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Commentary on the Environmental Assessment Report of the Feasibility Study on the Proposed Lower Cunene Hydropower Scheme

December 30, 1997

Sidney L. Harring

 

My comments are limited to those portions of the Environmental Assessment Report that deal with issues relating to the peoples who live in the impacted area of the Lower Cunene River, chiefly the Himba. Both international law and recognized professional standards require a very elaborate programme of study, consultation, careful scoping out of potential negative impacts on affected people’s lives, and a social mitigation programme for this Feasibility Study. This Report simply does not do this, a point conceded on page 2 of the Executive Summary. Hence, the Environmental Assessment Report of the Feasibility study is necessarily so incomplete that any scheduling of public hearings is premature: none of the project’s social issues can be adequately addressed in hearings until a full social mitigation study is completed.


Given the critical importance of these matters, the omission can in no way be seen as inadvertent. It is clear that the authors of the Feasibility Study chose to ignore matters having to do with the Himba-- including the impact of the Epupa Dam on displacing their traditional culture, their traditional ownership of the Lower Cunene River lands that will be inundated by the dam, and the inadequacy of any scheme of social mitigation given the practical realities of life on the Namibian border and the global record for such mitigation programmes in general -- a record that is fraught with failure. What data is included on social issues is flawed to the point of being misleading. The scant information on the social impacts trivializes the Himba culture and economy, minimizes the project’s impacts on the Himba way of life, glosses over the Himba’s land- and water-rights, and offers a glib assessment of the resettlement costs.

My own interest and expertise is that I am a lawyer and a sociologist who has been active in the area of the law of indigenous rights for more than fifteen years, working in the United States, Canada, Australia, Malaysia, and Namibia, among other places. I was a Fulbright Professor at the University of Namibia in the fall of 1995, and while there became interested in the Epupa Dam issues.


I. The Failure of the Environmental Assessment Report to Include a Discussion of the Situation of the Local Inhabitants of the Lower Cunene

As noted above, the study is not based on participation of affected people, and does not include a social mitigation programme, both of which are required by international law and accepted professional standards. The relevant language of the Executive Summary (at 1.4) appears to deny the responsibility of the study authors’ for the lack of consultation with the Himba, as noted in the following sections:

"To meet the criteria of a nationally and internationally acceptable EA Report, involvement by local communities in the design of the Scheme and development of appropriate social mitigation measures must be demonstrated. The defined areas of responsibility concerning the Lower Cunene Hydropower Scheme clearly state that it is the Client’s responsibility to facilitate the community consultation process.

"In the view of NAMANG there has not been sufficient dissemination of information concerning the Scheme, or local community consultation, participation, and involvement in the details of site selection and development of an acceptable social mitigation programme. This programme must be finalised through dialogue with the affective parties; a consultation process that NAMANG would expect to be involved in but that could not be effectively initiated to circumstances in the Project area outside the Consultant’s control. Given this, NAMANG has not included in this EA Report the Project specific material of Chapter 13, Social Mitigation Programme. The omission of this element renders this an incomplete EA and subsequent measures to facilitate community participation will have to be carried out to complete this Report to international "bankability" standards." [Executive Summary, 1-1; 1-2]


On one hand, my comments might simply end here: NAMANG concedes that it authored "an incomplete EA". The remedy is for them to go back and write a complete Environmental Assessment, and then bring it forward for public comment. But the two paragraphs above are both dishonest and disingenuous, and represent a complete abdication of NAMANG’s responsibility to even consult the Himba.

The Himba have informed themselves about the scope and nature of the Epupa Dam project, in spite of a good deal of confusion and misinformation circulated by various parties, and have consistently made themselves available to present their views at numerous meetings.

I was personally present at one of those meetings, held on 21 August 1995 at Epupa Falls, as was Mr. Burmeister, Director of the Environmental Assessment Report team. There were at least 50 Himba present at that meeting, demonstrating their accessibility for consulting purposes. Mr. Burmeister clearly stated that the plan was to build a very large dam at Epupa, and he accurately described something of its extent in English, a description that was translated into Portuguese and Herero, the language of the Himba. A number of Himba spoke in response -- perhaps eight or ten speakers -- saying clearly that they did not want such a dam on their land and that such a dam would destroy their traditional way of life. Specific and detailed information was presented by these speakers. An extensive and heated exchange followed, lasting perhaps two hours, and there was a detailed and broad exchange of views. So it is clear that both NAMANG and the Government of Namibia have long been aware of the nature of the Himba’s objections to the project, and of the complexity of their position.

At the end of the meeting both Mr. Burmeister and Minister of Mines and Energy Toivo ya Toivo, who conducted the meeting, expressly stated that they had heard the views of the Himba, would take them into account and would, as a part of the Feasibility Study, carefully study the situation of the local inhabitants, fully consult them, and take their views into account in the course of the study. As I write this, two years and four months later, it is clear that this simply was not done. The EA dismisses this task as seemingly impossible, or the responsibility of the "client" -- presumably the Government of Namibia. For example, at 16.3.1 "Synopsis of Consultation at Local Level," the report blames everything from "bad translators", "lack of commitment", "poor communication" to "polarisation" for the lack of data in the report. It also dismisses the actual content of disagreement between the Himba and the pro-dam forces over these issues. The Himba have a very good assessment about the amount of damage that the dam will do to them as a people: that is precisely the point of their participation in meeting after meeting.

This work is not impossible, nor is it expendible in light of reviewing the cost and benefits of this project. Good money was budgeted for this work, and Mr. Burmeister made personal assurances that it would be done. And yet this research still has not been done. Bluntly put, NAMANG did not produce a study of the quality and depth that it was paid to do: instead, it simply left out the most difficult parts.

While I cannot say why this study was not done, from my own knowledge of the situation, I deduce that there is only one possible reason for it: NAMANG wants the discussion of the project to go forward without an open discussion of the underlying issues relating to the Himba, and of their potential rights in the face of the project. Since the Executive Summary concedes that the report is incomplete, the remedy is to stop further discussion of the Feasibility Study until it is complete. To do otherwise is to let NAMANG take advantage of its own strategic omission of critical information.

To dismiss this lack of information as "the responsibility of the client" is unacceptable. NAMANG had a contract, $21 million, access to world-wide expertise, and Himba people in the immediate vicinity of their camp. That said, it cannot be denied that the client, the Government of Namibia, may have considerable co-responsibility here, or continuing responsibility for poor relationships with the Himba people, which is interrelated with the responsibility of NAMANG.


II. The Impact of the Epupa Dam on the Himba along the Lower Cunene River

Having already made it clear that the Environmental Assessment Report did not include consideration of issues relating to the Himba for reasons that no one can dismiss as accidental, I want to go on to include some of the kinds of issues that the Report could easily have dealt with, given the immense resources behind it.

The Himba, a traditional pastoral people numbering about 25,000, occupy both sides of the Lower Cunene. [The EA Report at 10.1.4.6 gives their Namibian population as about 12,000, consistent with this estimate of their total population in both countries.] On the Namibian side, the Himba and the related Tjimba are the only inhabitants. The Angolan side is both more populated, and also populated by peoples in addition to the Himba. I have no expertise on the situation of the Angolan Himba and confine my comments to the situation in Namibia. Obviously, however, some of the comments do apply to Angolan Himba.

The Himba engage in a number of agricultural practices, but subsist chiefly as cattle herders. Many thousands of cattle, grazing clearly understood areas, are the basis of the Himba economy. I will not repeat here the information contained within that study: a few sections of the study include some basic data on the Himba (e.g., Executive Summary 1-14; The Human Environment 8.2). To put this in context, this data runs only to a few dozen pages out of perhaps 5,000 pages in the complete Feasibility Study. The data presented is essentially accurate, but it is so limited that it provides no basis for making the difficult choices that must be made in the context of building a hydroelectric project of the scale of Epupa.

For example, the basic social data reported in 8.2 shows a relatively small, fragile community, based on traditional family lineages, with a very marginal economy based on cattle, goats, small gardens, and bee-keeping. This is precisely the starting point for a full social mitigation study, the study that was expressly not done here. There needs to be a very extensive study of the social, cultural and economic organization of the Himba to begin to understand how (or, more likely, "if") the impact of the dam can be mitigated. There already exists an extensive world-wide literature which reveals that traditional societies are easily disrupted and that the kinds of mitigation and relocation schemes that characterize large dams have a history of failure, of leaving indigenous peoples with shattered cultures, shattered family organization, high rates of alcohol and substance abuse, crime and prostitution. All of these impacts are well known in the social scientific literature, none of this should be new to those working on the Feasibility Study. Yet, they did not make any use of this literature, not even to frame the scope of their inquiry.

I detect disingenuousness here as well. For example, most of the economic data in 8.2.7 trivializes the Himba economy, emphasizing how small it is. This is largely irrelevant to any social mitigation study: whatever the Himba economy, it is their economy, the only sustenance they have. A small economy may be easier to replace from the simple standpoint of economics, because it is cheap to buy out and remove. But this says nothing about the meaning of that economy to the core of Himba culture, family, and social structure. The Himba economy is based on cattle herding, and the herding operation involves family, community, traditional political structures, and geography in many ways. The whole social structure, not just the economy, is based on cattle. The replacement of this economy is not the replacement of a few thousand dollars worth of cattle: this ignores the underlying cultural system. The destruction of this underlying cultural system through forced dislocation must be recognized and must form the core focus of the Social Mitigation Study.

Similarly, the matter of the Himba graves appears several times in the Environmental Assessment. Section 8.2.2 correctly recognizes that "graves are a key cultural issue," and records their number along the Lower Cunene as 165 (recorded) graves, both Angolan and Namibian sides counted. But the report says nothing about the core meaning of those gravesites in relationship to any Social Mitigation Study. Graves have complex cultural meanings, connected to genealogy, geography, even politics and economics. The Feasibility Study then (Section 8.2.10.2) appears to attribute the significance of the graveyard issue to "an attraction to the first world eco-movement and for many western outsiders", not only implicitly denying that the graveyards are significant to the Himba, but interjecting an irrelevant (and clearly political) concern into the Feasibility Study.

This raises a larger issue, the mapping or documenting of the Himba and other indigenous uses of the land. Traditional pastoral cultures in Africa are complex, rooted in the land in historically specific ways. Usage patterns are commonly acknowledged, and various hierarchies of property rights exist. There is a well established methodology for this kind of social geography, a kind of social "mapping" of traditional cultures and their use of the earth. (See Hugh Brody, "Maps and Dreams", Penguin/Canada, 1984). This kind of work should be the foundation to any kind of "Social Mitigation Study" for it is only through this kind of mapping can we know exactly what social mitigation is required. None of that work was done here.

I could go on, but because no Social Mitigation Study was done there is literally nothing to comment on. My point is that, even without the study, we know what is at stake here, and so do the authors of the existing Feasibility Study. There is a huge literature of Social Mitigation Studies and they all point to one conclusion: the damage done to traditional cultures by these kinds of schemes are enormous and unmitigable. The Himba have a complex and fragile social organization. The dislocation caused by the Epupa Dam is likely to destroy it. No social mitigation programme known to modern human science is likely to be adequate.

Looking at each potential dislocation individually, there are unique factors operating here that have not yet been properly studied or defined. The Himba are a poor people, with a small population, a young population, already stressed by health issues (Section 8.2.3). A cattle based economy requires a huge land area to sustain itself, making it a difficult economy to dislocate and re-establish elsewhere. This is especially true as the traditional rural land base in Namibia shrinks. Rather than address these issues directly, this Study has dishonestly by-passed them, separating them from the technical parts of the study.


III. The Himba and their Indigenous Land and Water Rights to the Lower Cunene River Area

The Environmental Assessment properly acknowledges (in Section 13.2.11) that, under international law and, probably also under Namibian law, the Himba have extensive land-tenure rights to their lands, including the actual site(s) of the proposed dam. These rights may include actual land title but, even if the government actually owns the land, indigenous occupants of the land hold well-defined legal rights to land tenure under both international and Namibian law. They also hold rights, as a people, independent of their land rights, to continue to exist as an indigenous people, carrying on a traditional way of life. Any dislocation of a people requires special measures to protect the targeted population, including substantial protection of cultural rights. There is a voluminous literature on this. (See James Anaya: "Indigenous Rights Under International Law", Oxford University Press, 1996).

Such a dislocation cannot be dismissed as an economic cost alone, as the Report does, referring to cost estimates of US$2,000-$12,000 to resettle each person (13.2.19). Through this logic, which appears to underlie the Report, since the Himba have a small economy and are poor, their dispossession should fall at the low end of the cost scale. Given the size and importance of this literature, the Environmental Assessment Report’s passing reference to these rights is inadequate, even offensive: it estimates the "total estimated cost [of the resettlement of the Himba] in the magnitude of $100 million (US)" then adds that "such a figure is far too high in the current project." All of this without any research at all on the life or culture of the Himba, the social meaning of their removal, the harm that it might cause, or any idea what kinds of lives that the relocated Himba might live. There is no more grazing land available in Namibia, so what, precisely, the authors have in mind is unclear. The Himba live in a stark land of deserts and mountains, sustaining their marginal cattle herding culture through generations of experience and imagination. This life style cannot be simply "relocated." Based on overwhelming world-wide experience, resettlement for this project will mean that the Himba will be left with no jobs or means of earning a living, their traditional culture destroyed, family linkages broken, traditional authority structures undermined, and small cash payments in their pockets.

I have written at length on the issue of the rights of traditional land holders in Namibia in "The Constitution of Namibia and the Land Question: The Inconsistency of Schedule 5 and Article 100 as Applied to Communal Lands with the ’Rights and Freedoms’ Guaranteed Communal Land Holders", South African Journal on Human Rights (p. 467, Volume 12, 1996) and will not repeat here any of the arguments I made there. Suffice it to say I believe that, under both international and Namibian law, the Himba hold substantial land rights here that must be addressed as a part of this Environmental Assessment Report.

There is clearly a complex indigenous land recognition scheme operating among the Himba, as acknowledged by the Report. At 8.2.8, for example, it notes that those engaged in farming "invariably saw the farm as their own property", while those engaged in cattle herding see a different kind of collective ownership. There are also apparently different levels of collective ownership, with headmen and some families having particular rights to portions of "collective" land. In addition, many of these "collective" or "communal" land tenure systems are not indigenous but are products of the South African and colonial regimes.

The Environmental Assessment Report is at one point condescending about the nature of Himba land title in a context that deserves comment. At the end of 8.2.8 the Report states that "Everyone perceives security of land rights as very high, possibly a kind of political statement. The property focus from a livestock husbandry perspective is not on land but on the animals." Land rights everywhere are linked with other political and social rights, as land is not an abstract concept, but one that has meaning only in concrete social, economic, and political contexts. It is strange indeed for the authors of the EA to somehow think that the Himba should link their land tenure system to other elements of their culture, any less than farmers or ranchers do in the rest of Namibia -- or anywhere else in the world. Similarly, the idea that pastoralists focus property rights on cattle rather than land only means that different kinds of property rights exist. No pastoralist anywhere has no interest in the land that the cattle live on. Different land tenure systems may underlie animal husbandry, but those land tenure systems are inextricably linked to the pastoral culture. Thus, the EA needs to spend considerably more effort addressing this complex and important issue.

It is not enough for the Environmental Assessment Report to acknowledge the Himba’s legal land rights in one line, then generally ignore its implications in the rest of the document and in the day-to-day reality of producing the study. For example, without consulting the Himba, NAMANG set up a large camp in the middle of their traditional lands, counted their gravesites, disturbed their herds with low-level helicopter flights and, in short, actively defied the traditional rights of the Himba, then complain that the Himba were not available for consultation.

Since this whole issue concerns the construction of a large dam across a river valley, it is important to note that Himba land rights carry parallel water rights: they have a traditional right to whatever water is necessary to carry on their existing economic and social activities. This water right both runs with their land rights, but is also independent because it is fundamental to their basic rights as a people to carry on their traditional way of life. There are a number of issues that flow from this assertion that must be addressed in the Environmental Assessment Report but were not. The first of these is obvious: a cattle based economy and social structure cannot exist without water. While there are numerous wells and water holes throughout Himba lands, the Cunene River is the major source of water. It is also the center of an ecosystem that is permanently watered in the middle of a large desert area. Thus, the Cunene Valley is a permanent resource that is especially important in conditions of extreme drought. It is also the cultural center of Himba society. Obviously, some water usages will still be possible after the dam is constructed, but the river valley will be changed forever. The EA Report does not address this change as it will affect the people who call the valley home.

Finally, while my own experience is with the Himba, it is important to say here that all of the traditional peoples along the Cunene River hold these land and water rights: my comments are specific to the Himba only in that I have researched their particular land rights.


IV. The Social Mitigation Programme

Chapter 13 of the Environmental Assessment, "The Social Mitigation Program," as we have already seen, is acknowledged to be incomplete because the Himba were not consulted, nor were their concerns adequately addressed. As a stopgap effort, the study instead presents a great deal of data from around the world that appear intended to show how the situation at Epupa can make use of international examples This is proved here through a kind of travelogue of one page "visits" to places around the world where indigenous peoples were displaced by dams, or other kinds of indigenous issues were addressed -- with references of one paragraph each, within a few pages, to Australia, Nicaragua, Canada, New Zealand, "Nordic Countries, the Swiss Alps, Nepal, Lesotho, India, Tanzania, Kenya, and a wide range of indigenous rights issues generally.

The scholarly quality of this work is very poor. These examples are drawn out from complex cultural contexts, with paragraphs cobbled together in a slip-shod form, full of conclusions that are misleading, or wrong. I suggest that anyone who doubts this conclusion consult the chart "Some Key Issues" in 13.2.3. The chart’s "key issues" are bizarrely presented and summarized. To define indigenous rights in Canada as "land focus" or in Australia as "(a) land rights formula key; (b) history implies also racial criteria highlighted" is so oversimplified as to be meaningless. The nature of these issues in each of these countries (Australia, Canada, New Zealand, Nordic countries, Nicaragua) are incredibly complex, and culturally specific. Issues of land rights take many forms, but are always interwoven with political and cultural issues.

Even beyond this, the clear message from this presentation is that these models present appropriate approaches for Namibia to follow and, that if Namibia follows these approaches, it will meet the appropriate world standards. This completely distorts the history of social mitigation programmes, most of which have been disasters and have not done the job they were intended to do. James Waldram’s study of the impact on hydroelectric power projects on the Indians in Northern Manitoba, Canada (University of Winnipeg Press, 1993) is one of dozens of studies that clearly demonstrate this. This material was fully available to the authors who wrote these one paragraph surveys but non of it is cited or used to inform the study, so the intent to distort is apparent.

Related is chapter 18, "Operator’s Village and Construction Camp." The impact of a modern city, even a small city, in the middle of the remote, desert society of the Himba is obvious. Paved roads where only dirt tracks now run will also disrupt Himba life. Epupa Falls is four hours by dirt track from Opuwo, the nearest village. There are only two villages in all of Kaokaoland. The changes brought about by the operators village and the road network will also be significant. Nothing of that emerges from this chapter: the villages are described in narrow, technical terms, completely without regard to their social impact.


V. Conclusions:

I have tried not to go beyond fair comment on the actual text of the Environmental Assessment Report. Given that the Environmental Assessment Report concedes that it does not meet recognized standards, that should be the end of this commentary. Indeed, it would seem that NAMANG has not carried out its contract with the Governments of Namibia and Angola to complete a study that meets modern professional standards. The Himba issue is not new, but was fully known at the time of the very beginning of the project.

It has to be obvious to everyone concerned that it was not an accident that the Himba were not consulted. They have been consistently opposed to the dam from the beginning for reasons that are well thought-out and rational from their point of view: they see the dam as doing great damage to their traditional culture in return for small, if any, contributions to the long term development of Namibia.

But the Report is even disingenuous about this, denying that the Himba were accessible for consultation when they have appeared at many meetings; denying that the Himba had basic information on the Epupa Hydroelectric Scheme when it is clear that they do; and blaming the Government of Namibia for Himba hostility that was at the very least contributed to by NAMANG.

Given a certain level of carelessness or inadvertence, if not dishonesty, manifested in the drafting process of the Environmental Assessment Report, it might be better that the new sections of the Report, those dealing with the impact of the dam on the Himba, be drafted by some new, outside group of consultants. In any case, the social impact of the Epupa Hydro-Electric Project cannot be evaluated when the Project’s own Environmental Assessment Report concedes that it is not complete, and the parts not completed go to the impact of the dam on the people who currently live on the land and stand to be displaced by it. International standards on this issue are absolutely clear, and these standards have been side-stepped by the existing Environmental Assessment Report.

There should be no public hearings at all on this woefully incomplete report. Indeed, separating the social concerns from the scientific ones is precisely the evil that is to be avoided by a full-scale Environmental Assessment Report. Large scale dams are no longer simply engineering matters: the human and environmental impacts are fundamental and must be given full weight. Since this information was not included in the study, the study should not be used further, in any context, until it is complete.

 

 

Sidney L. Harring
Professor of Law
City University of New York School of Law
Flushing, NY 11367
e-mail: har [at] maclaw [dot] law [dot] cuny [dot] edu

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