitution as well as its common-law rights, the company claims.
According to the affidavit Shifeta allowed the presenting of evidence and NMP was not afforded the opportunity to question or cross-examine this evidence.
The affidavit also says that Shifeta allowed Gawaseb to make submissions to him and present facts to him in circumstances where the Environmental Act does not allow for or envisage such procedures and NMP was not allowed to object.
It also says the minister did not have the authority to make a finding directing Gawaseb to “invent any form of notifying the public.”
According to the affidavit the minister erred in finding that Gawaseb had the necessary standing to lodge and prosecute the appeal and in not dismissing the appeal.
It says a further error was made by not requesting further information and instead the minister irregularly relied on “inadmissible, irrelevant hearsay and opinion-based evidence with no proper factual underpinnings” and without advising NMP.
It says Shifeta made a mistake in not finding in favour of NMP and making findings that are not tangible by law.
Another case, in which three organisations representing the Namibian fishing industry asked the High Court to set aside the decision to grant an environmental clearance certificate to NMP, and also to declare that a mining licence issued to the company was invalid, was postponed last year.
A case management hearing on the matter is scheduled to take place before Judge Harald Geier on 24 January, by when the parties involved in the case should indicate to the court how the litigation between them should proceed.
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