In recent years, there has been a significant global spike in litigation relating to a variety of Environmental, Social and Governance ("ESG") issues. Specifically, the institution of legal challenges geared towards climate change mitigation against oil giants or high carbon-emitting industries has been on the rise.
The legal landscape is seeing an uptick in cases where litigants successfully argue that state entities and corporations have a duty to mitigate climate change, under the umbrella of human rights principles. This implies an expanding understanding that human rights protection, current and future, entails defending all individuals from harmful environmental impacts.
Namibia's domestic and international commitments
Namibia has committed, both domestically and internationally to the implementation of climate change mitigation strategies. As observed with the ESG and climate litigation cases in other jurisdictions, such commitments have underpinned litigants' cases in holding states and corporate actors accountable for their actions (or inaction) in contributing to the climate crisis.
UN Guiding Principles on Business and Human Rights
Namibia has assented to the UN Framework on Business and Human Rights. This framework categorically recognises that states must protect persons within their jurisdiction from human rights abuses committed by corporate enterprises. Corporate enterprises are similarly given the responsibility to respect human rights wherever they operate, regardless of their size or industry. This responsibility means businesses must know their actual or potential impacts, prevent and mitigate abuses, and address the adverse impacts of the activities in which they are involved.
Nationally Determined Contributions ("NDCs") under the Paris Agreement, 2015
Namibia is a party to the Paris Agreement, 2015 which is a legally binding international treaty that sets long-term goals to substantially reduce global greenhouse gas emissions to curb the global temperature increase. In pursuance of the Paris Agreement, each country is expected to submit an updated national climate action plan – known as an NDC. By way of the NDC, Namibia has committed to take actions to reduce its greenhouse gas emissions – as much as 91% below business as usual by 2023 – to reach the goals of the Paris Agreement.
National Policy for Climate Change in Namibia
Namibia has implemented a national framework that provides guiding principles for the adoption of mitigating measures against predicted climate change, and the impacts thereof on its population and industries.
Similar to the global trend, legal challenges could be launched in Namibia based on domestic and international commitments to climate change mitigation if ESG imperatives are not prioritised.
Global trends in ESG: Human rights based approach
As an emerging trend, the application of human rights law and remedies to address climate-related issues has gained momentum. There's a growing global acknowledgement of the deep-seated linkage between the protection of human rights and the entitlement to a clean environment, as demonstrated by the ground-breaking resolution the UN Human Rights Council passed in October 2021, affirming this right.
Several cases have been initiated against states, recognised as the principal protectors of human rights within their jurisdictions, even though lawsuits targeting corporate abuses of human rights are also on the rise. An example of this trend is the recent class action case in South Africa, where around 140 000 women and children from Zambia's Kabwe mining town took a stand against Anglo-American South Africa Limited, accusing the multinational corporation of lead poisoning in an area around a mine it previously owned.
Similarly, in 2021, the United Kingdom Supreme Court allowed a class action to be filed by Nigerian fishermen and farmers suing Shell for damages arising out of continued oil spills in the Niger Delta that resulted in contaminated land and groundwater.
Global trends in ESG: Continued expansion of fossil fuel cases
Climate litigation cases have also been geared towards the phasing out of fossil fuels. In the Global South, an increasing amount of challenges have been brought against the expansion of fossil fuel explorations and the granting of permits for new fossil fuel projects. This includes, for example, the recent challenge against the expansion of a coal mine in Australia as well as the successful challenge against the Argentinian State's decision to greenlight a new offshore oil drilling project.
ESG litigation potential in Namibia
ESG litigation can be brought through the courts, tribunals or before quasi-judicial bodies such as the Ombudsman. In Namibia, legal challenges involving ESG risks have mostly occurred in tribunals or quasi-judicial forums as opposed to superior courts.
In 2022, concerned residents of the Kavango East and West Regions lodged an appeal with the Minister of Environment, Forestry and Tourism against the Environmental Commissioner's decision to permit an oil exploration company to increase its onshore operations. The appeal's premise is that the decision disregarded potential negative effects of the expanded exploration on local communities, wildlife, and natural resources. While this case doesn't precisely fit into the realm of climate change mitigation litigation, it nonetheless points to a trend of resisting carbon-intensive industries due to inadequate public engagement. This situation echoes the landmark judgment levelled against Shell regarding its proposed exploration activities along South Africa's Wild Coast.
It is important to note, however, that class actions are not recognised in Namibia because legal standing is limited to individuals with a "direct and substantial interest" in a matter. This poses a potential barrier to representative standing and it remains to be seen whether courts would be prepared to employ a liberal approach to allow the class actions to ventilate ESG issues. Accordingly, the issue of locus standi will be an important factor to consider for any potential litigant in instituting an ESG-related case in any Namibian court.
Avoiding legal challenges by minimising ESG failures
A growing number of global legal challenges (and victories) have put into sharp focus the recognition and protection of human rights in relation to climate change mitigation duties of governments and businesses. These cases have had a direct impact on policies in their respective jurisdictions and have developed the discourse relating to ESG prioritisation.
In the Namibian context, the Namibian government has committed itself to certain international climate change policies and standards which potential litigants could rely on to compel the State or even corporate actors to adhere to if the obligations contained therein are neglected. Coupled with the growing trend towards climate litigation, the Namibian government and corporate actors operating within the territory would be the wiser to proactively minimise the risk of ESG failures which could potentially leave them exposed to legal challenges in future.
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