On a sticky wicket: Delegates continue to be stumped by inadequate draft deep-sea mining regulations – 30/3/22 

Date: 30 March 2022

Negotiations of draft rules and regulations, that could regulate the looming deep-sea mining industry were it to go ahead, entered their 8th day today in Kingston Jamaica.

Today’s session opened with an address from the International Seabed Authority (ISA’s) Secretary General, followed by the Chair of the Authority’s Legal and Technical Commission (LTC), presenting a report which included the development of Regional Environmental Monitoring Plans (REMPs), contract extensions, applications for new exploratory licences and an update on would be miners’ Environmental Impact Assessment (EIA).

As the conversation moved on from the latest cricket news and onto REMPs, Costa Rica noted that the way the Clarion Clipperton Zone (CCZ) REMP was established was concerning, because contracts were given first and then the areas of environmental interest were established. They urged that REMPs should be designed before any exploratory contracts are given. FSM also echoed the shortcoming of this REMP.

The DSCC commented that stakeholder consultation carried out as part of Nauru Ocean Resources Inc’s (NORI) stakeholder consultation was wholly inadequate with little or no consideration of the comments submitted by stakeholders. Both the DSCC and DOSI said that they had submitted extensive comments, which had been disregarded. This demonstrates that the tests planned by NORI (a subsidiary of the Canadian owned company, The Metals Company – a company itself plagued by problems since it went public last year) cannot go ahead. Such fundamental issues exemplify that full-scale commercial mining cannot be given the green-light in one short year from now.

The DSCC highlighted that there is nothing in the public domain on the deep-sea mining start up, Circular Metals Tuvalu, who submitted an application for an exploratory mining licence, with the empty website giving a Canadian address, raising again the issue of effective control and transparency. We also said that any regulations would be illusory without implementing proper effective control.  Earthworks asked the LTC if an individual behind the company, David Heydon, was also previously associated with DeepGreen, now known as The Metals Company and the bankrupt mining company, Nautilus. After a disappointing response from the Chair of the LTC, providing no further clarification. Chile commented that they were concerned by the question and response given, stating that there must be transparency relating to contractors and in this case, it appears that one contractor has been involved in three licences and may be privy to certain information.  Greenpeace echoed comments from the DSCC, Earthworks and Chile, urging the ISA to re-think its structure as a whole to improve transparency.

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As discussion continued on institutional matters from the previous day, the issue of public trust and ensuring regulatory integrity emerged again, with comments from numerous Council members including FSM and New Zealand. 

Germany echoed an earlier intervention from Costa Rica on the need to ensure that REMPs are in place before any possible exploitation can be considered. Norway also highlighted the need for a precautionary principle. 

Wording around serious, significant or any sort of harm was discussed with states including Costa Rica, Canada and FSM advocating for no harm to be incurred to the marine environment if deep-sea mining were to go ahead, in line with the ‘no harm’ principle, supported by the DSCC and Pew.

Norway also raised the issue of effective control (who would control the contractors and how) stating that they would welcome further conversation on this, which was supported by The Netherlands, Norway, Chile, DSCC, Pew, Italy and Costa Rica.

The DSCC have continued to raise the issue of effective control throughout the Council meeting.

Notable Interventions

  • FSM said that in light of the no harm principle, no harm should occur if deep-sea mining were to go ahead.
  • Costa Rica commented that in both the standards and guidelines, it should be ensured that there are no harmful effects to the marine environment.
  • Canada commented that they believe that the threshold of “serious” or “significant” harm is too high and supported Pew’s ‘no harm’ threshold suggestion. 
  • France commented that States should have an obligation to notify of any type of pollution or damage anywhere in the marine environment
  • Chile said that we need to consider questions such as what happens if the Enterprise (the commercial arm of the Authority, who are seeking to conduct their own mining) causes environmental damage etc?
  • Norway said that it is critical that we have a larger discussion about the notion of effective control, what that entails and how they should be defined in the regulations. They also advocated for the precautionary principle.
  • Morocco commented that we need to ensure the highest ecological protection.
  • Pew supported interventions made by Netherlands, Norway and the DSCC on the need for a conversation on effective control.
  • Italy also supported comments on effective control and that we must ensure that the requirements for effective control are duly met.
  • New Zealand observed that the Authority should ensure public participation, not simply encourage it, as the current wording suggests. DSCC supported that too.
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