SPC-EU Deep Sea Minerals (DSM) Project Inaugural Regional Workshop

Hannah Lily Legal Advisor – DSM Project 6 June 2011, Nadi

Context

 Pacific region leading the way in DSM exploration  Potential for increased investment and income  Threat to ecological equilibrium  Obligation to preserve natural heritage for the benefit of present and future generations  International law obligations require adoption of appropriate administrative measures  National DSM law and policy lacking

Why a regional approach to law and policy?

 Ocean: interconnected, interdependent, transboundary  States’ share characteristics and interests  2009 SOPAC Governing Council Members’ Decision  Co-ordinated comprehensive approach  Resources, facilities and knowhow can be shared  DSM Projects may be cross-border multi-jurisdictional  Stable, clear and consistent regional framework will encourage development and investment

UNCLOS

 UN Convention on the Law of the Sea 1982  Established Exclusive Economic Zone (EEZ)  States given sovereign right to exploit, develop, and manage natural resources within its own EEZ  Obligation to safeguard marine environment under their jurisdiction from damage or pollution  Protection of scientific research  States liable for damage caused by UNCLOS violation  National rules must be adopted

Other legal instruments (1)

 Regional Conventions / Agreements:  Noumea Convention   Regional and collaborative approach EIA and public consultation  Madang Guidelines  Sovereignty and self-determination.

 Pacific Islands Regional Policy (PIROP)    Proactivity Integrated approach.

Engagement of local communities.

Other legal instruments (2)

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Other international law / agreements:

 London and MARPOL Conventions  1992 Rio Declaration (precautionary approach)  Convention on Biological Diversity (CBD)  Manado Declaration  Climate Change Convention (UNFCCC)

Other legal instruments (3)

 National law:   Economic Environmental   Marine Mineral   Other regulation Information  Law enforcement   Health and safety Labour laws

Other useful sources

 International Seabed Authority  Regulations and Model Contracts  International Tribunal for the Law of the Sea  Obligations of due diligence and best environmental practice  Precautionary approach  Standards same for developing and developed states  Industry  Other States

DSM Project: RLRF process

 Individual State’s constitution and legislative processes  Stakeholder interest  Process Overview:  Identify existing legislation policy and gaps  Terms of Reference to guide development of RLRF  Development of RLRF  Dissemination of RLRF with implementation guidelines  Tailored support to individual countries

DSM Project: RFRL development method

 Expert steering group  Establishment of sub-group(s) where necessary  Regional and sub-regional workshops  Country visits  Regular Project updates and ongoing consultation  National stakeholder workshops, and committees  Draft national legislation / polices, and consult  Enact, implement, monitor, review  Feedback mechanisms (all stakeholders)

Aspects of the RFRL

           Incorporate international standards Pre-empt harm – due diligence – registration / licensing Recognise different stages of DSM Responsible bodies and lines of authority Fiscal regime Environmental management Monitoring and enforcement Public accountability and information-sharing Practical considerations Methods of challenge, dispute resolution Model documents / templates?

Thinking points

 Regulation – how to balance:  enablement and enforcement; and  incentivising third party investment while protecting State interests  How to legislate to set a fiscal regime, or pre-empt negative environmental impact, when so much is unknown?