Renthia Kaimbi
The Confederation of Namibian Fishing Associations has formally appealed the decision by the environmental commissioner to grant an environmental clearance certificate to Namibia Marine Phosphate, in the latest developments of a legal battle that has dragged on for over a decade.
The appeal, filed on Wednesday, challenges the 6 August decision and asks the minister of environment and tourism to set it aside.
The fishing association argues the environmental commissioner, Timotheus Mufeti had no legal authority to issue the certificate in the first place because the company’s mining licence expired years ago under the Environmental Management Act.
This is the latest development in a long-running dispute that dates back to before the Environmental Management Act came into force in February 2012.
Namibia Marine Phosphate received its mining licence in July 2011, and the Act required companies with existing authorisations to apply for an environmental clearance certificate within one year or seek an extension from the minister. According to the fishing association, the company did neither.
The High Court has already weighed in on this matter. In a 2021 judgment, the court declared that Namibia Marine Phosphate was not entitled to undertake any listed activity until it had obtained a valid environmental clearance certificate.
The court also found that the company had not complied with the mandatory provisions requiring it to apply within the one-year period.
Yet, despite that ruling, Namibia Marine Phosphate submitted an application for environmental clearance earlier this year, and the environmental commissioner granted it on 6 August.
The fishing association says this is legally unsustainable because the company’s mining licence expired by operation of law in 2013 when it failed to meet the statutory deadlines.
But the appeal goes beyond procedural arguments. The fishing association has raised serious concerns about the environmental assessment process itself, arguing that key studies were either missing, inadequate or misleading.
The assessment only covers the offshore mining component and deliberately excludes the onshore processing and waste disposal operations, which are inextricably linked to the mining activity.
According to the fishing industry body, this fragmented approach means critical cumulative impacts are being overlooked.
The operation would bring five million tonnes of unprocessed material ashore annually for processing into about three million tonnes of phosphate rock.
The association points out that in any normal mining environmental impact assessment, the full mining operation including how waste is handled is assessed together.
The potential for heavy metal contamination has emerged as a particularly troubling issue. Scientific reports have documented elevated concentrations of arsenic, cadmium and uranium in the sediments within the mining licence area.
The fishing association warns that if these heavy metal levels increase in Namibian fish above international food safety standards, the country’s fishing industry could effectively be shut down overnight.
Noise pollution is another area of concern. Recent international research has shown that noise from deep-sea mining operations can travel approximately 500 kilometres in gentle weather conditions.
The fishing association notes that the company has admitted it has no firm conclusions on noise impacts and has proposed to only study this issue once mining operations are already underway.
It said the proposed phosphate mining zone is situated in a critical fishing area, and the fishing association has highlighted the potential impact on the horse mackerel sector in particular.
This sector is considered the protein basket for lower-income communities across the Southern African Development Community region.
The association also notes that juvenile fish and breeding grounds near the 200-metre depth contour could be severely affected.
The environmental assessment’s conclusion that mining impacts will be of low significance has been strongly challenged.
The fishing association points to a 2014 verification study that downplays serious impacts, including complete loss of benthic biota and likely regime shifts in the marine ecosystem.
The association argues that low biodiversity does not mean low ecological significance, and that productive areas sustain key fisheries.
The appeal also takes issue with Mufeti’s conduct, arguing that he failed to respond to the association’s letters seeking clarification on critical issues before making his decision.
The fishing association had requested information on whether the environmental assessment would cover both the marine and terrestrial components of the proposed project.
The association contends that it had a legitimate expectation that the Environmental Commissioner would not proceed without first providing the requested information.
The fishing association has indicated it will file a separate application on Wednesday seeking to suspend implementation of Mufeti’s decision pending the outcome of the appeal.
The matter now rests with the minister of environment, forestry and tourism, Indileni Daniel, who must consider whether Mufeti overstepped his legal authority and whether the environmental assessment process was fundamentally flawed.
