Regulating the seabed: determining the future of deep-sea mining

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or the past 25 years, the International Seabed Authority (ISA) has been the deciding authority on mining activities on the seabed, ocean floor, and subsoil, beyond national jurisdiction limits. Despite this, the ISA has yet to produce a clear regulatory framework for deep sea mining (DSM). Negotiations over DSM regulations began in 2014, but disagreements over sharing future mining proceeds among nations have led them to be stuck in a quagmire.

However, earlier this year, the process was supercharged by the micro-state of Nauru, which in June activated an obscure sub-clause in the UN Convention on the Law of the Sea, which gave the ISA a two-year deadline to finalise regulations.

The ISA has already issued 30 exploration contracts for developing resources from polymetallic nodule fields, each with a 15-year duration. There are fears amongst campaigners that Nauru could be the straw that breaks the camel’s back in the race to the bottom of DSM.

This decision could have particular consequences for Australia and New Zealand. In September, the New Zealand Supreme Court rejected a bid by Trans-Tasman Resources (TTR) to overturn a decision preventing the company from mining iron sand off the coast of South Taranaki. This has led to calls for the New Zealand Government to introduce legislation to ban DSM and support a moratorium on DSM, which could influence other states to exert pressure for reform within the ISA.

Since DSM is still in its infancy and no exploitation in international waters has begun, the world is standing at a developmental crossroad. Whether Nauru is successful in its bid or New Zealand and other like-minded nations pressure the ISA into reform will greatly determine whether DSM gains traction as a major industry.

The island of Nauru is one of the many victims of resource imperialism. High in chemical phosphate, the island’s arable land was stripped by successive colonial powers. Despite enjoying a brief boom period after independence in 1968, by the 1980s, the country was bankrupt.

This is where The Metals Company (TMC) came into the picture. ISA rules allow any member nation to sponsor projects in any international waters and favours developing countries. In June, the president of Nauru, Lionel Aingimea, sent a letter to the ISA drawing out plans for deep-sea mining conducted by Nauru Ocean Resources (NORI), a subsidiary of TMC.

The Canadian miner is one of a few mining companies that believe seabed mining is critical to the energy transition. They have branded themselves as a sustainable, environmentally-friendly company and argued that the deep-sea mining industry is very different from terrestrial mining.

Most battery makers and industrial users reject these arguments. BMW, Volvo, Google, and Korean battery maker Samsung SDI have vowed not to buy metals produced from DSM until the environmental risks of the activity are “comprehensively understood”.

By invoking the two-year rule, member countries of the ISA must now consider DSM exploitation permits, regardless of whether authorities have established regulations to govern the practice. The ISA must also develop a regulatory framework around how DSM should operate.

The ISA released a statement recognising Nauru’s letter of intent and that it would resume work on mining regulations. However, observers have shared doubts that in a world still in the grips of a pandemic, two years is not long enough to even scrape the surface of an effective rulebook.

According to Duncan Currie, international lawyer and representative of the Deep Sea Conservation Coalition, the impact of this could be significant: “This is very concerning, as it is likely to trigger a race to the bottom, as other contractors would not want to be left behind, and because it risks rushing what needs to be a carefully considered process.”

In late September, offshore mining company TTR lost its supreme court bid to overturn a decision preventing the company from mining iron sand off the coast of South Taranaki, on New Zealand’s North Island.

Immediately following the supreme court decision, Kiwis Against Seabed Mining (KASM) launched a petition calling for the banning of all seabed mining.

In a press release, the group stated: “New Zealand has scrutinised seabed mining more than any other country on the planet. With the current wave of global interest in seabed mining, we think New Zealand now has a moral obligation to lead the world away from this potential ecological disaster and stand for a moratorium on seabed mining in international waters.”

The rationale of these groups is simple. The risk of using unproven technology far outweighs the benefit it could bring. Cindy Baxter, chair of KASM, stated: “We don’t want to be that guinea pig. It’s an untried and untested technology, and it’s very clear from Trans Tasman’s application [that] they don’t know about the environmental effects. And none of the companies that have applied for seabed mining licenses here has done their homework properly.”

This is the third seabed mining application to be declined in New Zealand since. A key part of the ruling was acknowledging that Tikanga (Māori customary practices or behaviours) should have been recognised as binding and considered part of the application process. This would set a precedent that seabed mining that causes any material damage to the environment cannot be approved under New Zealand’s law.

A month earlier, a motion for a DSM ban was adopted at the IUCN World Conservation Congress. Among governments and government agencies, 81 voted for the moratorium, 18 against, and 28 abstained. For NGOs and civil society groups, the vote was even more in favour of the motion, with 577 for, 32 against, and 35 abstentions.

The motion called for a moratorium on DSM until rigorous and transparent impact assessments are carried out. In addition, it called for reform within the ISA to ensure transparent and environmentally focused regulation.

The motion was supported by over 500 scientists, from 44 countries, who have warned of the cautionary need for a pause in the process of enabling mining in the deep sea. And in June, a European Parliament resolution called for the same and reforms of the ISA.

If New Zealand were to declare a ban on DSM and lobby other like-minded governments to do the same, the requisite pressure to force the ISA into deciding that it cannot go ahead until the requisite social, cultural, and economic risks are understood, could be achieved.

However, whether this decision will set a clear precedent for the future of DSM remains up for debate. New Zealand’s relative wealth and progressive civil society are incomparable to other smaller, poorer states, who have begun to see DSM as a panacea for their economic and social woes.

With Nauru’s decision to invoke the two-year rule, unless significant civil and governmental pressure is placed on the ISA to undertake a comprehensive review of the real and inherent risks, it seems likely that DSM will begin soon in earnest.