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DSCC Interventions – 22/3/2023

22 Mar 2023

Environment Working Group

Bula Madam Facilitator,

We have some brief overarching comments on this section which serve as our comments on the whole Annex. We support DOSI’s intervention and emphasise that this Annex cannot be developed properly as there is simply not enough scientific information to do so, for any of the three types of mining (nodules, cobalt-rich crusts and hydrothermal vents). As our friends at DOSI often note, we are many years or even decades away from even being in a position to establish the environmental baseline. 

Secondly,  in terms of process, and building on Pew’s intervention on independent scientists, we’d like to draw delegates’ attention to the fact that an EIA is only as good as the process under which it takes place. There is no proper structure to consider EIAs; limited provision for independent scientific evidence and peer review  of applicant’s evidence; no hearing including of cultural perspectives; and no appeal or review of decisions or recommendations. There is no scientific committee, and no place for stakeholders to submit independent scientific information and make comments on the applicant’s scientific evidence.  So these concerns are applicable throughout.

DSCC Interventions – 21/3/23

21 Mar 2023

Environment working group

This intervention is for DSCC, Oceans North, WWF and TBA 21.

We support the statements just made by Greenpeace.

On Environmental Impact Statements, we agree with comments made in earlier sessions that EIA and EIS should be merged.

As has been noted earlier, EIA processes should be consistent with the BBNJ Agreement, where there is no such split. An EIA is simply the process and an EIS the report: in BBNJ there is no such split. The split has brought confusion, duplication, and omissions.

Subject to these observations:

Like the rest of the Regulations, this Regulation does not include provisions for full public participation, including access to information and participation in the EIA and EIS process and access to review procedures, including ongoing processes. Commenting on work that has gone before is not enough. For example, there is currently no framework for  stakeholders to introduce independent scientific information, traditional knowledge, cultural perspectives and other matters. 

On the final report, there should not be a ‘substantive’ qualification in para 3(c ). This was also discussed in the previous regulation. Cultural and social aspects should not be excluded.

Nor should there be a restriction to “main” uncertainties and knowledge gaps in para 3(b). The relevance of uncertainties and knowledge gaps is highly relevant to the ability to assess impacts. 

We support the inclusion of traditional knowledge, which is not currently included here, but also of free prior and informed consent, a key requirement under, for example, the United Nations Declaration on the Rights of Indigenous Peoples, as well as the Convention on Biological Diversity and the International Labour Organization Convention 169. 

Vinaka

Seabed mining would cause significant pollution, including noise throughout the water column.

But it is not acceptable to only “reduce” or “control” pollution such as noise. No pollution including noise should be permitted. The effects of noise on marine mammals was well documented in Thompson et al in the journal Marine Science in February.   Disturbance on any scale is likely to be long lasting and irreversible, and noise from deep-sea mining would add to other noise in the marine environment, from ships. This is why it must be prevented, not just reduced or controlled.

We support New Zealand’s intervention.

Para 1 would allow any discharge as long as such discharge is permitted in the Environmental Management and Monitoring Plan. This does not address the amount of discharge, rate of discharge, components discharged, or manner of discharge.  The wording “is permitted in accordance with” is too vague. Better yet is not allowing the discharge to the ocean in the first place.

In para 2 and 2bis a threshold of ‘serious harm’ is too high. Article 142 speaks of “harmful effects”

Reg 51

As proposed, paragraph (b) would only require an operator to  “Apply best endeavors to improve Mitigation and management measures to ensure the effective protection of the Marine Environment from harmful effects,

This is far short of  ensuring effective protection.

The need for the Environmental Compensation Fund underlines that deep-sea mining will inflict damage on the marine environment, inconsistent with article 145 of UNCLOS and other international commitments to protect the environment.

The provision on the Environmental Compensation Fund also brings to light the complete absence of discussion in the Council to date of liability, despite the African Group proposing a discussion 4 years ago in 2019.

In the absence of a liability regime, or any attempt to follow the advice of the Seabed Disputes Chamber and engage in the development of further rules regarding responsibility and liability under international law under Article 304, this Fund is  ineffective.

This provision also highlights the absence of an appropriate definition of effective control consistent with the Convention, since contractors may have only thinly capitalised shell companies in sponsoring States and then leave when damage was caused, as was  noted by the Seabed Disputes Chamber in the seabed Advisory Opinion.

DR 55

Article 145 of UNCLOS demands “effective protection” of the marine environment and prevention of damage to the marine environment and its inhabitants – anything weaker contravenes these provisions and transgresses the environmental ethics of the 21st century. We would like to reiterate our objection to permissive language such as “limit”, “reduce” and “control”.  The ISA does not have the mandate to authorise limited, reduced, or controlled damage to the marine environment.

The concept of  “environmental damage outside of consented activity” speaks volumes: consenting, or approving a contract, will cause environmental damage.

The idea that a compensation fund can be used to implement measures to “prevent” damage is flawed and misleading. The point has just been made: by the very nature of compensation, the damage would already have been done. How does the Authority propose to prevent damage, other than by stopping mining, when mining has already begun? 

Deep-sea mining simply must not go ahead unless and until it can be clearly demonstrated that there will be no damage to the marine environment. Given the irreversible nature of damage, compensation would be too little, too late.

Vinaka

DSCC Interventions – 20/3/23

20 Mar 2023

Environment working group

Bula Madam facilitator and delegates,


Firstly, Madam Facilitator, we are very happy to see you back in the facilitation role.
This is a very important working group and we look forward to the discussion
Madam Facilitator, delegations would have seen that there a growing number of civil society observers here, including some indigenous representatives from the Pacific area who have journeyed great distances. We were hoping there would be an opportunity for them to address this working group. We are talking about stakeholder participation and they would have left by Monday. It would only take perhaps 10 minutes. I think delegates will find their participation helpful.
But if that is not possible, we have a suggestion to see if it gains your approval, and that would be after the session is closed at 1 oclock, the indigenous representatives be able to speak for perhaps 10 minutes, should delegates who are able to stay here for that segment. We hope that the interpreters will indulge us.

Vinaka

—

Delivered by – Hinano Murphy

Thank you Madam Facilitator, Im speaking on behalf of the Deep Sea Conservation Coalition.

Kia Orana, I am Teurumereariki a Teavai Murphy  from French Polynesia (…)  I am hear today to represent the thousands of voices to ban mining exploitation in the high seas. This includes the voice of 33 different countries and 56 different indigenous groups. 

For millennia our people have lived in a relationship with the natural world that is defined by respect, gratitude, responsibility, and love. Our genealogies, woven across space and time, connect us physically and spiritually to animals and plants from the highest mountains to the deepest ocean.

Cultures across the Pacific consider the ocean to be sacred space for creation, a provider, an ancestor, and a link to places and people across the horizon. We would no more harm the ocean than we would a member of our family. And as with our family, we depend on each other for survival.

Western culture’s relationship with natural ecosystems of land, and sea and sky have proven to be deeply harmful for the only place we know as home, planet Earth. The ocean’s health, people, and natural ecosystems are already reeling from pollution, overfishing, acidification and extreme weather events. These problems need serious attention.

With a ban on deep-sea mining, however, we see the chance to stop the needless damage before it starts. There is ample evidence that deep-sea mining will cause irreversible harm to our ocean. The arguments in favor of deep-sea mining, produced only by those that stand to profit from it, have been shown to be false. There is no reason to disturb the tranquil and life-supporting depths of our oceans, causing harm that will last forever, for the short-term economic gain of a very few.

We refuse to allow any further harm to our sacred ocean. We refuse to further damage the intricate web of life that we are part of and depend on for our survival. We refuse to allow governments and corporations to sell out the future of our children and life on our planet.

We call on the governments of the world and on the International Seabed Authority to enact a ban on deep-sea mining effective immediately. Our ocean and our lives depend on it.

Thank you.

—

Madam facilitator,

We speak on behalf of DSCC and WWF on this part of the intervention on the stakeholder consultation.
We welcome the initiative of the informal group discussing Standardization of Stakeholder consultation, and, as Stakeholders ourselves, we would be glad to be involved in such discussions in the future in order to support this important effort.
We would like to take this opportunity to ask that States take this one step further and provide not only for consultation but also public participation which goes further than consultation. For example, in any environmental impact assessment, stakeholders should have the opportunity to introduce independent scientific advice and advisers to contribute to the EIA process. When we are contributing here in Council, this is public participation, not consultation.
It is worthwhile noting that the Aarhus Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters rests on three pillars: access to information, public participation, and access to justice. All three go hand in hand: the information pillar to ensure that the public can participate in an informed fashion, and the access to justice pillar to ensure that participation happens in reality and not just on paper. It can be traced back to Principle 10 of the Rio Declaration.
Public participation also entails access to relevant documents, the ability to speak, to circulate written documents, including reasonable timeframes to participate effectively. In brief, it involves effective notice, adequate information, proper procedures, and appropriately taking account of the outcome of the public participation.
It is far more than just commenting, and, under Article 6 para. 7 of the Aarhus Convention, requires allowing the public to submit, in writing or, as appropriate, at a public hearing or inquiry with the applicant, any comments, information, analyses or opinions that it considers relevant to the proposed activity.
So in the context of the ISA, this means not just commenting on documents on a website, but meaningfully participating in the Legal and Technical Commission, the Council or any other body.
Regarding the identification of Stakeholders to be directly notified of participatory processes, firstly we urge the systemic involvement of independent scientists, indigenous people, coastal communities, youth, and environmental groups. We agree it would be useful to have a list of types of Stakeholders that should be reviewed and updated on a regular basis, with contact information. We suggest that Stakeholders themselves should be invited to contribute to these lists.
In order to ensure that this is not left as ‘Guidance’ alone, we would urge a definition of ‘key Stakeholders’ in the regulations, but one that remains sufficiently broad to allow for the rapidly growing and evolving interest in the common heritage of humankind.

—

Vinaka  Madam Facilitator

This intervention by DSCC is also on behalf of WWF, Oceans North and TBA 21.

I think our objections are quite specific.

Consistent with your comment at the outset, and as highlighted by Germany and the Netherlands, it is highly relevant that the BBNJ Agreement on marine biodiversity has been concluded. Finally, a framework and mandate on the conservation of marine biodiversity – an issue of core relevance and importance to all of us – has been agreed by consensus of all States.

Its authoritative Principles and Approaches should be followed by the ISA parties, most of whom we presume will be party to the BBNJ Agreement, including in para 1(a)(i) the Precautionary principle: We thank the Netherlands for drawing our attention to the BBNJ language which includes “as appropriate” and would suggest that with so much uncertainty, the precautionary principle, rather than approach, certainly is appropriate here.

We also highlight an approach that builds ecosystem resilience, including to adverse effects of climate change and ocean acidification, and also maintains and restores ecosystem integrity, including the carbon cycling services that underpin the ocean’s role in climate; the use of the best available science and scientific information; an integrated approach to ocean management; and the use of relevant traditional knowledge of Indigenous Peoples and local communities.

Para 1(a)(iii) lacks a  reference to independent and peer reviewed science as well as traditional knowledge. The best available science will not be obtained if stakeholders do not have the opportunity to bring forward independent scientific information.

In Para 1(a)(v) our indigenous colleagues remind us of the importance of underwater cultural environment, as so eloquently expressed by the kupuna (or native Hawaiian elder) this morning.

Paragraph (b) has no  reference to ensuring no loss of biodiversity.

With respect to Paragraph (c ) we note that mitigation is not sufficient; Article 145 requires that  effective protection for the marine environment from harmful effects is ensured. Merely mitigating harm is not enough, moreover, mitigation, which is noted by many scientists as not being adequate or even meaningful, would require substantial understanding of the extent of the harm, including a baseline, which we do not have.

Paragraph (c)should not include reference to restoration and offset. We support DOSI’s comments and those of the United States in this regard.

In all of DR 44  there is no reference to cumulative impacts, including the impacts of climate change and noise, and the need to prevent environmental damage not only in areas directly impacted but in all affected areas. 

Following international commitments such as the global biodiversity framework, there must be an imperative to “Ensure there is no loss of biodiversity, damage to the flora and fauna of the marine environment, or degradation of ecosystems and ecosystem services.”

This is key to implementing Arts 145 and 194(5) and to ensuring consistency with the Sustainable Development Goals, in particular SDG 14, Target 2, as well as protecting biodiversity in the face of the growing biodiversity crisis.

—

Dear Facilitator,

We deliver this intervention on behalf of both the DSCC, oceans North and WWF.

Regarding the chapeau of Para (1), we join Germany in their suggestion that the threshold of ‘serious harm’ to the marine environment is too high. Article 145 requires the prevention of damage to the flora and fauna. The obligation should therefore be ‘no harm’. Deep-sea mining cannot go ahead if we can’t guarantee that there will be no biodiversity loss. The recently concluded BBNJ Agreement (and I quote) “recognises  the need to address, in a coherent and cooperative manner, biodiversity loss and degradation of ecosystems of the ocean”. 

States cannot allow biodiversity loss to occur under ISA regulations when there is a recognized and overwhelming need to halt and reverse the phenomenon.  

We suggest that the term “Compensation’ for harm to the marine environment should be deleted from para 1(c), as ‘Compensation’ is not featured in the mitigation hierarchy so should equally not feature here. The notion of compensation essentially provides that you can always pay your way out of obligations to protect the marine environment, thereby manifesting a permissive attitude toward environmental damage that cannot be accepted in the 21st century.

—

Collaboration with the BBNJ agreement needs to be provided for under BBNJ Article 23 paragraph 2, and the BBNJ Agreement in Part IV extensively addresses environmental impact assessments. These EIA procedures need to be completely revised to take into account and reflect the BBNJ provisions, which must be seen as best practice and enjoying widespread support.

Serious concerns of pro-mining agenda of the International Seabed Authority reported in New York Times

20 Mar 2023

Deep Sea Conservation Coalition Reaction

20/3/23

An article published yesterday (19 March) in the New York Times highlights concerns by International Seabed Authority (ISA) State delegates surrounding a lack of impartiality of the ISA’s Secretary General. The article points to the pro-mining agenda of the ISA Secretary General – the Deep Sea Conservation Coalition (DSCC) calls for urgent reform of the Authority.

DSCC REACTION

DSCC Interventions – 17/3/23

17 Mar 2023

Financial working group

Thank you for giving me the floor.  This intervention is on behalf of Oceans North and the Deep Sea Conservation Coalition,  and is to further highlight the issue of environmental externalities raised this morning by  Brazil and  Costa Rica, and yesterday by Jamaica. 

The International Seabed Authority has a duty to ensure that activities in the Area are undertaken for the ‘benefit of humankind as a whole’, with particular consideration given to the interests and needs of developing States. Such an aim requires a thorough and realistic assessment not only of what the international community stands to gain, but also what it stands to lose from deep-sea mining, including accounting for the environmental costs. 

With respect to the claimed gains, the 2022 filing by TMC to the US Securities and Exchange Commission is indicative of the uncertainties that would permeate the industry as a whole. The filing states (and I quote) that “there can be no assurance that any future development activities will result in profitable metal production operations.” [unquote] It further stresses that technology in the sectors that deep-sea minerals would supply is changing rapidly, resulting in fluctuating demand for these minerals, significantly affecting profitability. In addition to this, the current indications are that deep-sea mining in the Area is likely to result in economically insignificant revenues on a global scale.

All this to say: the benefits for humankind as a whole are highly speculative.

As for the costs, science indicates that DSM will result in biodiversity loss, damage to fisheries, disruption of carbon cycling, and diminished marine genetic resources. Such costs have not yet been quantified, but cannot be disregarded. We therefore welcome the Council’s decision in November to commission a study to assess the value of ecosystem services and natural capital of the Area, as well as of the potential environmental costs associated with deep-sea mining, and while we await that study, we hope to see these matters reflected in Council’s deliberations this week, and not simply shelved pending the report. Environmental externalities are of critical importance not just intrinsically, but practically, as their consideration will change the finance and taxation regime. When discussing monetary income from deep sea mining, it must be weighed against the enormous environmental, cultural, and social cost.

Finally, we would like to stress once again that value cannot always be measured in dollars. In our discussions, we ask that delegates also account for the intrinsic value, the cultural value, the existence value of life in the deep, and that they consider not only what is beneficial for humankind as a whole, but for all life on this blue planet.

Key statements from countries

16 Mar 2023

Take a look at key statements from ISA Member States below:

African Group

Argentina

Australia

Belgium

Brazil

Burkina Faso

Cameroon

Canada

Chile

China

Cook Islands

Costa Rica

Cuba

Dominican Republic

Ecuador

Federated States of Micronesia

Fiji

Finland

France

Germany

Ghana

Holy See

India

Indonesia

Italy

Jamaica

Japan

Kiribati

Korea

Mexico

Morocco

Nauru

Netherlands

New Zealand

Norway

Pakistan

Panama

Poland

Portugal

Russia

Senegal

Singapore

South Africa

Spain

Switzerland

Togo

Tonga

Trinidad and Tobago

United Kingdom

United States of America

DSCC Interventions – 16/3/22

16 Mar 2023

Opening statement

Thank you Mr. President and good morning delegates. We recognise the desire to move on but we hope the delegates will indulge us for a few minutes more – we would like to thank the Federated States of Micronesia and Belgium for supporting our active participation in this conversation. 

I speak on behalf of the Deep Sea Conservation Coalition and our 100 plus member organisations, many of whom sit alongside us today. We’d like to start by extending our thanks to the host State of Jamaica and ISA Sec staff for your kind hospitality.   

We are only 4 months away from potentially green-lighting deep-seabed mining under the two-year rule, in spite of significant environmental concerns, vast gaps in knowledge and understanding of deep-sea ecosystems, and widespread resistance to the industry from a growing spectrum of stakeholders.

We are concerned that the time currently allocated to the agenda item pertaining to the two-year rule (less than half a day on Friday 24 March) will be insufficient to allow for the multilateral process to take effect, and reflects a disconnect between the agenda and the growing global concern around the accelerated push toward mining the deep. The conclusion of the BBNJ Agreement on marine biodiversity is very significant for the ISA. The international community has spoken: we cannot destroy marine biodiversity and must respect and preserve the common heritage of humankind. We therefore respectfully request that the appropriate adjustments are made to the Programme of Work, to allow at least one full day for the discussion. 

While DSM is certainly a complex issue, it is grounded in a simple reality: deep-sea mining will destroy living ecosystems and marine biodiversity. It’s easy to lose sight of that when we’re sitting in a conference centre or an office day after day. I’m sure many of you have seen the excellent article by deep-sea biologist, Diva Amon, published in the New York Times this week. As you know, Dr. Amon is one of the few people involved in these discussions who’s witnessed the life of the deep with her own eyes, who’s been amongst it. And she describes something quite magical: a trove of biodiversity composed of strange and wonderful creatures: tentacled, luminous, ancient. We would do well to keep the images of these creatures in mind as we discuss the prospect of their destruction.

And all for what? The market is moving away from the metals found on the deep-sea floor. Electric vehicle manufacturers including Chinese manufacturer BYD and Tesla, for example, are already using a battery that contains no nickel or cobalt. Alongside these developments, recent studies show that through investment in the circular economy and recycling technologies, demand for these metals can be reduced by 58%. The narrative that deep-sea metals are needed for the energy transition is, therefore, debatable. 

All this raises the question: is a radical new extractive industry delving into the deepest reaches of our world something that humankind as a whole can accept? The ever-growing resistance from scientists, civil society, youth, media, the European Parliament, the IUCN and States would suggest that the answer is “no”.

Sofia Tsenikli, DSCC Campaign Lead, closing observations on the ISA’s 27th Council Meeting

12 Nov 2022

The deliberations of this Council meeting, while our governments meet in Egypt to tackle the climate crisis, have shown clearly that humanity has arrived at a crossroads. 

What has brought us here is a broken relationship with nature and a system that puts profit before sustainability, that perpetuates our dependence on finite resources, damages the environment, and causes scarcity, inequity and insecurity in our societies. Among those benefiting from this system are corporations, such as oil and gas companies, that even today continue to accumulate wealth while people and communities are left in crisis. The UN Secretary General was speaking for scientists, youth and citizens across the world when he said in his opening remarks at the UNFCCC COP27 that we are on “a highway to climate hell with our foot still on the accelerator”. 

In this Council meeting, “good faith” is equated to forging ahead on a pathway we know is perilous, by empowering mining corporations to strip mine the last remaining pristine areas of our planet for profit. By letting deep-sea mining happen, possibly as soon as next year, our generation is literally scraping the bottom of the barrel, knowing well that the consequences will be felt by those to come. 

But as we stand together at this crossroads, we know there is another path. It has been shown to us by millions of people worldwide who care deeply about the ocean, and a growing number of States namely Palau, Fiji, Samoa, the Federated States of Micronesia, Costa Rica, Chile, Spain, Ecuador, New Zealand, Germany, Panama and France who want to hit the brakes on deep-sea mining.  

Rather than being remembered as the generation that delivered the final blow to our planet by unleashing a new industry which could have wide-ranging and even catastrophic impacts, wiping out fragile habitats and species and disturbing the ocean carbon cycle1, we ask governments to put sustainability and intergenerational equity first. 

To those States not yet onboard we say this: Take the foot off the accelerator and hit the brakes. We urge you to listen to the calls for precaution and protection and come at the next Council meeting ready to walk alongside those who are resisting deep-sea mining, for the benefit of humankind and in ‘good faith’ towards future generations. A deep-sea mining moratorium is the way forward.

1 Undisturbed: The deep ocean’s vital role in safeguarding us from crisis, is a new report by scientists from the Benioff Ocean Initiative, Scripps Institution of Oceanography, and the International Programme on the State of the Ocean, highlighting the important role of the deep ocean in mitigating climate change and warning of the serious threats the deep sea faces.

DSCC INTERVENTIONS – 11.11.22

11 Nov 2022

DR 22

This intervention is given on behalf of The Ocean Foundation as well as DSCC. 

This provision raises the possibility of a contract being pledged as security, and therefore of the mortgagor stepping in the place of the contractor or selling the contract: then the provisions ensuring the suitability of the contractor in Draft Regulation 13 are pointless. Anybody could then be doing the mining. Further, if a contract can be pledged as security, that could render any financial security meaningless, as the only real asset could be the contract itself: a circular outcome that further brings into question where, in what format, and in how much money would  actually be set aside to fulfill various Contractor obligations under the Regulations.

No public participation would have addressed the technical and financial fitness of the owner of the contract and effective control would be rendered meaningless.

Being able to transfer contracts in this way for purely financial reasons could enable a whole new contractor to carry out activities in the Area.

To be specific: we noted last week that Tongan contractor TOML was bought by DeepGreen, yet the due diligence on technical and financial appropriateness was only done for Nautilus, which was by that stage in liquidation.

DR 23

Thank you, on behalf of Oceans North and DSCC, we welcome the comments from PEW, and wish to comment further. We consider DR 23 to be a dangerous provision, as it allows an entity other than the assessed applicant to carry out mining. There is no residual discretion to refuse a transfer even though the identity of the contractor is very important. Currently DR 23 (paragraph 7) reads the LTC “shall recommend approval of the application”  if criteria are satisfied. There is no discretion. It would be unacceptable that a whole different contractor should step into the previous contractor’s shoes, so to speak, automatically after the mining application has been predicated on the assessment of the identity of the applicant under DR 13.

DR 24

This is a critical provision about change in control. The discussions here must be aligned with the discussions of effective control in the institutional working group. We have three points about this draft regulation 24.

Firstly, controlling interest is not defined in paragraph 1 and must be discussed in the context of the Institutional Working Group. 

Secondly, currently as drafted in paragraph 3 the Secretary-General would have full power to determine whether the contractor will have the financial capability to meet its obligations under the exploitation contract. 

Thirdly, even if the Secretary-General does decide to notify the Commission, the only consequence under paragraph 4 is that the Commission shall submit a report of its findings and recommendations to the Council. In other words, there are no consequences to a change in control: this goes to the heart of both effective control and the assessment of the contractor.

DR 27

Contractors should not be required to start commercial mining. There could be many reasons a contractor chooses not to start mining, including concerns or lack of information on the environmental effects of any mining.

Indeed, TMC itself stated in a recent US Securities and Exchange Commission SEC filing that, and I quote, “Operations in the CCZ are certain to disturb wildlife and may impact ecosystem function. Impacts on CCZ biodiversity may never be completely and definitively known”. 

This lack of knowledge underlines why a moratorium on deep-sea mining is essential.

DR 28

Paragraph 3 would require the contractor to suspend production whenever such reduction or suspension is required to protect the Marine Environment from harm or to protect health and safety. We read this as additional to emergency orders to require the contractor to take action before any such measures.

But as discussed in other working groups, the threshold of serious harm is too dangerous. The applicable standard should be to protect the marine environment from any harm as required by  Article 145.