Title of paper

2. Namibian mining laws and policies

Shortly after independence, the Namibian government started to regulate the mining sector drafting policies and the Minerals Act. This reflects the overwhelming importance mining has for the development of the country. Today, there is a legal framework in place which is frequently updated and it tries to find solutions to new challenges like for example, the improvement of the petroleum law after the issuance of exploration licences for oil on the Namibian coast.
The left side of the table shows acts and regulations that are binding, whilst the right side shows policies which are non-binding, but rather a declaration of intent:

Constitution - art. 95, art. 100	Minerals Policy of Namibia
Minerals Act	Namibia’s Environmental Assessment Policy
Environmental Management Act	Policy for Prospecting and Mining in Protected
Minerals Development Fund Act	Areas and National Monuments
Diamond Act	Draft Nuclear Fuel Cycle Policy
Atomic Energy Act
Regulations for SEA and EIA
In preparation
Parks and Wildlife Management Bill
Pollution Control and Waste Management Bill
Water Resources Management Act

The Minerals (Prospecting and Mining) Act of 1992 is the most important law regulating the mining sector. Section 2 vests all rights in relation to prospecting and mining of any mineral in the state. This is in line with the Constitution which states in Article 100 that all natural resources belong to the state. The Ministry of Mines and Energy has the power to grant licences. The Minister and the Mining Commissioner, who is appointed by the Minister, are the relevant authorities in the permitting process. Although the Minerals Act requires the submission of an environmental impact assessment to obtain a mineral licence, (as does the Environmental Management Act) it does not provide guidelines for developing and reviewing environmental impact assessments. This is done by the Regulations for Strategic Environmental Assessments and Environmental Impact Assessments. The regulations are themselves based on Namibia’s Environmental Assessment Policy. The government had already adopted the Environmental Assessment Policy in 1994, therefore it is much older than the regulations and the Environmental Management Act (EMA) itself. The policy served as the non-binding guideline for the EMA and its regulations without having any legal weight of its own.

The Minerals Development Fund Act, the Diamond Act and the Atomic Energy Act do not provide for environmental impact assessments. They complement the Minerals Act in regulating the mining sector entirely.
Until today, there is no official environmental legislation enacted to specifically address mining in protected areas, especially in national parks. Uranium mining is mostly taking place in the Namib Naukluft National Park in the Erongo Region. In the absence of any laws regulating mining in protected areas, the Policy for Prospecting and Mining in Protected Areas and National Monuments (1999) was established. Though the government has not adopted the policy yet, there is an informal agreement among ministries to pay attention to it while deciding on the granting of mineral licences. The policy does not prohibit mining in protected areas including national parks, but calls for ministries to only grant a licence if the project is in the national interest of Namibia. Surely, this is no improvement in environmental protection since it is assumed that exploiting national resources is always for the benefit of the nation and thus in the national interest. Only the Parks and Wildlife Management Bill of 2008 was supposed to close this gap and regulate mining in national parks, nature reserves and protected areas. Alas, the Parks Bill is still work in progress. The Parks Bill will propose legal criteria to identify an area and declare it a protected area. Although mining in national parks will not be prohibited generally, the Ministry of Environment and Tourism, in collaboration with the Ministry of Mines and Energy, will be authorized to nominate areas where mining will not be allowed. Such areas that are now on protected land will include ecologically sensitive areas, areas with unique or high biodiversity, animal breeding grounds, and areas with other existing or potential economic value. The famous moon-landscape near Swakopmund might have the potential to become such an area where mining is prohibited.
Strikingly, besides the Parks and Wildlife Bill, some other laws dating from a decade ago, are also not in force yet. This is a common problem in Namibia whereby many laws have still not been passed after years of waiting. The Environmental Management Act of 2007 for example only came into force in 2012. Until then it was not possible to even appoint an Environmental Commissioner. Among these laws that are still in preparation are the Pollution Control and Waste Management Act and the Water Resources Management Act. While the first will regulate what happens to radioactive waste, for which Namibia has not found a solution up till today, the latter will substitute the Water Law which dates back to the 50s and is considered to be unconstitutional.