AG warned Govt against phosphate mining - Namibian

ATTORNEY general Sacky Shanghala warned government not to issue a marine phosphate environmental clearance certificate until all relevant investigations were completed.

This legal advice is contained in a letter dated 2 July 2015 to fisheries minister Bernhard Esau and copied to environmental commissioner Teofilus Nghitila, environment minister Pohamba Shifeta and mines minister Obeth Kandjoze.

Shanghala declined to comment on his stance about phosphate, but the letter obtained by The Namibian yesterday gives an insight into why he is opposed to marine phosphate mining.

His legal advice was submitted to Cabinet as part of Esau's submission to extend the ban on marine phosphate mining.

The AG referred to several phosphate mining cases in other countries, which included a decision by the New Zealand government to reject marine phosphate mining because of uncertainty over this type of activity.

Shanghala said due to the uncertainty on the adverse effects of phosphate mining on the environment, Namibia has a duty not to mine marine phosphate until all relevant investigations have been completed.

This, he said, “will inform policymakers whether or not marine phosphate mining can co-exist with the conservation, protection and harvesting of marine resources and the marine environment”.

Namibia has already issued a phosphate mining licence, but Shanghala said the environmental commissioner “is under no legal obligation not to grant the environmental clearance certificate”.

According to Shanghala, Namibia has an obligation under national and international laws to exercise what is called the precautionary principle, and to ensure that the natural heritage of Namibia is preserved for the benefit of present and future generations.

The precautionary principle is defined by the European Union as applying where scientific evidence is insufficient, inconclusive or uncertain and preliminary scientific evaluation indicates that there are reasonable grounds for concern over the potentially dangerous effects on the environment.

The AG said Namibia is bound to the precautionary approach by virtue of the United Nations Convention on the Law of the Sea and Benguela Current Commission.

Shanghala also said Namibia signed up to the Vienna Convention on the law of treaties, which states that a party to the convention shall not use the provisions of a national law as justification for not performing its obligation to an international treaty.

Despite the AG's stance and his call for a proper investigation, Nghitila went ahead and issued the certificate to Namibia Marine Phosphate, which is owned by Omani oil billionaire businessman Mohammed Al Barwani through his company Mawarid Mining LLC, and wheeler-dealer Knowledge Katti's Havana Investments, on 5 September.

One of the terms when a phosphate ban was imposed in 2013 was that a comprehensive strategic environmental assessment – a process of predicting and evaluating the impact of a strategic action on the environment, and using that information in decision-making – would be conducted under the supervision of the fisheries ministry, in consultation with the environment and energy ministries.

This study was not done, but Nghitila believes that NMP operations can be used to gain the data on Namibia's deepsea water.

There are, however, concerns that other companies will also apply to start mining phosphate offshore Namibia since NMP succeeded in getting approval. This is not the first time that Shanghala has been flatly ignored by a state entity involved in key decisions involving Katti. The Namibian reported last year that a N$7 billion airport deal was signed without consulting the AG. Katti was the middleman in that lucrative deal.

Shanghala appears to be one of the few ministers supporting Esau. The Namibian understands that ministers who support phosphate mining include Shifeta, national planning minister Tom Alweendo, energy minister Kandjoze, and industrialisation minister Immanuel Ngatjizeko. These are the officials who agreed to tell Nghitila to decide whether to approve or disapprove marine phosphate mining.

Meanwhile, NMP said the form of mining they will use will have a less harmful environmental effect. This is despite an admission in their own report that the extraction will affect fish stocks and breeding grounds in the area.

The company said they had followed due process, and the environmental impact assessment, environmental management plan, verification study and the two studies independently commissioned by Nghitila have confirmed that “phosphate mining will have a minimal impact on the marine environment”.

NMP further claims that shareholders have invested over N$780 million into the development of the exploration and mining licences issued to them by the government. Katti's company did not explain in detail how it arrived at these estimates.