International Seabed Authority

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.

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.

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”.

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.

11 Nov 2022

The International Seabed Authority (ISA) today concluded the 27th Meeting of the Council amidst mounting international resistance to the controversial emerging deep-sea mining industry.

As the moment of truth draws ever closer, the political momentum against deep-sea mining is gaining ground. In the space of six months alone, 12 States have made bold political decisions that put nature where it should be: front and centre. Over the course of the meeting, France, New Zealand, Germany and Panama joined Palau, Fiji, Samoa, the Federated States of Micronesia, Chile, Costa Rica, Spain and Ecuador in calling to pull back from the brink of a vast new extractive sector on the grounds of the environmental, social and economic risks. 

French President Emmanuel Macron called for a ban in an opening address at COP27 and France reaffirmed this position during the ISA meeting this week, warning: “As the effects of climate change become increasingly threatening and the erosion of biodiversity continues to accelerate, today it does not seem reasonable to hastily launch a new project, that of deep seabed mining, the environmental impacts of which are not yet known and may be significant for such ancient ecosystems which have a very delicate equilibrium.” 

The DSCC and its member organisations called on countries to prioritise safeguarding the health of the ocean by defending the deep from destructive exploitation.

The DSCC’s Campaign Lead Sofia Tsenikli stated: “World leaders are finally waking up to the imminent risks of deep-sea mining and the need to protect the blue heart of our planet that sustains us all. Rather than being remembered as the generation that delivered the final blow to our planet by unleashing a new industry which could have catastrophic impacts, we urge States to put sustainability and intergenerational equity first. The DSCC welcomes the leadership shown by countries calling for a stop to deep-sea mining and we urge all States to follow before it is too late.

The Deep Ocean Stewardship Initiative (DOSI), a global network of deep sea scientists, present throughout negotiations, continued to warn delegates that species extinction and damage to fragile deep sea ecosystems would be inevitable and irreversible if the industry were to go ahead. A new scientific report presented during the meeting at a side event hosted by the DSCC and Sustainable Ocean Alliance, also highlights the risks that deep-sea mining poses to critical carbon stores and biodiversity in the deep sea.

The ISA meeting focused on negotiating a ‘mining code’ that, if adopted, would allow countries to apply for mining contracts as early as July 2023, due to the triggering of a loophole referred to as the “two-year rule”. Despite a number of States backing variously a precautionary pause, moratorium or ban, there is still a very real possibility that this destructive industry could commence next year as countries such as the UK and Norway are pushing for adoption of regulations by July 2023. 

On the penultimate day of Council, serious concerns were raised about the ability of the Authority to act as an effective regulator for an industry that could open the largest mining operation ever seen in human history. Almost unanimous concern was raised across Council on repeated violations that have already taken place by would-be miners during the exploration phase of deep-sea mining. Numerous delegations also raised concerns over the Authority’s recent approval of test-mining, which was granted behind closed doors, without any consultation with stakeholders or ISA member countries. 

The DSCC’s Legal Advisor, Duncan Currie stated that “It is clear that as it stands the Authority is not fit to act as an effective regulator of a new, destructive industry that threatens to incur enormous damage on deep-sea habitats and ecosystems.” Currie added: “Rather than catalyse the rush to mine the deep, the ISA should focus on promoting deep-sea scientific research, to advance the protection of critical and fragile deep-sea habitats.” 

Emma Wilson, the DSCC Policy Officer stated: “Rather than opening up a new frontier of industrial mining and extending the footprint of terrestrial mining into the depths of our ocean, we should be moving towards more environmentally and socially responsible models of production, consumption and reuse.” Wilson added “World leaders have a unique opportunity to take concrete action to protect one of our planet’s last wilderness areas from irreversible destruction – the only way forward is a moratorium on deep-sea mining.

ENDS

For further media information, please contact:

Spokespeople available for comment

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.

11 Nov 2022

March 2023

21/3/23

  • Called for protection of the marine environment from ‘harmful effects’

17/3/22

  • Stated that financial incentives to begin deep-sea mining are not incompatible with the draft regulations on financial models.
  • Questioned the rigid imposition of royalties paid to ISA by contractors, which could artificially put into bankruptcy a contractor that could otherwise recover its cash flow.

16/3/22

  • The UK stated that they will continue to sponsor for both contract areas and remain licensed under UK’s domestic legislation and will continue to meet the requirements for “qualified applicant” under exploitation code

October/November 2022

11/11/22

  • The UK stated that it is beyond the mandate of the ISA to ensure that it doesn’t monopolize the production of any single mineral and metal produced

4/11/22

  • The UK stated that they are committed to fully engaging in negotiations underway and emphasized that they are keen to see the ISA Council finalize regulations by July 2023.

3/11/22

  • Together with China noted that “the work of the expert group should be under the oversight of the LTC and their final decision making on adopting a REMP should of course rest of the council and be based on the LTCs recommendation.”
  • The UK called on delegates to ensure that we don’t lose momentum on “critical work.”
  • The UK expressed support for steps to be taken to operationalize the Enterprise, commending the proposed methodology in terms of looking to adopt it at the next meeting in the spring.
  • The UK stated that they are very supportive of building up the organs of the ISA. This includes EPC.

2/11/22

  • The UK delegation proposed bringing forward discussions on drafts standards and guidelines.

July/August 2022

3/8/22

  • Stated with regard to the Belgium proposal – “We acknowledge the point made by observers and note that they all have their own policy positions as well in relation to the interventions which they make as well.”

1/8/22

  • The UK delegation stated that the discussion on ‘what if’ scenarios was scheduled by the Council for the 31st of October to November meeting and that has been in the roadmap since December.

29/7/22

  • The UK stated that “we think that the time has come to take the steps to put the [economic planning] committee in place as the council and the ISA takes this forward. It’s important work.”
11 Nov 2022

March 2023

21/3/23

  • Stated: “We remain concerned as to how the environmental compensation fund would finance compensation for an environmental disaster that occurred in the early years of mining”

October/November 2022

11/11/22

  • The delegation agreed with Costa Rica on changes to the ISA’s roadmap

4/11/22

  • On contractors compensating for the loss of common heritage of mankind, South Africa stated that – “You can’t just mine take away the minerals which are common heritage of mankind, and expect that we will allow you to just pay 2% And then off you go.”

3/11/22

  • It is about time that all of these organs of the Council, e.g. the Enterprise and EPC, to be operationalised.

July/August 2022

4/8/22

  • On the two year rule and referring the matter to ITLOS: “The stakes are very high compared to the stakes in 2011. So the question now is, why are we hesitant if we are in referring this matter to ITLOS for an advisory opinion, when the stakes are high, whereas when the stakes were not as high as this high in 2011, we managed to do that and we did receive a good advisory opinion.”