ISA Punts on Deep Sea Mining Regulation as Deadline Approaches

[By Todd Woody]

As the International Seabed Authority meets in person this month for the first time in nearly two years, global opposition to deep-sea mining is building, and the United Nations-affiliated organization faces dissent among its member states over a rush to enact regulations to allow seabed exploitation to begin.

Negotiating those regulations, however, will not be on the agenda during the eight-day meeting at the ISA’s headquarters in Kingston, Jamaica. COVID-19 restrictions in Jamaica limit in-person gatherings to 100 people, making it impossible to hold face-to-face talks among the ISA’s 167 member states and the European Union.

With the emergence of the Omicron variant, Jamaica has also barred visitors from South Africa and seven other African countries. The ISA has asked member states to limit delegations to two people, and for non-governmental organizations to send only one observer to the meeting. Journalists are not permitted to attend.

Instead, the ISA Council, the organization’s 36-member-state policymaking body, will consider a “roadmap” proposed by the secretary-general, Michael Lodge, to finalize by July 2023 regulations to allow the mining of cobalt, nickel and other valuable metals to proceed.

The pandemic derailed the previous roadmap that called for the regulations, known as the Mining Code, to be completed by the end of 2020. Then, in June, the tiny South Pacific island nation of Nauru effectively blew up the road when it invoked a rule that requires the ISA to complete the code within two years.

If it doesn’t, the Council must provisionally approve a “plan of work” to mine polymetallic nodules by a company Nauru sponsors under whatever regulations are in place at the time, regardless of whether sufficient safeguards exist to minimize damage to biodiverse and fragile deep ocean ecosystems.

Nauru acted on behalf of Nauru Ocean Resources Incorporated (NORI), a wholly owned subsidiary of The Metals Company, a Canadian-registered corporation. When Nauru triggered the two-year rule, The Metals Company, formerly called DeepGreen, was in the process of listing its shares on a United States stock market and had told investors it expected to begin mining in 2024. The move came days after Bloomberg News and the Wall Street Journal published investigations into The Metals Company’s business practices.

Like other ISA state sponsors of mining companies, Nauru, a 20-square-kilometer island with a population of 11,000, will receive royalties on the minerals excavated. In US government filings, The Metals Company valued the minerals to be mined from one of Nauru’s concessions at $95 billion over 23 years and said it would pay Nauru and the ISA 7.6 percent of that in royalties.

Observers say the proposed ISA roadmap leaves a plethora of difficult issues to be resolved in a short timeframe amid a pandemic that is showing no signs of abating.

Among the most contentious are the establishment of an inspectorate and the development of procedures and technology to monitor mining and ensure compliance with environmental regulations. Also unresolved, despite years of talks, is a financial regime to set the royalty rates mining companies will pay to the ISA and how to distribute a portion of those payments to member states. In addition, the ISA must create a scheme to compensate developing nations for losses to their terrestrial mining industries due to competition from seabed mining.

“I think it’s really questionable whether the ISA should allow exploitation activities to commence as there are all these other items within and beyond the regulations that still need to be agreed on,” says Pradeep Singh, a legal researcher at the University of Bremen in Germany who studies ISA governance.

In a paper published in December, Singh noted that the Council requires consensus among its members to approve regulations. “The coming months could seriously test the solidarity of the Council,” he wrote.

Opposition from Africa and Latin America

Cracks in that solidarity appeared within weeks of Nauru’s exercising what some observers call “the nuclear option.”

In a July 13 submission to the Council, the African Group of nations warned that Nauru’s action “is likely to weaken rather than facilitate the development of an effective regime” to regulate deep-sea mining.

“Critical questions persist regarding the mechanism for equitably sharing benefits derived from seabed mining, the impact of such activity on terrestrial mining economies, and the effects of mining on deep ocean ecosystems and coastal states,” the submission states. “These questions must be substantially answered before regulations on exploitation can be finalized and commercial scale mining can be permitted even on provisional basis.”

“Effective governance requires sound scientific knowledge that is also yet not available,” the African Group added.

On October 13, a group of 10 Latin American and Caribbean nations, including Costa Rica, Argentina and Chile, filed a submission to the Council expressing unease with the two-year deadline. It noted that, among other things, the ISA has yet to agree on the creation of an inspectorate to monitor mining and enforce regulations and has not adopted environmental management plans for areas of the deep sea targeted for mining.

“We express our concern regarding the … crucial pending issues that need to be discussed and agreed upon before any plan of work should be considered, and on which delegations are far from reaching an agreement,” the submission states. “Consideration must be given to the reality that the Council might not be able to conclude the development and adoption of the required rules, regulations and procedures within the two-year period.”

Some member states also have objected to holding an in-person conference during a pandemic and asked that the December meeting be postponed. In a 5 November letter to the Council president, Brazil’s representative to the ISA noted that pandemic restrictions make it “practically impossible to reach the required quorum” to hold meetings of the Assembly and Council.

“Current conditions do not guarantee the complete safety of the participants or the success of the 26th Session,” the letter states.

The ISA did not immediately respond to a request for comment.

A lack of consensus

An indication of just how far from consensus member states remain comes in their comments on some of the draft environmental standards and guidelines that must be completed for the Mining Code to take effect.

Germany, for instance, commented that draft standards and guidelines for environmental management systems are “not fit for purpose/adoption yet” and noted that they allow mining companies “to determine their own environmental objectives, performance criteria and auditing scheme.”

China, on the other hand, advocated for eliminating binding standards from the draft and including only voluntary guidelines for environmental management systems.

Kristina Gjerde, a long-time ISA observer and senior high seas adviser at the IUCN (International Union for Conservation of Nature), said: “The roadmap is overly hasty: it does not allow sufficient time to conduct and analyze the scientific research required to understand potential impacts of full-scale mining, nor to set appropriate environmental standards or guidelines.”

Mining companies forge ahead

Mining companies, meanwhile, are moving forward. In May 2021, Belgian mining contractor GSR concluded a test of a prototype of its polymetallic nodule collector in the Pacific Ocean. The Metals Company says a partner is retrofitting a former drill ship to serve as a surface vehicle to transport nodules and that it plans to test a nodule collector in 2022. UK Seabed Resources, a subsidiary of US defence contractor Lockheed Martin, plans to test a nodule collector in 2023, according to a report by a UK government-funded research organization.

Opposition to deep-sea mining, though, continues to grow. In recent months, IUCN members voted overwhelmingly for a moratorium on deep-sea mining while more than 600 prominent marine scientists and policy experts signed a letter calling for the same. This month, Patagonia and VW Group joined Google, BMW, Volvo Group and other multinational corporations in pledging not to buy seabed minerals until the environmental impacts of mining are better understood.

ISA observer Matthew Gianni, a founder of the Deep Sea Conservation Coalition, says Nauru’s trigger of the two-year rule underscores the need for fundamental reform of the ISA. “Countries have to take a hard look at these rules that are forcing them to have this debate now, in spite of the fact that they’re nowhere near ready to agree to exploitation regulations.”

Todd Woody is a California-based environmental journalist who specializes in ocean issues. 

This article appears courtesy of China Dialogue Ocean and may be found in its original form here.