Deep seabed mining: Time to get our regulatory ducks in a row — Tess Van Geelen

In 1871, the French novelist Jules Verne published Twenty Thousand Leagues Under the Sea, an adventure novel in which Verne predicted that ‘in the depths of the ocean, there are mines of zinc, iron, silver and gold that would be quite easy to exploit…’

A century and a half on, the Secretary-General of the International Seabed Authority, Michael Lodge, recently explained that:

The sea floor, just like the terrestrial environment, is made up of mountain ranges, plateaus, volcanic peaks, canyons and vast abyssal plains. It contains most of the same minerals that we find on land, often in enriched forms, as well as minerals that are unique to the deep ocean, such as ferromanganese crusts and polymetallic nodules.

Interest in ocean mineral deposits has ebbed and flowed over the past century and a half. 

In recent years, shortages of easily exploitable terrestrial mineral reserves have renewed interest in seabed deposits. The pressure to identify new mineral reserves has also increased in response to global population growth, expanding middle classes and the resulting higher demand for manufactured goods, technological advancements (particularly in computing), and the shift to low-carbon renewable energy production and manufacturing, which require specific mineral resources.

Lodge argues that seabed mining can contribute to sustainable development by offering an alternative to terrestrial mining, and in particular may offer an economic boon for small island developing states. In particular, for many South Pacific nations that rely heavily on tourism, the Covid-19 pandemic has increased pressure to identify alternative economic opportunities. 

The technical challenges posed by the extreme conditions at the seabed have so far prevented any successful commercial mining. In the past decade, however, a handful of ambitious projects have edged closer to fruition. It is timely, then, to consider whether the nascent regulatory system for seabed mining is fit for purpose.

International Regulatory Framework for Seabed Mining

In a declaration adopted by the United Nations General Assembly in 1970 (pdf), all of the seabed beyond the limits of national jurisdiction (which is obscurely referred to as ‘the Area’) was designated as the common heritage of [hu]man kind, to be used exclusively for peaceful purposes. The Area covers roughly 70% percent of the Earth’s oceans, with the rest falling within the jurisdiction of one or another state.

In 1982, the United Nations Convention on the Law of the Sea (UNCLOS) established a general obligation for states parties to conserve living marine resources (arts 64–67, 117–119). Annex III to the Convention established a framework for ‘prospecting, exploration and exploitation’ of mineral resources in the seabed. 

Article 4(4) of Annex III provides that state sponsors of private mining companies must ensure that those private actors comply with the Convention. In 2011, the International Tribunal for the Law of the Sea’s Seabed Disputes Chamber delivered an Advisory Opinion describing this responsibility as a due diligence obligation: state sponsors must implement appropriate regulations to ensure compliance by private actors (at [110]–[115]). 

Article 157 of UNCLOS established the International Seabed Authority (ISA), which is the international regulatory authority responsible for overseeing activities affecting the international seabed. The ISA is headquartered in Kingston, Jamaica, and all 168 states parties to UNCLOS are members. Joanna Dingwall has described the ISA as ‘a unique and unusual body with far-reaching institutional powers of a kind which are arguably unparalleled within the international legal system’.

Article 170 of UNCLOS established ‘the Enterprise’, an organ of the ISA that is capable of directly undertaking mining activities in the Area, including ‘transporting, processing and marketing’ of minerals.

Under article 171, the ISA receives funding from a combination of sources, including mandatory and voluntary member contributions, and royalties from mining activities conducted by both private companies and the Enterprise. Article 10 of Annex IV requires the Enterprise to transfer part of its income from mining to the ISA, but only starting from 10 years after it commences mining activities, to encourage its growth. 

For mining activities carried out by entities other than the Enterprise, article 13 of Annex III sets out a detailed framework for payments that must be made to the ISA. This includes a US $500,000 application fee, and an annual production fee of either US $1m or a percentage of the market value of the processed metals (5% per annum in the first 10 years of the project, and 12% thereafter).

Accordingly, a significant portion of the ISA’s budget is expected to come from mining activities (once they commence), which presents a strong incentive for the ISA to approve mining projects and get the industry up and running. This is problematic for the key regulatory body responsible for ensuring that mining activities comply with conservation and safety rules under UNCLOS and general international law. 

The ISA has so far published three sets of regulations, covering prospecting and exploration of polymetallic nodules, polymetallic sulphides, and cobalt-rich ferromanganese crusts respectively. In 2019, the Legal and Technical Commission (LTC) of the ISA released its Draft Regulations on Exploitation of Mineral Resources in the Area and called for submissions from member states and observers. This draft ‘Mining Code’ would regulate the entire lifespan of seabed mining activities. In 2020, the LTC also undertook consultation on a set of standards and guidelines to support the implementation of the Mining Code.

Ardron, Ruhl and Jones have argued that the ISA could do more to make its processes and activities more transparent and effective. In particular, they suggest that the negotiation of the Mining Code presents a critical opportunity to improve the organisation’s approach to accountability, access to information, public participation, and opportunities to appeal or review decisions.

Like other international processes, the Mining Code negotiations have been delayed by the Covid-19 pandemic. However, these negotiations involve a degree of urgency, thanks to a controversial clause in the Agreement relating to the Implementation of Part XI of the United Nations Convention on the Law of the Sea

Under that Agreement, the ISA is required to develop the ‘rules, regulations and procedures’ that are ‘necessary to facilitate the approval of plans of work for exploration or exploitation’ of seabed minerals (Annex, Section 1, para 15). If a member state notifies the Council that one of its nationals intends to apply for an exploitation licence, then the ISA must complete those rules within two years of the request. If they don’t, paragraph 15(c) requires the ISA to ‘none the less consider and provisionally approve’ the application on the basis of whatever rules are then in force.

No member state has yet utilised this trigger, but the CEO of DeepGreen, a Canadian company at the forefront of deep sea mining research, has reportedly said that the option is ‘not off the table’.

Environmental concerns

Like all extractive industries, mining on the seabed involves significant disturbance and destruction of the affected environment. The relative lack of knowledge of the deep oceans and sea floor compounds the risks inherent in mining. Peter Boldt has warned that

significant knowledge gaps of ecosystems at such remote depths has the potential to cause irreversible damage to fragile abyssal organisms and may trigger unprecedented chain reactions in already compromised ecosystems. The removal of nodules which serve as habitats, the creation of sediment plumes, and the discharge of waste, chemicals, and tailings has the potential to greatly disturb an area of the earth that we know very little about. 

Boldt is skeptical of the potential for seabed mining to contribute to sustainable development, and points to the often disastrous impact that terrestrial extractive industries have had on communities around the world. The tiny Pacific nation of Nauru, for example, has been one of the chief proponents of seabed mining, despite the country’s calamitous history of phosphate mining, which has been described as among the world’s worst environmental and financial disasters.

Rahul Sharma has also described some of the likely environmental impacts of seabed mining. In addition to the marine species and habitats that may be crushed or destroyed by the extraction process itself, various secondary impacts pose significant concerns. 

Sharma notes that the plumes created by disturbance of the seafloor and the release of waste products may alter ecosystems by changing the turbidity (clarity) of the water and sedimentation patterns across large areas, and may also travel considerable distances depending on currents. Introduced plumes may affect both plant and animal life by reducing the amount of sunlight available at different depths. Sediment plumes may also harm filter-feeders like clams, sponges, baleen whales, and various types of fish and sharks.

The technical difficulties associated with deep sea mining further amplify the risk of accidental environmental damage. Activities may be complicated or compromised by a variety of factors including significant operating depths, high pressure, low temperatures, distance from shore, and dynamic forces such as currents and waves.

Controversy over mining projects in the Pacific

The embattled Solwara 1 mining project had been the front-runner in deep sea mining for a number of years, and until recently looked likely to be the first globally to get off the ground. The project was run by Nautilus, a Canadian company that holds 51 exploration licences in the Bismarck Solomon Seas off the coast of Papua New Guinea (PNG).

Nautilus planned to mine gold, copper, silver and zinc at a depth of 1600 meters. The PNG Government granted an Environmental Permit for the project in 2009. The company had successfully developed and tested a number of deep sea mining robots, but in 2019 went into administration. The PNG Government lost around AUD $157 million as a result.

After the collapse of the Solwara 1 project, Fijian President Frank Bainimarama echoed the concerns of NGOs by calling for a ten-year Pacific-wide moratorium on deep sea mining, to allow more research into the long term environmental effects. Despite support from Charlot Salwai, Prime Minister of Vanuatu, and the new PNG Prime Minister, James Marape, no moratorium has been imposed.

In May 2020, a report commissioned by the Deep Sea Mining Campaign and MiningWatch Canada revived the call for a moratorium. The report argued that 

…accumulated scientific evidence indicates that the impacts of nodule mining in the Pacific Ocean would be extensive, severe and last for generations, causing essentially irreversible damage.

In Australia, the Environment Protection Authority (EPA) of the Northern Territory (NT) is currently conducting a review into the environmental impact of seabed mining. The NT Government imposed a moratorium on seabed mining in coastal waters in 2012, in response to community concerns and in recognition of the limited data available as to the environmental impacts. The Aboriginal Areas Protection Authority (AAPA) will provide separate advice to the NT Government regarding the likely impacts and sustainability of a potential seabed mining industry.

The EPA’s draft report (pdf) notes that seabed mining is a ‘relatively new and controversial industry in Australia, and other countries’. It also notes that the ‘lack of adequate environmental information is a major barrier’ to its effective regulation, and adopts a generally cautious tone, consistent with the precautionary principle under international law. 

Notably, the draft report suggests that, while small-scale activities in ‘data-rich locations’ or particularly resilient ecosystems may be effectively managed, large-scale proposals in sensitive environments are likely to be refused by the Minister for Environment at an early stage. This is to prevent costly but ultimately insufficient investment in extensive data collection to support proposals that are unlikely to be acceptable.

Going forward, this cautious approach seems prudent. It is likely that growing populations, the need for special metals to support the transition to greener economies, and dwindling terrestrial mineral reserves will continue to magnify interest in seabed mining. While wealthy countries like Australia (which has considerable experience in mining) can afford to be cautious, small island states like Nauru, Kiribati and the Cook Islands may be more vulnerable to risky mining proposals.

This vulnerability underscores the need for a robust international regulatory system, to ensure that smaller countries do not bear the burden of high-risk or reckless early attempts at commercial seabed mining — a fate already suffered by PNG. However, the international regime currently suffers from important limitations, as noted above. 

In the near future, considerably more research is needed to understand the impact of seabed mining on the environment, and the ISA should undertake broad and transparent consultation with stakeholders and experts to ensure that the draft Mining Code and other rules are capable of effectively regulating the emerging industry.

Tess Van Geelen is an Assistant Editor of the ILA Reporter.

Suggested citation: Tess Van Geelen, ‘Deep seabed mining: Time to get our regulatory ducks in a row’ on ILA Reporter (9 January 2021) <http://ilareporter.org.au/2021/01/deep-seabed-mining-time-to-get-our-regulatory-ducks-in-a-row-tess-van-geelen/>