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Can ISA be a pathway for FPIC?

March 2, 2017

maritime-zone-and-jurisdiction-80-728Conventionally, the International Seabed Authority ruling deals with the seabed, ocean floor and subsoil beyond the limits of national jurisdiction outside the Exclusive Economic Zones of countries, while within the EEZs, the UN Convention on the Law of the Sea requires that all the signatory states govern their seabeds in accordance with ISA standards.

Currently, there is debate between extractive industries, the scientific community and civil society on the benefits and disadvantages of Seabed Mining, and the tremendous risk this presents to the well-being of people and our ecological biodiversity. Very little is known about the deep seabeds.  What is known is that the seabed mining could have tremendous negative impact on ocean communities, reef systems and fisheries if exploratory licenses were permitted without the most rigorous enforcement and compliance methodology. We neither know the scale of these impacts nor how to manage or offset the risk of these impacts against the potential value of extracted resources. There is no quantifiable measurement of the seabed’s impact or its value, and there is simply not enough data to aggregate a cost-benefit on communities or the environment. Until science can better understand the deep seabeds, the biodiversity of ocean and pelagic migration systems, the impact it has on communities and other commercial activities, the ISA should ban seabed mining, including experimental seabed mining,

The ISA manages a “Mining Code” that refers to the whole of the comprehensive set of rules, regulations and procedures issued to regulate prospecting, exploration and exploitation of marine minerals in the international seabed area. As a global regulatory agency, the ISA provides coherent rules for extractives, with greater capacity to govern transboundary issues and other impacts that can create tremendous hardship for island states, customary practices and the well-being of indigenous peoples. Enforcing those rules are another story. Although UNCLOS has a dispute mechanism to enforce its rules, confronted with a regulatory framework on seabed mining, they will have to greatly expand their scope to adequately address the protection of the ocean, our global asset.

If the ISA should reject a ban on Deep Seabed Mining and alternatively impose a deep regulatory framework, it will provide states with new decision-making capacity to determine whether they will support DSM within their EEZs. What kind of regulatory oversight will be enforced and how will we monitor the processes through which states and industries will constitutionally or unconstitutionally “meet” regulatory guidelines, (this includes investment guidelines, legislative guidelines and environmental guidelines).

Nautilus Mineral’s Solwara 1 project was granted a license to engage in experimental seabed mining in Papua New Guinea’s Bismarck Sea.  Not only did Solwara 1 ignore Free Prior and Informed Consent, normatively viewed under international law as a consent process for indigenous peoples, but contracts to Nautilus were awarded through a mysterious process that appears to have sidestepped PNG’s own mining laws.  I think it has to be made clear to the ISA that even with a deep regulatory framework, governments could very well roll over FPIC and their own constitutional processes to award these kinds of mega-contracts.

How do we reconcile normative rights afforded to indigenous peoples through FPIC, if we incentivize states to neglect even their own legal processes? Can we approach this by merging regulatory frameworks with FPIC to create a binding legal process through which indigenous peoples can be provided with a dispute mechanism and pathway to hold states and industries liable?

As it stands, the investment agreements between extractives and states do not include indigenous peoples, and the cost of loss and degradation that states and communities will have to brunt could far outweigh the risk, unless there was some process to account for long-term impacts. There has to be tangible and accountable risk assessments and a system through which monitoring, compliance, enforcement and settlements can be awarded in a timely, affordable, and coherent manner.

When accounting for risk and loss, these should add up to a list of regulatory barriers that will put the responsibility of regulatory protections on extractive industries. For example, mining licenses should set a ceiling on investor’s anticipated future profits to provide for a settlement fund so that the burden of payment does not weigh on taxpayers.

Additionally, if there is a binding financial settlement pathway that can circumvent states and directly award indigenous peoples for not just loss, but loss of anticipated future well-being as well, that could be a regulatory condition that will impose justifiable barriers, while creating a new pathway for the rights of indigenous peoples.

On the one hand, a ban on seabed mining is the right course of action, the one that we know in our gut to be true. However, like the on going struggle against resource theft, degradation, depletion and human rights abuse, should the ISA begin to build a regulatory framework for DSM, deep regulatory processes should create conditions for a ban on DSM while benefitting the rights of indigenous peoples and ecological biodiversity.  Perhaps advocates for a regulatory framework might consider this perspective as it may help to tip the balance towards a negotiated ban.

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