New Zealand: High Court gives fertiliser group voice on West Sahara case

This post is also available in: Español (Spanish) Português (Portuguese (Portugal)) A group fighting for the rights of indigenous people in Western Sahara has lost its bid to stop fertiliser companies from intervening in its case against the New Zealand Super Fund.

The Polisario Front for Australia and New Zealand is taking the Guardians of New Zealand Superannuation to court, calling for a judicial review on its investments in businesses in the West African territory.

Western Sahara is a disputed area, but fertiliser companies Ravensdown and Ballance Agri-Nutrients continue to import about $30 million of phosphate from there annually. They both belong to the Fertiliser Association.

The Polisario Front claims that if New Zealand stops importing the product from the region, there will no longer be any incentive for Morocco to remain, bolstering the claims of the Saharawi people for economic and political independence.

Morocco invaded Western Sahara in 1976 when Spain withdrew as an occupying power, driving out many of the local people into refugee camps on the Algerian side of the border with Morocco.

A hearing is set down for October 27 at the High Court in Auckland, but in the meantime, the Fertiliser Association has sought leave to intervene in the case.

Opposing the move, the front’s representative Fadel Mohamed said through his lawyer that the intervention was unnecessary and would be prejudicial to the parties in potentially side-tracking the court or expanding the scope.

However, the Fertiliser Association said it should be involved as there was a real risk that the outcome could affect its members’ legal rights and create commercial and reputational consequences for them.

If Morocco’s occupation of Western Sahara was deemed unlawful under international law, it would ”create a platform” to bring proceedings against the association or its members, the association said.

In a High Court decision released last Friday, Justice Matthew Palmer said he was granting the Fertiliser Association to make submissions.

While it was not clear to him that the court would make any findings about international law, he considered the association had a material interest.

”I consider it would likely assist the court to understand the association’s perspective, as long as the association keeps to the narrow parameters of its proposed terms of intervention.”

The Super Fund has revealed it holds stakes in 10 companies with business interests in Western Sahara, and dairy farms which have shares in Ravensdown and Balance because of their cooperative structure.

Since 2011, the Polisario Front claims, the number of countries importing phosphate from Western Sahara has fallen from 13 to just New Zealand.

The vessel Cherry Blossom, which was detained in South Africa in 2018 with a shipload of phosphate bound for New Zealand.

In 2018, a South African court ruled that a cargo of Western Saharan phosphate rock bound for New Zealand belonged to the Saharawi government, and not Morocco’s state-owned phosphate company OPC.

The ship Cherry Blossom was detained in South Africa a year earlier with a 54,000 tonne cargo of phosphate worth $5m destined for Ballance in Tauranga.

The United Nations sees Western Sahara as a non-self-governing territory, and has been involved since 1988 in trying to find a solution to the conflict through self-determination.

It noted recently ”with deep concern, the continued hardships faced by Saharawi refugees and their dependency on external humanitarian assistance”.

Ravensdown has maintained that many Sahawaris benefit from the phosphate trade because they work for OCP, the largest employer of local people in the area.

“We are acting legally under the UN framework, are mindful of the humanitarian situation of all the Saharawi including those in the Algerian camps and we continue to work on finding additional sources that meet the unique needs of New Zealand’s farming systems,” communication manager Gareth Richards said last year.