Source: http://www.deepseaminingoutofourdepth.org/submission-to-international-seabed-authority-developing-a-regulatory-framework-for-mineral-exploitation-in-the-area/

Submiitted by email to: consultation@isa.org.jm
By the Deep Sea Mining Campaign, Earthworks, MiningWatch Canada,  Oasis Earth and the Mineral Policy Institute
15 May 2015

INTRODUCING OUR ORGANISATIONS

The  Deep Sea  Mining (DSM)  Campaign is an association of NGOs and citizens from the Pacific, Australia, Canada  and the US concerned about  the likely impacts of DSM on marine and coastal ecosystems  and human  communities.

As an emerging  threat, DSM has not been widely discussed beyond  mining and technical circles. A key aim of the DSM campaign  is to raise the profile of this issue among  government and civil society stakeholders. We seek to generate debate and critical thinking about  the risks and costs of this industry at all levels - from grassroots  communities  to political leadership.

We have produced several articles, fact sheets,  two science based reports,  and conducted advocacy and participated in discussions on DSM at international, Pacific regional and national  levels.

Contact:  Helen Rosenbaum:   hrose@vic.chariot.net.au

MiningWatch Canada  (MiningWatch) is a pan-Canadian initiative supported by environmental, social justice, Aboriginal and labour organisations from across Canada.  The organization  was created by founding  members  in 1999 to address the need for a co-ordinated public interest response  to threats to public health,  water and air quality, fish and wildlife habitat  and human  rights posed by irresponsible mineral policies and practices in Canada  and by Canadian  companies  around  the world. With Canadian  and global partners,  MiningWatch carries out and/or supports  the monitoring,  analysis and advocacy  necessary to improve corporate practices and inform policy and regulatory  development by public decision-makers.

Contact:  Catherine  Coumans:   Catherine@miningwatch.ca

Earthworks is a US-based nonprofit  organization  dedicated to protecting communities  and the environment from the adverse impacts of mineral and energy development while promoting sustainable  solutions. Earthworks fulfills its mission by working with communities  and grassroots groups to reform government policies, improve corporate practices, influence investment decisions and encourage responsible materials sourcing and consumption.

Contact:  Payal Sampat,  psampat@earthworksaction.org

Oasis Earth is a marine conservation consulting organization  based in Anchorage,  Alaska, providing technical advisory services regarding  ocean conservation issues to governments, industry, NGOs, and civil society around  the world. A particular focus of Oasis Earths work is environmental impacts of extractive industry, such as offshore oil and gas development and Deep Sea Mining (DSM). Oasis Earth also works to establish Citizens’ Advisory Councils to provide effective engagement of and oversight  by civil society stakeholders  regarding  extractive industry projects.

Contact: Professor Richard Steiner: richard.g.steiner@gmail.com

The  Mineral Policy Institute (MPI) is an international civil society organisation  with a volunteer board representing members  from across the world. Operating from Australia MPI focuses on assisting communities  affected  by specific mining projects and on achieving industry reform through improvements to policy, law and practice.

With a strong emphasis  on free prior and informed consent,  MPI undertakes a supportive  and background role to assist mining affected  communities.  MPIs aim and role is to support  communities to more effectively protect  their rights and respond  to mining issues that  impact on them.

Contact:  Charles Roche:  charles.roche@mpi.org.au

RESPONSE TO THE DRAFT REPORT

1 BEST PRACTICE DEEP SEA MINING DECISION MAKING

Our submission focuses on three elements  critical for best practice deep sea mining (DSM) decision making: the implementation of the Precautionary Principle, achieving Free Prior and Informed Consent  (FPIC), and gaining broad civil society support.

There is limited understanding about  the full impacts of DSM on marine ecosystems,  species and food chains, including those relied upon by our own species. Furthermore, this unprecedented form of mineral extraction  has the potential  to cause irreparable harm to large areas of the deep ocean floor.

Due to these  significant risks and the lack of public information  and discussion about  them,  DSM has yet to gain support  from communities  that  may be affected  by it and from civil society more broadly.

In the Pacific region, due to uncertainty surrounding the impacts of seabed  mining, it has been met with widespread opposition  from communities,  churches,  NGOs, scientists, fishery managers, academics and student associations.  In New Zealand, the environment protection agency  (EPA) recognised  that  scientific information  and baseline scientific research was inadequate to identify the scope and significance of potential  impacts on the environment, existing commercial and community interests.  Thus in landmark  decisions over the past year, the EPA has rejected  New Zealands first two applications to mine for minerals within their EEZ. In Namibia and in the Northern  Territory of

Australia moratoria  are in place for shallow seabed  mining for similar reasons. These decisions establish a precautionary precedent for DSM decision making.

DSM exploration  itself has the potential  for significant impacts particularly in the later stages of proving ore bodies. It is extremely regrettable that  the ISA has granted exploration  licences without consideration of environmental impacts or the concerns and aspirations of society in regard to this potentially high risk and untested form of mineral extraction.  It is indeed notable  that  the Center for Biological Diversity has announced that  it is  suing the United States Government over the granting  of exploration  permits for the Clarion-Clipperton Zone in the absence  of environmental impact studies.

RECOMMENDATIONS

In order to develop best practice decision making we  strongly urge  the  ISA to not  issue seabed exploitation licences nor  any  further exploration licences without the  following conditions being met:

a) the  free, prior  and  informed consent of  Indigenous Peoples for exploration and  exploitation

b)   the  broad support of  potentially affected communities and  wider civil society (gained via processes underpinned by the  key  principles of  FPIC) for exploration and  exploitation

c) peer-reviewed research on  the  potential impacts of  the  DSM  operation to marine ecosystems and  species

d) peer-reviewed research on  the  potential impacts of  the  DSM  operation

to the  health and  the  economy of  human communities at local, national and regional levels

e)  peer reviewed research on  the  cumulative impacts of  DSM  operations and the  establishment of  mechanisms and  strategies to address these

We suggest that  one way  to achieve peer review would be  for the  ISA to establish

an Independent Scientific Advisory Committee to provide independent scientific and technical advice to the  Authority and  to sponsoring Governments on  aspects of  DSM critical  for decision-making.

As the  global steward of  the  ocean commons we  also believe it is incumbent upon the ISA to oversee a process of  discussion aimed at defining how DSM  decision-making will meaningfully incorporate the  Precautionary Principle and  obtain the  consent of Indigenous peoples, affected communities and  wider civil  society.

In addition, we  recommend that  where FPIC and  broad support for DSM  has  been obtained that  the  ISA require the  establishment of  Citizen Advisory Councils (CACs) for projects within the  Area  and  facilitate the  establishment of  CACs in national waters.

The following sections provide the  rationale and  further explanation of  these recommendations. 

1.1 PRECAUTIONARY PRINCIPLE

Best practice decision making requires that  there to be sufficient scientific information  about  the full range of risks to enable environmental managers to determine how these  risks may be mitigated. Only then  can participatory  decision making processes determine whether risks are within socially acceptable bounds  and FPIC and broader  civil society support  be granted (or withheld).

In the absence  of such scientific data,  as is currently the case in relation to DSM, the application of the precautionary principle would dictate that  DSM exploitation  should not proceed.  The definition provided by the United Nations World Charter for Nature (1982) provides a more rational response to the high levels of potential  risk and uncertainty associated  with DSM, than  does the definition favoured  by the DSM industry that  is offered by the Rio Declaration principle 15.

The UN World Charter states that:

activities which are likely to pose a significant risk to nature shall be preceded by an exhaustive examination; their proponents  shall demonstrate  that expected benefits outweigh potential damage to nature, and where potential adverse effects are not fully understood, the activities should not proceed.

Reports by the DSM campaign  and Professor Richard Steiner examining the EIS of the Nautilus

Solwara 1 project herald the widespread and unpredictable harms that  may result from DSM.

Amongst other factors, the reports highlight the lack of baseline scientific data on the biota and fauna of the receiving environment; the lack of research into the movements of DSM plumes and the lack of understanding of the toxicology and the physical impacts of those plumes.

The reports also detail the many flaws and gaps that  exist in the Nautilus Solwara 1 EIS. The fact that  an operational licence was granted by the Government of Papua New Guinea despite  these deficiencies, identifies the need for independent scientific advice and strong EIS processes and capacities.

We recommend that  the ISA establish an Independent Scientific Advisory Committee (ISAC) to provide independent scientific and technical advice to the Authority and to sponsoring  Governments on aspects of DSM critical for decision-making.

Presently, the Authority and sponsoring  governments receive scientific advice and input primarily from companies  with vested interests in a particular policy or regulatory  result of the Authority.  Such advice is not always strictly objective. A properly structured ISAC will be comprised of scientists

with no direct connection to DSM industry, permitting  governments, or ISA members.  It will include representatives of all relevant scientific disciplines, including deep sea biology, pelagic biology, physical and chemical oceanography, marine engineering, and social science.

The ISAC should review and comment on any/all scientific and technical matters  within consideration of ISA, including regulatory  development for exploration  and exploitation  activities, leasing, EIA development, permitting, and project development and oversight.

Given the current lack of capacity within many of the countries sponsoring  DSM exploration,  the ISAC

should also review and approve  EISs for exploration  and exploitation.

1.2 FPIC AND CIVIL SOCIETY SUPPORT IN THE CONTEXT OF DSM

We acknowledge that  achieving FPIC and broad civil society support  in the context  of DSM in

the Area will be challenging.  We do not suggest  that  FPIC is a “one  size fits all” solution.  On the contrary,  a flexible approach should be employed  to adapt  its key elements  to different circumstances. FPIC has already been applied in a wide range of cultures and mining situations (e.g. Doyle and Carino, 2013).  However we would urge the ISA to not be overly pre-occupied with previous applications of FPIC but to adapt  its key elements  to this new realm of DSM.

An important distinction between public participation  and FPIC is that  FPIC entitles indigenous peoples to determine the outcome of decisions that  affect them.   Participation on the other hand is commonly interpreted as a process of consultation  about  projects that  others make final decisions on. Hence FPIC provides a stronger  ‘standard’  than  participation  in terms of human  rights.

In consideration of the uncertainties and risks posed by DSM it would be appropriate that  the stronger standard enabled  by the underpinning elements  of FPIC be applied not only to gaining the consent  of Indigenous  Peoples but also to obtaining  broader  civil society support  for DSM.

As summarised  from the UN Declaration on the Rights of Indigenous  Peoples (UNDRIP, 2007),  these key elements  are:

Free  - Consent  is free from force, intimidation,  manipulation, coercion or pressure by any government or company.

Prior - Consent  is obtained prior to authorisations, allocation of exploration  permits, operating licences etc.

Informed - all the relevant information  must be presented to communities  and civil society in an accurate,  and accessible manner  independent of vested interests.

Consent - civil society has the right to say Yes” or “No”  to the project -  civil society can withhold consent  or can determine the conditions for consent  if it is given.

As the  global steward of  the  ocean commons it is incumbent upon the  ISA to oversee a process of  discussion to define how to meaningfully incorporate the  Precautionary Principle and  the  key  elements of  FPIC into DSM  decision-making processes.

We offer the following to be considered  in relation to this task.

Legal  status and  Recognition of  FPIC

UNDRIP provides one of the clearest articulations of FPIC. While as a declaration  UNDRIP, does not have the binding legal status of conventions (treaties),  it is endorsed by 144 Governments and represents the aspirations of Indigenous  Peoples globally. It should also be noted  that  FPIC was recognized  prior to UNDRIP in many other international law instruments including in legally binding instruments (Doyle and Carino, 2013 p7-9)   Via these  legal instruments FPIC has the force of customary  international law. Furthermore FPIC is gaining recognition  by the mining sector (through the ICMM) and financiers (IFC Performance Standard).

As a proposed new industry, shouldn’t DSM follow industry leaders rather than  laggards?

Who provides (or withholds) consent for DSM  exploration and  exploitation?

The question  of whose FPIC and whose support  must be obtained prior to issuing DSM permits

for exploration  and exploitation  requires further thought and discussion. However,  there are strong arguments for broadening rather than  narrowing  the scope of who is included in such decisions.

The concept  of interested and affected  parties as it appears  in some national  environmental management acts and EIA regulations  reflects a trend toward  broadening the categories  of people entitled to receive information  and participate  in environmental decision-making in relation to development projects. In the case of Namibia the decision to enact a moratorium on marine phosphate mining took into account  the interest,  needs and values of interested and affected  parties. Under the Namibian Environmental  Management Act 2007,  these  include any person,  group of persons or organisation  interested in or affected  by an activity.

The interconnected nature  of ocean environments and mixing due to upwellings and currents,  makes the wide dispersal of DSM generated particulates  and pollutants  likely. For example,  it is known that particulates  from DSM exploration  activities in the Clarion Clipperton Zone of the North Pacific can extend  to 100km as a dense cloud1.

Modelling and research into the toxicology of such plumes is yet to be conducted. Thus it is possible that  deep sea mining projects would impact on the territory, rights, and interests of many coastal communities,  who would then  have a right to be included in decisions about  whether to allow exploration  or exploitation.

It is conceivable that  much of the population  of small island states located near a DSM operation could be impacted  - possibly the situation that  may arise for PNG, Tonga, Fiji, or Vanuatu.  This would argue for the participation  of the entire population  of such states in DSM decision-making. Indeed the Republic of Vanuatu  began  a national  process of consultation  in October 2014 and the Minister for Land and Natural Resources who leads this process  has endorsed FPIC and the Precautionary Principle as a basis for the national  DSM consultation.

Furthermore, there is now over 1.5 million square kilometres of Pacific Ocean  floor under exploration leasehold  and a significant area of other world oceans.  If only a small proportion of this area were

to be mined, the cumulative impacts of many operations must be anticipated by regional strategic environmental management plans. Wide reaching cumulative impacts would also be a factor in determining the scope of who has the right to provide (or withhold) consent  for DSM exploration  and exploitation.

Citizens’ Advisory Councils

In cases where FPIC has been provided by indigenous  peoples and broad support  gained by civil society,  these  rights holders should be given the opportunity to be directly involved in the review and oversight  of DSM operations in their offshore region. To be effectively engaged, citizen stakeholders need their own organization  with sufficient funding,  staff, authority,  broad representation, independence, and mandate to oversee DSM development.

We recommend that  where there is clear  evidence that  FPIC and  broad support for DSM  has  been obtained that  the  ISA require the establishment of  Citizen  Advisory  Councils  CACs) for projects within the Area  and  facilitate the  establishment of  CACs in national waters.
 

Who provides (or withholds) consent for DSM  exploration and  exploitation?

The question  of whose FPIC and whose support  must be obtained prior to issuing DSM permits

for exploration  and exploitation  requires further thought and discussion. However,  there are strong arguments for broadening rather than  narrowing  the scope of who is included in such decisions.

The concept  of interested and affected  parties as it appears  in some national  environmental management acts and EIA regulations  reflects a trend toward  broadening the categories  of people entitled to receive information  and participate  in environmental decision-making in relation to development projects. In the case of Namibia the decision to enact a moratorium on marine phosphate mining took into account  the interest,  needs and values of interested and affected  parties. Under the Namibian Environmental  Management Act 2007,  these  include any person,  group of persons or organisation  interested in or affected  by an activity.

The interconnected nature  of ocean environments and mixing due to upwellings and currents,  makes the wide dispersal of DSM generated particulates  and pollutants  likely. For example,  it is known that particulates  from DSM exploration  activities in the Clarion Clipperton Zone of the North Pacific can extend  to 100km as a dense cloud1.

Modelling and research into the toxicology of such plumes is yet to be conducted. Thus it is possible that  deep sea mining projects would impact on the territory, rights, and interests of many coastal communities,  who would then  have a right to be included in decisions about  whether to allow exploration  or exploitation.

It is conceivable that  much of the population  of small island states located near a DSM operation could be impacted  - possibly the situation that  may arise for PNG, Tonga, Fiji, or Vanuatu.  This would argue for the participation  of the entire population  of such states in DSM decision-making. Indeed the Republic of Vanuatu  began  a national  process of consultation  in October 2014 and the Minister for Land and Natural Resources who leads this process  has endorsed FPIC and the Precautionary Principle as a basis for the national  DSM consultation.

Furthermore, there is now over 1.5 million square kilometres of Pacific Ocean  floor under exploration leasehold  and a significant area of other world oceans.  If only a small proportion of this area were

to be mined, the cumulative impacts of many operations must be anticipated by regional strategic environmental management plans. Wide reaching cumulative impacts would also be a factor in determining the scope of who has the right to provide (or withhold) consent  for DSM exploration  and exploitation.

Citizens’ Advisory Councils

In cases where FPIC has been provided by indigenous  peoples and broad support  gained by civil society,  these  rights holders should be given the opportunity to be directly involved in the review and oversight  of DSM operations in their offshore region. To be effectively engaged, citizen stakeholders need their own organization  with sufficient funding,  staff, authority,  broad representation, independence, and mandate to oversee DSM development.

 

REFERENCES

Doyle, C & Cariño, J. 2013 Making Free, Prior & Informed  Consent  a Reality, Indigenous  Peoples and the Extractive Sector.

Cole, D. 2005,  The precautionary principle - its origins and role in environmental law, Environmental

Defenders  Office, South Australia

Luick, J 2012  Physical Oceanographic Assessment of the Nautilus Environmental  Impact Statement for the Solwara 1 Project An Independent Review

Reganvanu R, Minister for Land and Natural Resources, Government of the Republic of Vanuatu  at the SOPAC Regional Training Workshop  on Social Impacts of Deep Sea Mining Activities and Stakeholder  Participation,  June 10, 2013 Port Vila.  http://www.deepseaminingoutofourdepth.org/ vanuatu-minister-calls-on-pacific-govts-to-respect-peoples-wishes-on-experimental-seabed-mining/

Rosenbaum H. 2011  Out of Our Depth: Mining the Ocean  Floor in Papua New Guinea  MiningWatch Canada,  CELCOR PNG and Oxfam Australia.  www.deepseaminingoutofourdepth.org South Pacific Regional Environment Program (SPREP) 2012, Understanding and Applying the

Precautionary Principle to Deep Sea Minerals Mining in the Pacific Islands Region: A Socio-cultural

and Legal Approach

Steiner, R. 2013  Citizens’ Advisory Councils To Enhance Civil Society Oversight  Of Resource Industries

UNEP Perspectives Issue 10

The Center for Biological Diversity  ‘Landmark Lawsuit Challenges U.S. Approval of Deep-sea Mineral  Mining’

World Commission on the Ethics of Scientific Knowlege and Technology, 2005  The Precautionary  Principle, UNESCO

CONSENTS

We hereby give express consent  to make our contact  details and our submission publicly available. We also look forward to be contacted by the ISA in future and to be a member  of the stakeholder group.

 

 

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