Tonga Weighs Deep Sea Mining Contract Amid US and ISA Regulatory Challenges

Tonga currently stands at a crossroads in its engagement with the deep sea mining industry, as discussions intensify over a proposed contract with The Metals Company (TMC), a significant player on the international stage. The contract, pending governmental approval, signals potential continued collaboration with TMC amidst a climate of growing uncertainty in the sector. This move comes after the United States and the International Seabed Authority (ISA)—the industry's primary regulator—highlight pathways for mining endeavors in international waters.

The Civil Society Forum of Tonga, led by Drew Havea, has warned against rushing into a new agreement without thorough evaluation. Engaged by the Tonga government to consult on the matter, the forum emphasizes the nation's special rights under international oceans law in the Pacific's mineral-rich Clarion Clipperton Zone (CCZ). The existing contract, forged under the ISA framework by then Prime Minister Pohiva Tu'ionetoa in 2021, already sets the stage for mining activities in this region. Havea noted his expectation that the new contract would continue aligning Tonga with both US and ISA jurisdictions, echoing TMC’s recent contractual engagements with Nauru.

Concerns are rising from environmental quarters in Tonga, driven by apprehensions regarding liability and environmental harm. Havea's organization proposes a reevaluation of the nation's role as a sponsor in deep sea mining ventures, questioning the prudence of assuming potential environmental liabilities tied to ocean impact, which ultimately fall upon Tonga rather than the mining entity, TMC. As such, Havea remains skeptical of TMC's commitment to pursuing mining efforts through the US pathway, a direction not detailed in the current agreement with Tonga.

International environmental lawyer Lori Osmundsen has highlighted various legal risks associated with Tonga's deep sea mining contracts. Commissioned by the Civil Society Forum of Tonga to scrutinize the nation's legislative environment for ocean management, her analysis critiques the contract's 2021 origins and the lack of clarity surrounding Cabinet approval, mandated by national law. Osmundsen points out that similar agreements, such as with Nauru's TMC subsidiary, potentially replicate existing problems while introducing new legal complexities.

A critical issue for Tonga, as identified by Osmundsen, lies in any new agreements pushing the nation into commercial mining operations under the US pathway, which largely exist outside internationally sanctioned laws, risking breach of the UN Convention on the Law of the Sea. An ISA investigation is underway to ensure compliance with existing mining exploration permits, scrutinizing partnerships involving TMC, Tonga, and Nauru.

The ISA has yet to finalize a comprehensive mining code, and no commercial deep sea mining has been initiated, underscoring the tentative nature of current contracts. Osmundsen's advice for Tonga remains clear: exercise caution and ensure rigorous scrutiny of any future agreements.

As Tonga deliberates its position, public awareness and stakeholder engagement emerge as pivotal elements in shaping the nation's future in deep sea mining. The new contract presents implications not only for the economic landscape but also for the legal and environmental frameworks crucial to preserving national interests. The government's decision will potentially carve out a trajectory fraught with responsibility and influence in the broader global mining narrative.