MINING AND ENERGY
I. MINING AND ENERGY IN NAMIBIA
Meyer van den Berg and Peter Koep
Mineral and petroleum exploitation inevitably result in pollution and environmental degradation.1 The environmental aspects of mineral and petroleum exploitation are therefore important components of any regulatory framework for mineral and petroleum resources. The environmental aspects of the mining and energy sectors in Namibia are dealt with in terms of various pieces of legislation. The relevant Acts regulating specific resources – the Minerals (Prospecting and Mining) Act No. 33 of 1992 (‘Minerals Act’) in respect of minerals and the Petroleum (Exploration and Production) Act No. 2 of 1991 (‘Petroleum Act’) in respect of petroleum – deal to some extent with environmental obligations in respect of minerals and petroleum. However, in February 2012 the Environmental Management Act No. 7 of 2007 came into operation and now provides for a general framework for environmental authorisations.
1 The Environmental Management Act
The Environmental Management Act No. 7 of 2007 (‘EMA’) came into force on 6 February 2012. This Act has a significant impact on the mining and energy sectors in Namibia. Because the EMA came into operation after the Minerals Act and the Petroleum Act, the latter two Acts do not contain any reference to the EMA. Similarly, the EMA does not contain any reference to either the Minerals Act or the Petroleum Act. The link between these three pieces of legislation may, however, be found in ‘listed activities’.2
In terms of section 27(1) of the EMA, the Minister of Environment and Tourism (‘Minister’) may list certain activities that may not be undertaken without an environmental clearance certificate. This list was published by the Minister on 6 February 2012.3 The listed activities are quite comprehensive and include activities in respect of energy generation, transmission and storage4 and mining and quarrying activities.5 More specifically, the following activities may not be conducted without an environmental clearance certificate:
The listed activities may not be undertaken without an environmental clearance certificate issued in terms of the EMA.25 If any person undertakes a listed activity without the necessary environmental clearance certificate, that person commits an offence and if found guilty, may be liable to a maximum fine of N$500,000 or to imprisonment for a maximum period of 25 years, or to both such fine and imprisonment.26
An organ of state responsible, under any law, for granting or refusing an authorisation, (referred to as a ‘competent authority’) may not issue an authorisation unless the person proposing to undertake the listed activity (‘proponent’) has obtained an environmental clearance certificate in terms of the EMA.27 This includes the Minister of Mines and Energy responsible for granting authorisations in respect of mineral and petroleum. Therefore, the Minister of Mines and Energy (or a designated official) may not issue a licence or claim in respect of minerals before the proponent has obtained an environmental clearance certificate. It should be noted that the prohibition only refers to the issuing of authorisations. Therefore, application may still be made for a licence or claim in respect of minerals, and the application may be granted, but the licence or claim may not be issued to the proponent until the proponent has obtained an environmental clearance certificate.
The process for applying for an environmental clearance certificate is discussed elsewhere in this publication.28 Of note is that the process involves consultation with all interested and affected parties. Their input has to be included in the application to the Environmental Commissioner. Consultation with interested and affected parties is a vital component of any regulatory framework for mineral and petroleum resources, as the exploitation of these resources results in serious inroads into the rights of private landowners.29 Neither the Minerals Act nor the Petroleum Act requires an applicant for a licence to search for and extract minerals or petroleum to consult with interested and affected parties. The introduction of a consultation process under the EMA is therefore an important step towards ensuring a transparent and accountable regulatory framework for mineral and petroleum exploitation.
After receipt of the application for an environmental clearance certificate and all supporting documents and information, the Environmental Commissioner has to decide whether an environmental impact assessment is required or not; if an impact assessment is not required, the Environmental Commissioner will merely issue a clearance certificate.30 In the Minerals Act, however, an impact assessment is in any event required, regardless of whether the Environmental Commissioner deems it necessary.31 Similarly, the Minister of Mines and Energy may require an applicant for a petroleum licence to carry out an impact assessment.32 In terms of regulation 11 of the Environmental Impact Assessment Regulations,33 if an assessment is required in terms of any other law or policy and that other law or policy requires that information must be submitted or processes must be carried out that are substantially similar to information or processes required in terms of the Environmental Impact Assessment Regulations, the Minister of Environment and Tourism must take steps to enter into a written agreement with the authority responsible for administering the law or policy in respect of the coordination of the requirements of the law, policy and these regulations to avoid duplication in the submission of such information or the carrying out of such processes.34 To date, no such agreement has been entered into between the Minister of Environment and Tourism and the Minister of Mines and Energy.
2 Mining Laws and Policy
The Minerals Act contains various provisions aimed at protecting the environment. Apart from the Minerals Act, the Minerals Policy for Namibia (‘Policy’) and the SADC Protocol on Mining (‘Protocol’) also contain provisions aimed at protecting the environment.
2.1 The Minerals (Prospecting and Mining) Act35
The Act came into force in 1994 and provides in general for reconnaissance, prospecting and mining for, disposal of, and the exercise of control over, minerals in Namibia and related matters. The Act provides for environmental protection at all stages of the mineral exploitation process. The Minerals Act also authorises the Minister, by notice in the Government Gazette, to declare that prospecting and mining operations within a specific area may only be carried on with special permission from the Minister and subject to such conditions as the Minister may impose, if the Minister deems it necessary or expedient for the protection of the environment or prevention of pollution.36
2.1.1 Application for Claims and Licences
When applying for an exclusive prospecting licence, mining licence, mineral deposit retention licence (collectively referred to as ‘mineral licence’) or the registration of a mining claim, the applicant must provide particulars of the condition of, and any existing damage to, the environment in the area to which the application relates. The applicant must further provide an estimate of the effect which the proposed prospecting and /or mining operations may have on the environment and the proposed steps to be taken in order to minimise or prevent any such effect.37 The same applies to an application for the renewal of a mineral licence or the registration of a mining claim.38
The same does not apply to applications for non-exclusive prospecting licences or reconnaissance licences. The reason for this insofar as it relates to reconnaissance licences is probably that it is not necessary, since reconnaissance operations are non-invasive operations involving remote sensing. The reason why the same does not apply to non-exclusive prospecting operations, which entails the same activities as exclusive prospecting licences, is uncertain. This is probably an oversight by the legislature. It is submitted, however, that application for non-exclusive prospecting licences or the renewal of these licences should include particulars of the condition of, and any existing damage to, the environment in the area to which the application relates, as well as an estimate of the effect which the proposed prospecting operations may have on the environment and the proposed steps to be taken in order to minimise or prevent any such effect. This is in line with the general tenor of the Act, as well as international standards.
2.1.2 Granting of Mining Claims and Mining Licences
The Minerals Act imposes additional environmental obligations on the Mining Commissioner and the Minister of Mines and Energy in respect of the granting of mining claims and mining licences. These additional obligations in respect of mining are justified in the light of the nature of mining operations, which are generally more invasive than prospecting operations. The Mining Commissioner may not grant the application for the registration of a mining claim unless the Commissioner is on reasonable grounds satisfied that in the course of any such mining operations or any prospecting operations which may be carried on in lieu of such mining operations, appropriate measures will be taken to minimise or prevent any pollution of the environment.39 Similarly, the Minister may not grant an application for a mining licence unless the Minister is on reasonable grounds satisfied that the proposed programme of mining operations to be carried out and the expenditure to be incurred will ensure inter alia adequate protection of the environment.40
2.1.3 Exercising Rights in Terms of Claims and Licences
It is a term and condition of the registration of a mining claim that the holder of such mining claim shall take all reasonable steps necessary to prevent or minimise any pollution of the environment.41 The same applies to holders of exclusive prospecting licences, mineral deposit retention licences and mining licences as well,42 but not holders of non-exclusive prospecting licences and reconnaissance licences. As discussed above,43 the exclusion of holders of reconnaissance licences from this obligation makes sense with reference to the nature of reconnaissance operations. The exclusion of holders of non-exclusive prospecting licences does not, however, make sense and may be an oversight.
It is furthermore a term and condition of every mineral licence (but not mining claims or non-exclusive prospecting licences) that the holder must prepare an environmental impact assessment indicating the extent of any pollution of the environment before any prospecting operations or mining operations are being carried out. The holder must also provide an estimate of any pollution, if any, likely to be caused by such prospecting operations or mining operations.44 If any pollution is likely to be so caused, an environmental management plan indicating the proposed steps is to be prepared in order to minimise or prevent to the satisfaction of the Commissioner any pollution of the environment and consequence of any prospecting operations or mining operations carried on by virtue of such mineral licence.45 Furthermore, the holder must from time to time as circumstances change revise such an environmental management plan either out of his/her own motion or as required by the Commissioner.46 The application of these obligations to reconnaissance licences but not non-exclusive prospecting licences or mining claims is nonsensical. It is submitted that this is probably an oversight.
When in the course of any reconnaissance, prospecting and mining operations carried on under any non-exclusive prospecting licence, a mining claim or a mineral licence, any mineral or group of minerals is spilled or land or water is polluted or any plant or animal life is endangered or destroyed or any damage or loss is caused to any person (including the state) by such spilling or pollution, the holder of the licence or mining claim must immediately report such spilling, pollution, loss or damage to the Minister of Mines and Energy. The holder must then take at his or her own costs all such steps as may be necessary in accordance with good reconnaissance, prospecting or mining practices or otherwise as may be necessary to remedy such spilling, pollution, loss or damage.47 If the holder fails to comply with these provisions within such period as the Minister may deem in the circumstances to be reasonable, the Minister may direct the holder by notice to take the necessary steps (as stated in the notice) within the necessary period (also stated in the notice) to remedy the spilling, pollution or damage or loss. The notice must be in writing addressed and delivered to the holder. The Minister may, if the holder fails to comply with such directions to the satisfaction of the Minister within the period specified in such notice or such further period as the Minister may on good cause shown allow in writing, cause such steps to be taken as may be necessary to remedy such spilling, pollution or damage or loss and recover in a competent court the costs incurred thereby from such holder.48 This section does not apply to holders of exclusive prospecting licences. It is submitted that this is an oversight by the legislature, as the activities authorised by a non-exclusive prospecting licence and an exclusive prospecting licence are the same.
2.1.4 Mine Closure and Rehabilitation
If a mining claim or reconnaissance, prospecting, retention or mining area is abandoned, the holder of the claim or licence to which such area relates must take all such steps as may be necessary to remedy to the reasonable satisfaction of the Minister any damage caused by any prospecting operations and mining operations carried on by such holder to the surface of, and the environment on, the land in the area in question.49 The Minister may, with due regard to good reconnaissance, prospecting or mining practices by notice in writing addressed and delivered to the holder, give directions to such holder in relation to the protection of the environment.50
If a non-exclusive prospecting licence, mining claim or mineral licence has been cancelled or has expired, the Minister may by notice direct such person to take all such steps as may be necessary to remedy to the satisfaction of the Minister any damage caused by any prospecting operations and mining operations carried on by such holder to the surface of, and the environment in, such area. The notice must be in writing addressed and delivered to the person who was the holder of such licence or mining claim. The same applies if any area to which such licence or mining claim relates has been abandoned or has for any reason ceased to be part of the area to which such licence relates.51 If the person fails to comply with a direction given in the notice, the Minister may cause such steps to be taken and recover the costs thereof from that person.52
2.2 The Minerals Policy
In 2002, the Ministry of Minerals and Energy published a Minerals Policy for Namibia (‘Policy’). This Policy states, in its foreword, that the Government recognises the importance of the mining industry in the social and economic development of Namibia. The vision of the policy is
to achieve a high level of responsible development of national resources in which Namibia becomes a significant producer of mineral products while ensuring maximum sustainable contribution to the socio-economic development of the country [and] [t]o further attract investment and enable the private sector to take the lead in exploration, mining, mineral beneficiation and marketing.53
The mission of the policy is stated as follows:
The Ministry of Mines and Energy (MME), as the custodian of Namibia’s rich endowment of mineral and energy resources, facilitates and regulates the responsible development and sustainable utilisation of these resources for the benefit of all Namibians.54
The Policy recognises the effect that mining has on the environment and the need for appropriate legislation to regulate the environment in mining. It furthermore recognises that there is little effective environmental management within the Namibian mining industry.55 The policy attributes this to inadequate co-ordination between the Ministry of Mining and Energy and the Ministry of Environment and Tourism in relation to environmental legislation; a lack of public awareness, capacity weaknesses and education programmes focused on environmental issues; the absence of an environmental budget, and the public antagonism towards mining activities because of its negative effects on the environment.56
The Policy further calls for clear funding mechanisms for environmental rehabilitation, management and control, which will be achieved through the development and implementation of internationally benchmarked Environmental Trust Funds or Bonds, and the implementation of industry good practices in respect of waste management.57
The Government’s policies with regard to the mining industry and the environment are summed up as follows:
Although the Policy is not binding, it does reflect the Ministry’s attitude towards mining and the environment.
2.3 The SADC Protocol on Mining
The SADC Protocol on Mining (‘Protocol on Mining’) states that member states must promote sustainable development by ensuring that a balance between mineral development and environmental protection is attained.58 Member states must encourage a regional approach in conducting environmental impact assessments especially in relation to shared systems and cross-border environmental effects.59 Member states must collaborate in the development of programmes to train environmental scientists in fields related to the mining sector.60 Through the Protocol on Mining, member states undertake to share information on environmental protection and environmental rehabilitation.
3 Energy Laws and Policy
3.1 The Petroleum (Exploitation and Production) Act No. 2 of 1991
This Act regulates the upstream petroleum industry. It provides for the reconnaissance, exploration, production and disposal of, and the exercise of control over, petroleum.61
3.1.1 Application for Licences
An application for a reconnaissance or exploration licence or the renewal of such a licence must set out an estimate of the effect which the proposed operations may have on the environment.62 Applications for production licences are more strict. Not only requires an estimation of the significant effect of the production operations on the environment, but must also set out how the company intends to control or limit the effect of the production operations on the environment.63 The stricter requirements in respect of petroleum licences are justified in the light of the more invasive effects of production operations when compared with reconnaissance or exploration operations.
3.1.2 Granting of Licences
Upon receipt of an application for, or the renewal or transfer of, petroleum licences, the Minister may, to enable him or her to consider the licence, require the applicant, by notice in writing, to carry out or cause to be carried out such environmental impact studies as may be specified in such notice and to furnish the Minister, within such period as may be specified in the notice, with such proposals, by way of alteration to or in addition to proposals set out in the application, as may be so specified.64 The same also applies to applications for the approval for the granting, cession or assignment of interest in a petroleum licence, or an application to be joined as a joint holder of the licence.
There is no obligation on the Minister to refuse to grant an application for a petroleum licence if there appears from the application document that the operations to be undertaken under the licence will have adverse effects on the environment. An applicant is only required to estimate what the significant effect of the operations will be on the environment – even if they are substantial, the legislation makes provision that a licence may still be granted.
3.1.3 Exercising Rights in Terms of Licences
The Petroleum Act regulates the obligations of holders of petroleum licences in respect of the environment in some detail. The Minister of Mines and Energy may, having due regard to good oilfield practices, give directions to the holder of a licence in respect of the prevention of the spillage of substances (including water and drilling fluid) extracted from a well drilled for purposes or in connection with reconnaissance operations, exploration operations or production operations, or substances used in relation to the drilling of such a well.65
The Petroleum Act imposes various obligations relating to the environment on the holder of exploration and production licences. The holder of an exploration or production licence has an obligation to carry out exploration and production operations in the exploration or production area in accordance with good oilfield practices.66 The holder must also control the flow and prevent the waste, escape or spilling in the exploration area of petroleum, water or any gas.67 Further, the holder must prevent the waste or spilling in the exploration or production area of substance (including water and drilling fluid) extracted from a well drilled for purposes of or in connection with exploration or production operations or used in relation to the drilling of such a well.68 The holder must prevent damage to petroleum-bearing strata in any area outside the exploration area69 and prevent petroleum reservoirs in the exploration and production area or water sources from being connected with each other.70
The holder of an exploration or production licence must prevent water or any other substance entering any petroleum reservoir through the wells in the exploration area, except if required by, and in accordance with, good oilfield practices.71 The holder must also prevent the pollution of any aquifer, estuary, harbour, lake, reservoir, river, spring, stream, borehole and all other areas of water by the spilling of petroleum, drilling fluid, chemical additive, any gas or any waste product or effluent.72
Prior to the drilling of any well, the holder must furnish the Petroleum Commissioner with a report containing particulars of the technique to be employed, an estimate of the time to be taken, the material to be used and the safety measures to be employed in the drilling of such well.73 The holder may not flare any combustible gas, except for purposes of testing such gas, or for operational reasons, or with the approval of the Minister and in accordance with such terms and conditions as may be determined by the Minister.74 Finally, a holder may not abandon, close or plug a well without the approval of the Minister.75
The Minister may, in consultation with the Minister of Fisheries and Marine Resources and the Minister of Environment and Tourism, exempt holders of exploration or production licences from the above provisions.76 The Minister may determine the period for which and the conditions subject to which the exemption is granted.77 This discretion of the Minister is not conducive towards a petroleum regulatory regime that respects peoples’ right to a clean environment. This in turn reduces accountability on the part of the state as well; by granting the Minister a discretion instead of imposing certain obligations on the Minister, the EMA reduces the scope for holding the Minister accountable.
When in the course of production operations carried out under a production licence any petroleum or other substances are spilled or any pollution is caused, the holder of such production licence must report it to the Minister of Mines and Energy. This must be done as soon as possible and the holder must take, at its own costs, all such steps as may be necessary in accordance with good oilfield practices or otherwise as may be necessary to remedy it.78 If
the holder fails to do so, the Minister may order the holder to take such necessary steps to remedy the spilling, pollution or damage or loss. This must be done by means of written notice addressed to the holder. If the holder fails to comply with the directions of the Minister, the Minister may cause the necessary steps to be taken to remedy such spilling, pollution or damage or loss. All costs incurred by the Minister must be recovered from the holder by the Minister through a competent court.79
In 1999, regulations relating to the health, safety and welfare of persons employed, and protection of other persons, property, the environment and natural resources in, at or in the vicinity of exploration and production areas (‘Petroleum Regulations’) were published.80 These Regulations were made by the Minister of Mines and Energy, acting in consultation with the Minister of Fisheries and Marine Resources and the Minister of Environment and Tourism. The Petroleum Regulations regulate, inter alia, electricity, fires and explosions, transport (including transport of hazardous substances), subsea operations, emergency preparedness (including pollution by spilling of petroleum) and safety zones.
If the Minister has reason to believe that any works or installations erected by the company or any operations carried out by the company are endangering or may endanger persons or any property of any other person, the Minister may require the company to take reasonable remedial measures within such reasonable period as may be determined by the Minister. The Minister may furthermore require the holder to take reasonable and appropriate steps to repair any damage to the environment. This also applies in respect of any works, installations or operations which the Minister has reason to believe is causing pollution or is harming wildlife or the environment. If the Minister deems it necessary, he or she may require the company to discontinue petroleum operations in whole or in part until the company has taken such remedial measures or has repaired any damage.
3.1.4 Rehabilitation and Closure
Decommissioning, rehabilitation and closure are dealt with primarily under the Petroleum Act and the petroleum agreement.81 Some provisions of the EMA are also applicable.
An application for a production licence must, apart from what has been stated above, contain a proposed programme of production operations and of the processing of petroleum in question. This program must include separate decommissioning plans82 in respect of the production area and any area outside such production area where activities in connection with the production operations in such production area are being carried out. More specifically, it must set out to the satisfaction of the Minister (acting in consultation with the Minister of Environment and Tourism, the Minister of Fisheries and Marine Resources and the Minister of Finance), the measures proposed to be taken after cessation of such production operations to remove or otherwise deal with all installations, equipment, pipelines and other facilities, whether on-shore or off-shore, erected or used for purposes of such operations and to rehabilitate land disturbed by way of such operations.83
The holder of a production licence must review, and if necessary, revise the decommissioning plan. This must be done one year before the estimated date on which 50% of the estimated recoverable reserves of petroleum in the production area would have been produced. The Minister may, acting in consultation with the Minister of Environment and Tourism, the Minister of Fisheries and Marine Resources and the Minister of Finance, approve the reviewed or revised decommissioning plan or refer it back to the holder of the production licence concerned to make such amendments as the Minister may deem necessary.84
Other than the general provisions in the Petroleum Act, it is also a term and condition of an exploration licence that the holder thereof remove from the exploration area, or otherwise deal with, as directed by the Minister in consultation with the Minister of Environment and Tourism, the Minister of Fisheries and Marine Resources and the Minister of Finance, all installations, equipment, pipelines and other facilities, whether on-shore or off-shore, not used or intended to be used in connection with such exploration operations.85 The same condition is not listed for the holder of a production licence.
3.1.5 The Petroleum Agreement
Section 13 of the Petroleum Act requires that, before an exploration licence is issued, the applicant(s) must enter into a petroleum agreement (‘PA’) with the state. A Model Petroleum Agreement (‘MPA’) was published in 1998. The PA is entered into between the applicant (the company) and the Minister of Mines and Energy. While the MPA provides a framework for the typical PA entered into between the Company and the Minister, the exact terms of each PA will depend on negotiations between the parties. For now, the focus will be on the provisions of the MPA.
Clause 11 of the MPA deals with environmental protection. In terms of this clause, the company must conduct its petroleum operations in a manner likely to conserve the natural resources of Namibia and protect the environment.86 The company must employ the best available techniques in accordance with good oilfield practices 87 for the prevention of environmental damage88 to which its petroleum operations might contribute and for the minimisation of the effect of such operations on adjoining or neighbouring lands.89 The company must also implement the proposals contained in its development plan regarding the prevention of pollution, the treatment of wastes, the safeguarding of natural resources and the progressive reclamation and rehabilitation of lands disturbed by petroleum operations.90
The company undertakes, for purposes of the MPA, to take all reasonable, necessary and adequate steps in accordance with good oilfield practices to minimise environmental damage to the licence area and adjoining or neighbouring lands.91 If the company fails to comply with this provision, or contravenes any law on the prevention of environmental damage, and such failure or contravention results in environmental damage, the company must take all necessary and reasonable measures to remedy such failure or contravention and the effects thereof.92 These measures and methods must be determined in timely consultation with the Minister upon the commencement of petroleum operations or whenever there is a significant change in the scope or method of carrying out petroleum operations. The company must take into account the international standards applicable in similar circumstances and the relevant environmental impact assessment studies carried out in accordance with the MPA. The company must notify the Minister in writing of the nature of the measures and methods finally determined by the company and must cause such measures and methods to be reviewed from time to time in view of prevailing circumstances.93
If the Minister has reason to believe that any works or installations erected by the company or any operations carried out by the company are endangering or may endanger persons or any property of any other person or is causing pollution or is harming wildlife or the environment to a degree which the Minister deems unacceptable, the Minister may require the company to take reasonable remedial measures within such reasonable period as may be determined by the Minister and to take reasonable and appropriate steps to repair any damage to the environment. If the Minister deems it necessary, he may require the company to discontinue Petroleum Operations in whole or in part until the company has taken such remedial measures or has repaired any damage.
The company must cause a person or persons, approved by the Minister on account of their special knowledge of environmental matters, to carry out two environmental impact assessment studies. These studies must be carried out in order to determine the prevailing situation relating to the environment, human beings, wildlife or marine life in the licence area and in the adjoining or neighbouring areas at the time of the studies.94 The environmental impact studies are also carried out in order to establish what the effect will be on the environment, human beings, wildlife or marine life in the licence area in consequence of the petroleum operations to be made under the MPA, and to submit for consideration by the parties to the MPA, measures and methods for minimising environmental damage and carrying out site restoration in the licence area.95
The procedure applicable to the environmental impact studies, including the phases in which it must be carried out and information relating to the guidelines it must contain is dealt with in detail in the MPA.96 Furthermore, the company’s obligations in respect of the environment in every phase of its operations are determined in the MPA, including the company’s duty to report to the Minister of Mines and Energy at various stages of its operations and the company’s duty to establish a trust fund for purpose of decommissioning.97 Lastly, the company must ensure that:98
3.2 The Atomic Energy and Radiation Protection Act No. 5 of 2005
The Act was passed in Parliament in 2005, and it is administered by the Ministry of Health and Social Services. The Act came into operation on 16 January 2012, with the exception of section 44 with came into operation on 16 May 2005. According to its long title, this piece of legislation was enacted to
provide for adequate protection of the environment and of people in current and future generations against harmful effects of radiation by controlling and regulating the production, processing, handling, use, holding, storage, transport and disposal of radiation sources and radioactive materials, and controlling and regulating prescribed non-ionising radiation sources.
One objective of the Act is to “minimise the exposure of persons and the environment in Namibia to the effects of harmful radiation.” To this end, an Atomic Energy Board has been established in 2009.99 The Board serves as a national advisory board on all matters relating to radiation sources and nuclear energy. An independent National Radiation Protection Authority is also established,100 which informs the Atomic Energy Board about the extent of radiation exposure in the country; inspects any radiation source or nuclear material in order to assess radiation safety conditions; and to establish and maintain a register of radioactive materials in Namibia, amongst others.
According to Section 16, licences are generally required for the possession, import, and dispose of radiation sources or nuclear materials and every radiation source must be registered in line with Section 18. The application process for such licence follows the procedure of Section 21. As part of the application process, an applicant must include detail of the results of all assessments, including environmental impact assessments, and studies that have been carried out in respect of the practice concerned as well as reports of those assessments and studies when the application is for disposal of radioactive waste or storage of radioactive sources for long periods.101 Before issuing a licence, the Director-General must consider the need to protect the environment and to conserve natural resources.102
The licence holder has several duties with regard to the environment.103 A holder must for example keep records and compile reports relating to radiation protection or radiation safety standards required to be observed under the Act.104 A holder must also prepare in consultation with the Board, radiation safety rules and within a practice or for the use, handling, storage, transportation, or disposal of radiation sources or nuclear material produced or prepared by the licence holder.105 A licence holder is also primarily responsible for the safety and security of radiation sources and nuclear materials.106
The Act further authorises the Director-General to take immediate action to discontinue or refrain from any activities if he or she is satisfied that the holder is not complying with any condition of an authorisation and that immediate action is required to prevent irreversible damage to animal or plant life or the environment.107 If the holder fails to do so, the Director-General may take the necessary steps at the cost of the holder.108
The Act makes it an offence for any person to intentionally or negligently operate, store, transport, dispose of or abandon any radiation source in such a manner that any human being may be subject to a dangerous amount of radiation or that a substantial amount of radiation or radioactive material may be released into the environment.109 On conviction, a person may be liable to a maximum fine of N$200,000 or to imprisonment for a maximum period of ten years or both such fine and imprisonment.110
The above provisions all operate in pursuit of the objectives of the Act. These objectives include minimising the exposure of persons and the environment in Namibia to the effect of harmful radiation.111
3.3 The Petroleum Product and Energy Act112
The Petroleum Products and Energy Act of 1990 regulates the downstream petroleum industry. The Act states that the Minister of Mines and Energy may make regulations relating to the conducting of business in respect of petroleum products application of health, hygiene, safety and environmental standards.113 In 1991, regulations relating to the purchase, sale, supply, acquisition, storage, transportation, recovery and re-refinement of used mineral oil were published.114 The Regulations do not directly refer to the environment, but prohibit the disposal, contamination, usage and possession, storage and transportation in certain containers, of used mineral oil without the necessary authorisation.115 ‘Used mineral oil’ means all mineral oil withdrawn from its original use and contaminated by foreign matter through such use.116
3.4 The Draft Gas Bill
The Ministry of Mines and Energy has drafted the Gas Bill117 in order
[t]o promote the establishment of a gas transportation and distribution network in Namibia for the purposes of domestic supply and for export; to establish a framework of licensing for the gas industry and a national gas regulator to monitor the performance of licence conditions and promote reliability of service; to ensure safety, efficiency and environmental responsibility in the transportation and distribution of natural gas; to facilitate investment in pipeline infrastructure by private, public, municipal and mixed owned enterprises; to promote a competitive market in gas in the long term, and to stimulate cross-border trade in gas between Namibia and its neighbours.118
It is envisaged that a Gas Regulatory Authority will be established to make recommendations to the Minister to inter alia grant licences for gas transportation, storage, distribution and marketing; monitor and approve of gas transportation, storage, and distribution tariffs and charges; approve tariffs and charges to gas distributors and customers who do not have choice of suppliers; to assist the Minister in the preparation of gas supply regulations; monitor the operation of the gas system; and to settle disputes between licensees and between licensees and customers at the request of a licensee or any interested party.
A comprehensive licensing regime has been developed based on the principle that “[N]o activity in connection with the transportation, storage or distribution and marketing of gas may be carried out by any person other than a company authorised to do so by the Minister under the licensing regime set out in this Act.”
The Bill explicitly recognises the importance of environmental protection in that it provides in Section 38 that
Although the second draft of the Bill dates back to June 2001, the Bill has not materialised. It is also uncertain when this Bill will be promulgated, if at all.
3.5 The Electricity Act No. 4 of 2007
The Electricity Act of 2007 (‘Electricity Act’) provides for the establishment of the Electricity Control Board (‘Board’) and provides for the requirements and conditions for obtaining licences for the provision of electricity and the powers and obligations hereunder.119 Electricity may only be generated or distributed with due compliance with the requirements of any other law, in particular laws relating to health, safety and environmental standards. 120 When considering an application for the issue, renewal or amendment of a licence, the Minister, and the Board, in making its recommendations to the Minister, must give due consideration to matters or activities which may adversely affect, or result in damage to the environment.121 The Minister of the Board may request the applicant to submit an environmental impact assessment study indicating the extent of any potential damage to or pollution of the environment and the steps proposed to be taken by the applicant to prevent or minimise such damage or pollution and to restore the environment generally and in terms of existing environmental legislation.122
Installations for the provision of electricity, including any alterations or extensions thereto, and all other electricity practices and activities by licensees, customers and other persons, must be built, operated and conducted with due compliance with the requirements of applicable laws, in particular laws relating to health, safety and environmental standards.123
3.6 Draft White Paper on the Energy Policy of Namibia
In 1998, the Energy Policy Committee of the Ministry of Mines and Energy has released the Draft White Paper on the Energy Policy of Namibia.124 Effective governance; security of supply; social upliftment; investment and growth; economic competitiveness and efficiency; and sustainability have been declared as goals of this Policy.
White Paper Executive Summary
This White Paper embodies a new, comprehensive energy policy aimed at achieving security of supply, social upliftment, effective governance, investment and growth, economic competitiveness, economic efficiency and sustainability. Policies will affect energy demand (mainly households), supply (electricity, upstream oil and gas, downstream liquid fuels, downstream gas, and renewable energy) and a number of cross-cutting issues (economic empowerment, environment, energy efficiency and regional energy trade and cooperation).
Government is committed to ensuring that energy demand by the productive sectors of the economy continues to be met through reliable competitively-priced energy. Special attention is given in the White Paper to those demand sectors, which have been neglected historically, namely, poor urban and rural households. Policies proposed for these households include those for widening access to electricity as well as other commercial fuels. Generally, not enough is known about the problems and needs in this sector so national studies will be initiated as a basis for future policy development, including the pressing issue of sustainable biomass usage in rural areas and the role of women. Rural energy policies will also be integrated with development initiatives in other ministries.
Government has embarked on the reform of the electricity sector and a study has been commissioned to look at possible rationalisation and restructuring, as well as competition and ownership changes. At the same time, an Electricity Act is being drafted which will put in place an electricity regulator to govern the industry. Tariffs and electrification targets will be governed through a licensing system. The creation of a rural electrification fund is also proposed. New investment in the sector will be encouraged through appropriate regulatory, fiscal and environmental frameworks, harmonised with those in SADC countries.
The legislative framework governing upstream oil and gas is well developed, and the White Paper merely clarifies an accepted policy framework, which seeks to optimise possible national benefits while achieving the necessary balance of interests to attract investment. The policy identifies the different roles and functions of industry participants, and lays out the basic legal and fiscal criteria.
Namibia does not yet but could soon have a downstream gas sector. The key challenge is to create a policy and legislative framework, which attracts initial investment into the sector, while maintaining options for competition in the future and the fair distribution of economic rents. A new Gas Act is proposed, but it is thought premature to install a Gas Regulator. Licensing requirements will include the need for separate accounting for the different operations of gas production, transmission, distribution and marketing, allowance for third party access, and the application of fair and reasonable tariffs.
The downstream liquid fuels sector will be subject to controlled and phased deregulation with regard to price setting, subject to competitive behaviour being evident. Government will, however, require obligations in terms of diversified imports, international product specifications, strategic stocks, third party lease access to uncommitted infrastructure, security of forecourt jobs, health and safety, and adequate rural service in terms of access and pricing.
Government will promote the use of renewable energy through the establishment of an adequate institutional and planning framework, the development of human resources and public awareness and suitable financing systems. It also seeks to meet development challenges through improved access to renewable energy sources, particularly in rural electrification, rural water supply and solar housing and water heating.
The energy policy goal of sustainability will further be promoted through a requirement for environmental impact assessments and project evaluation methodologies, which incorporate environmental externalities. Energy efficiency will be promoted through policies on better information collection and dissemination, and particularly with respect to energy efficiency and conservation practices in households, buildings, transport and industry.
The White Paper reaffirms Namibia’s commitment to constructive engagement in SADC and SAPP in order to maximise economic benefits. Security of supply will be achieved through an appropriate diversification of economically competitive and reliable sources, but with particular emphasis on Namibian resources.
Finally, the Ministry of Mines and Energy is mindful that the effective implementation of these policies is dependent on the creation of adequate institutional and human resource capacity. Policies have been proposed in each sector to address this issue.
3.7 Namibia’s Uranium and Nuclear Energy Policy
The Ministry of Mines and Energy is drafting Namibia’s first Nuclear Policy to cover the entire nuclear fuel cycle, being uranium exploration, mining, milling and nuclear energy, as it is envisaged that Namibia will generate electricity from its own nuclear reactor by 2018.125
This Policy has not yet been finalised.
3.8 The SADC Protocol on Energy
The SADC Protocol on Energy of 2006 states, as one of its general principles, that member states must ensure that the development and use of energy is environmentally sound.126 Various guidelines for cooperation between member states are set forth in an annexure to the Protocol. The Guidelines emphasise the sustainable development of energy. It appears, however, that despite the almost two decades that the Protocol has been in place, very little has been achieved in giving effect to this Protocol.
3.9 Renewable Energy
At this stage, there is very little regulation of renewable energy in Namibia. Renewable energy and the environment is discussed in more detail elsewhere in this publication.127 The topic of this chapter does, however, warrant a short discussion of renewable energy.
As stated above, in terms of the White Paper on the Energy Policy of Namibia, Government will promote the use of renewable energy through the establishment of an adequate institutional and planning framework, the development of human resources and public awareness and suitable financing systems. It also seeks to meet development challenges through improved access to renewable energy sources, particularly in rural electrification, rural water supply and solar housing and water heating.
In April 2003, the Namibia Renewal Energy Programme (‘NAMREP’) Phase I was launched and in June 2007 Phase II was launched. The object of NAMREP Phase I and NAMREP Phase II is
to remove barriers to the delivery of commercially, institutionally, and technically sustainable Renewable Energy Systems (RES) including electricity production (for off-grid lighting, radio, TV, water pumping, and refrigeration), and water heating to the household, institutional, commercial, and agro-industrial sectors and to demonstrate the enabled environment through affirming demonstrations of the application of the technologies.128
One of the intended outcomes of NAMREP is to ensure that new policies, laws, regulations and actions in support of renewable energy are in place.129 The National Implementing Partner of NAMREP is the Ministry of Mines and Energy. Other partners are the Polytechnic of Namibia, the Global Environmental Facility (GEF), the United Nations Development Programme (UNDP), NamPower, Renewable Energy Technology Suppliers (RET Suppliers), the Danish International Development Agency (DANIDA) and the Electricity Control Board (ECB).130 All major financing is supplied by GEF.131
The Development of a Regulatory Framework for Renewable Energy and Energy Efficiency within the Electricity Sector (REEE Regulatory Framework) is one of several projects implemented by NAMREP.132 The REEE Regulatory Framework was prepared by Consulting Services Africa.133 The primary objective of the project is “to recommend the essential elements of a regulatory framework for renewable energy and energy efficiency in Namibia.”134 Two strategic objectives underlie the recommendations of the REEE Regulatory Framework and should be at the heart of Namibia’s long-term energy policy and vision for sustainable development.135 These are: supporting environmentally sustainable technologies and attaining greater energy security through a steady increase of electricity production in Namibia using fuels or energy sources that are available in Namibia, for example the sun, biomass and wind.136 A critical issue for the successful realisation of the REEE Regulatory Framework is that the REEE Regulatory Framework must take into account Namibia’s unique socio-economic, infrastructural and environmental features.137
On 12 January 2011, a Terminal Evaluation Report (TER) was published.138 The purpose of this document is to analyse and assess the achievement and progress made towards achieving the original objectives of NAMREP Phase II.139 Achievement and progress are assessed against five key criteria, one of which is the ‘impact criterion’, which looks inter alia at global environmental benefits.140 Another criterion is the ‘sustainability criterion’, which requires that a project should be environmentally, financially and socially sustainable.141 According to the TER, the intended outcome of NAMREP to ensure that new policies, laws, regulations and actions in support of renewable energy are in place, is highly satisfactory.142
Notwithstanding the above, there is no formal regulation of renewable energy in Namibia. Government, however, recognises the need for renewable energy.143 It should be noted that facilities constructed for the generation, transmission or supply of electricity (which will include renewable energy) will fall under the EMA and require an environmental clearance certificate. Furthermore, NamPower is also negotiating Power Purchase Agreements with three anonymous prospective wind energy developers.144 While some renewable energy sources have little impact on the environment, such as solar panels, others may have a much larger initial impact on the environment, such as construction of hydropower facilities or wind power facilities. Prospective legislation must take the potential impact of the construction of renewable energy facilities into account.
1 Glazewski (2005:455); Van den Berg (2015:165-167) with reference to petroleum.
2 See also Van den Berg (2015:183).
3 GN 29 in GG 4878 of 6 February 2012.
4 Item 1 of GN 29 in GG 4878 of 6 February 2012.
5 Item 3 of GN 29 in GG 4878 of 6 February 2012.
6 Generation of electricity means the production of electricity by way of natural or artificial processes. See Section 1 of GN 29 of GG 4878 of 6 February 2012.
7 Transmission of electricity means the conveyance of electricity by means of a transmission system, which consists wholly or mainly of high voltage networks and electrical plan, from an energy source or system to a customer. See Section 1 of GN 29 of GG 4878 of 6 February 2012.
8 Supply of electricity means the delivery of electricity to a customer as a commodity. See Section 1 of GN 29 of GG 4878 of 6 February 2012.
9 Item 1 of GN 29 of GG 4878 of 6 February 2012.
10 Item 3.1 of GN 29 of GG 4878 of 6 February 2012.
11 In terms of Section 1 of the Minerals Act, ‘accessory works’ means “any building, plant or other structure required for purposes of reconnaissance operations, prospecting operations or mining operations or for the disposal of any mineral or group of minerals won or mined in the course of any such operations, or is connected with such operations or disposal, including (a) any power plant, transmission line or substation; (b) any water borehole, well, pipe-line, drilling rig, pump station, tank or dam; (c) any airfield, helicopter landing-pad, road, gate, rail or railway siding; (d) any workshop, hangar, store or office; (e) any explosives magazine; (f) any sampling plant, processing plant, smelter or refinery, whether erected on land or constructed on any vehicle or vessel; (g) any waste disposal site; or (h) any camp site or temporary or permanent residential area.”
12 See Sections 31(3)(a), 58(2)(a), 67(3)(a), 77(3)(a) and 90(2)(a) of the Minerals Act.
13 Item 3.2 of GN 29 of GG 4878 of 6 February 2012.
14 Item 3.3 of GN 29 of GG 4878 of 6 February 2012.
15 See Sections 67(1)(b) and 67(1)(c) of the Minerals Act in respect of prospecting licences for minerals and Section 29 read with the definition of ‘exploration operations’ in Section 1 of the Petroleum Act in respect of exploration licences for petroleum. See also Van den Berg (2015:185). Petroleum exploration activities are discussed by Van den Berg (2015:42-45).
16 See also Van den Berg (2015:185).
17 See for example Finbro Furnishers (Pty) Ltd v Registrar of Deeds, Bloemfontein 1985 (4) SA 773 (A) a 784; Badenhorst / Mostert (2014:6-1).
18 In Section 1 of the Minerals Act, ‘mineral’ is defined as “any substance, whether in solid, liquid or gaseous form, occurring naturally in, on or under any land and having been formed by, or subjected to, a geological process, excluding (a) water, not being water taken from land or from the sea for the extraction therefrom of a mineral or a group of minerals; (b) petroleum, as defined in section 1 of the Petroleum (Exploration and Production Act), 1991 (Act 2 of 1991); or (c) subject to the provisions of subsection (2), soil, sand, clay, gravel or stone (other than rock material specified in Part 2 of Schedule 1) if they are bona fide required for purposes of (i) agriculture, building works, fencing or road making; (ii) the manufacture of bricks and tiles; (iii) the construction of sportsfields, airfields, railways, bridges, dams, reservoirs, weirs, canals or other irrigation works; or (iv) any other purpose defined by the Minister by notice in the Gazette.” Section 1 of the Petroleum Act defines ‘petroleum’ as “any liquid or solid hydrocarbon or combustible gas existing in a natural condition in the earth's crust and includes any such liquid or solid hydrocarbon or combustible gas which has in any manner been returned to such natural condition, but shall not include coal, bituminous shales or other stratified deposits from which oil can be obtained by destructive distillation, or gas arising from marsh or other surface deposits.”
19 Item 3.5 of GN 29 of GG 4878 of 6 February 2012.
20 Jones (2010:140) and Allaby (2008:424).
21 See Section 1 of the Minerals Act, under the definition of ‘mineral’.
22 Item 3.4 of GN 29 of GG 4878 of 6 February 2012.
23 Section 1 of the Petroleum Act.
24 See also Van den Berg (2015:112-117).
25 Section 27(3) of the EMA.
26 Section 27(4) of the EMA.
27 Section 31(1) of the EMA.
28 See Chapter 8.
29 See Meepo v Kotze and Others 2008 (1) SA 104 (NC) at 13.1; Bengwenyama Minerals (Pty) Ltd and Others v Genorah Resources (Pty) Ltd and Others 2011 (4) SA 113 (CC) at 66.
30 Section 33(1) of the EMA.
31 Section 50(f)(i) of the Minerals Act.
32 Section 12(2)(b)(i) of the Petroleum Act.
33 The Regulations published in GN 30 of GG 4878 of 6 February 2012.
34 Regulation 11 of the EIA Regulations.
35 No. 33 of 1992.
36 Section 122(2)(b) of the Minerals Act.
37 Sections 33(2)(c)(vi), 68(f), 79(f) and 91(f).
38 Section 38(1) read with Section 33(2)(c)(vi), Section 72(1) read with Section 68(f.), Section 84(1) read with Section 79(f) and Section 96(1) read with Section 91(f).
39 See Section 35(e)(iii).
40 Section 92(2)(c)(ii)(bb) of the Minerals Act.
41 Section 41(1)(e) of the Minerals Act.
42 Section 41(1)(e) read with Sections 74, 86 and 98 of the Minerals Act.
43 At 2.l.1.
44 See Section 50(f)(i) of the Minerals Act.
45 See Section 50(f)(ii) of the Minerals Act.
46 See Section 50(g) of the Minerals Act.
47 Section 130(1) of the Minerals Act.
48 Section 130(2) of the Minerals Act.
49 Sections 43(2)(c) and 54(2)(b) of the Minerals Act.
50 Section 57(1)(b) of the Minerals Act.
51 Section 128(1)(b) of the Minerals Act.
52 Section 128(2)(a) of the Minerals Act.
53 Para. 1.2 of the Policy.
54 Para. 1.2 of the Policy.
55 GRN (2002e:26).
56 Para. 5.2. of the Policy.
57 Paras 5.3. and 5.4. of the Policy.
58 Article 8(1). 59 Article 8(2).
59 Article 8(2).
60 Article 8(3).
61 Petroleum is defined by Section 1 of the Act as “any liquid or solid hydrocarbon or combustible gas existing in a natural condition in the earth's crust and includes any such liquid or solid hydrocarbon or combustible gas which has in any manner been returned to such natural condition, but shall not include coal, bituminous shales or other stratified deposits from which oil can be obtained by destructive distillation, or gas arising from marsh or other surface deposits.”
62 Sections 24(1)(c)(iii), 25(1)(c)(iii), 32(1)(c)(iii) and 33(1)(c)(iii).
63 Section 46(2)(i)(vii).
64 Section 12(2)(b).
65 Section 21(1)(d).
66 Section 38(1)(a).
67 Section 38(2)(a).
68 Section 38(2)(b).
69 Section 38(2)(c).
70 Section 38(2)(d).
71 Section 38(2)(e).
72 Section 38(2)(f).
73 Section 38(2)(g).
74 Section 38(2)(h).
75 Section 38(2)(i).
76 Section 38(2A)(a).
77 Section 38(2A)(a).
78 Section 71(1).
79 Section 71(2).
80 GN 190 of GG 2188 of 23 September 1999.
81 See 3.1.5. below in respect of the petroleum agreement.
82 The Model Petroleum Agreement defines ‘decommissioning plan’ as “the package of measures proposed by the Company pursuant to s.46(2)(viA) of the Petroleum Act to be taken after cessation of production operations to remove or otherwise deal with all installations, equipment, pipelines and other facilities, whether on shore or off shore, erected or used for purposes of such operations and to rehabilitate land disturbed by way of such operations, reviewed pursuant to s.68A(1) and either approved or revised by the Minister pursuant to s.68A(2) or 68A(3) of the Petroleum Act”. See clause 1.1(n) of the Model Petroleum Agreement.
83 Section 42(2)(i)(vi) of the Petroleum Act.
84 Section 68A(2) of the Petroleum Act.
85 Section 38(1)(d) of the Petroleum Act.
86 Clause 11.2(a) of the MPA.
87 ‘Good Oilfield Practices’ means “any practices which are generally applied by persons involved in the exploration or production of petroleum in other countries of the world as good, safe, efficient and necessary in the carrying out of exploration operations or production operations”. See Section 1 of the MPA and Section 1 of the Petroleum Act.
88 ‘Environmental damage’ includes “any damage or injury to, or destruction of, soil or water or any plant or animal life, whether in the sea or in any other water or on, in or under land.”
89 Clause 11.2(b).
90 Clause 11.2(c).
91 Clause 11.3.
92 Clause 11.4.
93 Clause 11.6.
94 Clause 11.7(a).
95 Clause 11.7(b).
96 Clause 11.8 to clause 11.10.
97 Clause 11.12 to clause 11.17.
98 Clause 11.11.
99 Section 3(1) of the Act.
100 Section 33(1) of the Act.
101 Section 21(1)(g).
102 Section 22(1)(b).
103 Sections 29(2), 30, 31 and 32. Section 30 obliges a licence holder to appoint a radiation safety officer. Section 31 obliges a holder to notice of intended termination of operations, while Section 32 obliges the holder to give notice of any accidents.
104 Section 29(2)(b).
105 Section 29(2)(c).
106 Section 29(1).
107 Section 24(1)(b).
108 Section 24(2).
109 Section 44(1)(b).
110 Section 44(1).
111 Section 2(a).
112 No. 13 of 1990.
113 Section 2A(b)(ii).
114 General Notice 112 in Government Gazette 281 of 21 October 1991.
115 Regulation 3 of the Petroleum Product Regulations.
116 Regulation 1.
117 See http://www.mme.gov.na/files/publications/e3a_gas_act_draft_2b.pdf; accessed 13 October 2015.
118 See http://www.mme.gov.na/files/publications/e3a_gas_act_draft_2b.pdf; accessed 16 October 2015.
119 See the Preamble to the Electricity Act.
120 Section 18(4)(b).
121 Section 21(1).
122 Section 21(2)(a).
123 Section 33(1)(a).
124 GRN (1998a).
125 Weidlich (2011).
126 Article 2(8).
127 See Chapter 13.II and III.
128 See http://www.undp.org.na/namibia-renewable-energy-programme-namrep-phase-i.aspx; accessed 27 May 2012.
132 See Kisting (2008).
133 See http://www.mme.gov.na/pdf/undp-reports/reee-regulatory-framework.pdf; accessed 26 May 2012.
134 See the Executive Summary of the REEE Framework.
135 The Executive Summary of the REEE Framework.
136 The Executive Summary and paragraph 2.1 of the REEE Framework.
137 The Executive Summary of the REEE Framework.
138 Deenapanray (2012).
142 Ibid:28 and 57.
143 See for example Smith (2011).
144 Nyaungwa (2012).
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