With this opportunity also comes a responsibility, ensuring that operations on the seabed under the continental shelf regime are compliant with international law. The UN Convention on the Law of the Sea confers sovereign rights to coastal states over the seabed minerals within their exclusive economic zones (EEZs), as well as an overriding shared responsibility for the protection and preservation of the marine environment. States interested in pursuing this high-risk venture within their maritime jurisdictions will therefore need to elaborate legal regimes to effectively regulate deep sea minerals activities.
Papua New Guinea, Tonga, Fiji and the Solomon Islands are among the first countries in the world to have issued exploration licences for companies to assess the commercial feasibility of mineral resources development in their EEZs. The potential seabed wealth includes the polymetallic nodules, found predominantly in the Cook Islands; the seafloor massive sulphides, in PNG, Tonga and Fiji; and the cobalt-rich crusts in Micronesia — all first identified in the region in the 1970s and 1980s with high-value strategic metals such as copper, gold, manganese, zinc, cobalt and nickel.
Significant investments in exploration activities across the Southwest Pacific region presage prospects for a long-term source of revenue for PICs. This new economic development potential is enormously attractive for those developing nations seeking to diversify their economies, so far highly reliant on fisheries. But this remains to be balanced against the risks to the marine environment and the potential impacts on other vital industries, such as fisheries, as little is known about the bio-chemical and physical processes that sustain the ocean’s ecosystems.
To ensure effective protection for the marine environment from harmful effects which may arise from deep sea minerals activities, while guaranteeing prospective benefits are adequately channelled into developmental outcomes, coastal states will need to set up legal and institutional structures and strengthen their currently limited capacities to regulate offshore operations. Countries in the West Pacific region convened in 1999 a Workshop in Madang highlighting the new opportunities for offshore mineral development as well as the responsibilities of states to ensure such developments are socially and environmentally responsible and sustainable. Principles for the development of national offshore mineral policies were also articulated. This milestone in the development of a regulatory approach to deep sea minerals (supported by the Pacific Islands Forum, the South Pacific Applied Geoscience and Technology Commission (SOPAC) and the Metal Mining Association of Japan) is all the more important that new momentum is gathering around the exploitation of seabed minerals, with the imperative now to translate the vow into stringent legal frameworks.
The Cook Islands and the Kingdom of Tonga have taken the lead amongst PICs and are currently establishing national statutory regimes to complement the International Seabed Authority’s (ISA) efforts at the international level. Tuvalu and Niue are contemplating similar initiatives. The ISA which controls seabed activities in the ‘Area’, the part of the seabed beyond national jurisdiction upon which non-living resources are recognised as the ‘common heritage of mankind’, is in the process of elaborating a Mining Code encompassing regulations for prospecting, exploration and exploitation of seabed minerals.
Pacific Island countries can be praised for realising the importance of developing of precautionary policies and dedicated seabed minerals legislation. Nevertheless, it must be recognised that the implementation of such regimes, once established, will be a big ask for small island states with limited regulatory and operational capacities. The imbalance of power in the negotiation and enforcement of seabed mineral contracts is of concern too, and it will be opportune for regional and international organisations to consider how to assist PICs in that respect.
Last month, the Kingdom of Tonga, with the support of the Secretariat of the Pacific Community and the European Union, hosted a regional workshop on ‘Law and Contract Negotiations for Deep Sea Minerals’, for the purpose of expanding technical and legal knowledge and strengthening capacities at the regional level. As alluded to by the representatives of 14 Pacific island governments, a collaborative approach for the management and monitoring of deep sea minerals activities, and a coordinated negotiating bloc of countries, could promote sustainable and equitable development across the region, rather than mere exploitation of non-renewable resources.
Governments in the region could then leave a lasting legacy if they seized the opportunity of devising forward-looking policies for offshore resource extraction, while seeking external assistance to reinforce their capacities and bargaining powers. Resource extraction can lead to national economic development if a range of conditions are met, including effective macroeconomic management and high-quality governance institutions characterised by transparency and accountability. Equally important are consistent, reliable and predictable legal structures to attract responsible foreign investors and sound fiscal regimes that allow for sustainable revenue growth.
Learning from the experience of Melanesian countries with on-land mining, PICs should prioritise a precautionary approach and well-devised strategies to maximise returns to their nations over quick win opportunities. The pooling of resources at the regional level may be one avenue for small island states to strengthen their position to achieve those objectives.
Cristelle Maurin is Legal Consultant at the Applied Geoscience and Technology Division of the Secretariat of the Pacific Community, Fiji, and Associate to the Centre for Chinese Studies, University of Stellenbosch, South Africa.
Can you tell me if sea bed mining has occurred any where else in the world or from your experience will it cause any environmental damage as we in Papua New Guinea our Bismarck sea holds some of the underwater species of fish, reefs, turtles etc which can not be found anywhere else in the world? Do you think the seabed mine will destroy them?
Also we don’t have any laws written for undersea mining currently in Papua New Guinea, only for the land mines with the pushing of seabed mining. How is that possible?
Finally talking about economic benefit, we are living at a very high cost of living even we have a lot of land mines in the country so how come we still pay for education and health cost at a very high price. We are not yet ready for sea mine as we don’t really see benefits of land mines here.
Under water mining of commodities such as sand, tin, gravel and diamonds is a longstanding activity. These tend to occur at shallower depths. To date no deep sea mining of polymetallic nodules or seafloor massive sulphides has occurred although there has been significant exploration activities taking place in the Pacific, Indian and Atlantic Oceans mainly in the high seas under the control of the International Seabed Authority, also in some coastal states’ exclusive economic zones. Countries willing to pursue this activity have granted seabed minerals rights in their maritime zones on the basis of their land-based regulatory regimes, with the definition of land extended to the seabed. It is advisable however that states develop dedicated seabed minerals legislation prioritising the protection of the environment, and refer notably to the application of the precautionary approach and best environmental practices that are requirements of international law in relation to the State’s management of seabed mineral activities.
All activities have impact. Exactly what the environmental impact of seabed mining will be remains uncertain. Current understanding of physical and biological processes in marine ecosystems is limited, and further research needs to be carried out to better comprehend these. Yet ways to protect the marine environment during offshore exploration and mining cannot be addressed by a ‘one size fits all’ solution, and it will vary depending on the type of deposits, the location and the depths at which activities occur. But there are facts that should be borne in mind. Mining will occur on the deep seabed, several kilometers below the surface of the ocean. No fish such as reef fish or tuna or marlin swim anywhere near this depth so they should be unaffected. Life in the deep ocean has evolved in circumstances of no sunlight and very high pressures; species comprise bacteria, worms and crustaceans in the main.
Revenues generated from mining should add to national wealth and development. There are models of sustainable mineral development where long-term inclusive economic development is a key focus of the whole mining cycle. Many countries in the world have developed partly or mainly through mineral and petroleum development including: Australia, Botswana, Chile, Canada, USA, Norway, UK, Ghana, Brazil, etc. There are also examples of countries who have not managed mineral-generated wealth well and people have seen little benefit. Even in the case of ‘good examples’ there are situations or times when only few benefit. The key is good governance, long-term strategies to ensure the exploitation of mineral resources underpin sustainable growth and development, and systems that allow re-distribution of resource-generated revenues towards targeted policy goals and investment in health, education, infrastructure development, etc for the benefits of all.