Environmental Law and Policy in Namibia: Towards Making Africa the Tree of Life (Third Edition)

CHAPTER 8

ENVIRONMENTAL MANAGEMENT

I. GENERAL PRINCIPLES OF ENVIRONMENTAL MANAGEMENT IN NAMIBIA

Katharina Ruppel-Schlichting

1 Introduction

Environmental management is concerned with taking charge and controlling the biological and physical elements of our surroundings including land, air, water, plants and animals. Environmental management has been defined as

a multi-layered process associated with the interactions of state and non-state environmental managers with the environment and with each other. Environmental managers are those whose livelihoods are primarily dependent on the application of skill in the active and self-conscious direct or indirect, manipulation of the environment with the aim of enhancing predictability in a context of social and environmental uncertainty.1

Undertaking environmental management can bring about higher standards of safety and security (e.g. by addressing global warming as a cause for environmental disasters) and benefits to the lifestyle of people (e.g. by protecting the quality of water resources in order to preserve fish stocks as a source of food). The reduction of costs by improving environmental performances (optimising process efficiency minimises the use of raw materials and energy and the amount of waste production) and the minimisation of environmental risks are considered to be further advantages of environmental management.

In the absence of environmental management, people will be more vulnerable to natural disasters and development is unlikely to be sustainable.2 One main objective of environmental management is thus to work towards ecologically sustainable development.

Several principles guide all environmental management processes. Generally, the principles which are captured in major international environmental agreements, such as the Stockholm Declaration and the Rio Declaration also govern processes of environmental management. Of particular relevance for environmental management are the following principles:

Environmental principles that are generally accepted are to avoid or minimise waste and pollution; to minimise the use of natural resources, non-renewable resources in particular; and to protect biodiversity.

Governments, industry and institutions make use of a number of environmental management tools to address environmental problems, including but not limited to the following:7

In Namibia, the legal foundation for environmental management is the Environmental Management Act No. 7 of 2007 (EMA). The general features of environmental management as sketched above are mirrored in the EMA, as will be outlined in the following sections.

2 The Environmental Management Act No. 7 of 2007

This important piece of Namibian environmental legislation has been enacted to promote the sustainable management of the environment and the use of natural resources by establishing principles for decision-making on matters affecting the environment. The EMA was gazetted in 20078 and came into force in 20129. It governs all processes related to environmental management and lays down the institutional structures and legal mechanisms to further the national environmental interest and to ensure that environmental considerations are taken into account in public and private activities and decision-making. The scope of application of the EMA is wide ranging as it functions as framework legislation, covering all sectors of environmental law. The objective of the Act is laid down in its Section 2:

The object of this Act is to prevent and mitigate, on the basis of the principles set out in section 3, the significant effects of activities on the environment by -

  1. ensuring that the significant effects of activities on the environment are considered in time and carefully;
  2. ensuring that there are opportunities for timeous participation of interested and affected parties throughout the assessment process; and
  3. ensuring that the findings of an assessment are taken into account before any decision is made in respect of activities.

2.1 Environmental Management Principles in the EMA

The principles of environmental management have to be applied by Government institutions and private persons including companies, institutions and organisations, when doing or planning things, which may have a significant effect on the environment. These building the cornerstone of the EMA are well elaborated in Section 3(2) and reflect the general principles of environmental law as already developed on international level, and contained in various international environmental texts such as the Stockholm or the Rio Convention:

  1. renewable resources must be used on a sustainable basis for the benefit of present and future generations;
  2. community involvement in natural resources management and the sharing of benefits arising from the use of the resources, must be promoted and facilitated;
  3. the participation of all interested and affected parties must be promoted and decisions must take into account the interest, needs and values of interested and affected parties;
  4. equitable access to environmental resources must be promoted and the functional integrity of ecological systems must be taken into account to ensure the sustainability of the systems and to prevent harmful effects;
  5. assessments must be undertaken for activities which may have a significant effects on the environment or the use of natural resources;
  6. sustainable development must be promoted in all aspects relating to the environment;
  7. Namibia’s cultural and natural heritage including, its biological diversity, must be protected and respected for the benefit of present and future generations;
  8. the option that provides the most benefit or causes the least damage to the environment as a whole, at a cost acceptable to society, in the long term as well as in the short term must be adopted to reduce the generation of waste and polluting substances at source;
  9. the reduction, re-use and recycling of waste must be promoted;
  10. a person who causes damage to the environment must pay the costs associated with rehabilitation of damage to the environment and to human health caused by pollution, including costs for measures as are reasonably required to be implemented to prevent further environmental damage;
  11. where there is sufficient evidence which establishes that there are threats of serious or irreversible damage to the environment, lack of full scientific certainty may not be used as a reason for postponing cost-effective measures to prevent environmental degradation; and
  12. damage to the environment must be prevented and activities which cause such damage must be reduced, limited or controlled.

The above principles provide a high potential for decision-makers and for courts to develop a foundation for good environmental governance in Namibia.

2.2 Ministerial Competencies

The EMA assigns general functions to Minister of Environment and Tourism in Section 4. The functions are to

  1. determine policies for the management, protection and use of the environment;
  2. prepare and publish policies, strategies, objectives and standards for the management and protection of the environment;
  3. co-ordinate environmental management at national level; and
  4. monitor and ensure compliance with this Act.

Giving effect to international agreements by way of legislation or regulations is a further competence of the Minister laid down in Section 48. Regulations pertaining to the contents of the EMA are made by the Minister according to Section 56. Most importantly, the Ministry of Environment and Tourism under Section 56 of the EMA has drafted regulations regarding Environmental Impact Assessment.10 Furthermore, the Minister has certain powers with regard to waste as provided in Section 5. The Minister is the instance of appeal for decisions of the Environmental Commissioner in the exercise of any power in terms of the EMA.

2.3 Institutions / Officials under the EMA

The EMA provides for the following institutions / officials:

The EMA provides for a Sustainable Development Advisory Council to be established to advise the Minister on issues that promote cooperation and coordination between organs of state, non-governmental organisations, community based organisations, the private sector and funding agencies, on environmental issues relating to sustainable development. The Sustainable Development Advisory Council consists of members drawn from both Government and the private sector and the first Council has been inaugurated in January 2013.11 The Council advises the Minister on the development of a policy and strategy for the management, protection and use of the environment, and on the conservation of biological diversity, access to genetic resources in Namibia, and the use of components of the environment, in a way and at a rate that does not lead to the long-term decline of the environment. According to Section 15, the Sustainable Development Advisory Council must prepare an annual report on its activities to be tabled in the National Assembly by the Minister.

The EMA establishes further institutions responsible for the different concepts under the Act. These include the Environmental Commissioner and the Environmental Officers. By appointing the Environmental Commissioner in February 2012 as required by Section 16 of the EMA, the full operationalisation of the EMA has been underlined.12 The functions and duties of the Environmental Commissioner include advising Government bodies on the preparation of environment plans, receiving and recording all applications for environmental clearance certificates, determining whether a particular listed activity requires an environmental assessment, reviewing environmental assessment reports, issuing environmental clearance certificates and conducting inspections to monitor compliance with the EMA.

Environmental Officers in the public service assist enforcing the EMA. To this end, Environmental Officers are endowed with certain powers, including the powers to search, seize and issue compliance orders in cases of violations of the EMA.

2.4 Environmental Plans under the EMA

One mechanism aiming at the realisation of the objectives of the Act is the provision for environmental plans to ensure better co-ordination amongst Government agencies. Organs of state (including Government offices, Ministries or agencies at national, regional or local level) which exercise functions that may affect the environment are supposed to make environmental plans in order to minimise the duplication of procedures and functions and to promote consistency in the exercise of functions that may affect the environment. The organs of State that are supposed to draft such management plans are to be listed by the Ministry of Environment and Tourism in the Government Gazette according to Section 24. Environmental plans, which can be done through Strategic Environmental Assessments, are submitted to the Environmental Commissioner who examines whether the Environmental Plan follows the principles of environmental management, satisfies the objects of environmental plans and takes into account existing environmental plans (Sections 24 to 26). Compliance with an Environmental Plan is monitored by the Environmental Commissioner.

2.5 Environmental Clearance Certificates and Environmental Assessments under the EMA

The Act provides for administrative mechanisms such as the necessity of environmental clearance certificates and environmental assessments.13 The EMA’s Sections 27 to 48, together with the Namibia’s Environmental Assessment Policy and the Environmental Impact

Assessment Regulations form the basis of all environmental assessments in Namibia. Furthermore, Procedures and Guidelines for Environmental Impact Assessment and Environmental Management Plans have been drafted in 2008.14

The impact of activities on the environment has to be considered and interested or affected parties have to be given an opportunity to participate in environmental assessment when Government institutions or private persons are intending or planning anything likely to have a significant effect on the environment. With regard to such activities, environmental assessments have to be conducted before any decisions are made. For specific activities or projects having an environmental impact, an environmental clearance certificate is required.

To obtain an environmental clearance certificate, a person who wants to carry out an activity listed in Section 27 of the EMA must follow a multi-stage process in line with Sections 32 to 37 of the EMA15 and with the regulations for the implementation of the EMA as gazetted in February 2012 which have listed certain activities that may not be undertaken without an environmental clearance certificate.16 Environmental clearance certificates are required for specific activities in the following sectors:

All activities which need an environmental clearance certificate must follow the Regulations for Environmental Impact Assessments,17 which have been made according to Section 56 of the EMA. These require inter alia that the proponent of an activity designates an environmental assessment practitioner (EAP) to manage the assessment process and ensures that the environmental assessment procedures, specified in the EMA, the regulations and guidelines, are followed. The application for an environmental clearance certificate must be submitted to either the Environmental Commissioner, or to any other organ of State, if so required by Section 30(1) of the EMA. The Environmental Commissioner decides whether an environmental assessment is required or not. If it is decided that an environmental assessment is not required, the Environmental Commissioner decides further, whether or not an environmental clearance certificate is granted. This decision can be subject to appeal to the Minister. If it is decided that an environmental assessment is required, the Environmental Commissioner decides on the scope and procedure for the assessment and informs the proponent on the requirements and time frame for the assessment.

Environmental assessments are conducted in order to:

The assessment has to be carried out according to these requirements and an assessment report has to be submitted to the Environmental Commissioner. Public participation is ensured in that it is required, that persons who may be affected by the activity applied for must be notified and given a chance to inspect the assessment report and make submissions on it. Upon review of the assessment report, the Environmental Commissioner decides whether or not to grant an environmental clearance certificate. The Commissioner’s decision may be subject to appeal to the Minister of Environment and Tourism according to Section 50 of the EMA.

Stages and Procedures of Environmental Assessment 19

2.6 Enforcement and Appeals under the EMA

Environmental officers are appointed to carry out the provisions of the EMA. They are the main persons responsible for enforcement of the EMA. Environmental officers not only have specific powers such as the powers of entry and inspection, they can also issue compliance orders to any person who has violated the EMA or a condition of an environmental clearance certificate (Sections 19 and 20).

Decisions of the Environmental Commissioner are subject to appeal to the Minister According to Sections 50 and Section 25 of the Regulations. Decisions of the Minister are subject to appeal to the High Court according to Section 51.

3 Concluding Remarks

Namibia has a relatively young history of environmental management under the new legal framework with the EMA, which is only in operation since 2012. The body of cases giving practical meaning to the Act by decision-makers and courts is thus still relatively limited. It can be stated, however, that the EMA provides a solid legal framework for environmental management in Namibia and implementation of the Act slowly gains pace. The most important step towards making the Act functional was, without doubt, the appointment of the Environmental Commissioner, whose duties, functions and responsibilities under the Act are wide-ranging. That the practical relevance of the EMA is slowly increasing becomes apparent from some recent appeals dealing with processes under the EMA, such as court actions related to Craton Mining20 and an appeal to the Minister by Rössing against the decision, requesting that the Environmental Commissioner reconsiders Rössing’s application for an environmental clearance certificate.21

 


1 Wilson / Bryant (1997:7).

2 Barrow (2005:19).

3 See Principles 21 and 22 of the Stockholm Declaration and Principles 2 and 13 of the Rio Declaration. International judicial bodies have recognised this principle, for example in the Case on the Legality of the Threat or Use of Nuclear Weapons decided by the International Court of Justice.

4 See Principle 2 of the Stockholm Declaration and Principle 3 of the Rio Declaration.

5 See Principle 15 of the Rio Declaration.

6 See Principle 16 of the Rio Declaration.

7 See Thompson (2005) and Nhamo / Inyang (2011) for more details.

8 See Government Notice No. 232, Government Gazette No. 3966 (2017).

9 See Government Notice No. 28, Government Gazette No. 4878 (2012).

10 See Government Gazette no. 4878 (2012), Notice No. 30.

11 In February 2012, the Government of Namibia gazetted the Regulation for the implementation of Environmental Management Act No. 7 of 2007. Subsequently, the Ministry of Environment and Tourism invited nominations for appropriate persons from the public, organisations, associations or institutions to sit on the Sustainable Development Advisory Council. The eight members of the Advisory Council are Anna Shiweda, the Deputy Permanent Secretary in the Ministry of Agriculture, Water and Forestry; Annely Haiphene, the National Planning Commission’s Chief National Development Advisor; Dr Gaby Schneider, the Director of Geological Survey in the Ministry of Mines and Energy; Dr Malan Lindeque, the Permanent Secretary in the Ministry of Trade and Industry (Chairperson of the Council), and the four public nominated members include Martha Mwandingi, Sioni Ikela, Dr Chris Brown and Dr Michael Humavindu.

12 In February 2012, Cabinet appointed Teofilus Nghitila as Namibia’s Environmental Commissioner.

13 For a detailed outline of environmental assessment legislation in SADC see Walmsley / Tshipala (2010).

14 MET (2008b).

15 See MET (2008a:32ff.). For further details see also the Regulations for Strategic Environmental Assessment (SEA) and Environmental Impact Assessment (EIA) and the Procedures and Guidelines for Environmental Impact Assessment (EIA) and Environmental Management Plan (EMP) drafted by the Ministry of Environment and Tourism in 2008.

16 Government Gazette No. 4878 (2012) Government Notice No. 29, List of activities that may not be undertaken without Environmental Clearance Certificate: Environmental Management Act, 2007.

17 Government Gazette No. 4878 (2012) Government Notice No. 30, Environmental Impact Assessment Regulations: Environmental Management Act, 2007.

18 MET (2008a:29).

19 See MET (2008b:7).

20 See IBML Update on Pending Court Actions in Namibia at http://www.interbasemetals.com/sites/default/files/documents/news/2015/draft-3-press-announcement-pending-court-action.pdf; accessed 24 October 2015.

21 See Tlhage (2015).