Oil and gas conference

In our race for progress – we cannot forget that sustainable development is not ONLY about technological advancement.

Presentation by Corinna van Wyk at the Oil and Gas Conference

It is ultimately about the nurturing, protecting and levelling the core of progress: Our natural resources and its custodians without which development cannot exist. We believe the time is now – we need to regulate the framework so we can co-exist.

From a human rights lawyer’s point of view the Legal Assistance Centre’s contribution stems from an angle of seeking clarity about where our local communities and indigenous people feature in this possible energy boom that Namibia is facing. Will they be pushed aside once again, just like in colonial times?

In 2021 Shell Exploration and Production South Africa announced that it will commence with seismic surveys to assess oil and gas prospects off the coastline of some 6000 square kilometers between Port St Johns and Morgan Bay, the communities filed an urgent interdict. Shell were operating on a “farmout agreement” with Impact Africa.

There is a long history here – in short – Impact Africa obtained their first exploration rights in 2014 under the Mineral and Petroleum Resources Development Act 28 of 2002. No environmental impact assessment was undertaken and no environmental authority granted under the National EMA of South Africa.

A renewal for exploration rights were granted in 2017 on the same conditions and in 2021 Impact Africa submitted environmental audits without reflecting any scientific research on the harmful impacts of seismic testing and was granted another two-year exploration right.

The communities of St Johns and Kei Mouth brought an urgent interdict to stop all activities being conducted under the exploration rights in December 2021 until a review application is heard. The review application was premised:

• on the allegation that Shell did not have the necessary authorization in terms of of the National Environmental Management Act to lawfully undertake seismic exploration activities,
• secondly that shell failed to consult with affected communities and stakeholders properly
• and thirdly that the seismic survey violates rights protect under the constitution – including spiritual, heritage and cultural rights should the surveys continue.

The interim order was granted in favour of the community members and the matter is still to be heard and is merged with an appeal matter bearing the same facts. The matter was heard in June 2022 however judgment is still pending.

Leaving Shell unproductive since 2021.

On the flip side the Ncumcara Community Forest and Others similarly brought an urgent interdict against Recon Africa in the high Court of Namibia after their appeal to the Minister was left un-responded to, particularly to the request to stay activities undertaken under an environmental clearance certificate that was granted to Recon by the Environmental commissioner despite numerous objections from interested and affected parties.

Unlike the court in SA, the High Court found that there was no imminent danger and that there was no urgency in the matter – dismissing the urgent application to stay activities on the basis that the application should have been a mandamus seeking on order from court to compel the minister to make a decision regarding the stay of activities. Clients were left with no option but to await the outcome of the appeal before the minister that was only heard in April 2023 and no judgment has yet been delivered.

In the meantime, Recon was permitted to continue activities and even a second renewal of an ECC was granted for wells other than those reflected in the original application.

Needless to say, that the community were not given a fair and timeous opportunity to raise their concerns and when they did it was too late for practical purposes. However, the publicity worldwide did not look favourably on the reputation of RECON. Word on the street is that all activities have been stayed due to a considerable reduction in funding as a result.

The crux of these cases is that there is no need to exclude the local communities in matters that concern them directly especially if the intent of any project is to enhance sustainable development which is, I believe both our government’s prerogative and desire.

When we look at the United Nations Declaration on Indigenous Peoples Rights that Namibia voted in favour of – it speaks of indigenous Peoples right to own land and natural resources to which they were previously denied. It’s emphasis is on obtaining the consent from these indigenous people in all matters relating to such land and natural resources.

Free prior and informed consent speaks of a continuous process from the moment the idea of a project is born, until it has been completed. Throughout the process the local community should be a part of it. They should be prepared and educated not only about the good prospects of a project, but also on the risks, the mitigating factors, the alternative ways possible to achieve the same or even better results, the costs and finally where they fit in. Consent should only be given after a period of time has been granted to the communities, to discuss as per their customs and practices and to make an informed decision.

It is a process, it is not simply a meeting by 50 people where the traditional authority is represented by only 5 people and the remaining participants are ministerial officials and company representatives.

It speaks of meaningful participation – why?

Because in our opinion, if the community feels protected they will protect the project – no one looks after a thing better than its owner!

Transparency, accountability and legitimacy are a direct reflection on the initiator of the project. It means that there are no reasons for hiding the objectives of a project, its distribution of proceeds or the degree of environmental harm sustained at any given point time.
If the project keeps the community and government at bay, then we have the responsibility to bear the repercussions that go hand in hand with exploration activities, like environmental damage. As the law stands currently, the communities do not have the full picture and yet they feel the impact. They are displaced, feel the impact of the environment and their livelihoods are affected.

 

Why is it that the community is not fully conversant in the discussions of development projects?

Because, besides not being part and parcel of the decision-making bodies of a project; communities are not provided with sufficient information about a project. A once off consultative meeting is not sufficient to discuss the full impact of a project and for any meaningful dialogue to take place.

Consultations are not being held with community members. Take note: a Traditional Authority does not constitute community members. In the 2019 Kashela matter, the Supreme Court made it very clear that Communal Land Rights should be granted the same considerations to those of Commercial land rights. The rights holder is to benefit from any agreement that relate to the use of that land and its natural resources. It is not to the exclusive benefit of the Traditional Authority, but of course they too may benefit.

80 percent of the residents in Luderitz rely on fishing resources. Off shore exploration activities will certainly have an impact on the marine life and subsequently on the fishing industry, which in turn impacts the lives of those residents. Therefore, they should be consulted and, as in other instances, there are community organizations like conservancies and community forests. They have a mandate to protect the environment and its members, and should be part of these consultative processes.

Information should be provided in languages that the communities know and understand.

Mediums to advertise notices and applications: Rural people do not have daily access to newspapers, nor the expert knowledge to understand the content thereof. Projects have the responsibility to invest in educating the local communities about possible projects in and around them long in advance, before any activities are considered, let alone undertaken.

Respect for cultural differences and ways to approach people have to be observed and practiced.

Legal framework

All these efforts have to provide a platform where the voices of communities are heard and they are given fair and reasonable time to respond and enforce their rights. Currently it is only the Environmental Management Act (and Regulations) that encourages public participation. This is, however, only at the initial stage of a project, and when the application for an Environmental Clearance Certificate is made. Any other participation is possible only by lodging an appeal to the decision of the Environmental Commissioner in granting and ECC, and then to take that decision to the courts. As already discussed this process is completely flawed due to the lack of a regulatory framework which prescribes time lines for applications to be heard. This leaves the minister with too much discretion. Because it is an administrative function, the baseline is for decisions to be made within a reasonable time, but reasonable remains a relative term, subject to an individual’s interpretation.

In essence, the legal framework should support the communities in addressing concerns relating to their right to land and natural resources. This includes the right to raise concerns of environmental degradation.

So how then do we tie the knot between local communities and sustainable development goals?

We need to ensure communities are a part of the project from the start.

They need to own the idea as much as the implementors; they need to benefit equally and share the liability equally; they should have recourse where they are being neglected or excluded;

The should be recognized as the legitimate owners of the land and its resources; the structures in place should be given the recognition they deserve!

Sustainable development should be a win-win situation – no one should be left behind – not if we mean to sustainably develop.

Recommendations and in summary

Government should ensure that the legal and policy frameworks facilitate community involvement for the purpose it was meant to and not merely a ticking of the box exercise.

Monitoring and evaluation is not only a scientific issue, it is probably felt and known by the communities long before it can be tested, but if they have no platform to raise their concerns without fear of harm or intimidation or victimization, knowing about it is not going to help solve it. They should be able to report it easily and effectively.

Civil society organizations should advocate for community rights and facilitate community participation more efficiently.

Communities should actively engage and organize themselves to effectively voice their concerns and aspirations.

Establishment of an environmental court is probably a necessity to deal speedily and effectively with environmental impact issues.

Public participation is not another “to do” on the list of requirements laid by the EMA. It is an on-going process from the beginning to the end of a project and although the law currently requires the bare minimum, there is nothing preventing projects from implementing best practices and standards that confirm public participation as a process of the full operation of any given project. It includes communities from the start until the end thereof. This is the only way we can ensure inclusive development in the country!