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Namibia: Environmental Management Act Takes Effect Four Years After Adoption

(Mar. 1, 2012) On January 18, 2012, Namibia's Minister of Environment and Tourism put into effect the Environmental Management Act (EMA), Act No. 7 of 2007. (Government Gazette of the Republic of Namibia, No. 3966 (Dec. 27, 2007), Ministry of Environment and Tourism website, Management%20Act.pdf). It came into force as of February 6, 2012, over four years after it was adopted by the country's Parliament and signed by the head of state. (Commencement of the Environment Management Act, 2007, Government Notices No. 28 of 2012, GOVERNMENT GAZETTE OF THE REPUBLIC OF NAMIBIA, No. 4878, 1 (Feb. 6, 2012), at 1.)

The implementation of the EMA was reportedly fast tracked when allegations of pollution at a smelter in Tsumeb, the capital town of the Oshikoto Region in northern Namibia, came to light. (Ellanie Smit, Environmental Law Comes into Force, NAMIBIAN SUN (Feb. 23, 2012),

The Act includes 58 provisions and seeks to prevent or minimize “consequential qualitative or quantitative impact” on the environment that may result from a wide range of activities. To that end it includes three objectives:

(a) ensuring that the significant effects of activities on the environment are considered in time and carefully;

(b) ensuring that there are opportunities for timeous [sic] participation of interested and affected parties throughout the assessment process; and

(c) ensuring that the findings of an assessment are taken into account before any decision is made in respect of activities. (EMA, § 2.)

The Act establishes the Sustainable Development Advisory Council (SDAC) tasked with cultivating cooperation and coordination in matters regarding sustainable development among different parties with competing interests, including government institutions, non-governmental organizations, and the private sector. (Id. § 7.) It also advises the Minister of Environment and Tourism on various environmental issues, including conservation of biological diversity and access to genetic resources, methods of compliance with standards set by the Act, and development of or improvement to the legal framework on environmental issues. (Id.)

The Act requires the Minister to appoint an Environmental Commissioner and a Deputy Environmental Commissioner. The Environmental Commissioner, who is automatically a member of the SDAC, is tasked with a number of functions, including to:

(a) advise organs of state on the preparation of environmental plans;

(b) receive and record applications for environmental clearance certificates;

(c) determine whether a listed activity requires an assessment;

(d) determine the scope, procedure and methods of an assessment;

(e) review the assessment report in accordance with this Act;

(f) issue environmental clearance certificates in terms of this Act;

(g) maintain a register of environmental assessments undertaken in terms of this Act;

(h) maintain a register of environmental clearance certificates issued and environmental plans approved in terms of this Act;

(i) conduct inspections for monitoring compliance with this Act; and

(j) perform any other duty or function which the Minister may assign or prescribe. (Id. § 17(2).)

The Minister has already appointed an Environmental Commissioner who will take office at the beginning of March 2012. (Smit, supra.) One of the first tasks of the Commissioner will be to implement whatever recommendations are made by the team of experts currently investigating allegations of pollution at the Tsumeb smelter. (Id.) The investigation is expected to conclude at the same time the Commissioner takes office. (Id.

On the same day she issued the decree bringing the Act into operation, the Minister also issued a Notice on the basis of section 27 of the Act, listing various activities that require environmental clearance certificates. (Government Notice No. 29, 2012, Annex, GOVERNMENT GAZETTE OF THE REPUBLIC OF NAMIBIA, No. 4878, 327 (Feb. 6, 2012), at 327.) These activities, among others, include gas refining; production of oil and petroleum products; timber harvesting; construction of resorts and other hospitality facilities; and construction of dams, reservoirs, and levies. (Id.)

In addition, the Minister issued Environmental Impact Assessment Regulations: Environmental Management Act, 2007 [EIAR], detailing the application process for environmental clearance certificates. (Government Notice No. 30, 2011, GOVERNMENT GAZETTE OF THE REPUBLIC OF NAMIBIA, No. 4878, 7-29 (Feb. 6, 2012).) The EIAR require, among other things, that a person or a company seeking an environmental clearance certificate conduct a public consultation process and afford all affected parties due opportunities to comment on its proposed plans. (EIAR, § 7.) The EIAR also seek to make the application process efficient. For instance, they require the Environmental Commissioner to issue an acknowledgment of an application for an environmental clearance certificate within three days of receipt and to issue a notification of its decision on the application within seven days of finalizing the review process set out under the Act. (Id. §§ 16 & 18.)