Uranium Company Loses Desert Water Plan Appeal

Werner Menges

20 May 2011

A legal challenge to a Canadian-owned mining company’s plan to use underground water to set up a uranium mine in the Namib Desert south-west of Usakos is heading back to the High Court after an appeal judgement that was given in the Supreme Court yesterday.

An issue that has never before had to be decided by a Namibian court is expected to be at the core of the case between uranium rights holder Valencia Uranium and the owner of a farm in the Usakos area, Namib Plains Farming and Tourism CC, when that matter makes its return to the High Court.

That issue is the question of who has the legal standing to go to court to ask for protection for the environment, which is unable to speak for itself.

Valencia Uranium, which is owned by a Canadian-registered company, Forsys Metals Corp, is the holder of a uranium exploration licence over the farm Valencia some 75 kilometres south-west of Usakos in the Erongo Region.

In February 2008, the Ministry of Agriculture, Water and Forestry issued permits to Valencia Uranium that would have allowed it to drill boreholes in the Khan River and extract water from that underground source. According to the company, it was planning to use this source of water while constructing a mine at Valencia.

The members of Namib Plains Farming and Tourism, a close corporation owning farm Namib Plaas near Valencia, were alarmed over this plan to extract large quantities of water from an underground water source in such a dry, environmentally sensitive and hitherto unspoilt area.

Claiming that the water source that was to be used by Valencia Uranium had not been sufficiently researched to safely make a decision to allow it to be used on such a large scale, the farm owners sued the company, Government, the Ministers of Agriculture, Water and Forestry, Mines and Energy, and Environment and Tourism, and the owner of farm Valencia in the High Court.

The High Court was asked to order that Valencia Uranium may not extract any water from boreholes in the Khan River, and to set aside the decision to issue the water permits to the company.

In the High Court, though, Judge Collins Parker dismissed the farm owners’ application on April 18 2008. He based his ruling on a finding that the Khan River had not been declared a water control area in terms of the Water Act of 1954, with the result that no water permits could in the first place have been issued to Valencia Uranium.

Judge Parker did not deal with a key preliminary point that had been raised before him: the question whether Namib Plains Farming and Tourism CC in the first place had the legal standing to in effect act on behalf of nature and ask the court to use its powers to protect the environment.

The farm owners decided to take the High Court judgement on appeal, and by the time the case reached the Supreme Court their lawyers and also Valencia Uranium’s legal counsel agreed that the High Court’s decision was not correct.

The failure to deal with that preliminary point raised before Judge Parker and which he had said would first be decided, was an irregularity, the Supreme Court has now decided in yesterday’s judgement.

The reasoning that because the Khan River had not been proclaimed a water control area no water permits could be issued in respect of that area, was also a serious misdirection in the High Court, Chief Justice Peter Shivute said in the Supreme Court’s judgement.

“However anomalous it may seem, it is a settled principle of law that even an unlawful administrative act is capable of producing legally valid consequences for as long as the unlawful act is not set aside by a court of law,” the Chief Justice pointed out.

He stated that the case has to be returned to the High Court to decide the issue of legal standing raised before it. With no indications of bias or clouded judgement on the part of Judge Parker, the case has to be heard and decided by him again, if he is available, it was ordered.

Valencia Uranium and the four Government respondents were ordered to pay the farm owners’ costs in the appeal.

Judge of Appeal Gerhard Maritz and Acting Judge of Appeal Johan Strydom agreed with the Chief Justice’s judgement.

Susan Vivier, instructed by Elise Angula, represented Valencia Uranium, while Philip Swanepoel represented Government and the ministers. Raymond Heathcote, SC, and Sackey Akweenda represented the farm owners on instructions from the Legal Assistance Centre.

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