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The Namibian (Windhoek)
21 April 2008
Posted to the web 21 April 2008
Werner Menges
Windhoek
A Bid by the owners of an Usakos area farm to prevent the company planning to develop the Valencia uranium mine from using large quantities of groundwater for the construction of the mine failed in the High Court in Windhoek on Friday.
Judge Collins Parker dismissed an urgent application that Namib Plains Farming and Tourism CC, a close corporation which owns the farm Namib Plains in an arid area some 50 kilometres southwest of Usakos, had filed against Valencia Uranium, Government, the Ministers of Agriculture, Water and Forestry, Mines and Energy and Environment and Tourism, and the owner of farm Valencia two and a half weeks ago.
The owners of Namib Plains wanted the High Court to stop Valencia Uranium from extracting water from boreholes in the Khan River or in an ancient underground water reservoir in the area, referred to as the Khan palaeo channel.
They also asked the court to review and set aside four water permits that the Permanent Secretary of the Ministry of Agriculture, Water and Forestry granted to Valencia Uranium on February 12. These permits allow the company to drill boreholes in the Khan River and Khan palaeo channel, and to extract up to 1 000 cubic metres of water - that is a million litres of water - a day from these underground water resources.
The farm owners protested the awarding of the permits, charging that as affected parties they were not consulted before the permits were granted, while the permits were issued without proper scientific information being available on the size and sustainability of the water resources to be exploited. Lawyers representing Valencia Uranium responded that the company not only planned to extract underground water for the construction of a mine at farm Valencia, but in the process would also collect scientific data on the underground water resource which should assist Government and farmers in getting a better idea about the subterranean water resources in that area and the possibilities for the sustainable use of these.
The permits were issued to Valencia Uranium in terms of a proclamation under the 1956 Water Act that had supposedly declared the Khan River and Khan palaeo channel as subterranean water control areas. This proved to be the detail that tripped up the owners of Namib Plains in their bid to get the court's assistance to protect water resources in their area. During the hearing, one of Valencia Uranium's lawyers, Susan Vivier, argued that the farm owners had failed to disclose the proclamation in terms of which the Khan palaeo channel had been declared as a subterranean water control area.
She also argued that in terms of the Water Act, water in the Khan riverbed area is not defined as subterranean water - with the effect that neither the Khan River nor the palaeo channel are water control areas in terms of the Water Act. With no proof of the proclamations on which the permits are supposedly based before him, it "would be tantamount to the Court perpetuating a legal lie, so to speak" if he made a decision on the merits of the application, Judge Parker stated.
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"As I say, as far as this Court is concerned, the legal reality is that the aforementioned permits do not exist: it is as if they had not been issued at all. If that is the case, as I hold it is so established, then logically there is nothing in respect of which an application in the nature of the present application can be brought in this Court for the Court to hear and determine it."
Judge Parker, noted that in his opinion the nature of the case did not merit awarding legal costs against the farm owners. Valencia was represented by two instructed counsel - Vivier and Esi Schimming-Chase. Vivier and Schimming-Chase were instructed by Elise Angula of LorentzAngula Inc.
Raymond Heathcote and Dr Sakeus Akweenda, instructed by the Legal Assistance Centre, represented the farm owners.
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