Canada risks legal blowback over deep-sea mining firm's actions
What's more, by failing to rein in the rogue company, Canada is also vulnerable to legal action for failing to uphold its international treaty obligations, experts suggest.
Debate about Vancouver-based The Metals Company (TMC) and its subsidiary partners took centre stage at this month's meeting of the International Seabed Authority (ISA) — the entity responsible for regulating mining in the high seas under the UN Convention on the Law of the Sea treaty (UNCLOS).
The company is drawing fire for attempting to circumvent the ISA process and treaty dictates by pursuing international mining permits via the United States — which isn't an ISA member or a signatory of the treaty.
In response, the ISA's technical committee has pledged to ramp up scrutiny on all proposed mining contractors, particularly TMC's subsidiaries Nauru Ocean Resources Inc. and Tonga Offshore Mining Limited, to ensure they are adhering to international law.
If not, TMC and their sponsor states aren't likely to get their exploration permits renewed next year, Salomé Sané, nature and biodiversity campaigner with Greenpeace Canada.
What's more, other companies and countries tied to TMC if they proceed to mine unilaterally may also find themselves embroiled in international legal disputes.
Vancouver-based The Metals Company is attempting to circumvent international regulations via a backdoor US mining bid, but its actions may expose Canada to proceedings for failing to uphold its international treaty obligations.
'Canadian-based The Metals Company is finally facing the legal consequences of its rogue actions,' Sané said, adding deep-sea mining amounts to 'ecological theft' and puts one of the planet's last untouched ecosystems at risk.
'We don't need deep-sea minerals for the clean energy transition, and we certainly don't need another tech-bro CEO like Gerard Barron to continue a legacy of exploitation, disregard for frontline communities and international law.'
Canada also has an international legal responsibility to prevent its national firms from violating maritime mining conventions and inaction could result in diplomatic and legal repercussions, said lawyer Coalter Lathrop, a principal at Sovereign Geographic and a fellow at the Payne Institute for Public Policy at the Colorado School of Mines.
As an ISA member and signatory to UNCLOS, if Canada, actively or passively, allows TMC to mine, it could invite legal action under article 139 of the treaty, which affirms countries are responsible to ensure national entities comply with international rules, Lathrop said.
'Canada would open itself to international proceedings by any of the other 168 parties to the convention,' he said.
Members of parliament in the Netherlands and Switzerland, countries with ties to Allseas, an international offshore contractor involved with TMC, are already questioning what their government's steps will be, Lathrop noted.
It's likely Canada, Korea, Japan and other nations with ties to TMC will do the same, he added.
Canada 'negotiating, and continues to negotiate'
Canada will uphold UNCLOS and is engaging at the ISA to put into place a rigorous regulatory structure for deep-sea mining by taking an ecosystem-based approach grounded in science, transparency and robust compliance and inspection mechanisms, said a ministry of global affairs spokesperson in an email to Canada's National Observer.
The ministry did not clarify what steps or measures the federal government is contemplating or planning to take if TMC as a Canadian company operates outside of ISA authority.
'We are following this development closely but note that no mining activity is currently underway,' said John Babcock, spokesperson for Global Affairs Canada. 'Canada has been negotiating, and continues to negotiate in good faith at the ISA and urges the expeditious finalization of exploitation regulations to ensure the deep seabed mining industry is responsibly managed.'
Despite Barron's comments that he believes a US permit is imminent, Lathrop said TMC isn't likely to obtain a permit before the end of the Trump administration.
And the company's dual-track approach via the US and ISA creates significant legal tensions, he added. If the ISA rejects or revokes TMC's exploration contract due to non-compliance, Nauru could seek another contractor — and competing claims could emerge over the same patch of international seabed, he said.
Canada isn't showing enough public leadership when it comes to denouncing TMC or reaffirming its commitment to the global moratorium on deep-sea mining, Sané said.
'Since the new Carney government came in there hasn't been any public support to reaffirm that commitment for a moratorium, and particularly, there hasn't been any comment about the fact that a Canadian company is bypassing the global process in place to collaborate with Trump and mine the deep sea,' she said.
'This silence has become dangerous, and we need the government to denounce this kind of rogue behaviour that goes against multilateralism.'
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