Africa Deep-Sea Mining: A Legal Minefield

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There are serious gaps in Africa’s legal, governance and institutional frameworks to manage deep-sea mining, environmental and legal experts say.

It is rumored that governments within the continent are currently ill equipped to regulate existing land-based mining, and it will be a big challenge when it comes to offshore. Mariete Smith-Labuschagne an international environmental and human rights attorney said given Africa’s poor understanding of the deep sea environment and poor governance record,  it will see a mining industry that is unregulated and poorly monitored.  

“Africa is regulatory,” Smith-Labuschagne said. “In the absence of a clearly defined regulatory regime such investment could threaten seabed ecosystems. Corruption and political fragmentation threaten the industry more.”

Institutions that are meant to navigate the balance between profit and sustainability lacks transparency and proper enforceable environmental regulations. Africa is set to join the deep sea global rush. The Africa Union (AU) has made the blue economy one of its priority areas for the next decade. This is to include deep-sea mining activities. The regional grouping has gone as far as publishing a handbook, Africa’s Blue Economy: A policy handbook. 

The handbook covers both aquatic and marine spaces, including oceans, seas, coasts, lakes, rivers and underground water. It encompasses a range of productive sectors including deep-sea and seabed mining as well as offshore oil and gas and coastal mining of sand, gravel and other construction materials.

The territorial waters controlled by African nations stretch out over 13 million km², with a continental shelf of about 6.5 million km², including exclusive economic zones. 

Currently the continent is failing to deal with criminal activities such as illegal fishing, piracy and armed robbery at sea, and illicit trafficking of goods and people. Environmental crimes also pose an acute threat to the sustainable use of ocean resources and have a negative impact on security, social development, and economic growth of the continent. 

In many countries, mining companies engage in corrupt practices to gain consent and control of land, according to Pretoria-based Institute of Security Studies’ report of corruption and the extractive industries in Africa. The mining industry remains vulnerable to corruption due to a lack of legal frameworks and government capacity to enforce regulations. 

Proposals for seabed mining within the jurisdictions of nations have concentrated on six areas. These are New Zealand, Australia, Mexico, the Pacific Island and two African countries, Namibia and South Africa. Some governments have opted for a cautious approach in the form of a moratorium, permanent bans or refusal of project proposals.

Marine phosphate mining in South Africa

In 2012 and 2014, South Africa’s Department of Mineral Resources granted three prospecting rights for marine phosphate to Green Flash Trading 251 (Pty) Ltd (GFT 251), Green Flash Trading 257 (Pty) Ltd (GFT 257) and Diamond Fields International Ltd (DFI Ltd), respectively.

This covers more than 150,000 km2 of the country’s exclusive economic zone. These areas coincide with several existing fishery footprints, critically endangered ecosystems and a number of recently proclaimed offshore marine protected areas. 

South Africa’s legal and governance challenges

According to Safeguard our Seabed Coalition, South Africa’s legal and governance framework is wholly inadequate for dealing with bulk marine sediment mining. It said that The Mineral and Petroleum Resources Development Act, (MPRDA) does not explicitly deal with offshore prospecting and mining. 

This was from the Safeguard our Seabed Coalition’s press release. “The act itself is entirely geared to terrestrial mining. Many provisions would be difficult to apply to seabed prospecting and mining and provisions such as legal requirements to consult with landowners and community members’ act as a check and balance against inappropriate prospecting and mining. These checks and balances would not be possible for far offshore environments.”

It added that many provisions within the National Environmental Management Act, (NEMA) would be infringed if seabed mining were permitted. “There is a relative lack of knowledge of impacts of seabed mining. In such circumstances, NEMA requires a precautionary approach which takes into account the ‘limits of current knowledge about the consequences of decisions and actions.’ Seabed mining would certainly not comply with a precautionary approach.

“Furthermore, NEMA requires development to avoid, minimise or remedy disturbance of ecosystems and loss of biological diversity. Independent impact assessments of seabed mining undertaken in other countries, have found that such disturbance and loss is unavoidable.”

Namibia test case 

In 2011, the Ministry of Mines and Energy granted mining licences to two companies, Namibian Marine Phosphate (NMP) and LL Namibia Phosphates, for the exploitation of phosphate deposits off the coast of Namibia.

The mining licences were granted subject to the approval of an Environmental Impact Assessment. In January 2012, Namibian Marine Phosphate submitted a draft Environmental Impact Assessment and Environmental Management Plan for the proposed Sandpiper Project. Environmental Commissioner Teofilus Nghitila granted a certificate in 2016. Critics of the proposed contentious project have demanded updated scientific facts in order to make an informed decision on the issue.

The project would involve dredging the seabed in Namibia’s exclusive economic zone at depths of 3m and removing large volumes of sediment, up to 5.5 million tonnes annually. The operations expected an annual production of up to three million tonnes of phosphate rocks. The project has not been in operation since 2012 because of a lack of transparency as well as concerns about serious impacts on the marine environment and the fisheries. Critics of the proposed contentious project, the Confederation of Namibian Fishing Associations, the Namibian Hake Association and the Midwater Trawling Association of Namibia, have demanded updated scientific facts in order to make an informed decision on the issue. The opposition argued that no proper environmental impact assessment had been carried out before it was issued in 2015. Although the certificate was set aside in November 2016, in 2018 NMP successfully appealed the environment minister’s decision.

After this massive public uproar surrounding the perceived secretive issuance of the certificate, in 2016 then Environment and Tourism Minister Pohamba Shifeta ordered that the environmental clearance certificate be set aside for the sake of the public good. 

Smith-Labuschagne said on legal ground that the ocean should not be sacrificed for profit without proper regulations in place.

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