Legal opinion on seabed ‘goldrush’

Saturday March 30, 2019 Published in Environment
Deputy prime minister Mark Brown with polymetallic nodules. 18101938 Deputy prime minister Mark Brown with polymetallic nodules. 18101938

The first, and most theoretical, point outlined by CJ Iorns Magallanes in her review of the Seabed Minerals Bill 2019 is this: as humans, we have created laws and processes that allow us to make money off of our resources, but is this still our moral right, considering the current rate of decline of the natural world?

 

Magallanes is an impressively qualified reader in law and university professor. She is a certified commissioner for the New Zealand Ministry for the Environment, has experience advising iwi in disputes over mining, and possesses awards acknowledging her excellence in research and matters of international environmental law.

 Her legal opinion notes, in its introductory pages, that there is renewed interest in the Cook Islands’ resources “in the context of a so-called ‘goldrush’ for valuable seabed minerals”. This refers to the fact that previously, the Seabed Minerals Authority was not successful in finding buyers for the Cook Islands’ nodules; now, as electric cars and batteries and other “green” technologies are becoming popular, there is interest which could, as we heard from presenters during public meetings, attract a lot of money.

But Magallanes also points out that there is “significant environmental degradation associated with seabed mining”, as with most land-based mining, too. 

This is a point which has been heavily debated on both sides.

Magallanes takes this position: “While there are a range of seabed mining methods proposed, depending on the mineral and the area it is to be taken from, all the methods effectively involve destroying the seabed which is being mined as well as affecting areas outside that which is being mined.”

She explains that the dumping of waste on the seafloor produces plumes that can interfere with light and thus photosynthesis—the conversion of light to energy—that happens in and through algae, which is food for other species. This seemingly small impact could, she points out, disturb entire food chains.

“While this is a relatively new area of activity, the few studies that have been done have shown both ‘immediate adverse impacts on ecosystem health, species abundance, and biodiversity’, as well as ‘little to no recovery of mined locations, even years after the experimental operations concluded’,” she writes.

Magallanes quotes research that suggests damage to the seafloor is permanent and “worse than on land where replanting and remediation can be required”. In other words, it’s a lot harder, or virtually impossible, to restore an area on the seabed, which is unknown territory for humans even in this technological age.

“It therefore needs to be kept in mind that, when a deep sea area is mined, it needs to be treated as being permanently sacrificed in return for the income to be received from the minerals recovered,” Magallanes writes in her legal opinion.

She adds that this is an endeavour which requires even more careful handling now than it would have decades ago, before scientists were as aware of the impacts of human activity on the environment as they are today.

“There is also an increasing number of people who are concerned that we may not be in a physical position to destroy any more of the world’s biodiversity for fear of destroying the basis of life upon which we depend,” she writes. “Even if we may have been able to make such sacrifices in the past, the world’s biodiversity has declined precipitously, losing more than 50 per cent of vertebrates since the 1970s, for example, and it continues to face increasing numbers of extinctions.

“Biodiversity is now threatened from many sources, from climate change to pollution to clearance for human habitation and agriculture, yet we don’t know scientifically where the tipping points are, not just for species but particularly for ecosystems. It is thus arguable that sacrificing any large areas that could house biodiversity, especially unstudied ecosystems, is particularly unwise in the face of threats to the stability of the earth’s natural systems.”

She notes that it is “extremely unfortunate” for small island states that the developed world was largely responsible for these problems, but “that is still the position that the world faces and no one can ignore it”.

Beyond these moral and ethical matters, there are many other legal and structural issues highlighted by Magallanes’ opinion. The draft Seabed Minerals Bill 2019 is likely to be debated in Parliament in the coming weeks.

Look out for additional articles based on the legal review before then.

Te Ipukarea Society and Korero O Te ‘Orau are grateful to the government for extending deadlines for submissions and for taking on board public feedback relating to this seminal piece of legislation which is currently under development.

-Te Ipukarea Society

1 comment

  • Comment Link Tomoko Sunday, 10 November 2019 19:26 posted by Tomoko

    This is a great article. Where can I find the original full-text version of her legal opinion?

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