Law tested in water vs mining case
April 11, 2008
Werner Menges
The NamibianTHE hearing of a test case on the granting of permits alllowing the withdrawal of groundwater by a planned new uranium mine in an arid area southwest of Usakos got sidetracked into a day-long exchange of arguments on preliminary - but potentially decisive - technical legal points in the High Court in Windhoek yesterday.
Judge Collins Parker reserved judgement after hearing arguments on the preliminary points raised in a case in which Namib Plains Farming and Tourism CC, a close corporation owning a farm close to the site of the proposed Valencia uranium mine, is challenging a decision by the Ministry of Agriculture, Water and Forestry to grant four water permits to Valencia Uranium two months ago.
The mine is some 55 kilometres southwest of Usakos.
The close corporation wants the court to issue an order that would stop Valencia Uranium from extracting water from boreholes in the Khan River or in a still little-studied, ancient underground water reservoir, referred to as the "palaeo channel", while a case in which the court is asked to review and set aside the permits allowing Valencia Uranium to drill boreholes in these areas and extract up to 1 000 cubic metres of water a day from these sources remains pending.
Namib Plains Farming and Tourism CC owns a farm, Namib Plains, about five kilometres from farm Valencia, where the planned Valencia uranium mine is to be situated.
One of the members of the CC, Marieta Engelbrecht, has informed the court in an affidavit that the views of the owners of Namib Plains were not heard by the Ministry of Agriculture, Water and Forestry before the decision was taken to grant the permits to Valencia Uranium.
She also says that these permits were granted to the company without sufficient scientific information about those underground water sources being available yet, and without it being known what effect the extraction of such a large quantity of water from these resources would have on the environment in that area.
If the company is allowed to continue with a plan to use underground water, irreversible damage could be done to the environment, she states.
NEW WATERS The parties involved in the application filed by the farm owners are sailing in uncharted waters with the case.
It is the first time that this sort of issue involving Namibia's water law and environmental law is being navigated in a Namibian court.
For the farm owners to get the orders they have asked for, they would first have to get over a set of hurdles that Valencia Uranium's legal team raised yesterday.
Susan Vivier, leading counsel in the company's legal team, argued that the case does not meet the requirements to be treated as an urgent matter, and that the farm owners do not have the necessary entitlement in law to bring the case to court.
She argued that Engelbrecht knew from February 12 already that Valencia Uranium had applied for water permits, since February 25 that the permits had been granted, and since March 6, after receiving information from Valencia Uranium on the permits and applications for them, the basis on which these permits were applied for and granted.
The farm owners however did nothing until they filed an urgent application with the court on Thursday last week, Vivier contended.
She added that Engelbrecht also knew that Valencia Uranium had stated that it would not just start pumping water from the ground, but only once construction of the mine started, which in turn would only happen once the company had been granted a mining licence by the Ministry of Mines and Energy.
Vivier also argued that the permits allowing the company to drill boreholes and draw water from the Khan River and the palaeo channel were granted on the basis that these underground water resources had been proclaimed as "subterranean water control areas" in terms of the Water Act of 1956.
By definition, however, the Khan River would be excluded from such a "subterranean water control area", while no proclamation could so far be found declaring the palaeo channel as such an area, Vivier told the Judge.
If no such proclamation existed, it could mean that these permits were a nullity, which could turn the entire application into an academic exercise only.
The permit allowing Valencia Uranium to drill boreholes in the land over the palaeo channel came with a condition that only once it had been conclusively found that groundwater abstraction from the palaeo channel was feasible and sustainable, may a separate application for groundwater abstraction be submitted to the Ministry.
Yet on the same day that the Ministry granted this permit, it also issued an abstraction permit for the same boreholes identified on the drilling permit covering the palaeo channel.
This abstraction permit allows Valencia Uranium to draw up to 500 cubic metres of water a day from this source.
"This is either the epitome of sheer incompetence," Raymond Heathcote, counsel for the farm owners, charged yesterday, "or it is a sheer fraud on the environment".
Heathcote argued that the farm owners are indeed affected parties who have a legal standing to bring the case to court.
In a case involving a threat to the environment, someone had to step in to act in the interest of the environment, he emphasised: "Nature cannot speak.
Someone must speak on nature's behalf."
Heathcote also argued that with the company planning to start drawing water from under the ground once it received its mining licence - and this could be any day - the case was indeed urgent.
Valencia Uranium had itself described the area where the mine would be situated as one of the driest places on earth, Heathcote said.
Yet now, when people from that area wanted to complain about the way the company obtained water permits, it wanted the court to simply strike the case from the roll, he said.
On a statement in which Valencia Uranium confirmed that almost no scientific or empirical data was available on the palaeo channel and how much water could be withdrawn from it sustainably, Heathcote commented: "This is enough to make any environmentalist shudder."
Responding to the argument about the Ministry granting the permits without sufficient scientific data being available on these water sources, Vivier said that Valencia Uranium would also be collecting such data for the benefit of the Ministry and farmers in the area.
As a result it needed the permits to be able to collect this data in the first place.
Only if it was found that there was enough groundwater available, would these sources be used for the construction of the mine as planned, she said.
The company would need around 300 cubic metres, or occasionally up to 500 cubic metres, of water a day during the mine's construction phase of about 18 months, Vivier said.
Once the mine came into operation, around 2 000 cubic metres of water a day would be needed, and it was planned that this would come from a desalination plant, she said.
In the meantime, Valencia Uranium planned to proceed to use 100 to 200 cubic metres of water a day from boreholes in the Khan River to build an access road to the mine site, Vivier said.
She said a study had shown that it would be possible to sustainably draw between 1 000 and 1 200 cubic metres of water a day from the Khan riverbed.
Vivier was assisted by Esi Schimming-Chase, on instructions from Elise Angula of LorentzAngula Inc.
Heathcote was assisted by Dr Sakeus Akweenda, on instructions from the Legal Assistance Centre.
Philip Swanepoel from the Office of the Government Attorney represented Government.
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