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Friday 18 January 2019
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The Seabed Phosphate Mining Saga

Stanley

Namibia has an abundance of biological and mineral resources, with the fishing and mining industries being the backbone of the country’s economy. Land-based phosphate deposits have been the main source of the phosphorous component used in commercial fertilizers and even though several coastal and marine deposits have been known to exist around the world, they are yet to be mined.
Namibia’s deep waters are estimated to hold the 7th largest phosphate rock reserves in the world and mining companies argue that if successfully mined, these phosphate deposits will provide economic prosperity, jobs and food security for Namibia.
For decades, shallow water mining for gold and diamonds has been conducted, with De Beer’s marine diamond success being an example within the Namibian context. However, the unknown effects and the untested nature of deep seabed mining have attracted controversy towards these activities in various jurisdictions. The issue contentious issue therefore is not marine mining per se, but rather deep sea marine mining.
In the Namibian context, the above has ignited a resource exploitation debate between two heavyweights: Environmental Consideration vs Investment Promotion. One corner advocates for the sustainability of the marine ecosystem and fishing industry, whilst the other seeks approval for mining companies to exploit sea-bed phosphate deposits in the deep waters off Namibia’s coast.
Despite mining proponents indicating that scientific verification reports commissioned by them indicate that phosphate mining activities will have minimal effects on the marine environment and fishing sector as a whole, those in the environmental consideration corner are weary that the above are mere desktop studies with inconclusive findings and holds no water. Through recommendations brought forward by the Ministry of Fisheries and Marine Resources (supported by environmentalist groups and the Confederation for Namibian Fishing Associations), Cabinet in 2013 proceeded to issue an 18 month temporary moratorium on bulk seabed mining referring specifically to phosphorites.
The rationale was for the Ministry of Fisheries and Marine Resources to contract an independent Norwegian firm (called SINTEF) to conduct a Strategic Environmental Assessment (SEA) determining the impact of marine phosphate mining on the fishing grounds within the Benguela Current Large Marine Ecosystem.
Unfortunately, the moratorium lapsed on the 17th of March 2015 without the SEA being completed. Those in the environmental consideration corner seek the extension of the moratorium to complete the SEA, whilst those advocating for investment promotion want a green light placed on seabed phosphate mining. A cabinet committee (including representatives from the mines, fisheries and environment ministries) was tasked to investigate whether or not seabed phosphate mining is harmful to the environment, and issue recommendations to cabinet for a final decision.
The above recommendations, I assume, will be guided by scientific evidence conducted by both corners. On face value, it appears that the committee will be guided by an environmental law principle called the Preventative Principle.
The principle relies on ‘clear and convincing’ evidence to convince authorities that if timely prevention of damaging consequences is not undertaken, then the tangible threats posed to the environment by proposed activities may rapidly become critical. The problem with the Preventative Principle is that it requires complete and proven scientific evidence to be present for decisions to be made, thereby placing risk assessment before risk management. The burden of proof under this principle therefore generally falls on those advocating precautionary action (i.e. Ministry of Fisheries).
However, what happens when the scientific evidence presented is insufficient or incomplete? In this light, the committee will be guided by another environmental principle known as the Precautionary Principle. Simply put, the precautionary principle is a philosophical approach to risk traced back to the 1970 German notion of ‘Vorsorgeprinzip’, which can be translated as the ‘foresight Principle’.
The principle was aimed at reversing the Preventative Principle, giving decision-makers the power of deciding how ‘safe is safe’ in the absence of full scientific evidence. The principle is universally recognized in Principle 15 of the Rio Declaration, and is enshrined in section 3(2)(k) of the Environmental Management Act. From a marine perspective, the principle appears in article 4(1)(c) of the Benguela Current Convention, a regional instrument (signed between Angola, Namibia and South Africa) created solely for the purpose of protecting the delicate Benguela Current ecosystem.
The Precautionary principle operates on the notion that relevant authorities should take precautionary actions when the full effects of a proposed activity are not established. In cases where scientific evidence is insufficient, such insufficiency should not be used as an excuse for delaying precautionary action. The precautionary actions are taken on defensive measures, and may take the form of outright bans or phase-outs, moratoriums, requests for extra scientific information before proceeding, or postpone activities. From an analogical perspective therefore, the principle reverses the ‘innocent until proven guilty’ element under criminal law, as activities with potential environmental impacts are now considered harmful until proven innocent.
Mining proponents bear the burden of proof under the precautionary principle, encouraged by the notion that mining companies are in a better position to identify those possible impacts and carry out the required studies to evidence how these impacts can be minimised or avoided. However, some commentators indicate that the drawback of this approach is the possible manner in which these studies are conducted, as a ‘business as usual’ attitude may supersede the required care and diligence element required to afford unbiased results.
This is why consultations with various stakeholders are of mass importance in these instances, and mining proponents should make such information available to the public for transparency and scrutiny purposes.
Cases such as the present illustrate the dilemma confronting public authorities when they need to act in a context of incomplete knowledge. Should they await the results of full scientific investigations before acting, thereby risking irreversible damage in the future? Or should they act in an anticipatory fashion, even if the real nature of the threat remains less than certain?
When posed with the above paradox, jurisdictions such as Papa New Guinea have instituted moratoriums on seabed mining activities due to environmental concerns, with Australia issuing a total ban on seabed mining around the Groote Eylandt in the Gulf of Carpentria through a decision taken by the Northern Territory Government in June 2013. A similar approach was taken in New Zealand, when the Decision-making Committee (DMC) (appointed by the Environmental Protection Board) rejected an application by Chatham Rock Phosphate Ltd for a marine consent to mine phosphorite nodules in the Chatham Rise, stating that “[m]ining would cause significant and permanent adverse effects on the existing benthic environment”.
Although Namibia remains a sovereign State capable of making her own decisions, she still remains an actor under international law. Intergovernmental co-operation between line ministries is therefore of great importance, and they should join forces to find amicable solutions where resource sharing overlaps. Rather than working as individual institutions, these line ministries should realise that they are components of a Namibian government which is under a legal duty to ensure that activities within its borders do not cause transboundary harm.
In considering whether or not to extend the moratorium, the relevant decision makers should be guided by the available scientific evidence. If such evidence is premature, they should be guided by the precautionary principle in order to seek a “better safe than sorry” approach. However, if all kinds of risks were allowed to trigger the application of the principle, then the likelihood of economic stagnation may suffice as it is near impossible for an activity to be ‘risk free’. The level of allowed risk should therefore be limited to those activities posing possible “irreversible” harm, and “significant” risk.
I may be pro-mining but in instances of uncertainty where environmental degradation is at stake, my opinion is solely based on the notion that the likelihood of severe and/or permanent damage to ecosystems should be considered worst of an outcome than a forgone business opportunity.
The fact that the deep sea remains an Alice-in-Wonderland world of unknown extremes places an “approach with caution” sign for decision makers when deciding whether or not to allow mining activities within these environments.
The rippling effects of a wrong decision would therefore not only affect the marine environment, but would have detrimental socio-economic consequences as well. As rightly put by the Founding Father, Dr Sam Nujoma, “mining is finite, fisheries is everlasting”. Ensuring the co-existence of both sectors within the marine sphere should therefore be paramount.

Stanley Kambonde is the Founder and Managing Director at Esel Kay Consultancy, a consulting and advisory firm specializing in the natural resource and energy sectors. He holds BJuris and LLB (Honours) degrees from University of Namibia, and an LLM in Oil, Gas and Mining from Nottingham Trent University, UK. He can be reached at skambonde@gmail.com




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