A Legal Fight in Namibia That Could Reshape the Future of Our Seas

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Namibian law is set to face its most serious challenge yet. This is after the highest court in the land reserved judgement in a case aimed to compel the government to look at the environmental risks before it leaps into the new deep-sea mining frontier.

The case will see whether Namibia is going to be the first country in the world to place profit ahead of environmental protection by allowing deep sea mining within its national jurisdiction.  

In July, Windhoek High Court judge Justice Harald Geier reserved judgement in the Confederation of Namibian Fisheries Associations and three others who are challenging Namibian Marine Phosphate Pty Limited’s (NMP) deep-sea mining license.

The Confederation of Namibian Fishing Associations, Namibian Hake Association and Midwater Trawling Association of Namibia are seeking a general ban against marine phosphate extraction off the country’s coast. The three organisations are challenging the mining company’s licence to operate, as well as its environmental clearance certificate.

It is argued that deep-sea mining may irreparably harm ocean ecosystems before the planet even has a chance to fully study its impacts. The organisations are opposing lax environmental standards, challenging a proposed phosphate mine off the coast of Namibia.

During the July hearing, a question was raised to the court whether a prospecting license received by the company on July 26 of 2011 was still valid. The organisations say the license which the company is seeking approval expired on February 5 of 2013, because the respondents, NMP, had failed to prepare an environmental impact study for the planned phosphate mining within six months.

In their legal submissions, they told Justice Geier that regardless of the required clearance certificate, NMP has forfeited the authority to mine the mineral, which is mainly used as fertilizer, in an area of around 2,233km2 from the sea floor in an area about 60km off the coast, around 120km southwest of Walvis Bay. 

Two years ago, environment and tourism minister, Pohamba Shifted stopped the granting of an environment clearance certificate to NMP which could have given it a green-light to mine phosphate on Namibia’s oceans. NMP claims it had undertaken an environmental-impact assessment (EIA) in 2012, as well as a comprehensive EIA verification study in 2014. The date when judgment will be delivered has not yet been provided. Justice Geier has eight months to deliver his judgment, by March of 2021. 

Will Namibia let deep sea mining happen?

The question by environmental activists and scientists is: “will the Namibian court let NMP mine the sea within its national jurisdiction?” This is a legal fight that could reshape the future of our seas.

Namibia is one of only a few countries in the world presently debating the potential of seabed mining. New Zealand and Papua New Guinea being the other notable examples. Life on the deep ocean floor is still a mysterious realm that scientists have only just begun to inventory. The new gold rush will do untold damage to the ocean’s food web and other complex natural systems.

While many mining projects pose threats to local environments, the risks associated with deep-sea mining are all the more significant, primarily due to the vulnerability of the ecosystems involved. It would significantly disrupt local ecosystems.

According to a South Africa based report, The South African Institute of International Affairs’ (SAIIA) Policy Briefing 87, until recently, exploiting valuable minerals in deep waters beyond the continental shelf has not been commercially or technologically viable. SAIIA said the moratoriums placed on seabed mining in Namibia and the Northern Territory of Australia, as well as the difficulties faced by companies such as Nautilus in Papua New Guinea in proceeding with seabed mining projects, illustrate the complexity of such operations. 

“Namibia’s experience in responding to proposed seabed mining activities highlights the need for national ocean governance policies, planning frameworks,” the document revealed. This experience illustrates the need for well-governed, comprehensive and credible EIA processes.”

Namibian Fishing Association Chairman Matti Amika said they oppose the project on the grounds that the area identified by NMP serves as spawning grounds for many commercial fish species and a drastic decrease in these species could be expected there. Amika said the government has a moral duty, as well as a legal one, to understand the full environmental impacts before the mining industry scrapes away our deep sea resources.

“This would lead to a loss of biodiversity and a decrease in stocks, resulting in a drastic impact on the Namibian fishing industry, which not only creates thousands of jobs, but also makes a significant contribution to the gross domestic product,” said Amika.

The Sandpiper Marine Phosphate project is set to use heavy machinery to extract phosphate from a depth of between 180 and 300 meters, and that roughly 5.5 million tons of marine sediment is transported to the surface each year. This will see large amounts of sediment being dredged from the sea floor in an area of around 60km2, thereby driving fish out of the area. Amika said the release of particulate matter and minerals could have previously unknown consequences for plankton and other organisms in the ocean, which depend on seabed nutrients and serve as food source for fish.

“Should these organisms disappear, fish would be deprived of their food source, which could lead to a disturbance of the ecological balance and could trigger a marine chain reaction with unpredictable consequences,” he added.

During the hearing, a protest was held outside the court. A mobiliser for the protest, Sion Akela, told Eagle FM that they remained resolute against the project’s implementation, reiterating that it endangers marine life and puts the jobs of thousands of fishermen in jeopardy.

Akela said they put all hopes on the impartiality and competence of the judges. “We hope the environment is going to win,” said Akela.  

Proponents for the project last year hit back at the movement for spreading propaganda and stalling job creation in the fishing sector.

SAIIA said significant marine diamond mining has been undertaken in Namibia for a number of decades. But the think tank said those opposing marine phosphate mining, however, argued that marine diamond mining was less disruptive to the seabed than the proposed dredging technology to be employed by the Sandpiper project. The marine diamond mining operations showed less overlap with known fishing and fish breeding areas. 

Go mine in Oman

Namibia veteran politician Jerry Ekandjo said billionaire Mohammed Al Barwani, who owns NMP, should extract phosphorus from his home country Oman, not Namibia.

Ekandjo, who has served the Namibian government in various ministerial positions, told a Namibia newspaper in June that Namibians did not fight for independence for the country’s resources to be destroyed in the blink of an eye.

“That billionaire (Barwani) must go and mine in his country, there is a sea there,” Ekandjo said. “His country never assisted or supported us during the struggle. It was the socialist countries who did.”

He added that phosphate mining will destroy our marine resources. “It has not been done anywhere in the world, therefore Namibia should not be used as a test ground for phosphate mining,” Ekandjo said.

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