Yvonne Kose Chilume Plot 130, UNIT 1, NKWE SQUARE GABORONE INTERNATIONAL FINANCE PARK P O BOX 60778 GABORONE BOTSWANA Chilume and Company Attorneys copyright

CHILUME & COMPANY

Carbon Capture and Storage Research in South Africa 2nd South African CCS Week 26th October 2011

Yvonne Kose ChilumePlot 130, UNIT 1, NKWE SQUARE

GABORONE INTERNATIONAL FINANCE PARKP O BOX 60778

GABORONE BOTSWANA

Chilume and Company Attorneys copyright

CCS Legal and Regulatory activity in Botswana

Botswana Legal SystemKey Regulatory processes of CCSCurrent Legal and Regulatory Framework for CCSCommercial “pioneer” CCS projectsCCS related legislationAccess rights to third partiesManagement of transportation facilitiesInstitutional frameworkPolicy formulationRegional ApproachConclusion: Recommendations


Botswana Legal SystemRoman Dutch Law and Customary LawConstitution of Botswana is fundamental law

and sets up State Organs and contains the bill of rights and freedoms.


Key Technological processes of CCSDefinition or classification of CO2Site selectionWaste managementStorage facilityTransportationMonitoring programLong term risk managementStakeholder participation


Current Legal & Regulatory Framework for CCS No CCS specific legislationCurrent legal and regulatory framework exists in an

array of different pieces of legislation and may be adapted to CCS

Key CCS listed issues above relate to :Legal definition of CO2Property rights to sub surface landProprietary rights to CO2Varied liability issues associated with long term storageAccess rightsManagement of Transportation facilities Institutional framework


Commercial “pioneer” CCS projectsHigh demand for power generation caused by

population growth, urbanisation and industrialisation

Botswana Government promotes the use of coal reserves for power generation and provides an enabling environment as a policy maker

Mmamabula Coal Fired Power Station ProjectMorupule Power Expansion Power Project


CCS related legislation

Legal definition of CO2 – Waste Management Act – “hazardous waste or

industrial waste”Atmospheric Pollution (Prevention) Act

“noxious or offensive gas”Mines and Mineral Act “industrial mineral or

mineral”


CCS related legislation (cont.)Proprietary rights to CO2

If taken as mineral under Mines and Minerals Act, the rights belong to State “right to prospect and mine”

Botswana Power Corporation Act – power to acquire land and sell coal, fuel etc produced in the course of performing functions

Electricity Supply (Amendment) Act, independent electrical suppliers may acquire land and sell electricity

Industrial Property Act – capture technologies may be patented with brands and logos registered as trademarks


CCS related legislation (cont.)Property rights to subsurface land

Constitutional protection over property rights except compulsory acquisition with adequate compensation or carry out conservation of soil or natural resources

Land governed by various Acts (State Land Act, Tribal Land Act, Acquisition of Property Act, Deeds Registry Act)

Rights to minerals reserved to State in disposition of land

50 year or 99 year leases issued on condition that upon lapse of that time, land with improvements reverts to the State


CCS related legislation (cont,)Varied liability issues associated with long term

storageIPCC view - Risks of current activities of CCS are

comparable to natural gas storage or EOR therefore “appropriately site selected with monitoring program and remediation is most likely to exceed 99% over a period of 100 years and less likely to exceed 99% over 1000 years.” Carbon Credits

Mitigation risk of leakage, allocation of liability to recover damages

• Petroleum (Exploration and Production) Act requires data of, chemical composition, physical properties, quantity of petroleum, transportation, sites for facilities and pipelines


CCS related legislation (cont,)Deeds Registry Act – Record keeping of Title to

land and system of deeds which is reliable over long term periods, terms and conditions of title fall short of providing for mitigation of leakage and varied liability to recover costs

Waste Management Act – applies the principle of polluter pays principle in transportation of controlled waste

Environmental Impact Assessment Act – projects undergo EIA where information of risk assessments and management are provided


Access rights to third parties


• Derogation from constitutional protection of property rights to provide access to State officials for reasons of public interest, public security for conservation of soil or natural resources

• To ensure compliance, existing legislation permits access rights, Atmospheric Pollution (Prevention) Act, Public Health Act, Environmental Impact Assessment Act and Waste Management Act

Management of transportation facilitiesWaste Management Act

Provision of licensing system of import, export and transit of waste

Domesticates the Basel ConventionRegulates the transboundary movement of wasteAssessment and management of risks eg adequate

engineering work required if underground water, ponds and lakes are at risk

Petroleum ActProvision of underground storage and

transportation of petroleum through roads and pipelines


Management of transportation facilities (contd.)Environmental Impact Assessment Act –

prescription list in regulations of “activity” may include transportation of CO2 as long as it is likely to cause a significant adverse effect on the environment

Deeds Registry Act – where failure to agree on servitude party to party, registration is required and a servitude is filed at Deeds Registry


Institutional FrameworkKey institutional regulatory framework includes-

National Meteorological Service Act- Department of Meteorological Services is Designated National Authority under the UNFCCC mandate to handle climate change issues

Department of Energy under Ministry of Environment Wildlife and Tourism, formulates policy on energy

Department of Geology under Ministry of Minerals, Energy and Water Affairs, formulates policy on underground storage

Botswana Power Corporation Act – a statutory autonomous body operating commercially whose function is to generate, transmit and distribute electricity

Various Acts on Local Authorities– District & Town Councils, Land Boards


Policy formulationVision 2016- principle is access to energy services,

improve security through regional cooperation and energy trade

National Energy Policy –goal to provide affordable, reliable, environmentally friendly and sustainable energy sector to promote social and economic development-recognition of CDM programmes as a signitory to Kyoto Protocol therefore it is an emissions abatement policy

Botswana Energy Master Plan BEMP- a product of stakeholders, goals are Intergrated Energy Planning and energy efficiency and achieve balance of imports of power and local generation eg Morupule Power Station


Regional ApproachSouthern African Power Pool (SAPP)

Botswana as a member of SAPP benefitted during period of shortages of power

MOU between BPC, Nampower, Zesco and ZESA (ZIZABONA) Zimbabwe, Zambia, Botswana and Namibia

Western Power Corridor (Westcor Project) DRC, Angola, Namibia Botswana and SA


Conclusion : Recommendations CCS to play central role for coal fired power stations Interventions of GoB, BPC and private sector Policy CO2 emissions abatement policy is in place, a pre-requisite to CCS

according to IPCC Special Report NEP emphasized the importance of energy research and development,

Botswana Technology Centre and University of Botswana Current legal and regulatory framework of CCS is inadequate Regulations required to address the commercial “pioneer” projects Concerns of risks in underground water contamination To minimise risk a through site selection process is required, injection of

CO2 underground CCS guidelines shall cover, safety, environmental health and

environmental impacts and minimal involve of governmental institutions GoB shall lead to determine certainty of long term liability and

remediation so some form of participation required


Conclusion: recommendations (contd)A coordinated one stop approval requiredAdoption of CO2 emissions abatement policy

and CDM of Kyoto Protocol in National Meteorological Service Act

Thank You





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Yvonne Kose Chilume Plot 130, UNIT 1, NKWE SQUARE GABORONE INTERNATIONAL FINANCE PARK P O BOX 60778 GABORONE BOTSWANA Chilume and Company Attorneys copyright