Transcript CROWN LAW REVIEW: 2010-2011

TONGA’S DEEP SEA MINERALS
MINING LEGAL FRAMEWORK
‘Aminiasi Kefu
Solicitor General
1 February 2012
OBJECTIVES
Current legal framework
DSM Mining Landscape
New Legislation
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CURRENT LEGAL FRAMEWORK
Features:
• No specific legislation on DSM
• Outdated
• In-cohesive
• International obligations
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CURRENT LEGAL FRAMEWORK
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Minerals Act 1949
(Cap 133, 1988 Revised Edition)
Applies to all lands, including submerged
lands within 1887 Royal Proclamation (‘the
Box’)
Three Licences: Exploration, Prospecting and
Mining Lease
Commercial based for those times
No environmental standards or requirements,
but enforcement provision
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CURRENT LEGAL FRAMEWORK
Environment Management Act 2010
• Protection and proper management of
environment
• Including observance of international obligations
(i.e. UNCLOS)
• Enforcement powers – monitor, investigate,
protect (Notices: Precautionary and Cease
Activity), and prosecute
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CURRENT LEGAL FRAMEWORK
Environmental Impact Assessment Act 2003
• Require environmental impact assessments to
the planning of ‘major projects’
• ‘Major projects’ under the Schedule to the Act
includes ‘mining’ being an activity that
disturbs the surface of the land in excess of
one hectare
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CURRENT LEGAL FRAMEWORK
Marine Pollution Prevention Act 2002
• Prevention and response to marine pollution
• ‘Discharge’ pollutants, harmful substances or
effluents released from a vessel, platform or
place on land
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CURRENT LEGAL FRAMEWORK
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Other Relevant Legislation
Maritime Zones Act 2009 (Not yet in force)
Shipping Act 1972 (Cap 136)
Transport Services Act 2008
Emergency Management Act 2007
National Emergency Fund Act 2010
Fisheries Management Act 2002
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CURRENT LEGAL FRAMEWORK
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Other Relevant Legislation
Business Licences Act 2002
Foreign Investment Act 2002
Customs and Excise Management Act 2007
Customs Act 2007
Excise Act 2007
Income Tax Act 2007
Consumption Tax Act 2003
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DSM MINING LANDSCAPE
• Government Policy – Tonga Strategic
Development Framework 2011-2014
• Activities:
• Within EEZ in the Box:
• Nautilus Tonga
• KORDI
• Bluewater
• The Area:
• Tonga Off-Shore Mining Limited
• Petroleum Mining, within EEZ
• Modulus, Baringer Central and Baringer South
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NEW LEGISLATION
Why?
• International obligations (UNCLOS)
• Protect marine environment
• Economic growth
• Simplified licensing regime
• Certainty for investors
• Accountability of operators
• Deflect public scrutiny
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NEW LEGISLATION
International obligations?
• Due diligence to ensure compliance of operators:
• Take all necessary and appropriate measures to secure effective compliance
• including enacting reasonably appropriate laws, regulations and administrative
measures – to ensure compliance and exempt state from liability
• Direct obligations:
• Assist the ISA; apply precautionary approach; apply best environmental
practices; adopt measures to ensure provision of guarantees in event of
emergency order from the ISA; provide recourse for compensation; operator
to provide an EIA;
• Liability of states if:
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failure to carry out its responsibilities under UNCLOS; and
Occurrence of damage
(there must be actual causal link between failure and damage)
(actual amount for damage)
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NEW LEGISLATION
Work so far?
• Cabinet Decision to develop legislation;
• Requested and Received from DSM Project
Drafting Instructions for New Legislation
Future work?
• Work with Lands to engage legislative drafter
• Aim for enactment by end of 2012?
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NEW LEGISLATION
Main Features of Bill?
• Regulatory Authority: objectives, duties,
powers and functions;
• Licensing regime: applications, EIAs, terms and
conditions etc;
• Appeals: against decisions of Authority;
• Enforcement: offences, penalties
• Regulations: making power
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CONCLUSION
World is watching Tonga (and region)
We need achievements / progress
Whole sector co-ordinated effort
Focus on balance of environment and economy
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