In her assessment of the draft Seabed Minerals Bill 2019, environmental law expert CJ Iorns Magallanes points out that the Cook Islands can and should learn from the mistakes other Pacific nations are making in their efforts to mine the most unstudied environment on the planet.
Increased demand for minerals around the world has hastened the process of permitting and legislating seabed mining around the region. Magallanes refers to it as the goldrush for valuable seabed minerals, located largely in the Pacific Ocean.
The Cook Islands is aiming to pass the Seabed Minerals Bill this year, even though 2020 is the target date for completion of a marine spatial plan. This is the map delineating appropriate uses of ocean space, prescribed by the Marae Moana Act 2017.
The Secretariat of the Pacific Community, in partnership with the European Union, developed some legislative guidelines to inform Pacific governments as they draft laws regulating exploitation of the seabed. Magallanes points out in her legal opinion that these have been criticised by environmental lawyers and organisations such as the Pacific Network on Globalisation on the basis of a lack of caution.
Magallanes notes that Papua New Guinea, Tonga, and Fiji, which permitted large corporations to explore their mineral resources, have struggled to regulate and manage activity in the deep sea.
Papua New Guinea began its journey without a legal framework and “suffered adverse environmental impacts and adverse cultural impacts without the financial benefit to compensate for such impacts”, Magallanes writes.
The country has been unable to monitor and enforce what companies are doing in its ocean space, as well as to collect payments. This is likely due to a lack of administrative capacity and alleged corruption.
Tonga has also struggled to monitor and enforce compliance with the terms of permits issued. Magallanes suggests this is because of a lack of money to fund environmental work.
“Moreover, early licenses were approved without any public consultation but, unfortunately, adverse effects from only exploratory mining activities have already been reported to have had an impact on Tonga’s fisheries, and full mining activities threaten to disturb them further,” she writes.
The Fijian government also did not sufficiently consult members of the public about issuing permits to explore the seabed. There are concerns, based on its management of onshore mining and fisheries, that it will “have great difficulty monitoring activities on the deep seafloor”, Magallanes points out.
Another concern in the case of Fiji is lack of transparency in decision-making processes; the legal opinion suggests the Cook Islands should be wary of this also, and its reasoning will be covered in a forthcoming article.
Land-based mining has, in Papua New Guinea and Nauru, involved large corporations from the developed world reaping enormous profits from resources “while outsourcing pollution and other environmental degradation as well as causing internal domestic conflict, arguably leaving these Pacific nations in a worse state than had the mining not taken place”, Magallanes remarks.
The Cook Islands government has said that deep-sea mining is a much cleaner and safer endeavour than land-based mining. However, it is far too early to make such a claim.
An article from Blue Ocean Law and the Centre for Marine Environmental Sciences in 2018 said that the current “gold rush” for seabed minerals is little different from earlier resource scrambles. Issues include a general disregard for environmental and social impacts, and the marginalisation of indigenous peoples and their rights.
“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 writes.
She also notes that much of the damage would be worse than on land, where replanting and remediation can take place. Several experimental studies have shown that mined deep sea habitats recover just a little, or not at all.
Magallanes’ overriding suggestion is that the key is “to set up a regime that prevents such damage” because once done, it is likely irreversible.
The Cook Islands was the first Pacific nation, in 2009, to develop a law for managing seabed mining; this is the law being presently amended. The Cook Islands also has some of the most progressive marine legislation in the region, known as the Marae Moana Act 2017, which makes conservation the focus of all ocean-based activity.
Based on the experience of other Pacific nations and their shared struggle to monitor and enforce what happens in the middle of the sea, Magallanes suggests the Seabed Minerals Bill 2019 should more fully integrate, and more frequently refer to, the Marae Moana Act.
“I suggest that the Cook Islands is in an excellent position to learn from the mistake of other small Pacific island states, and can improve the Bill to enable the Cook Islands to profit from the natural environment while still protecting it for future generations and for the maintenance of the natural world upon which they depend,” she writes.
- Te Ipukarea Society