In Southern Africa, where the borders of Namibia, Botswana and Angola meet, one can find one of the Seven Natural Wonders of Africa - The Okavango Delta - a wetland and conservation area that is home to about 200 000 people, six locally managed wildlife reserves, an UNESCO World Heritage site, the largest herd of African elephants left on earth and countless other animals, among which are endangered species.
As of 2020, it is also the newest prospect area for oil exploration by a Canadian-based oil and gas company, ReconAfrica. The exploration licence covers the entire Kavango sedimentary basin, an area of more than 25 000 square km, where antelope rome, predators hunt and elephants and buffalo migrate.
Exploration has already kicked off, with three test wells drilled without taking the community members' concerns into consideration, who are also the custodians and protectors of this piece of land.
Corinna van Wyk, the Project Coordinator for the Land, Environment and Development Project under the Legal Assistance Centre of Namibia highlights the misconduct made by ReconAfrica and allowed by the Namibian Ministry of Environment (NME).
As legal representative of the Okavango Delta community members, Corinna uncovered Recon Africa’s absolute disregard to proper procedure and to the voices of the community. However, the most unsettling discovery was that the NME turned a blind eye to any misconduct made by the oil company and leaves one wondering who the true perpetrator’s in this story are.
Q & A
Why did you decide to take on this case?
Well, we're the Land, Environment and Development Project, so we deal with land issues, which is definitely a tick. We also deal with environmental issues and sustainable development. We don't believe that extracting, especially extracting within the conservancy areas, is a sustainable means of development.
Extraction is for a certain period of time, while tourism, conservancy and protecting the environment is sustainable. These things ensure there's always work for people, there's always livelihood, they can always survive from the natural resources that are there.
So I think the biggest concern for us was the fact that they (ReconAfrica) could just have the political support and do what they want without following proper procedures, without following the law or following the law but only as a tick of the box. They never consulted with the public in order to inform them and to get consent from them. They told the public what they were going to do and for which they've already been given approval. That's two different things.
Our law is quite vague, especially when it comes to appealing and public consultations. We have the traditional authorities act where we have a traditional authority that speaks on behalf of the community, but there's nothing that regulates: What does it mean to speak to the community? What do they require? You can speak to four members of the community and say, well, I've spoken to the community members.
I've heard that the people doing the consultations would speak in English, when the community members don't even understand English and just kind of use that authority to make them sign the documents?
Exactly. If you can look at the whole process from the beginning, they put out notices in two newspapers - English newspapers, on public holidays. Our rural people don't have access to English, they also don't have access to updated newspapers. So when they eventually get the newspaper the notice is expired and the time to make an objection is expired.
Even looking at the technicality of those notices. What would people understand about climate change at this point? Have they been educated to understand how they will be impacted or how to evaluate changes?
That's only in the beginning. Think about it in the end. If they are the ones living in the area, they are obviously going to be the first ones to realise that something's wrong with the water, or something's wrong with the animals, or animal wildlife conflict is now increased because the migration patterns of the elephants or whatever has changed, or was changed due to the extraction.
But where do they report it? And how do they report it? And what value is given to that report? The devil is in the details. It's those finer details that are being excluded or deliberately being neglected or omitted to be included.
And water is so essential, they depend so much on the ground water, if it gets compromised in any way it would mean catastrophe for those communities.
And not only them, because remember, it’s Namibia’s and Botswana's underground water source. So the risk that it carries in contaminating the whole southern area is there. And nobody is thinking that it's a concern.
So you would say that the biggest victims of this case is the Okavango community?
They are the first directly impacted people because of bad or irresponsible decision making by our government. But they are not the only ones. If ReconAfrica can get away with it there, they're going to get away with offshore drilling as well. They have been getting away with it with mining activities.
The environmental impact assessment talks about public consultations with directly affected people or interested people, but none of this was done. They're doing it now after they've signed an agreement. That's not okay. I feel like as they learn more about this project, the community should have been learning with them so that they can understand and engage.
I feel like the community at least had to be consulted before they started drilling the first holes, but there's been two or three holes drilled already?
They've done three wells that I know of, and they've requested for more, but things have stopped for now. I believe that there was a notification that they wanted to proceed, and the Parliamentary Standing Committee had a meeting at the end of September where they said that they're not going to place a moratorium on the activities of ReconAfrica. They're going to allow them to continue because there's too much money involved. The investment that they've made is too much. That leaves the question, investment versus the community members, the natural resources, the animals? There's no comparison.
So the government and the ministry is basically as big a perpetrator as ReconAfrica is? Because they're not even protecting their own people, their own land. It's crazy to think it's the environmental ministry that allows something that would be so detrimental to the environment.
Clearly there's no urgency in his mind (Namibia Minister of Environment) because we appealed the decision by the environmental commissioner. I'm saying we, but our clients did, in 2020 and 2021, but we never got a hearing, which is why we applied for a mandamus to stop all the activities until we've been heard. However, the court said it wasn't urgent. So we went back to the appeal process. We never got a date until April this year 2023. We've been heard, but we've still got no judgement. We've asked them for a judgement date, they said they'll give it soon. Then it went quiet.
There's also this cost order hanging over our client so they're not eager to continue any legal cases or legal steps. But we need to. It's on their heads, but they're not intimidated by it. They want us to proceed. So we are considering going to court and asking for a mandamus again.
It's more than half a year now that we’ve been waiting on a judgement. It's unacceptable. Where is democracy in this? Our people have a concern which is not being addressed. So how can they continue with the next step if, if they're not being given a favourable outcome.
I know that the minister from the agriculture ministry said that he didn't give permission for the water usage?
Yes there was no water usage and no proper land rights given, whether it's by leasehold, whether it's by customary rights, they didn't get proper ownership in terms of utilising that land. So like I said, they completely could avoid certain legal processes without anybody saying anything.
What would you say are some of the main misconducts that they took?
They weren't supposed to add new roads, they added new roads. They had to clear roads, they said it was done under the auspices of creating fire protection lines, but the size of the roads are too small to be called a fire protection line. You could really see the, I don't want to say incompetence, but the immaturity and amateur aspect of this company. Because they are a new company, I don't think they know what they're doing.
That was the one side of it all. The other one was the damage to people's houses, where the seismic surveys were being conducted. They had cracked some of the people's huts, because it's made from clay. They (community members) actually wanted to complain but then they were compensated. There are a lot of activities happening that are just detrimental.
This is the initial phase and there's already been damage done with the first two holes drilled. Can you imagine the damage after a year of this, or two years, or five years?
What if there is a spill? What responsibility or ethical duty do they even have? What conscience do they even have to report this? The proper degree of damage or the proper amount or anything like that. It's just too much, too soon, because you can't trust them. They don't respect the community by not giving them information that is correct and honest and truthful. They don't wait for consent. They do what they want. They don’t follow the law. They're in cahoots with the government, whether it's officials or whether it's individuals or whether it's the ministry. We don't know.
So your appeal that you took to court, just so that I have a better understanding of it, you're basically asking the ministry to deny ReconAfrica’s exploration licence?
We appealed the Ministery’s decision to let ReconAfrica do exploration in the area and we brought an application to the minister to ask that he stays the activities until he makes a decision about the exploration licence.
However, he refused to even accept that we applied, so we went to the high court just on that portion of the urgency of the staying of the activities. However, the high court found that we had to compel him rather than to ask the high court to make a decision. So, the high court has got this inherent jurisdiction and it chooses not to exercise that and not to get involved.
Now we are back in the appeal court waiting for the minister to make a decision, which he still hasn't made, but it's academic really because the activities have stopped.
We don't know what's going on, we don't know where in the process Recon is. They have cases brought against them for fraudulent misrepresentation in the United States. The bad publicity has ticked the investors and the investors have started withdrawing.
Do you hope to stop Recon Africa from doing exploration in the Okavango Delta area or do you hope to also take it further and allow no companies in that area?
We stand for law reform and we would like the court's appeal procedure to interpret the proper process, what is a reasonable time to give answers to the community in order to give effect to the rule of law.
We believe we're supposed to be a democracy, our constitution has got beautiful laws, but if we cannot implement them for the purpose that they've been designed, then we are failing. So, it's about the law. It's about applying the law. It's about free prior informed consent to give, to give substance to what that means, to give our local people and our indigenous people an avenue to really stand up and be heard.
Any last words that you want to add?
I still believe Namibia's got lots of resources and we've got all the available opportunities. But, if it continues to be applied without the input of the people, we are not just going to lose our resources, we're going to lose our country.
We can fix it, but we need to recognize that the state is the people, it's not the government. The state is just the institution through which the people can speak, and the government needs to respect that. The resources are not theirs to give away.
This article is part of our current reporting project "Dismantling the Fossil Fuel Industry".
