Appeal against RECON’s extention of Clearance Certificate lodgedLAC
Windhoek, Namibia 21 April 2023
APPEAL LODGED AGAINST RECONNAISSANCE ENERGY NAMIBIA’s CLEARANCE CERTIFICATE (ECC 00091) EXTENSION
The Ncumcara Community Forest Management Committee, Muduva Nyanagana Communal Conservancy Management Committee, Katope Community Forest Management Committee and the Kavango East and West Regional Conservancy and Community Forest Association have lodged an appeal on 22 June 2022, in terms of section 50 of the Environmental Management Act, Act 7 of 2007, against the decision of the Environmental Commissioner who amended and extended the environmental clearance certificate, ECC 0091, held by Reconnaissance Energy Namibia (Pty) Ltd (REN).
The amendment extended REN’s drilling rights to areas not mentioned in the ECC, for which no further Environmental Impact Assessments were conducted. Despite opposition noted by REN on 28 July 2022 to the appeal, it was only in February 2023 and after numerous correspondences by the appellants that the minister set the matter down for hearing on 1 March 2023, which was then postponed to 3 April 2023 on the grounds of short notice to both representatives, and again postponed to 24 April due to unavailability of the Minister caused by the Parliamentary budget being tabled on the same day. The minister has failed to appoint a panel in accordance with the requirements of this procedure and will be conducting the hearing himself.
The appeal is primarily focused around the law that requires the listed activities proposed by REN to be authorized and approved by the Environmental Commissioner. The Applicants argue 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. 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 REN’s ECC 0091. In opposition, REN argues that the Environmental Commissioner, when amending the ECC, acted under section 39 of the Act and in line with his general powers conferred to him.
The appellants made submissions about the inadequacies of the environmental impact assessment, particularly in 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 done.
A hearing is scheduled for April 24, 2023 at 9:00 AM in the ministerial boardroom on the 2nd floor of the Ministry of Environment, Forestry and Tourism. The hearing is intended to be a procedure for presenting oral testimony, yet witnesses are not allowed to testify. Indeed, the procedures in terms of the appeal are ad hoc and uncertain because they are not regulated in terms of the regulations promulgated under the Environmental Management Act. In conclusion, the law cannot be effective if there is no regulation of the procedures that need to be undertaken to ensure that all parties have certainty and access to ventilate their grievances, including the right to be heard, particularly where local and marginalised communities are vulnerable against the forces of Oil Exploration Companies in their environmentally rich Kavango River homeland, home of elephants, abundant wildlife, clean potable water and communities that survive from the natural resources at hand.
Without such regulation, the law fails to protect the rights and interests of the affected local people and the environment itself, this creates a situation of injustice and continual conflict. The law should therefore provide clear and transparent guidelines for the conduct of environmental matters appeal procedures to ensure meaningful consultation and participation of local communities, the assessment and mitigation of environmental and social impacts, and the resolution of disputes and complaints. Only then can the law achieve its purpose of promoting sustainable development and human dignity.
For more information, please contact:
Legal Assistance Centre, Windhoek
Phone: +264 61 223356