Deep-Seabed Mining Rules Should Ensure Opportunity for Public Engagement

The deep sea is home to a wealth of biodiversity found nowhere else, along with pristine ecosystems that have been mostly untouched by humanity and remain extremely understudied. But the deep seabed also contains large deposits of commercially valuable minerals, a wealth that is driving high interest from companies and governments seeking to exploit these resources and from those hoping to understand and protect the unique life of this region.

The Republic of Nauru invoked a United Nations rule two years ago that could force the International Seabed Authority (ISA), a United Nations-affiliated organization based in Kingston, Jamaica, to adopt regulations to govern seabed mining in areas beyond national jurisdiction by July 2023.

Stakeholder inclusion is an important part of any major environmental decision-making process, but it often leaves a lot to be desired. Typically, stakeholders include corporations, scientists, and environmentally focused nongovernmental organizations (NGOs)—with the latter often expected to represent “civil society” more broadly. However, the mineral resources of the deep sea are unique in that they exist beyond the jurisdiction of any sovereign country and have been designated as “the common heritage of [human]kind” by the U.N. Convention on the Law of the Sea. So, in the case of seabed mining, who constitutes a stakeholder and how they should be represented in the ISA’s decision-making process remains an open question. Because the deep seabed belongs to all of us, every group—including the public—should be involved in deciding how to manage these minerals.

In a new article that I co-authored with Elisabetta Menini and Stephen E. Roady from Duke University, and which appears in the December issue of the peer-reviewed journal Marine Policy, we examined public participation in decisions around terrestrial mining and how that decision-making model might apply to deep-seabed mining and the ISA process.

In many places, affected communities are involved in decisions on regulation of mining and other extractive activities. We found that such involvement improves environmental outcomes, minimizes the risk of conflicts and litigation, and bolsters the legitimacy of legislative decisions.

Our research also found that, in terrestrial mining, the public often has its greatest involvement in the development of environmental impact assessments (EIAs)—which evaluate in advance the potential damage that an activity poses to ecosystems.

The EIA process within the current exploration regulations has had little public involvement to date. The ISA recommends, but does not require, EIAs for mining exploration activities. This approach has created significant uncertainty about what the mining proponent’s legal obligations are in soliciting public comments on their EIAs, when such consultation should take place during the EIA development process, and what ISA’s obligations are in being transparent about its EIA evaluation process.

This ambiguity has already led to stakeholder alarm and media attention surrounding the approval process for a recent deep-sea mining test in the Clarion-Clipperton Zone, an area of the Pacific Ocean between Mexico and Hawaii—laying bare the urgent need for a revision of the stakeholder engagement requirements in the current exploration regulations. This change is not only required for meaningful public participation, but it would also provide contractors with certainty as to what their obligations are and give much needed legitimacy to the ISA as the regulator of this emerging industry.

The ISA’s draft regulations, which are currently under negotiation and will govern the commercial exploitation of seabed minerals, similarly make a note of the need to “develop, implement and promote effective and transparent communication, public information and public participation procedures.” However, without mandatory and clear requirements for the timeline and scope for public consultation, these regulations might not have their intended effect.

Although contractors are supposed to keep the public informed through means such as sharing annual reports and allowing for reviews of their environmental plans via the ISA’s website, the regulations do not set out any obligations either to solicit comments or review and respond to comments received through such public consultations, nor do they sufficiently lay out opportunities for stakeholders to be involved in the decision-making process of the ISA itself. As we lay out in the paper, without the requirement for comments to be reviewed and taken seriously, the public consultation process is undermined.

So far, many academics and NGOs view stakeholder engagement at the ISA as vague and inadequate. A significant amount of work remains to ensure that robust consultation procedures are adopted both within the ISA itself as well as through clearly set obligations for mining proponents. As we found in our paper, ensuring an opportunity for public participation in mining decisions—and encouraging that participation—benefits the environment, decision-makers, and regulators. As the ISA inches closer to finalising the exploitation regulations, the value of stakeholder participation in its decision-making process cannot be overstated.

Anindita Chakraborty is a principal associate with The Pew Charitable Trusts’ seabed mining project.