Authors: Jay Leary, Partner and Global Head of Mining; Hannah Whitton, Solicitor

In recent years, interest in deep sea mining (DSM) has grown as the industry grapples with how to meet the demand for critical minerals. We’re seeing exploration licenses granted, backing from governments, and trial mining operations getting underway.

However, in the face of still-unknown environmental impacts and community objections, exacerbated by ongoing regulatory uncertainty, DSM still has a long way to go.

In this article, we look at the current state of play for DSM, what’s on the horizon, and provide our assessment of what’s needed to make it a viable, sustainable option.

Quick DSM facts: What it is, where it might occur, and why its supporters are on board

DSM refers to the processes and technologies in collecting resources from the deep seafloor (below depths of 200 metres).1 DSM can involve collecting nodules from the seafloor or extracting deposits from underwater geological features.2 Remote operated vehicles collect or mine the deposits.3

Based on the exploration contracts granted to date4, the region garnering the most interest is the Clarion-Clipperton Fracture Zone (stretching between Hawaii and Mexico), although there is also interest in the Peru Basin, Central Indian Ocean Basin, Western Pacific Ocean, Southwest Indian Ridge, Central Indian Ridge and Mid-Atlantic Ridge.

DSM could potentially unlock vast amounts of copper, cobalt, nickel, zinc, manganese, rare earth elements, and other materials that will be crucial for the global green energy transition currently underway. Some supporters of DSM also point to its potential as a less-carbon intensive method of extraction for critical minerals.5

Current state of play

DSM is currently in exploration phase and awaits finalisation of the regulatory regime before exploitation commences. As exploration activity increases and some DSM players move towards exploitation, further development of and clarity regarding the regulatory framework is essential to make DSM a sustainable option.

Understanding the international regulatory framework

The United Nations Convention of the Law of the Sea (UNCLOS) provides the International Seabed Authority (ISA) with authority to regulate DSM in the seabed and ocean floor and subsoil beyond the limits of national jurisdiction (the Area).6 Australia has ratified UNCLOS and is a member State of the ISA.

The ISA underwater mining regulatory framework (collectively referred to as the Mining Code) regulates exploration for polymetallic nodules, polymetallic sulphides and cobalt-rich ferromanganese crusts and is supplemented by recommendations and other guidance documents. The ISA is in the process of developing rules that extend to commercial mining.

A discussion of the legal effect of the UNCLOS and the Mining Code is beyond the scope of this article. However, we note that the Mining Code will be extremely influential on the global approach to regulation of DSM, specifically the development of international customary law, which also binds non-parties to UNCLOS (notably the United States).

The ISA has a dual role in protecting the marine environment as well as governing the exploitation of deep sea minerals. That, of course, is not best practice. The exploration regulations of the Mining Code will include applications and approvals, environmental requirements and payments to ISA, which are to be shared according to an ‘equitable sharing criteria’ (among other matters).7

Developing the Mining Code requires significant stakeholder consultation. The dual role of the ISA, environmental concerns raised in relation to DSM, and other delays (including due to COVID-19) have led to delays in adopting the exploitation regulations.

In mid-2021, Nauru notified ISA of its intention to trigger the ‘two year rule’ under the UNCLOS, which requires the ISA to consider and provisionally approve plans of work for exploitation within two years of the request. This rule has not been considered judicially or by other authorities. The lack of precedent and other uncertainties means that it is unclear whether the ISA is bound to issue a licence within two years.8 This step by the Nauru Government has underscored the urgent need for regulatory certainty for investment purposes.

Recent developments in DSM

Despite current regulatory uncertainties, there has been increasing interest and activity in DSM.

  • At the date of this article, the ISA had granted 31 exploration contracts to 22 government and privately-owned entities9, allowing them to scour the seabed for minerals and collect baseline environmental data.10
  • On 24 February 2022, it was announced that the Cook Islands Investment Corporation had formed a joint venture with GSR (the deep-sea exploration division of Belgium’s DEME Group) to undertake exploration within the Cook Islands’ exclusive economic zone.11
  • On 21 March 2022, Canada-based The Metals Company and shareholder Allseas Group announced their advancement of a “world-first” commercial deep-sea nodules collection system, expecting “production readiness” by the end of 202412.
  • On 18 March 2022, defence and aerospace company Lockheed Martin (of which UK Seabed Resources is a subsidiary) sought to extend its two exploration licenses in the Clarion-Clipperton Zone. The licenses had previously been the subject of a 2015 Center for Biological Diversity lawsuit (now settled)13.
  • The Nauru Government is a strong supporter of DSM and has sponsored Nauru Ocean Resources Inc (NORI), a subsidiary of Canadian company, DeepGreen, who is seeking to commence DSM in Nauruan and surrounding waters.14
  • In September 2017, Japan Oil, Gas and Metals National Corporation (JOGMEC) successfully extracted zinc, gold and other minerals following a trial mining operation of a deep water seabed off the coast of Okinawa.15

Opposition to DSM and environmental considerations

Conservationist groups have raised objections to DSM on environmental grounds,16 with support from major corporations including BMW, Volvo, Google and Samsung SDI. In March 2021, these parties called for a moratorium on DSM, arguing that it should not proceed until the environmental impact is properly assessed and understood. Signatories underlined the need to explore “all alternatives to deep sea minerals… as a matter of urgency, with a focus on reducing demand for primary metals”17. More recently, in April 2021, a collective of Pacific leaders launched The Pacific Parliamentarians’ Alliance on Deep Sea Mining (PPADSM), advocating for the protection of the Pacific Ocean against exploitation.

Our take: No meaningful progress without regulatory certainty

In spite of DSM’s opposers and obstacles, the appetite for critical minerals is stronger than ever, thus interest in DSM continues to grow. However, we are unlikely to see significant developments unfold until an effective regulatory framework is in place.

The adoption of a robust regulatory framework which regulates exploitation activities, effectively manages environmental considerations and balances other concerns is key to resolving uncertainties regarding the 2-year rule and exploitation generally.

It is important that the regulatory framework is developed in a transparent manner and continues to allow stakeholders’ concerns to be heard. The regulatory framework should be clear in its operation and sufficiently flexible such that it can be further developed as necessary, to meet future needs.

Moving forward, certainty as to the international regulatory framework is critical for the future of the DSM industry and the reputation of the mining industry as a whole.


References

  1. And to this extent, differs from seabed mining: The Ocean Foundation, Seabed Mining <https://oceanfdn.org/seabed-mining/>.
  2. The University of Queensland, Researchers call for cautious progress in deep sea mining (4 January 2021) <https://smi.uq.edu.au/article/2021/01/researchers-call-cautious-progress-deep-sea-mining>.
  3. The Atlantic, History’s largest mining operation is about to begin (January 2020) <https://www.theatlantic.com/magazine/archive/2020/01/20000-feet-under-the-sea/603040/>.
  4. SA, Exploration Contracts <https://www.isa.org.jm/exploration-contracts>
  5. GSR, DSM-Facts.com <https://dsm-facts.com/?gclid=EAIaIQobChMI6ozO6cmr9gIV75NmAh1RdwOrEAMYASAAEgIyZvD_BwE>.
  6. ISA, The Mining Code <https://www.isa.org.jm/mining-code>.
  7. Ibid.
  8. Catherine Blanchard, Nauru and Deep-Sea Minerals Exploitation: A Legal Exploration of the 2-Year Rule (17 September 2021) <Catherine Blanchard_170921_NCLOS blog>.
  9. ISA, Exploration Contracts <https://www.isa.org.jm/exploration-contracts>
  10. Hakai Magazine, A Mining Code for the Deep Sea (25 June 2021) <https://hakaimagazine.com/news/a-mining-code-for-the-deep-sea/>.
  11. GSR, Seabed Mineral Exploration Licence granted for the Cook Islands EEZ (24 February 2022) <https://deme-gsr.com/news/seabed-mineral-exploration-licence-granted-for-the-cook-islands-eez/>.
  12. Mining Magazine, TMC advances deep-sea nodules collection system (21 March 2022) <https://www.miningmagazine.com/exploration/news/1428875/tmc-advances-deep-sea-nodules-collection-system>
  13. Center for Biological Diversity, U.S. Company Seeks to Extend License for Deep-Sea Mining in Pacific (18 March 2022) <https://biologicaldiversity.org/w/news/press-releases/us-company-seeks-to-extend-license-for-deep-sea-mining-in-pacific-2022-03-18/>
  14. See generally, Mongabay, Deep-sea mining regulator’s latest meeting on rules only muddies the water (17 December 2021) <https://news.mongabay.com/2021/12/deep-sea-mining-regulators-latest-meeting-on-rules-only-muddies-the-water/>; Reuters, Pacific Island of Nauru sets two-year deadline for UN deep-sea mining rules (29 June 2021) <https://www.reuters.com/business/environment/pacific-island-nauru-sets-two-year-deadline-deep-sea-mining-rules-2021-06-29/>; Hakai Magazine, A Mining Code for the Deep Sea (25 June 2021) <https://hakaimagazine.com/news/a-mining-code-for-the-deep-sea/>; Hakai Magazine, Why Nauru Is Pushing the World Toward Deep-Sea Mining (14 July 2021) <https://hakaimagazine.com/news/why-nauru-is-pushing-the-world-toward-deep-sea-mining/>.
  15. Japan Times, Japan successfully undertakes large-scale deep-sea mineral extraction (26 September 2017) <https://www.japantimes.co.jp/news/2017/09/26/national/japan-successfully-undertakes-large-scale-deep-sea-mineral-extraction/#.Wcu8G3eGO9b>.
  16. Eg, Greenpeace, World Wildlife Fund, Fauna and Flora International and the International Union for Conservation of Nature. See further Reuters, Greenpeace stages Pacific Ocean protest against deep-sea mining (6 April 2021) <https://www.reuters.com/article/us-mining-deepsea-protests-idUSKBN2BT23K>; Reuters, Google, BMW, Volvo, and Samsung SDI sign up to WWF call for temporary ban on deep-sea mining (31 March 2021) <https://www.reuters.com/article/us-mining-deepsea-idUSKBN2BN0I6>; and Seas at Risk, European Commission announces plans to step-up deep-sea mining exploration on same day as IUCN adopts moratorium motion (16 September 2021) <https://seas-at-risk.org/general-news/european-commission-announces-plans-to-step-up-deep-sea-mining-exploration-on-same-day-as-iucn-adopts-moratorium-motion/>.
  17. MINING.COM, BMW, Volvo, Google and Samsung call for ban on deep-sea mining (31 March 2021) <https://www.mining.com/bmw-volvo-google-and-samsung-call-for-ban-on-deep-sea-mining/>.

For more information, please contact Jay Leary.

Jay Leary
Jay Leary
Partner
+61 8 9211 7877 / +61 7 3258 6619