Seabed mining around Aotearoa

A select committee will consider the risks and benefits of seabed mining in New Zealand waters. The effects of mining on ocean life and the environment will be weighed against the need for metals crucial to the production of “green technologies”. Writing for the Science Media Centre, Law Professor Paul Myburgh examines the issues the select committee may face.

What issues will the select committee inquiry have to weigh up?

“I suspect the core problem is that the purposes and ideologies underpinning the various pieces of domestic legislation currently in play do not align.

“In particular, the Crown Minerals Act 1991 operates largely on an economic model – the Crown issues permits to companies to undertake economic activities to exploit mineral resources in our EEZ. The Crown is entitled to do so under international law, which generates rather handy revenue for the Government.

“The Resource Management Act 1991, and the Exclusive Economic Zone (EEZ) Acts are of course much more focused on the ‘conserving’ aspect, and this generates tension within the legal framework.

“It seems rather counter-intuitive and inconsistent (shades of the pound of flesh in the Merchant of Venice) to grant a licence to survey and exploit on the one hand, and then when a valuable resource is found, to say on the other hand, ah, but we won’t let you touch it because you will cause material harm to the environment. In a sense, the Crown Minerals Act is writing out cheques that the EEZ Act and the Resource Management Act will not cash.

“So, I think at the most fundamental level, the relationship between the Crown Minerals Act and the two marine environmental statutes needs to be explored so that any future granting of permits and consents follows a logical and consistent process. I suspect the difficulty for the Government is that the Supreme Court’s interpretation of the EEZ Act has in effect made seabed mining in New Zealand’s EEZ impracticable or even impossible, at least if it involves significant dredging and/or dumping.

“I don’t actually see that there is much room for maneuver here, especially in an election year, which is probably why this hot potato has been passed to a Select Committee inquiry. I suspect the most likely outcome is a protracted inquiry that lasts until the election, or the announcement of at least an interim moratorium that kicks the can to the next Government.”

How have other countries considered seabed mining?

“To my knowledge, most coastal States have to date been very cautious about allowing any seabed mining within their EEZs. Only a handful have actively engaged with the prospect.

“I am aware of active seabed mining contracts in place off the coast of Namibia (extracting diamonds and phosphorites) and prospecting contracts for phosphorites off the coast of South Africa.

“The most high-profile seabed mining project to date, by a Canadian company, Nautilus Minerals, off the coast of Papua New Guinea encountered significant resistance from the local community andended disastrously. Its collapse seems to have produced a consensus in the Pacific Islands Forum that this is not the way to go, which has also informed their leadership in calling for a moratorium on seabed mining in international waters too. So, these are not exactly encouraging precedents!”

What are the legal differences between seabed mining in NZ waters vs international waters?

“Seabed mining in international waters – the high seas – falls within the jurisdiction of the International Seabed Authority (ISA), an international body based in Jamaica, set up under the auspices of the United Nations Convention on the Law of the Sea (UNCLOS). ISA has been working for several years on a Mining Code, which would regulate prospecting, exploration, and exploitation of marine minerals in the international seabed. This has been a very slow process, but things eventually came to a head at the end of last year, when ISA said it would start processing permits in July this year. Several States, led by a strong Pacific contingent, then called for a moratorium on seabed mining until the international community has better scientific evidence on its environmental effects. Last year, the Government decided to support that moratorium.

“Any seabed mining within our territorial seas and continental shelf area is governed by our domestic statutes (NZ law). Anything outside that area will be governed by public international law (UNCLOS) and the ISA. NZ has input in the ISA as a member, but ultimately it will be an international decision made by that body.