From the Atlantic, across the Arctic, to the Pacific, Canadians and Indigenous peoples rely on the ocean for food, income and connection to our cultures and histories. But the ocean does not stop at the boundary demarcating our national waters, and neither do the species that thrive there.
Fish, eels, whales, turtles, seabirds and myriad other ocean flora and fauna follow currents, winds, and upwellings, heedless of human-imposed boundaries. Water, nutrients and animals move in a constant, regenerative cycle from deep to shallow and from high seas to coastal areas. Healthy waters in areas beyond national jurisdiction are vital for many species crucial to our coastal ecosystems. Despite their importance, the high seas – which cover almost 50 per cent of the planet – are at risk from emerging industries and significant gaps in governance. This is especially true as Canadian companies move to exploit resources through deep sea mining.
In the past, Canada has played an important and often a leadership role in efforts to govern the high seas with the United Nations Law of the Sea Convention, to the United Nations Fish Stocks Agreement, and most recently the Central Arctic Ocean Agreement. Moreover, Prime Minister Justin Trudeau has just taken an important position co-chairing the Sustainable Development Goals Advocates Group at the invitation of the UN Secretary General. This sends an important signal that Canada’s guidance is respected.
However, there are two areas of high seas governance where this leadership has been lacking: The United Nations treaty for Biodiversity Beyond National Jurisdiction (BBNJ) negotiations and at the International Seabed Authority (ISA). In the last 15 years of efforts to reach agreement on a new UN BBNJ treaty, Canada has taken a “big tent” approach, rather than an ambitious position on the need for strong measures to protect biodiversity on the high seas. Canada has also been largely absent from efforts to protect deep seabed habitats from mining through the International Seabed Authority.
Canada’s inaction could be disastrous for the health of the ocean. Canada’s marine sectors account for around 300,000 jobs and $31.7 billion in annual income, with communities across Canada relying on maritime industries such as fisheries and tourism. With a marine conservation agenda at home — protecting fish habitat and halting and reversing biodiversity loss along with fisheries rebuilding — it is time that Canada took this agenda to the high seas.
The United Nations Treaty for Biodiversity Beyond National Jurisdiction
Over fifteen years in the making, the BBNJ Treaty will hopefully be completed in 2022. The fourth round of negotiations occurred in early March after being postponed due to the pandemic. A fifth round is expected later in the year. If these negotiations are successful, a global treaty will be in place to protect almost half of the planet.
Within the vast expanse of the high seas are productive ecosystems essential to the health of species in domestic and international waters. Currently, these waters are governed by a fragmented network of institutions, such as Regional Fisheries Management Organizations (RFMOs), the United Nations Convention on the Law of the Sea (UNCLOS) and its implementing agreements and the Antarctic Treaty System.
The new BBNJ Treaty should fill the gaps in order to protect biodiversity and resilience. These gaps include legal mechanisms to create protected areas, access and sharing of marine genetic resources and mechanisms and guidance for environmental impact assessments for activities beyond national jurisdiction. Filling these gaps effectively also means a strong framework and commitments for capacity development, particularly from states with research and technology capacity to those without.
Whether the BBNJ Treaty will be successful remains to be seen. To create a future-proof treaty, states need to be ambitious and collaborative, not cautious and uninspired. Thus far, Canada’s approach to the negotiations is focused on consensus building instead of championing a bold agreement
To build something that will protect the high seas for generations, the federal government should enact an ambitious, whole-of-government approach – including Indigenous representation – in line with our international commitments.
There are states pushing for the BBNJ treaty to be ambitious, which presents Canada with an opportunity to step up and advocate for ocean health at the highest level. In February 2022, Canada signed onto the High Ambition Coalition, which is a significant step forward. But this needs to be followed up with leadership before and during negotiations to ensure that the treaty enables strong protected areas, credible and transparent environmental impact assessments and equitable sharing of the benefits of marine genetic resources. Canada should work closely with other states that have put forward ambitious treaty proposals to provide future generations with resilient marine ecosystems.
Deep seabed mining
As the world negotiates a treaty for the protection of high seas biodiversity, other potential problems are on the horizon. Deep sea mining is targeting three metal-rich deep-sea ecosystems home to the oldest and longest-living species on the planet, most of which have yet to be discovered. The ones we do know of, such as 4,000-year-old black corals, have extremely slow growth rates, delayed sexual maturity and produce comparatively few offspring.
This means they are particularly vulnerable to disturbance and recover very slowly, if at all. Many of these species are not found anywhere else on Earth and ecosystems that span the water column above the seabed are also at risk. Mining will destroy ecosystems that took millions of years to form and will never recover.
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The ISA, an institution created in 1994 through UNCLOS, is responsible for the international seabed which was described in the founding convention documents as a common heritage of humankind. One of its tasks is to draft regulations, standards, and guidelines for the sustainable protection and use of seabed resources.
Until recently, this process was unfolding at a slow pace, partly due to the nature of international law-making and partly due to a fundamental lack of knowledge of seabed ecosystems. But now, there’s increased pressure from the mining industry, including Canada’s The Metals Company, to be granted access to the seabed.
With a lack of substantive engagement from Canada and other influential countries, the ISA is fast-tracking the drafting of regulations, standards and guidelines for the exploitation of seabed mineral resources by July of 2023. There are potentially disastrous results ahead for the marine environment. The negotiations for the BBNJ treaty and the CBD Global Biodiversity Framework are underway and should influence how and if mining will occur in international waters. These processes should be completed before the ISA’s planned 2023 vote on regulations for deep seabed mining.
Numerous states have objected to the ISA’s governance structures and processes, but Canada has been silent, despite being a member of both the council and assembly, two of the main decision-making bodies of the ISA. So far, Canada has failed to submit comments at six consultation opportunities and had (until recently) a limited delegation at the ISA.
According to article 154 of UNCLOS, the ISA is required to undergo an institutional review every five years. The last review started in 2015. In the midst of growing concern over the ISA’s lack of transparency and the potential disastrous repercussions of deep sea mining, it’s time for another review. With the ISA negotiating the exploitation of the deep seabed, it is essential to ensure the ISA is fit for its purpose. Canada could propose that another review be conducted, particularly given the pressure from mining companies to fast track the regulatory process.
In addition to procedural concerns regarding the ISA and its drafting process, there is also a much larger question about its mandate and whether we ought to mine the seafloor. Article 145 of UNCLOS asserts that “necessary measures shall be taken in accordance with this Convention with respect to activities in the Area (the deep seabed in international waters) to ensure effective protection for the marine environment from harmful effects which may arise from such activities.” The effective protection of the marine environment is an obligation, while resource exploitation is a privilege, which only ought to be exercised if the mandate of environmental protection is fulfilled to the utmost — which it is not.
Government agencies and bodies, scientists, and civil society organizations are calling for a ban or moratorium on DSM. The private sector is also expressing concern, with Google, Samsung SDI, Volvo, BMW, Philips, Patagonia, and Microsoft, among others, committed not to source metals mined from the deep sea. This demonstrates a growing recognition that ocean health is critical to life on Earth.
States must also heed the call and take the necessary leadership. Nineteen environmental and Indigenous organizations called on Canada to support a moratorium in a 2021 letter. Six organizations sponsored a parliamentary petition with the same request. The letter remains unanswered, and the petition, which received over 4000 signatures, is now awaiting a government response.
There is no time to waste
Progressing with deep sea mining threatens to destroy large swaths of seafloor habitat, which remain mostly untouched and poorly understood. Instead, we need to focus on increasing commitments to environmental protection through the UN Sustainable Development Goals, the UNEP Sustainable Blue Economy Principles, and the UN BBNJ treaty. Decades from now, a new cohort of humans will be grateful we left them something to protect and understand.
At a time when we need to move towards circular economic models, in which already mined materials are reused and which do not rely on constant inputs of newly mined materials, increasing resource extraction from the seabed is moving in the wrong direction. Canada has two enormous opportunities to protect the ocean and the communities that rely on it by supporting an ambitious BBNJ treaty and preventing deep seabed mining. It is in the best interest of future generations and of Canada to provide international leadership that protects ocean health.