Just as the question of what the seabed is has been generally overlooked in the rush to examine questions of possible policy formulation, so too has a careful examination of who is subject to the processes and outcomes of potential DSM activities. Although there has been an increasing interest in, and attention to, ‘stakeholders’ — how they might engage in DSM Environmental Impact Assessments and their limited participation (see Jaeckel et al., 2017; Lallier & Maes, 2016), or as part of a wider ecosystem approach (Vierros et al., 2006) — a careful analysis of who stakeholders are (and could be) in this context remains underexplored.
A stakeholder can be defined as ‘a person, organisation or group with an interest (professional or societal) or an influence on the marine environment or who is influenced directly or indirectly by activities and management decisions’ (Newton and Elliot, 2016, 2; see also Pomeroy and Douvere, 2008). Currently, many states, as well as the ISA, are in the process of developing regulations for seabed exploration and exploitation. Therefore, it is paramount to interrogate who is identified and recognized as having a connection or interest, as well as the access they have in the drafting of regulations or their level of meaningful participation in other aspects of policy development and governance.
Vierros et al. (2006) explore the identification of stakeholders for areas beyond national jurisdiction. They propose a methodology where the first step involves circulating questionnaires to interested organisations, and where data from these questionnaires is weighed up relative to a set of criteria in order to classify stakeholders’ involvement. Evaluating Vierros et al.’s methodology, Ritchie and Ellis (2010, 710) find that it provides a good starting point, but they fear that it can miss relevant stakeholders as well as their main interests, as a questionnaire-based methodology assumes that ‘researchers or policy experts have perfect knowledge’ of all stakeholders and their demands and expectations, delivering ‘privileged’ stakeholders through their categorisation.
Indeed, in going back a step to ask who the stakeholder is, we can identify how geo-political, spatial, and temporal dimensions (Childs, 2019), as well as social and historical aspects, shape how stakeholders are defined, identified, and included in decision-making processes — in policy and planning — that follow. The term itself reveals a normative focus as it has traditionally been used in corporate governance (Post, 2003). Analysing stakeholder participation in marine spatial planning, Tafon (2017) shows how certain knowledges and groups are marginalized, delimiting the policy outcomes and sustaining neoliberal logics in marine resource management. Whilst the term can potentially be used to involve a wide range of parties, an appeal to ‘incorporating stakeholder interests’ in itself carries little meaning, as it depends on how stakeholders are defined and included in each organisation or policy making process (Fletcher, 2007).
This is further complicated by the understanding of how the stakeholder concept is applied to DSM, where people have different connections to and dependencies on ocean space. Since human beings neither settle in ocean space nor establish exclusive ownership over maritime zones beyond national jurisdiction, it is often unclear who is affected by seabed mining. We outline three factors that exemplify this complexity. First, whilst it may be easier to establish the traditional uses of ocean surface area up to a certain depth (for example, as is the case with fishing activities), such claims are more difficult to extend to use of the seabed below the depths most typically used by humans. Second, the separation of the seabed from the water column is fundamentally a legal construction dividing the two spaces in terms of their regulation and use. This severance can significantly impact who is included or excluded as a seabed stakeholder. Finally, stakeholder definition depends on the proposed mining activity’s proximity to the coast and whether it is within national jurisdiction or in an area beyond national jurisdiction. To illustrate these points, the remainder of this section explores the politics of stakeholder definition in examples of DSM regulation, turning to areas of state control as well as the Area, where ISA regulations are being developed. The cases have been selected to exemplify differences in status of mining activities (planned, ongoing, or rejected); status of DSM regulations (under development, enacted, or non-existing); and methods for defining stakeholders and facilitating their input.
To begin, despite some gaps and criticisms (de Wit & Barton, 2014), New Zealand has developed one of the most complete regulations to ‘promote the sustainable management of natural resources’ in its territorial waters and Exclusive Economic Zone (EEZ Act, 2012). The regulations enacted in 2012 provide for a Māori Advisory Committee that can ‘advise’ and ‘comment on’ regulation changes as well as proposed projects to the Environmental Protection Authority (EPA). The iwi community are not the only ones consulted; ‘submissions’ supporting or opposing a marine project can be submitted by any person in New Zealand. The EPA thus casts a wide net on who stakeholders are: the affected ministries, iwi authorities, customary marine title groups and protected customary rights groups, regional councils, and any other person that the EPA considers to ‘have existing interests that may be affected by the application’ (EEZ Act, 2012, 46–47). The EPA provides all stakeholders that meet this wide definition with a copy of a given marine mining proposal and, moreover, ‘must conduct a hearing on an application if the applicant or a submitter requests a hearing’ or if the EPA considers it necessary (EEZ Act, 2012, 51). This was the case for the Trans-Tasman application to mine iron sands 20 km south of Taranakii Bight. After 4680 public notices were submitted opposing the project — garnered through the broad stakeholder definition — a robust hearing process took place during 2014 that resulted in the rejection of the application. A new mining application was submitted followed by a second round of submissions and hearings in 2017. This culminated in approval for the project. At this point, another provision of the EEZ Act (2012, 105–113), which called for another round of stakeholder involvement, went into force, as the High Court heard further objections made by a coalition of iwi, conservation, and fishing interests. After the hearing, the project was stopped by the High Court in 2018 and rejected again in 2021 after the company appealed to the Supreme Court. Despite concerns, such as the short time periods provided by the EEZ Act regulations for all parties, in the case of New Zealand the breadth of identification of who a stakeholder has allowed for a wide participation of experts as well as concerned groups and everyday individuals in four different hearing processes. The history of seabed mining in New Zealand suggests that when stakeholders are broadly defined and a transparent process is established for incorporating their views, a high threshold is set before seabed mining can take place.
In a different example, the Cook Islands is like many states (and also the ISA) in that, although they do have a broad scope for the definition of stakeholder and a mandate to include their input, there are few specifics regarding how stakeholders will be defined or identified, or how their contribution will be incorporated into decision making. The Cook Islands Seabed Minerals Policy, enacted in 2014, states that ‘the entire nation and its people are the “community” affected by seabed mining activities and that related decisions are best-handled with participation of all concerned citizens, at the relevant level’ (Cook Islands, 2014, 5). The draft Seabed Minerals Policy Act 2019 exploitation regulations reiterate this commitment to ensure ‘participation and consultation with other relevant Government agencies and the Cook Island Community’ (Kung, 2019). However, after a major public consultation process that resulted in numerous submissions, the majority of concerns raised were not addressed. The approved Bill only dedicates a short section on consultations (amending the Environmental Act 2003) that lacks detailed procedures or specific time periods. It does include the ‘Cook Islands Seabed Minerals Advisory Committee’ whose aim is to provide the ‘perspective from the community’ to the Cook Islands Seabed Minerals Authority (Seabed Minerals Act, 2019, 35(2)). This committee is to be composed of at least seven members of whom ‘at least four members [are] appointed by the responsible Minister to present a range of community perspectives or expertise relevant to the achievement of the purpose of this Act’ (Seabed Minerals Act, 2019, 36(b)). Concerns about these regulations and the lack of representation and transparency of the appointees of the Committee have been raised (Cook Islands News, 8th March 2013). In particular, opponents of the Bill noted that it grants full authority to the minister responsible for seabed minerals to grant the exploration licence (Asia Miner News, 23 January 2020) and that the minister can remove council members for public dissent. Kung (2019, 14) warns that these provisions could ‘illustrate a scenario of suppression of public opinion’.
The example of the world’s first approved DSM site, the aborted Solwara-1 project in PNG, illustrates that stakeholder identification is not self-evident and that it can stem from a framework of terrestrial mining legislation. Moreover, in this instance imprecise national regulations provided enormous regulatory freedom for the respective company to design policy itself. Solwara-1 was situated within the waters of PNG, approximately 30 km from New Ireland Island and some 50 km from New Britain Island. It had attracted strong interest from the Canadian firm Nautilus Minerals, Inc., which sought to exploit massive sulphide deposits in PNG’s waters. The 1992 Mining Act states that ‘any person may object to the grant (…)’ of a mining lease before a fixed date (Mining Act, 1992, 107) and a ‘Warden’s Hearing’ is to take place that will take into account landholders present as well as ‘other persons as the Warden considers will be affected by the applicant's programme or proposals’ (Mining Act, 1992, 108). In an apparent recognition that there is no straightforward definition of a marine stakeholder, the Green Paper on Offshore Mining Policy issued by the Department of Mineral Resources published in 1999 acknowledges that ‘major stakeholders in the offshore include the coastal subsistent, artisanal and commercial/industrial fisheries as well as navigators, the tourist industry and so on’ (Green Paper 1999, 75). While the PNG Mineral Resource Authority is responsible for granting mining leases, mining projects also require approvals by the Conservation & Environment Protection Authority (CEPA, previously Department of Environment and Conservation). In order to obtain an environmental permit, which was granted to Nautilus in 2009, formal public consultations that discuss the environmental impact statement with stakeholders are required (Environment Act, 2000, 51, 54, 55). The Act itself does not use the term ‘stakeholders’ but requires consultation with ‘persons who are likely to be affected by carrying out of the activity’ (Environment Act, 2000, 55 c).
Nautilus Minerals emphasized that there were no communities directly affected by their seabed mining projects (Nautilus Minerals, 2015, 23). Yet the tension between supposedly unaffected communities on the one hand, and national licensing procedures and the interests of provincial governments and local protests on the other, had to be addressed. In other words, the company needed to ‘invent’ a stakeholder identification procedure to demonstrate that persons likely to be affected by its activities had been consulted. The company reached out to some villages selected largely by ‘closeness’ (geographical proximity) to their proposed production sites: New Ireland and the international port proposed to be used on East New Britain (Nautilus Minerals, 2010, 21–22). The main goals of these consultations were to provide information about the Solwara-1 Project, to provide an opportunity for residents to voice concerns, and to comply with national legislation. Later on, the company invented the concept of a ‘Coastal Area of Benefit’, again using proximity as a basis to define an affected stakeholder community (Filer and Gabriel, 2018, 398–399), and negotiated benefit-sharing agreements with the governments of the two provinces closest to its mining areas. In this example, given the lack of legal guidance, the company was ultimately in charge of defining who the stakeholders were, which communities to consult, and how. Interrogating this process of who the stakeholders are is vital, since in this example it would appear that the interest of the company lay in getting a social license to operate and avoid conflict (as well as comply with regulations) rather than providing a meaningful decision-making process.
Also contentious is the development of seabed mining in Namibia, where offshore diamond mining in shallow waters has occurred since the beginning of the 1940s with no specific seabed mining regulations in place. Although diamond mining operations have increased in size in recent years with investments in new seabed mining vessels (Reuters, 16th May 2019), what has raised concerns by environmentalists, as well as the fishing industry, are new plans for phosphate mining near Walvis Bay. Currently, mining is governed by the 1992 Mining Act. In the Act, stakeholder consultations are encouraged as part of the EIA process, yet there is no legal provision for them — nor is there any clear identification of who should be involved (IGF, 2018). The Minerals Policy draft made public in 2018 states that ‘the Government will ensure community participation through consultation before companies are allowed to commence metallurgical operations’. However, it is unclear how ‘communities’ are to be defined in the context of the seabed or if ‘metallurgical’ applies to seabed phosphates (Draft Minerals Policy of Namibia, 2018, 3.2). Since the project was licensed in 2011, it has endured a long battle between environmentalist groups and the fishing industry on one side and the Chamber of Mines and the company on the other. A moratorium was set in place in 2013, and the project was given environmental clearance in 2015, but that clearance was subsequently challenged in the courts. The judicial battle that ensued has gone through a consultation process of ‘concerned stakeholders’ (The New Era, 2nd November 2016; Benkenstein, 2014); however, who these stakeholders are, and how their voices are to be included, is unknown. Presently the High Court has confirmed its mining license but a judge has denied its environmental clearance (The Namibian, 6 July 2021). The battle continues.
Japan has some of the world’s most advanced plans for achieving DSM. In 2017, Japan announced it had successfully carried out a DSM test of an inactive hydrothermal vent off the coast of Okinawa. A year later, Japanese engineers announced that they had identified an estimated 16 million tonnes of rare earth minerals offshore of Minamitori Island. Japan Oil, Gas & Metals National Corporation (JOGMEC) announced in July 2020 that ‘it had collected 649 kg of cobalt and nickel-rich seabed crust during a world-first test’ (JOGMEC, 21 August 2020). This and future extractions are being carried out under regulations developed according to the mandate of Japan’s Third Basic Plan on Ocean Policy, published in 2018. With the double aim of promoting the ‘industrial use of the ocean’ as well as seeking to ‘maintain and protect the maritime environment’, the policy, which tackles all aspects of ocean policy, specifically aims at promoting ‘commercialisation’ of seafloor polymetallic sulphides ‘with participation of private-sector corporations after the mid-2020s’ (Third Basic Plan, 2018, 6). Although specific regulations for exploration, exploitation, or environmental protection are yet to be developed, it is noticeable that the Basic Plan does not outline who the stakeholders of this ‘industrial use of the ocean’ are or by what participatory mechanisms particular stakeholders might be involved.
We conclude this section by shifting our attention to mineral seabed deposits in areas beyond national jurisdiction, where, as was noted earlier, the International Seabed Authority (ISA) is tasked with managing the seabed as ‘the common heritage of [hu]mankind’ (CHM). Therefore, in the Area, all of humankind are stakeholders, and thus we may all be defined as the ‘who’ that should participate in the debate. The implementation of this principle, however, has proven problematic. The ISA acts as an agent for humankind to administer the exploration and eventual exploitation of seabed minerals; however, no clear guidance has been provided by the ISA for the interpretation of the CHM regime (Bourrel et al., 2018). The ISA faces several challenges in order to define who is a stakeholder, who forms part of mankind. ISA members are states, so humankind is represented by state governments, but a state government might not represent the perspectives of all voices within the state. Likewise, it is not clear if humankind should include future generations. So how can humankind be represented, and should this be left for each state or to the ISA to decide?
On the one hand, the ISA has conducted several rounds of public consultations since 2014 that have allowed for individuals to participate, thus taking a very inclusive approach. On the other hand, there is no formal mechanism to incorporate stakeholder comments in its decision-making process. The 2020 zero draft on the ISA Communications and Stakeholder Engagement Strategy lists member states, observers to the ISA, contractors, and ‘other entities’ as recognized categories of stakeholders (ISA 2020, 10). This wording suggests a rather small circle the organisation wishes to engage with. Additionally, although the ISA is an organisation of states, not all states have equal voice. In its central decision-making body, the Council, there are reserved seats for large consumers, major producers as well as ‘big’ investors in the respective minerals, and for special interests, such as populous or economically disadvantaged states. Only accredited stakeholders may contribute to policy making. Currently, about 25 non-governmental organisations representing wider society interests enjoy observer status, giving them the opportunity to sit in on Assembly and Council sessions. However, they do not have the right to vote and have been excluded from meetings of the Legal and Technical Committee (LTC) (Bourrel et al., 2018), so they too need to lobby governments to have their voices taken into account. Who is included and not, then, is a key question for how each state operates.
Whilst governments should represent a wide pool of stakeholders, businesses tend to dominate this influence via their access to sponsoring governments as well as technical knowledge, and states are sometimes perceived to be proxies for corporate interests. This can be seen, for instance, in the request made by Nauru in June 2021 to initiate a 2-year timeline for the ISA to finalise exploitation regulations. This would allow its contractor, Nauru Ocean Resources Inc. (NORI), to begin exploitation in the portion of the Area where it holds an exploration licence. The government of Nauru has emphasized that this application, which is the first ever for exploitation in the Area, is motivated by its desire to be a leader in an industry that it considers instrumental to combat climate change and to provide legal certainty for the industry to move forward (Government of Nauru, 2021). However, some have speculated that the move was driven at the industry’s request (Taipei Times, 2021). In the Area, as in portions of the seabed within national jurisdiction, questions of who counts as a stakeholder are interwoven with questions regarding how stakeholder participation is facilitated and how differences in social power among different stakeholders are accounted for (Ardron et al., 2018; Bourrel et al., 2018; Lallier & Maes, 2016). It is not simply a case of broader inclusion of stakeholders or improving the mechanisms to enable their participation. Before, or alongside these changes, a more careful scrutiny is needed of who stakeholders even are — who should be involved, who is not involved and why, and who determines what voices are heard and which perspectives are silenced.