Source: http://www.namibian.com.na/48641/read/Challenge-to-phosphate-licence-postponed

THE legal attack on the environmental clearance certificate and mining licence granted to a company intending to carry out a controversial plan to do seabed phosphate mining off the Namibian coast is due to proceed in the High Court in Windhoek next year.
The case in which three organisations representing the Namibian fishing industry are asking the High Court to review and set aside a decision to grant an environmental clearance certificate to the company Namibia Marine Phosphate (NMP), and also to declare that a mining licence issued to the company is invalid, was postponed by judge Harald Geier yesterday.

A case management hearing on the matter is scheduled to take place before judge Geier on 24 January, by when the parties involved in the case should indicate to the court how the litigation between them should proceed.

Lawyer Sisa Namandje, who is representing the Confederation of Namibian Fishing Associations, the Namibian Hake Association, the Midwater Trawling Association of Namibia, and the company Omualu Fishing, informed judge Geier yesterday that the four applicants would not be proceeding with the first part of their case against NMP, the environmental commissioner, the ministers of environment and tourism, fisheries and marine resources, and mines and energy, and the attorney general, in light of a decision by minister of environment and tourism Pohamba Shifeta on 2 November to set aside the environmental clearance certificate that the environmental commissioner granted to NMP on 5 September this year.

In that first part of the case the applicants were asking the court to order that the decision to grant an environmental clearance certificate to NMP may not be implemented until the remainder of their case had been finalised. 

They were also asking the court to issue an interdict stopping NMP from carrying out any activities based on the certificate while the rest of the case – in which the focus will be on a legal attack against the environmental clearance certificate and mining licence issued to NMP – is still pending.

In documents filed at the court, the three fishing industry organisations and Omualu Fishing are arguing that the entire process leading to the granting of the environmental clearance certificate to NMP – a step that was met with a public outcry when it became known last month – was “fundamentally flawed”, as various material and mandatory provisions of the Environmental Management Act of 2007 were not complied with. 

Part of their argument is that a 20-year mining licence issued to NMP in July 2011 became invalid after NMP failed to comply with one of the conditions attached to that licence, which was that the company had to provide the Ministry of Mines and Energy with an environmental impact assessment report within six months after the licence was issued.

The four applicants are also arguing that, if the mining licence did not lapse in January 2012 as claimed by them, it ceased to be valid a year after the Environmental Management Act came into operation in February 2012. 

In their view, the act stipulates that anyone wishing to continue with activities like ocean phosphate mining in terms of a licence issued to them must have applied for an environmental clearance certificate within a year after the act came into operation. 

This NMP did not do, they are claiming.

NMP, which was represented by lawyer Charles Visser in court yesterday, has given notice that it will be opposing the application by the four applicants. 

The minister of mines and energy was the only other respondent that was represented in court yesterday. Government lawyer Tinashe Chibwana appeared on behalf of the minister.

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