On 5 August, the environmental commissioner in the Ministry of Environment, Forestry and Tourism issued an environmental clearance certificate (ECC) to Namibian Marine Phosphate (Pty) Ltd for the proposed Sandpiper Marine Phosphate Project offshore Namibia. The certificate is valid until 5 August 2029.
The decision prompted immediate and broad-based opposition: President Netumbo Nandi-Ndaitwah publicly indicated her disapproval, reportedly stating that Namibia should not be used for ‘an experiment in the ocean’; the fishing industry, through the Confederation of Namibian Fishing Associations (CNFA), enlisted senior legal counsel to challenge the decision, and opposition leader Panduleni Itula filed a formal appeal on behalf of the Independent Patriots for Change (IPC).
In a significant further development, on 2 September 2026 the Minister of Agriculture, Fisheries, Water and Land Reform, Inge Zaamwani, lodged an appeal through the Office of the Attorney General challenging the decision in its entirety.
WHAT THE CLEARANCE CERTIFICATE AUTHORISES
The ECC was issued under section 37(2) of the Environmental Management Act 7 of 2007 (EMA), which empowers the environmental commissioner to grant an ECC after reviewing the relevant assessment report and supporting documents (including – if any – input from interested and affected parties).
The EMA prohibits any person from undertaking a ‘listed activity’ without a valid ECC.
Mining activities fall within the listed activities prescribed by the minister under section 27 of the EMA and the Environmental Impact Assessment Regulations of 2012.
The ECC authorises the listed activities associated with the marine phosphate project, subject to conditions. Notably, the ECC does not, on its own, authorise the commencement of commercial mining.
Additional permits, planning approvals and terrestrial infrastructure clearances are required before dredging operations can begin.
LEGAL RECOURSE FOR AGGRIEVED PARTIES
Namibian law provides several avenues for parties who wish to challenge the environmental commissioner’s decision. The primary statutory mechanism is an appeal to the minister under section 50 of the EMA.
Any person aggrieved by a decision of the environmental commissioner may appeal to the minister, who has broad and independent discretion to confirm, set aside or vary the decision, or to make any other appropriate order under section 50(4)q.
The minister may also appoint an appeal panel of persons with knowledge and experience in environmental matters to advise on the appeal.
The Environmental Impact Assessment Regulations prescribe that such an appeal must be lodged within 14 days of receipt of notification of the decision.
An appeal under section 50 does not automatically suspend the operation of the decision; the Minister must specifically direct a suspension on application by a party (section 50(6)).
The ministerial appeal is not a rubber stamp. Namibian courts have consistently held that where a statute creates an internal appeal mechanism, the minister is expected to exercise genuine independent judgement, including by assessing whether the challenged decision falls within the decision-maker’s statutory authority (Gurirab v Minister of Home Affairs 2016 (1) NR 37 (HC); Tjirovi v Minister for Lands and Resettlement 2018 (2) NR 358 (HC)).
If a party is dissatisfied with the minister’s decision on appeal, section 51 of the EMA provides a further right of appeal to the High Court, though this is limited to points of law only.
Separately, the case law recognises that an aggrieved party may, in certain circumstances, bypass the internal appeal entirely and approach the High Court directly on judicial review. Section 50(1) uses the permissive word ‘may’, which the High Court in Tjirovi v Minister for Lands and Resettlement 2018 (2) NR 358 (HC) held gives the aggrieved party a choice between the internal appeal and judicial review, rather than imposing a mandatory exhaustion requirement.
Furthermore, in Viljoen v Chairperson of the Immigration Selection Board 2017 (1) NR 132 (HC), the court held that where the impugned decision is based on a fundamental error of law that has ‘undermined the domestic remedies themselves’, exceptional circumstances exist to bypass the internal remedy.
Beyond the statutory appeal framework, affected parties may rely on the constitutional guarantee of administrative justice in Article 18 of the Namibian Constitution, which requires administrative bodies to act fairly and reasonably and entitles persons aggrieved by administrative acts to seek redress before a competent court or tribunal.
The CNFA has indicated it intends to challenge the commissioner’s decision on this basis, contending that the federation’s information requests were not substantively addressed before the ECC was granted.
It is also worth noting that the ombudsman has a constitutional mandate under Article 91(c) of the Constitution to investigate complaints concerning the over-utilisation of living natural resources, the irrational exploitation of non-renewable resources and the degradation and destruction of ecosystems.
Article 95(l) directs the state to maintain ecosystems, essential ecological processes and biological diversity for the benefit of present and future Namibians.
These principles of state policy are not independently enforceable by a court under Article 101, but courts may have regard to them when interpreting legislation.
SIGNIFICANCE FOR NAMIBIA AND THE INDUSTRY
The issuance of the ECC is significant on several levels. Commercially, it represents a potential first step towards a new mining subsector in Namibia: marine phosphate extraction.
Proponents of the project, including the Namibia Chamber of Environment, point to specialist studies indicating limited environmental impact and cite potential benefits such as job creation, economic diversification and increased phosphate supply for global fertiliser markets.
Opponents, including fishing industry bodies and conservation organisations, have raised concerns about potential harm to the marine ecosystem and the adequacy of the environmental assessment process.
As at the date of writing, at least three section 50 appeals have been lodged against the ECC: by Itula on behalf of the IPC (10 August 2026), by the CNFA (August 2026), and by Zaamwani, through the Office of the Attorney General (2 September 2026).
No ministerial decision on any of these appeals has been published.
From a legal perspective, the decision illustrates the application of Namibia’s environmental assessment framework to a complex, first-of-its-kind project and will test the scope of the environmental commissioner’s authority under the EMA.
LOOKING AHEAD
The Sandpiper project will be closely observed, both in Namibia and internationally.
The project sits at the intersection of resource development, environmental protection and food security, given phosphate’s role in global agriculture.
For Namibia, the matter highlights the importance of transparent, inclusive and procedurally sound environmental decision-making, particularly for projects without established precedent.
The outcome of pending appeals and any further legal proceedings will provide important guidance on the application of the country’s environmental governance framework.
- – Meyer van den Berg, partner, and Juané van Aardt, senior associate, Bowmans Namibia
