Mining in Conservancy Areas

Why do conservancies have fewer rights than private landowners?

Namibia’s conservancy movement has been successful in protecting endangered wildlife and creating ways for local communities to benefit from tourism income linked to the wildlife.

As of the end of 2022, community conservation had contributed more than N$13 billion to Namibia’s net national income.

In 2022 alone, conservancies generated over N$140 million in cash and in-kind benefits for rural communities, generating more than 3 000 jobs.

In addition, they contributed to wildlife recovery and environmental restoration.

Several recent court cases have highlighted potential conflicts between the role of conservancies and mining activities in key wildlife conservation areas.

These potential conflicts should be addressed through the environmental impact assessment process, but weaknesses in the relevant law undermine the protections of this mechanism.

Moreover, the laws on mining provide for compensation and fee-sharing in respect of private landowners, while communities who live on communal land have no corresponding rights in respect of land that forms the basis of their livelihoods.

This article takes a closer look at problems with the relevant laws.

What is a conservancy?

A conservancy is a group of people living on communal land who have been granted rights under the Nature Conservation Ordinance to engage in the sustainable management and utilisation of game in a defined area and to benefit from that wildlife.

To be recognised as a conservancy, the group must represent the community living in the conservancy area.

It must have a constitution that provides for a conservancy committee elected by members of the conservancy, and regular meetings with the entire community.

It must have a game management and utilisation plan and a method for the fair distribution of the benefits derived from the wildlife in the conservancy area among all conservancy members.

Once the conservancy’s establishment has been approved by the Ministry of Environment, Forestry and Tourism, the conservancy has the power to enter into agreements related to consumptive and non-consumptive use of the game in its area – such as joint venture agreements with tourism operators and arrangements for legally permitted hunting.

These are the most common mechanisms local communities use to reap financial benefit from their conservation efforts. There are currently 86 recognised conservancies in Namibia.

What rights do conservancies have in respect of mining activities within the conservancy?

Almost none compared to the rights of private landowners.

Under the Minerals (Prospecting and Mining) Act, private landowners must be given a written notice of any mining claims on their land, including the particulars of the claim holder and the location of the claim.

They must be notified of the transfer or abandonment of any mining claim on their land.

However, people living on communal land have no rights to be notified of such developments unless they are leaseholders of the relevant area.

Private landowners also have rights to compensation which residents of communal land do not.

In general, holders of various mining licences are required to enter into agreements with the owners of private landowners for compensation for any adverse effects resulting from the mining activity, including the impact of “accessory works” such as roads, airfields, boreholes, dams, buildings, campsites and waste disposal sites.

A private landowner also has the right to compensation for any damage caused to the surface of any land or to any water source as a result of mining operations.
However, people who live on communal land do not generally have corresponding rights, even though the damage caused by mining could affect their utilisation of the land and the wildlife that inhabit the area.

There is special protection in the mining law for farming activities.

When prospecting or mining operations “prevent the proper use of the land wholly or partly for farming purposes,” the landowner can request that the miner must buy the land affected by mining – and the ministry can insist that this takes place.

But there is no corresponding right to compensate communal farmers or conservancies for mining operations which interfere with their ability to generate income from the land.

In addition, mining rights holders are expected to reach agreements with private landowners to enter their property for mining operations, to erect accessory works, to obtain water or to dispose of water or any other waste.

If the private landowner unreasonably refuses to grant such rights, the mining licence holder can ask the mining commissioner to intervene.

But again, in most cases there is no corresponding protection for communities residing on communal land.

There are a few protections for state land used for certain listed purposes such as cultivation, kraals, boreholes, wells or springs.

In these limited cases, mining activities on that land require specific prior written permission from the owner of such land – but in the case of communal land, that permission would come from the state and not from the communities who live on the land.

The only provision which might apply directly to conservancies is one which states that mining activities that might conflict with any law regulating land used or reserved for any “public purpose”  requires the prior permission of the minister – but there is no indication that this provision was written with conservancies in mind.

Perhaps the most egregious point of discrimination concerns mining licence and claim fees.

Half of such fees must be paid to the landowner in respect of mining licences involving private land. But mining in communal areas generates no fee payments for communities living there.

Aren’t conservancies protected through the environmental assessment process?

No, because the requirements for public consultation are weak.

The Environmental Management Act requires a public consultation process for all applications for environmental clearance certificates.

The weakness here is that only consultation with the relevant organ of state is mandatory.

Consultation with other “interested or affected persons” is at the discretion of the minister or the environmental commissioner.

If wider consultation is conducted, the regulations require that notice must be given to “all potentially interested and affected parties” – including written notice to the owners and occupiers of land adjacent to the site where the activity in question will be undertaken.

Notice must also be given to the traditional authority where the site is situated.

The person conducting the consultation must ensure that the interested and affected parties receive all relevant information, and that the consultation is facilitated in a way that provides all these parties with a reasonable opportunity to comment on the application.

But a loophole is written into this part of the law as well: The environmental commissioner has the power to dispense with the notice requirement altogether.

What should be done?

Conservancies and other residents of communal land should have the same type of rights and benefits as private landowners in respect of mining in their areas.

The current approach simply discriminates against those who live in communal areas, on land which they are unable to hold as private land.

It should be a requirement that the views of conservancies must be solicited in respect of all applications for environmental clearance certificates that affect their areas.

Otherwise, they are in the contradictory position of having a statutory responsibility for the sustainable management and utilisation of game in the conservancy area without having the tools needed to fulfil this duty.

Mining activities can often be organised in a way that is compatible with wildlife conservation, but the failure to ensure that this is the case could undermine the extraordinary success and sustainability of Namibia’s conservancy movement.

• Dianne Hubbard is a legal consultant with experience in public interest law and a passion for trying to make legal issues clear and accessible.