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

Botswana Legal System Key Regulatory processes of CCS Current Legal and Regulatory Framework for CCS Commercial “pioneer” CCS projects CCS related legislation Access rights to third parties Management of transportation facilities Institutional framework Policy formulation Regional Approach Conclusion: Recommendations Chilume and Company Attorneys copyright

Botswana Legal System Roman Dutch Law and Customary Law Constitution of Botswana is fundamental law and sets up State Organs and contains the bill of rights and freedoms. Chilume and Company Attorneys copyright

Key Technological processes of CCS Definition or classification of CO2 Site selection Waste management Storage facility Transportation Monitoring program Long term risk management Stakeholder participation Chilume and Company Attorneys copyright

Current Legal & Regulatory Framework for CCS No CCS specific legislation Current 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 CO2 Property rights to sub surface land Proprietary rights to CO2 Varied liability issues associated with long term storage Access rights Management of Transportation facilities Institutional framework Chilume and Company Attorneys copyright

Commercial “pioneer” CCS projects High 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 Project Morupule Power Expansion Power Project Chilume and Company Attorneys copyright

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” Chilume and Company Attorneys copyright

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 Chilume and Company Attorneys copyright

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 Chilume and Company Attorneys copyright

CCS related legislation (cont,) Varied liability issues associated with long term storage IPCC 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 Chilume and Company Attorneys copyright

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 Chilume and Company Attorneys copyright

Access rights to third parties Chilume and Company Attorneys copyright 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 facilities Waste Management Act Provision of licensing system of import, export and transit of waste Domesticates the Basel Convention Regulates the transboundary movement of waste Assessment and management of risks eg adequate engineering work required if underground water, ponds and lakes are at risk Petroleum Act Provision of underground storage and transportation of petroleum through roads and pipelines Chilume and Company Attorneys copyright

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 Chilume and Company Attorneys copyright

Institutional Framework Key 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 Chilume and Company Attorneys copyright

Policy formulation Vision 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 Chilume and Company Attorneys copyright

Regional Approach Southern 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 Chilume and Company Attorneys copyright

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 Chilume and Company Attorneys copyright

Conclusion: recommendations (contd) A coordinated one stop approval required Adoption of CO2 emissions abatement policy and CDM of Kyoto Protocol in National Meteorological Service Act Thank You Chilume and Company Attorneys copyright