CIL-ISA Workshop on Exploitation of Minerals in the Area

Transcription

1 CIL-ISA Workshop on Exploitation of Minerals in the Area June, 2015 Duncan Currie LL.B. (Hons.) LL.M.

2 Substantive Sources of law No serious harm to marine environment art 162.2(w),(x) (k)(l) Protect and preserve the marine environment art 192 Deal with all sources of pollution of the marine environment (art 194.3) including minimize to the fullest possible extent: (a) release of toxic, harmful or noxious substances, especially those persistent..by dumping (b) pollution from vessels and (c) pollution from installations and devices used in exploration or exploitation of the natural resources of the sea-bed and subsoil..

3 Essential Elements Substantive Baseline Account for all impacts Strategic EMPs for all areas Protected Areas Effective Management Liability Procedural Clear framework: timelines Comprehensive, fair, public evaluations Scientific review of EIAs Ongoing reviews Transparency 3

4 Substantive: EIA Baselines: (1) establish the existing environment, and (2) ensure the ISA properly assesses environmental impacts and put into place management strategies to protect the marine environment Identify species, ecosystems, habitats and connectivities Robust environmental baseline that also identifies vulnerable marine ecosystems (VMEs) and ecologically and biologically significant areas (EBSAs) Impacts: Account for all effects of the proposed mining. Direct, indirect and cumulative effects E.g. mortality, plume, sediment, toxicity, noise 4

5 Strategic EMP Regional basis Establish networks of protected areas on a regional basis before allowing commercial mining in individual claims within a region. Include potential impacts of mining on biodiversity, habitats and ecosystems on a regional scale Protect representative habitats and source populations, ensure species connectivity remains intact, prevent extinctions, and ensure the effective functioning of additional ecosystem processes relevant biogeographic region concerned. Develop appropriate management responses, including establishing protected areas, strategies to avoid significant adverse impacts (SAIs) to EBSAs and VMEs, avoiding serious harm to the marine environment. Be in place before licences issued Conduct periodic strategic EIAs on regional basis Protected Areas Programme for identifying, establishing networks of protected and representative areas including marine reserves Including VMEs, EBSAs, representative areas 5

6 Protected Areas CCZ EMP Areas of special significance for their uniqueness, biological diversity or productivity, as well as areas of special importance to the life histories of non-fish species referred to in the criteria of the Convention on Biological Diversity have not been incorporated in the scientific design. As more information becomes available, the spatial management of mining activities may have to reflect such factors. Habitat protection needs to be representative both in quantity and quality of habitat/species composition especially when we are considering the complete removal of substrate which constitutes the habitat not allowing for like recolonisation. Programme for identifying, establishing networks of significant and representative no mining areas Including areas meeting VMEs, EBSAs criteria Both under SEMPs and under site specific EMPs

7 An effective management response Environmental bottom lines for species, populations and effects Protect areas meeting criteria for VMEs and EBSAs Monitoring program + early warning system An environment bond, liability fund A Sustainability Fund Best known environmental practices Co-operation between contractors Closure plan Ongoing monitoring 7

8 Adaptive Management Overall question: Will it sufficiently diminish risk and uncertainty? NZ Supreme Court: applicability: The extent of the environmental risk (including the gravity of the consequences) the importance of the activity the degree of uncertainty and the extent to which an adaptive management approach will sufficiently diminish the risk and the uncertainty Sustain Our Sounds v King Salmon, SC , [2014] NZSC 40 paras. 129, 130. Adaptive management requires: Good baseline information about the receiving environment; Effective monitoring of adverse effects using appropriate indicators; Thresholds are set to trigger remedial action before the effects become overly damaging and Effects that might arise can be remedied before they become irreversible. 8

9 Procedural Transparency and Public Participation Aarhus Principles. Process: clear, transparent, timelines Applications: transparent, comprehensive and fair evaluation EIAs: independent scientific review, public, comment Implement access to information, public participation and access to review opportunities accessible to stakeholders. Regular reviews

10 Transparency EMP: Authority shall enable public participation in environmental decisionmaking procedures in accordance with Aarhus Convention and its own rules and procedures. How to Achieve it? Transparency Public Participation ISA Working Methods

11 Principles Common heritage of mankind UNCLOS art. 150(i), 311.6, no serious harm caused to the marine environment (UNCLOS arts 162.2(w),(x), 165.2(k), (l)). Together with the obligation to protect and preserve the marine environment (art 192). Intergenerational equity. Precautionary approach Rio Principle 15 ITLOS AO: The precautionary approach is a matter of customary international law, shown in its recognition by international courts and tribunals including the ICJ in Pulp Mills on the River Uruguay scientific uncertainty in matters such as the plume, the sediment and the baseline must be resolved to avoid serious harm being caused by mining. Polluter pays Principle 16 Transparency Aarhus Convention Ecosystem approach EMP para. 21 Preserving and conserving marine biodiversity and ecosystem structure and function VMEs and EBSA s - No serious harm, art International Guidelines for the Management of Deep-Sea Fisheries in the High Seas 2009: prevent significant adverse impacts on vulnerable marine ecosystems 11

12 Aarhus Convention Incorporated in CCZ EMP 3 Pillars: access to information public participation and access to justice Almaty Guidelines on Promoting the Principles of the Aarhus Convention in International Forums Access to environmental information In order to make access by the public more consistent and reliable, each Party should encourage international forums to develop and make public a clear and transparent set of policies and procedures on access to the environmental information that they hold.

13 Almaty Guidelines on Promoting the Principles of the Aarhus Convention in International Forums Public participation in decision-making on environmental matters Efforts should be made to proactively seek the participation of relevant actors, in a transparent, consultative manner, appropriate to the nature of the forum. Participation of the public concerned in the meetings of international forums, including their subsidiary bodies should be allowed at all relevant stages of the decision-making process, unless there is a reasonable basis to exclude such participation according to transparent and clearly stated standards. Access to review procedures Each Party should encourage international forums to consider measures to facilitate public access to review procedures relating to the application of the forums rules and standards regarding access to information and public participation within the scope of the Guidelines.

14 Putting it Together Environmental Impact assessment Transparent, public review Scientific peer review Ask questions, seek further information Application and Assessment Process Open hearings Panel of experts 21 st Century techniques Powers to seek further information Public ability to question scientists, present independent evidence Environmental Management Plan Open hearings, transparent data, monitoring Review Process including environmental/ngo accesss

15 Liability Insurance, bonds Liability Fund Ensure prevention and response measures and to recover the costs, or to claim compensation or other relief on behalf of the international community ITLOS: a gap in the liability regime, where a contractor does not meet its liability in full and where a sponsoring State may also not be liable, and suggested a trust fund, already provided for in UNCLOS article 235.3s Workshop needed Sustainability Fund Enable ISA to fund, direct further research e.g. in relation to marine ecosystems in the Area, develop institutional capacity Contractors need to fund ongoing research ISA has no budget for large-scale research activities. Research is principal obligation for contractors. Fund could be financed by levy e.g. USD x per ton of ore recovered