Local environmental non-government organisations Te Ipukarea Society and Kōrero O Te ‘Ōrau recently paid for an independent legal opinion on the draft Seabed Minerals Bill 2019, which is currently being circulated for public comment. This is the third in a series of articles highlighting points raised in the 51-page opinion.

It has been said that the draft Seabed Minerals Bill 2019, which is currently under review, reflects the principles of the Marae Moana Act 2017. The draft Bill is a law being produced to guide relationships between the Cook Islands and foreign mining companies; the Marae Moana Act makes environmental protection the priority of all activities that take place within the Cook Islands’ oceans.

But a legal assessment of the draft Seabed Minerals Bill, produced recently by an expert in environmental law from New Zealand’s Victoria University, suggests the values underlying the Marae Moana Act – which include transparency, accountability, integrative management, and conservation – are not as prominent as they could or should be.

“Given the stated importance of the MMA and the marine zoning process to the Cook Islands, it is surprising to not see more explicit references to that process and to the bodies constituted under the MMA, particularly the TAG (Technical Advisory Group), given its involvement and overlap with seabed minerals matters to date,” her legal opinion reads.

The marine zoning process referred to involves the collection of data, using ships and drone and undersea technologies, to determine what activities should be allowed where in the Cook Islands’ nearly two million square kilometres of ocean.

The Marae Moana Act establishes permanent protected areas within 50 nautical miles of all islands in which seabed mining and large-scale commercial fishing are prohibited. But the law also commits to determining, through science and consultation with the public, where activities like fishing, mining, and even tourism are allowed to occur beyond these 50-mile zones.

This will be outlined in a marine spatial plan, which is not likely to be complete until December 2020 at the earliest—a target date set before the Marae Moana Act was passed in 2017. Though the plan does not yet exist, there have already been announcements in Cook Islands News about areas the Seabed Minerals Authority intends to reserve for mining. Magallanes questions the chronology of the process guiding legal use of the marine space.

As her legal opinion notes: “It was initially envisaged that the marine spatial plan would be created before areas were opened up for deep seabed minerals activities, including any exploration, if only because the marine spatial plan would determine where such activities cannot take place for ecological sustainability reasons. This changed in 2018 with the significant rise in mineral prices, particularly cobalt, which has led to a renewed interest by both private companies and the Cook Islands government in beginning exploration, even before the marine spatial plan has been researched, let alone adopted.”

According to the Marae Moana Act, the marine spatial planning process is overseen by the TAG—a group that includes representatives of the Seabed Minerals Authority, National Environment Service, Ministry of Marine Resources, Ministry of Transport, Office of the Prime Minister, relevant non-government organisations, and the aronga mana.

The draft Seabed Minerals Bill 2019 proposes a committee to guide licensing decisions; Magallanes questions the creation of a separate body of experts, given the TAG “is currently the body with the most expertise in the overall use of the Cook Islands marine space”.

“I am surprised that this Bill does not provide for the Advisory Committee to expressly include a TAG member with expertise on the environmental effects of minerals activities, for example,” she writes. “Some thought should be given to this overlap and how best to accommodate it.”

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