Judge slams minister for abuse of power over mining in Okavango Delta

Justice Bugalo Maripe of the Maun High Court has criticised Minister of Minerals Lefoko Moagi for refusing to renew a prospecting license for Tsodilo Resources, the parent company of Gcwihaba Resources. The company sought renewal of its license which was due for renewal in 2018 but refused extension by Moagi. Handing down judgement recently, Maripe found that the Minister used his powers not to attain the objects of the Mines and Minerals Act, but to achieve other objects which suited the Minister’s own policy, which is to ban altogether prospecting and mining activities in the buffer zone, when no legislative framework forbids it. [ihc-hide-content ihc_mb_type="show" ihc_mb_who="1,3,2,4" ihc_mb_template="3" ] Maripe said it was also remarkable that UNESCO does not insist nor has imposed any conditions regarding a total ban on prospecting and mining in the Delta’s buffer zone. Justice Maripe said it was not stated how Gcwihaba was resisting compliance with guidelines intended for the protection of the heritage site (Okavango Delta). “It should be recalled that the heritage site or the ‘Property’ is the core zone. The buffer zone is not part of the core zone. Even then, it was never the Minister’s basis for rejecting the application that there were activities carried out by the company that were not in compliance with any guidelines for the protection of either or both the core and buffer zones,” said Maripe. Regarding Moagi’s argument that the company “has not undertaken any Environmental Impact Assessment measures as required in World Heritage Site despite holding licenses” in the site for several years, Maripe found that it was never the Minister’s position or complaint that Gcwihaba was in default of any environmental protect measures. “The Minister’s position was always that the coordinates of the area applied for be adjusted so as to remove the license area from the buffer zone. To this extent the Minister’s position is a misdirection, and introduces fresh basis for rejecting the license,” said Maripe. He added; “This would not avail the Minister as this would violate the audi principle (the right to be heard) to the extent that it attributes untoward or illegal conduct or practices on the part of the applicant and it was never allowed an opportunity to deal with it.” Maripe said the condition laid down by the Minister was to disallow altogether any prospecting activities in the buffer zone, and “for that reason, he was bent on withholding the grant of a renewal until the applicant complied with this condition.” “He was in effect cajoling the applicant to fall into his scheme before he could exercise his powers under Section 17,” said Maripe adding that “To the extent that prospecting activities are not prohibited in the buffer zone, the Minister’s position was abuse of power.” Maripe also found that; “The condition for the alignment of coordinates to leave the area applied for from the buffer zone is being dangled as a condition for consideration of the application and is held in terrorem (a legal threat) over the applicant’s head with a clear message that unless it complies, it must kiss the renewal goodbye.” According to the judge; “This is use of power for an improper purpose; I hold therefore that the applicant has established a case of use of power for improper purposes.” The issue of the EIA (Environmental Impact Assessment) Maripe said; “comes across as a veiled attempt to demonstrate that the applicant is in some respect delinquent as regards its responsibilities in terms of the license conditions.” “A picture is painted of the applicant having been intransigent or otherwise recalcitrant in persisting on the renewal in terms of the previous or adjusted coordinates that still fall into the buffer zone,” said Maripe. He said Moagi does not say in his answering affidavit that at any point the company was required to do an IEA. The Judge said the other issue to consider was the Minister’s position that prospecting activities are prohibited in the buffer zone. “I observe that the Minister’s position in this regard is not consistent. The position as appears from documentation provided, and accepted,” said Maripe. Maripe said the reason for the divergent positions held by both parties was whether or not the applicant’s licensed area should fall within the buffer zone. He said the dispute was fueled further by the establishment by the Government of Botswana of a ‘buffer zone’ around the core zone. The buffer zone seemingly encroaches on a portion of the applicant’s licensed area. “There is little dispute between the parties as to the developments surrounding the classification of the Okavango Delta as a core zone and the establishment of a buffer zone around it. The difference lie in the implications for the licenses arising from the establishment of the buffer zone,” said Maripe. Maripe said in July 2014 the Okavango Delta was declared a World Heritage Property by the United Nations Educational Scientific and Cultural Organisation (UNESCO). “In that status, it is called the ‘core zone’ and became subject to protection measures from activities which would compromise its status as the ‘nominated property.’ These activities include exploration and mining activities,” said Maripe. He said the buffer zone was established over a portion of an area in respect of which the company held the prospecting license. “This development has set the parties on a collision course. The dispute in this matter is essentially about the implications of the establishment of the buffer zone on the license,” said Maripe. He said it would seem the difference in the parties’ positions lies in that in the understanding of the Minister, that status requires cessation of all exploration and mining activities in the buffer zone while the company on the other hand holds a contrary view. “The applicant was not in default and so the first basis for rejecting its license falls away. The issue of the coordinates encroaching into the buffer zone must be assessed to determine whether it falls within the broad scheme of the programme of operations being inadequate,” said Maripe. [/ihc-hide-content]

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Judge slams minister for abuse of power over mining in Okavango Delta

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