Mining and the Environment: Do Our Protected Areas Need More Protection?

THE proposed construction of the Langer Heinrich Uranium Mine in the Namib-Naukluft National Park near Swakopmund has raised many issues about the safeguarding of protected areas in Namibia.

Firstly, the proposed area lies within a national park. Secondly, the proposed area is an environmentally sensitive desert region, where the rate of ecological recovery is extremely slow.Thirdly, there exist worries regarding increased water consumption, necessitated by both the construction and operation of the proposed mine, in an area that is already potentially heading towards a severe water shortage.Finally, there are concerns, harboured by environmental concern groups, that the process through which a mining licence in Namibia is obtained may be fundamentally flawed.This piece deals primarily on the final issue noted.It examines the general process through which a company obtains a mining permit in a protected area, and the relevant laws and policies that shape this process.As a comparative tool, this piece also examines equivalent procedures in the United States.Like Namibia, the US possesses great mineral resources, but must struggle with the competing interests of mineral extraction and environmental conservation.Because the US has both an extensive network of federally protected lands, and a voracious appetite for the consumption of resources, it provides a useful measuring stick for determining the effectiveness of Namibian policy.Namibia As the supreme law of Namibia, Article 95(l) of the Constitution of the Republic of Namibia (1990) requires that the Government provide for the “maintenance of ecosystems, essential ecological processes and biological diversity of Namibia and utilisation of living natural resources on a sustainable basis for the benefit of all Namibians.”In other words, the State has a duty to maintain or protect the environment for the benefit of all Namibians and must therefore put legislation in place that adheres to the constitutional provision of Article 95(l).Additionally, the Minerals (Prospecting and Mining) Act of 1992 and the Nature Conservation Ordinance (No.4 of 1975) outline a fairly simple process through which a prospective developer may obtain a mining licence.Legally, the decision as to whether an applicant receives a mining licence rests in the sole discretion of the Minster of Mines and Energy.The prospective developer must include in his application a summary of the current environmental situation of the proposed site, an estimation of the impact that mining would have on that site, and proposed methods for mitigating the adverse effects of the mining operation.This scope of the information required, however, does not legally have to reach that of an Environmental Assessment (EA).The difference in scope between the summary that is legally required in the application process and that of an Environmental Assessment is significant.For example, the Minerals Act of 1992 does not require the identification of alternatives (such as a different mine location or method of mineral extraction), or the notification of affected and interested parties, as would an Environmental Assessment.Additionally, if the mining is to take place in a protected area, written permission from the Minister of Mines and Energy is needed in addition to a licence.If the protected area in question is located within a game reserve or nature reserve, the prospector would also need to obtain permission from the Directorate of Parks and Wildlife Management.In other words, in order to legally mine in an area such as a national park or a game park in Namibia, a prospector needs only the permission of the Minister of Mines and the Directorate of Parks and Wildlife Management.No Environmental Assessment is required, and neither is any consultation with the surrounding communities.In practice, however, the requirements are supposed to be more stringent than the minimum steps outlined above.The Policy for Prospecting and Mining in Protected Areas and National Monuments and the Environmental Assessment Policy both establish a procedure that asks for an Environmental Assessment, and it does appear to be common practice to require an Environmental Assessment to accompany any application for a mining licence.Nonetheless, unlike an act of parliament, a policy has less binding power, and therefore it cannot be presumed that an environmental impact assessment will be required of every applicant for a mining licence.As it stands, there is no act that differentiates procedurally between mining in the Namib-Naukluft National Park and mining next to a toxic waste dump.United States Perhaps because the United States of America is significantly older than Namibia, and has therefore had more time to generate environmental laws, it has far more laws that come into play regarding mining licences.A proposal to mine anywhere would run into a minefield of state and federal environmental laws.Though important acts of legislation, they are too specific for this article.I would, however, argue that even areas outside of protected areas within the United States currently receive better environmental protection, due to the many legal restrictions and the resulting increased potential for citizen suits, than land within a protected area in Namibia.But, the issue at hand here does not concern general Namibian environmental protection.Therefore, the most relevant area of the United States’ policies and laws is that which coincides with laws regarding protected Namibian lands.Simply put, the US has two types of protected lands, National Wildlife Refuges and National Parks.Though their purposes differ, their stance towards mining is similar.In both protected areas, existing private mining licences must be recognised, and reasonable access allowed.However, the federal government’s right to protect the surface of the area reigns supreme, allowing the federal government to dictate the terms of the miner’s access.Regarding federally owned mineral rights, the Wildlife Refuges have a firm policy against the leasing of these mining rights, and any decision to allow leasing within a refuge requires a determination by three different governmental entities that such an activity would not compromise the purpose of the refuge in question.The National Parks Service goes one step further, and is legally prevented from leasing mineral rights at all.Comparison of Namibian vs.US Policy The difference between Namibian and US policy is striking.The motivation behind US protections seems to be recognition that there is an inherent cost in the opening up of certain areas to mineral extraction.National parks were selected and created with a certain purpose in mind.Whether the purpose was the preservation of a particularly beautiful area for human enjoyment, or the preservation of a unique habitat or species, the creators of the National Park System likely felt that, in most cases, no amount of potential mineral wealth could overcome the gains created through protection of the land’s surface.Namibia’s approach to protected areas seems to be more economically based.In its introduction, the Policy for Prospecting and Mining in Protected Areas and National Monuments reads: “Namibia’s parks are the foundation of the country’s fastest growing industry, namely tourism.Government must therefore ensure that short-medium term projects (e.g.mining) do not jeopardise the potential for long-term sustainable development (e.g.tourism).”It would be naïve to compare the United States and Namibia without recognising critical differences between the two countries.The US is one of the world’s superpowers.Its infrastructure, economy, and annual budget far exceed that of the majority of nations in the world, including Namibia.The United States will therefore suffer far less than would Namibia from the economic effects of closing off access to mineral reserves.Namibia, on the other hand, is a country that only recently gained its independence.It is a developing country that must be able to attract industry in order to strengthen itself economically.A decision to close off protected areas to mining would have to be carefully weighed against resulting loss of revenue – revenue that will likely find its way to a regional competitor.Still, it seems that Namibia’s current approach offers protected areas protection in name only.Namibia’s protected areas, much like the protected areas in the United States, were designated as such because they are inherently unique in some way.Whether it is because of geography, historical significance, or indigenous flora or fauna, these areas offer something that the rest of Namibia cannot.The decision to designate them as protected areas resulted from a feeling that they, or what they contain, should be preserved.Consequently, allowing mining in such an area (an activity which is destructive to the surface of the land, no matter how carefully done) should only be allowed after painstaking decision-making.Rather than allowing mining or prospecting in a protected area only when the benefit is exceptionally persuasive, Namibia’s policy appears to be the exact opposite.The Policy for Prospecting and Mining in Protected Areas and National Monuments expressly states that Exclusive Prospecting and Mining Licences are generally permitted within Protected Areas and National Monuments unless the areas are particularly sensitive or are of special ecological or touristic importance.Bear in mind that the areas designated as “particularly sensitive or …of special ecological or touristic importance” already reside within land deemed sufficiently sensitive or of sufficiently special importance to be classified as a Protected Area or National Monument.In other words, the area of land that is not considered generally open to mining is extremely small.Additionally, the legally required steps, which an individual wishing to mine in a protected area must take, do not differ from those facing one who wishes to mine anywhere else in Namibia.Though public pressure and the integrity of government officials would likely dictate otherwise, legally a prospective miner would not even need to complete an EA before receiving permission to mine in the middle of Etosha National Park.Hopefully, the Parks and Wildlife Management Bill and the Environmental Management Bill, once enacted, will ultimately address the problems outlined in this article.Until that time, these problems remain a very real issue.Even from an economic standpoint, greater consideration should go into the granting of mineral licences within protected areas.Currently, the Policy for Prospecting and Mining in Protected Areas and National Monuments requires that an Environmental Management Plan (which must include plans for decommissioning of the activity) “shall” be concluded before any approved mining may commence.In other words, the Government would no longer allow a mining area to go un-rehabilitated after the mining was finished.Nonetheless, some areas that are apparently not considered “particularly sensitive” or of “special ecological or touristic importance” may be affected for centuries.In the Namib-Naukluft National Park, lichen (the primary ground cover) grows at a rate of less than one millimetre a year, meaning that recovery from any surface damage is extremely slow.One can still see decades-old oxcart tracks, as well as the 1915 campsite of World War I German soldiers.Yet neither of these disturbances can remotely approximate the disturbance that will be left by a mining operation.Certainly the area in which the proposed Langer Heinrich Uranium Mine will take place is no longer virgin ground.Years of prospecting in this area mean that mankind’s touch will already be felt for decades, if not centuries.Thus, site-specific and policy concerns remain.A full-fledged mining operation will require increased electricity, water and road infrastructure, all of which will have lasting effects on the surrounding environment.Also, citizens’ concerns regarding increased water consumption and the potential of radiation exposure must be addressed.Most importantly, even if the ecological footprint of this mine is justified by its economic importance, what safeguards are in place to ensure that other proposals must be of such economic importance? The Policy for Prospecting and Mining in Protected Areas and National Monuments recognises the importance of tourism in Namibia.It maintains that short- and medium-term mining projects must not be allowed to jeopardise tourism as a long-term, sustainable industry.In areas such as the Namib-Naukluft National Park, however, mining’s effects last far longer than the projects themselves.Namibia’s tourism industry is largely predicated on an idea of Namibia as a pristine wilderness area.Tourists do not travel to Namibia for its gambling, nightlife, or beaches, as they might elsewhere.Rather, the vast majority of travellers come to Namibia in search of what they see as a disappearing commodity – nature unspoiled.Oxcart tracks and World War I campsites merely serve to illustrate how remote and relatively untouched this area is.Modern mining operations are an entirely different story.* Stefan Carpenter is an intern with the Land, Environment, and Development Project (LEAD) at the Legal Assistance Centre.He currently attends the University of Pennsylvania Law School in the United States.Secondly, the proposed area is an environmentally sensitive desert region, where the rate of ecological recovery is extremely slow.Thirdly, there exist worries regarding increased water consumption, necessitated by both the construction and operation of the proposed mine, in an area that is already potentially heading towards a severe water shortage.Finally, there are concerns, harboured by environmental concern groups, that the process through which a mining licence in Namibia is obtained may be fundamentally flawed.This piece deals primarily on the final issue noted.It examines the general process through which a company obtains a mining permit in a protected area, and the relevant laws and policies that shape this process.As a comparative tool, this piece also examines equivalent procedures in the United States.Like Namibia, the US possesses great mineral resources, but must struggle with the competing interests of mineral extraction and environmental conservation.Because the US has both an extensive network of federally protected lands, and a voracious appetite for the consumption of resources, it provides a useful measuring stick for determining the effectiveness of Namibian policy.Namibia As the supreme law of Namibia, Article 95(l) of the Constitution of the Republic of Namibia (1990) requires that the Government provide for the “maintenance of ecosystems, essential ecological processes and biological diversity of Namibia and utilisation of living natural resources on a sustainable basis for the benefit of all Namibians.”In other words, the State has a duty to maintain or protect the environment for the benefit of all Namibians and must therefore put legislation in place that adheres to the constitutional provision of Article 95(l).Additionally, the Minerals (Prospecting and Mining) Act of 1992 and the Nature Conservation Ordinance (No.4 of 1975) outline a fairly simple process through which a prospective developer may obtain a mining licence.Legally, the decision as to whether an applicant receives a mining licence rests in the sole discretion of the Minster of Mines and Energy.The prospective developer must include in his application a summary of the current environmental situation of the proposed site, an estimation of the impact that mining would have on that site, and proposed methods for mitigating the adverse effects of the mining operation.This scope of the information required, however, does not legally have to reach that of an Environmental Assessment (EA).The difference in scope between the summary that is legally required in the application process and that of an Environmental Assessment is significant.For example, the Minerals Act of 1992 does not require the identification of alternatives (such as a different mine location or method of mineral extraction), or the notification of affected and interested parties, as would an Environmental Assessment.Additionally, if the mining is to take place in a protected area, written permission from the Minister of Mines and Energy is needed in addition to a licence.If the protected area in question is located within a game reserve or nature reserve, the prospector would also need to obtain permission from the Directorate of Parks and Wildlife Management.In other words, in order to legally mine in an area such as a national park or a game park in Namibia, a prospector needs only the permission of the Minister of Mines and the Directorate of Parks and Wildlife Management.No Environmental Assessment is required, and neither is any consultation with the surrounding communities.In practice, however, the requirements are supposed to be more stringent than the minimum steps outlined above.The Policy for Prospecting and Mining in Protected Areas and National Monuments and the Environmental Assessment Policy both establish a procedure that asks for an Environmental Assessment, and it does appear to be common practice to require an Environmental Assessment to accompany any application for a mining licence.Nonetheless, unlike an act of parliament, a policy has less binding power, and therefore it cannot be presumed that an environmental impact assessment will be required of every applicant for a mining licence.As it stands, there is no act that differentiates procedurally between mining in the Namib-Naukluft National Park and mining next to a toxic waste dump. United States Perhaps because the United States of America is significantly older than Namibia, and has therefore had more time to generate environmental laws, it has far more laws that come into play regarding mining licences.A proposal to mine anywhere would run into a minefield of state and federal environmental laws.Though important acts of legislation, they are too specific for this article.I would, however, argue that even areas outside of protected areas within the United States currently receive better environmental protection, due to the many legal restrictions and the resulting increased potential for citizen suits, than land within a protected area in Namibia.But, the issue at hand here does not concern general Namibian environmental protection.Therefore, the most relevant area of the United States’ policies and laws is that which coincides with laws regarding protected Namibian lands.Simply put, the US has two types of protected lands, National Wildlife Refuges and National Parks.Though their purposes differ, their stance towards mining is similar.In both protected areas, existing private mining licences must be recognised, and reasonable access allowed.However, the federal government’s right to protect the surface of the area reigns supreme, allowing the federal government to dictate the terms of the miner’s access.Regarding federally owned mineral rights, the Wildlife Refuges have a firm policy against the leasing of these mining rights, and any decision to allow leasing within a refuge requires a determination by three different governmental entities that such an activity would not compromise the purpose of the refuge in question.The National Parks Service goes one step further, and is legally prevented from leasing mineral rights at all. Comparison of Namibian vs.US Policy The difference between Namibian and US policy is striking.The motivation behind US protections seems to be recognition that there is an inherent cost in the opening up of certain areas to mineral extraction.National parks were selected and created with a certain purpose in mind.Whether the purpose was the preservation of a particularly beautiful area for human enjoyment, or the preservation of a unique habitat or species, the creators of the National Park System likely felt that, in most cases, no amount of potential mineral wealth could overcome the gains created through protection of the land’s surface.Namibia’s approach to protected areas seems to be more economically based.In its introduction, the Policy for Prospecting and Mining in Protected Areas and National Monuments reads: “Namibia’s parks are the foundation of the country’s fastest growing industry, namely tourism.Government must therefore ensure that short-medium term projects (e.g.mining) do not jeopardise the potential for long-term sustainable development (e.g.tourism).”It would be naïve to compare the United States and Namibia without recognising critical differences between the two countries.The US is one of the world’s superpowers.Its infrastructure, economy, and annual budget far exceed that of the majority of nations in the world, including Namibia.The United States will therefore suffer far less than would Namibia from the economic effects of closing off access to mineral reserves.Namibia, on the other hand, is a country that only recently gained its independence.It is a developing country that must be able to attract industry in order to strengthen itself economically.A decision to close off protected areas to mining would have to be carefully weighed against resulting loss of revenue – revenue that will likely find its way to a regional competitor.Still, it seems that Namibia’s current approach offers protected areas protection in name only.Namibia’s protected areas, much like the protected areas in the United States, were designated as such because they are inherently unique in some way.Whether it is because of geography, historical significance, or indigenous flora or fauna, these areas offer something that the rest of Namibia cannot.The decision to designate them as protected areas resulted from a feeling that they, or what they contain, should be preserved.Consequently, allowing mining in such an area (an activity which is destructive to the surface of the land, no matter how carefully done) should only be allowed after painstaking decision-making.Rather than allowing mining or prospecting in a protected area only when the benefit is exceptionally persuasive, Namibia’s policy appears to be the exact opposite.The Policy for Prospecting and Mining in Protected Areas and National Monuments expressly states that Exclusive Prospecting and Mining Licences are generally permitted within Protected Areas and National Monuments unless the areas are particularly sensitive or are of special ecological or touristic importance.Bear in mind that the areas designated as “particularly sensitive or …of special ecological or touristic importance” already reside within land deemed sufficiently sensitive or of sufficiently special importance to be classified as a Protected Area or National Monument.In other words, the area of land that is not considered generally open to mining is extremely small.Additionally, the legally required steps, which an individual wishing to mine in a protected area must take, do not differ from those facing one who wishes to mine anywhere else in Namibia.Though public pressure and the integrity of government officials would likely dictate otherwise, legally a prospective miner would not even need to complete an EA before receiving permission to mine in the middle of Etosha National Park.Hopefully, the Parks and Wildlife Management Bill and the Environmental Management Bill, once enacted, will ultimately address the problems outlined in this article.Until that time, these problems remain a very real issue.Even from an economic standpoint, greater consideration should go into the granting of mineral licences within protected areas.Currently, the Policy for Prospecting and Mining in Protected Areas and National Monuments requires that an Environmental Management Plan (which must include plans for decommissioning of the activity) “shall” be concluded before any approved mining may commence.In other words, the Government would no longer allow a mining area to go un-rehabilitated after the mining was finished.Nonetheless, some areas that are apparently not considered “particularly sensitive” or of “special ecological or touristic importance” may be affected for centuries.In the Namib-Naukluft National Park, lichen (the primary ground cover) grows at a rate of less than one millimetre a year, meaning that recovery from any surface damage is extremely slow.One can still see decades-old oxcart tracks, as well as the 1915 campsite of World War I German soldiers.Yet neither of these disturbances can remotely approximate the disturbance that will be left by a mining operation.Certainly the area in which the proposed Langer Heinrich Uranium Mine will take place is no longer virgin ground.Years of prospecting in this area mean that mankind’s touch will already be felt for decades, if not centuries.Thus, site-specific and policy concerns remain.A full-fledged mining operation will require increased electricity, water and road infrastructure, all of which will have lasting effects on the surrounding environment.Also, citizens’ concerns regarding increased water consumption and the potential of radiation exposure must be addressed.Most importantly, even if the ecological footprint of this mine is justified by its economic importance, what safeguards are in place to ensure that other proposals must be of such economic importance? The Policy for Prospecting and Mining in Protected Areas and National Monuments recognises the importance of tourism in Namibia.It maintains that short- and medium-term mining projects must not be allowed to jeopardise tourism as a long-term, sustainable industry.In areas such as the Namib-Naukluft National Park, however, mining’s effects last far longer than the projects themselves.Namibia’s tourism industry is largely predicated on an idea of Namibia as a pristine wilderness area.Tourists do not travel to Namibia for its gambling, nightlife, or beaches, as they might elsewhere.Rather, the vast majority of travellers come to Namibia in search of what they see as a disappearing commodity – nature unspoiled.Oxcart tracks and World War I campsites merely serve to illustrate how remote and relatively untouched this area is.Modern mining operations are an entirely different story.* Stefan Carpenter is an intern with the Land, Environment, and Development Project (LEAD) at the Legal Assistance Centre.He currently attends the University of Pennsylvania Law School in the United States.