- Court Reinstates Gcwihaba Resources (Pty) Ltd’ Okavango Delta Prospecting Licenses
- Minerals Minister Lefoko Moagi had refused to renew prospecting licenses citing Delta listing by UNESCO
- Court rule prospecting and mining activities are allowed in the Okavango Delta buffer zone
- The international community cannot be expected to complain and revolt over that which is legal
On December 15th Maun High Court Judge Bugalo Maripe rendered judgement in the litigation case brought by mining company Tsodilo Resources against Government of Botswana related to the prospecting license renewal for the Xaudum iron formation (XIF) project.
In October 2022,Gcwihaba Resources (Pty) Ltd, a wholly owned subsidiary of Tsodilo Resources initiated litigation proceedings against Ministry of Mineral Resources, Green Technology and Energy Security over the renewal of their prospecting licenses along the XIF located in the buffer zone of the Okavango Delta.
Gcwihaba Resources was first granted prospecting license No: 386/2008 and six other licenses called ‘contiguous licenses’ in 2008 for prospecting Xaudum. All these licenses were successfully renewed by Minister from 2011 until 2021 when the Minister raised some issues citing the listing of the Okavango Delta as a World Heritage property in 2014 by the United Nations Educational Scientific and Cultural Organization (UNESCO.)
In July 2024, The Okavango Delta was declared UNESCO World Heritage Site. As per that UNESCO status the Okavango Delta is identified as the ‘core zone ‘and became subject to protection measures from activities which could compromise its status as’ nominated property.’ These activities include exploration and mining activities.
Following that declaration, the government of Botswana established a ‘buffer zone’ around the core area. This was established in 2014, in terms of clause 104 of the World Heritage Operational Guidelines for the implementation of the world heritage convention of July 2013, a buffer zone is:
‘As area surrounding the nominated property (core zone) which has complimentary legal and / or customary restrictions placed on its use and development in order to give an added layer of protection to the property.’
The declaration of the Okavango Delta in 2014 however found existing exploration licenses for Gcwihaba Resources (Pty) Ltd which had continued to be renewed by mineral ministry even post the Okavango Delta UNESCO declaration of 2014.
This changed as in January 2021, Gcwihaba Resources had four of their five licenses that contain majority of their XIF exploration target renewed. However, the fifth license renewal would later become a subject of delays and a consequent protracted court case.
After one delay after another, Minerals and Energy Minister Lefoko Moagi informed Gcwihaba Resources by writing that fifth license area is within the Okavango Delta buffer zone area and therefore requires environmental assessment measures as per the conditions of the Delta UNESCO listing.
Gcwihaba had argued that that the demarcation of the buffer zone found their existing prospecting licenses which were renewed a couple of times.
The Ministry, however, advised on June 15, 2022, that the license would not be renewed if it included any areas located within the buffer zone leaving Gcwihaba with the only option to approach the Maun High Court.
This week Judge Maripe ruled to reverse the decision of the 1st Respondent rejecting the application for the renewal of the Applicant’s prospecting license (020/ 2018) as illegal, unreasonable and or irrational;
Judge Maripe further ruled that the decision of the 1st Respondent rejecting the application for the renewal of the Applicant’s prospecting license (020/ 2018) being set aside;
He further ordered the 1st respondent to renew, within 14 days of this order, the applicant’s license (020/ 2018) subject only to justifiable safeguards necessary for the protection of the heritage area. Such safeguards are not to include any further demand for reduction or shifting of the license area or its coordinates;
‘’Following renewal, the 1st Respondent is ordered to align the effective dates of contiguous licenses PL 021- 026/ 2018 with that of the renewed license; the Respondents shall pay the costs of these proceedings’’ reads Maripe’s judgement.
Delivering judgement Maripe observed that the buffer zone at the centre of this case, is an area established and controlled by the state party, in this case The Government of Botswana. He said therefore the buffer zone is not part of the Okavango World Heritage Property which is understood to be the ‘core zone.’
Maripe said Minister Moagi position that prospecting and mineral explorations are prohibited within a buffer zone is contradictory. The Minister contradicts himself when states that in cases where they are permitted, there should be subjected to stringent environmental protection measures.
Judge stated that these two positions are mutually exclusive of one another and cannot go together. It is either one or the other.
‘’Therefore, to the extent that the Minister takes the position, and refused the renewal application on the basis that prospecting and mineral activities are prohibited in the buffer zone, his decision is bad, and cannot stand since it is based on a wrong application of the law and on a flawed factual premise. It is for that reason unreasonable and stand to be set aside.’’
He further observed that Government has since the commencement of the World Heritage Site, actually allowed certain activities in both the core and buffer zones. They pointed to the construction of Mohembo Bridge (2016-2022) in the core zone and Shakawe Hospital (2017-2019) and Shakawe Airport (2014-2016) and Shakawe Centre (2017 -2019.)
Maripe added that the Government refusal to renew the licenses was influenced by possible embarrassment and other negative reactions from the international community that the Minister envisages might befall the country. ‘Since prospecting activities are not prohibited in the buffer zone, the Minister decision is based on irrelevant considerations. ” The international community cannot be expected to complain and revolt over that which is legal.”