Maritime Studies https://doi.org/10.1007/s40152-022-00273-2 RESEARCH Mining questions of ‘what’ and ‘who’: deepening discussions of the seabed for future policy and governance Marta Conde1 · Aletta Mondré2 · Kimberley Peters3,4,5 · Philip Steinberg6 Received: 16 March 2021 / Accepted: 7 June 2022 © The Author(s) 2022 Abstract In spite of a proliferation of academic and policy-oriented interest in deep sea mining (DSM), this paper argues that two underlying questions remain underexplored. The first relates to what exactly the seabed is; the second to who the stakehold- ers are. It is argued that a greater interrogation of how the seabed is defined and understood, and a deeper consideration of how stakeholders are identified and the politics of their inclusion, is crucial to the enactment of policy and planning techniques. Through the analysis of current regulations to govern DSM in both national and international jurisdictions, this paper critically examines these seemingly banal but vital questions in different contexts. It is contended that most regulations are ‘fuzzy’ when it comes to addressing these questions, with the result that different understandings of the seabed and the implications of mining are ignored and that who stakeholders are and how they are defined causes many relevant voices to be unheard. It is argued, therefore, that it is imperative to address these often-overlooked questions directly in order to inform future seabed policy and governance. Keywords Seabed · Deep sea mining (DSM) · Policy · Governance · Ontological questions · Stakeholder · Participation * Marta Conde marta.conde@uab.cat Introduction Aletta Mondré mondre@politik.uni-kiel.de Deep sea mining (DSM) is currently a ‘hot’ topic in applied areas as diverse as resource extraction, global and regional Kimberley Peters kimberley.peters@hifmb.de governance, and marine environmental management. DSM has in turn attracted growing academic attention, in fields Philip Steinberg philip.steinberg@durham.ac.uk of oceanography, geochemistry, and ecology, to law, policy, geography, and beyond. DSM refers to the process of retriev- 1 Institute of Science and Environmental Technology (ICTA), ing mineral deposits from the seabed. Such mining is argu- Autonomous University of Barcelona, Edifici ICTA- ably lucrative given ‘depleting terrestrial deposits for metals ICP, Carrer de les Columnes s/n, Campus de la UAB, 08193, 08193 Cerdanyola del Vallès, Barcelona, Spain such as copper, nickel, aluminum, manganese, zinc, lithium 2 and cobalt, coupled with rising demand for these metals to Department of Political Science, Institute of Social Sciences, University of Kiel, Olshausenstrasse 40, 24118 Kiel, produce high-tech applications such as smartphones and Germany green technologies such as wind turbines, solar panels and 3 Helmholtz Institute for Functional Marine Biodiversity electric storage batteries’(IUCN, 2018, n.p). (HIFMB), University of Oldenburg, Ammerländer Heerstraße Until recent decades, interest in DSM has focused on 231, 26129 Oldenburg, Germany manganese nodules, clumps of manganese, nickel, cobalt, 4 Zentrum für Polar und Meeresforschung, and copper that naturally occur on the surface of the sea- Alfred-Wegener-Institut Helmholtz, Am Handelshafen 12, bed beyond the continental shelf. Although manganese 27570 Bremerhaven, Germany nodules were initially discovered in the 1870s, it was only 5 Institute for Chemistry and Biology of Marine Environments in the 1960s that commercial mining of manganese nod- [ICBM], University Oldenburg, Carl‑von‑Ossietzky‑Straße ules became foreseeable. The apparent imminence of a 9‑11, 26133 Oldenburg, Germany ‘scramble’ for the seabed was one of the factors that gave 6 Department of Geography, Durham University, South Road, rise to the United Nations Convention on the Law of the Durham DH1 3LE, England 13 Vol.:(0123456789) Maritime Studies Sea (UNCLOS), which was negotiated between 1973 and enacting of policy in this area. The first shortcoming relates 1982. With some exceptions, UNCLOS designates the sea- to conceptions of what exactly the seabed is; the second bed beyond the continental shelf as ‘The Area’: a space to who stakeholders are. These ontological questions are beyond national jurisdiction where mining activities are to not purely philosophical. As other authors have shown, rais- be governed by the International Seabed Authority (ISA) as ing ontological questions is vital for practical policy work, the ‘common heritage of [hu]mankind’ (CHM). In recent particularly in marine environments (see, Dixon, 2016 and decades, increased attention has turned to other forms of Neilson & São Marcos, 2019), and with specific reference to deep seabed minerals: seafloor massive sulphides, which seabed mining (see, Zalik, 2018 and Carver et al., 2020). By appear around hydrothermal vents along oceanic ridges, and mining our knowledge of taken-for-granted ontologies, we cobalt-rich ferromanganese crusts, which appear on, as well can open space for more critical understandings that enhance as beyond, continental shelves (Miller et al., 2018). Each how we go about formulating and enacting policy for DSM. mineral type can be found in the Area (to date, the ISA has In many cases, what the seabed is and who stakeholders issued 19 exploration contracts for manganese nodules, 7 are is implicit in literature and policy concerned with DSM, for seafloor massive sulphides and 5 for cobalt-rich ferro- and thus the full meaning of assumed definitions remains manganese crusts (International Seabed Authority, n.d.)). unexplored. Yet questions of what and who strike to the However, each also appears in states’ exclusive economic very heart of DSM policy. For instance, whether the seabed zones (EEZs) and extended continental shelves (ECSs), the is viewed in the context of submarine geology, the water areas out to 200 nautical miles (or further, in instances of column, the earth-ocean–atmosphere system, or a coastal wide continental shelves), where a coastal state has exclu- economic system influences whether mining policy will be sive, sovereign rights to seabed resources. Thus, in addition developed using a framework of localised mining codes, the to the ISA (and, to some extent in parallel with it), a number integrated management of a Marine Protected Area, global of states have been involved in developing codes for licens- ocean governance, or coastal development, respectively. ing the exploration and extraction of deep seabed resources. Notwithstanding these examples, our aim here is not to DSM has been the focus of frequent industry confer- develop a comprehensive typology of answers to the what ences, inter-governmental forums, and technical workshops and who questions. Nor is our aim to critique specific poli- (Singh, 2021). It is also a recurrent topic of interest in aca- cies as ‘flawed’ because they rely on constraining assump- demic debates (see particularly Childs, 2020a, 2020b and tions — or to argue for a more ‘appropriate’ alternative. Zalik, 2018, 2021). Although much of this debate concerns Rather, in this article we draw on national and international either DSM’s environmental impact or the legal meaning policy and law to explore the assumptions regarding the of key terms such as ‘common heritage of mankind’ or the what and who questions that underpin a range of seabed ‘precautionary approach’ (see, for example, Bourrel et al., mining policies that have been implemented, or that are 2018; Hunter et al., 2018; Jaeckel et al., 2017; Lallier & being developed, by individual states or the ISA. The paper Maes, 2016; Levin et al., 2016; Niner et al., 2018; Ovesen builds from our own conceptual and empirical earlier work, et al., 2018; Tunnicliffe et al., 2018; Van Dover et al., 2011), including field research, as well as a review of the literature critical social scientists have sought to locate the turn to discussing these issues. The examples represent a breadth the seabed as a source of mineral resources within broader of alternatives, not a comprehensive list of the universe of political economic trends. Recent work has shown how the policies in place. In other words, our goal is not to build a seabed becomes ripe for exploration through its construction case for one approach or another but to inspire the reader to as a ‘frontier’ (see Zalik, 2018), or how seabed mining zones think about the assumptions that underpin all approaches are constituted through complex data politics (see Sammler, to DSM. More broadly, we urge the reader to consider how 2016), rendering decision-making far from neutral or apoliti- unspoken answers to implicit questions shape approaches cal. Work has also aimed to take seriously the spatial dimen- to marine governance. As we point to in the conclusion, it sions of the seabed (see Carver et al. 2020; Childs 2020a; is imperative for policy makers to confront these questions Peters, 2020) as deep, voluminous, 4D, analyzing in turn of what and who directly, so as to design regulatory mecha- what the character of the seabed means for how it is used nisms for the ocean environment and the myriad lifeforms (or potentially used). Some work has also acknowledged the (including humans) who depend on it. fundamental mismatch between modes of governance (law) To that end, the remainder of this article consists of two and the object of governance (the seabed), with Hunter et al. main sections: one that illustrates the range of assumptions (2018, no page) noting that ‘the deep sea and the legal land- regarding the what question in DSM and a second that turns scape look vastly different’. to the who question. In the conclusion, we reflect on this Yet in spite of this proliferation of interest in DSM, there exercise to consider the policy options — in both sovereign are two seemingly straightforward, overlooked, and argu- space and beyond the limits of sovereign jurisdiction — that ably taken-for-granted questions relevant to the drafting and arise when one asks questions of what and who. 13 Maritime Studies Questioning the ‘what’: defining the seabed the natural resources of the Area and the prevention of damage to the flora and fauna of the marine environment’. Whenever political or economic systems extend to new Here, although definitions are proffered for the horizontal frontiers, new mechanisms for conceptualising and gov- extent of the Area (the reference to the coastline defines erning space are required (Havice & Zalik, 2018; Peters the extent of the area to be considered when seabed min- et al., 2018). At a practical level, this requires the devel- ing is being regulated) as well as some of the objects to be opment or adaptation of regulatory institutions, laws, and protected (flora and fauna), no effort is made to define the methods for stakeholder incorporation and risk assess- vertical extent, either upward or downward, to be consid- ment, alongside a range of other functions. However, ered, beyond the broad term ‘marine environment’. even before these practical developments or adaptations This omission speaks to a longstanding problem in min- are made, fundamental decisions must be enacted about ing codes that ignore the fundamental reality that mineral what precisely this place is vis-à-vis established political- extraction occurs in voluminous space, where material economic and regulatory norms, for the seabed has some and its effects seep from the underground through Earth’s qualities of land (it is a seabed with some degree of fix- surface, and on into the water column and up into the air ity), but it is also at sea (that wet, volatile, moving space), (Bridge, 2013, 2015). This reflects a broader tendency in beyond habitable land, as well as beneath the ocean’s sur- political thought and legal reasoning, where the space con- face. This ontological question is therefore paramount. trolled by the state is understood as an ‘areal’ extent, a flat, Understanding and framing what is being governed is a plottable surface for demarcation and control (Elden, 2010). vital precursor to defining how planning and, ultimately, Yet this ontological understanding of space is called into policy implementation, will occur. question not only when we consider the practice of mining For instance, the seabed could be perceived, and subse- but also when we consider the ocean. The ocean is deep, quently managed, as an extension of land, with relatively dynamic, and motionful and is far from the fixed, static, flat little significance given to the fact that this offshore land ‘ideal’ that dominates understandings of governance (Peters, happens to be covered by water rather than by air. From 2020; Steinberg & Peters, 2015). The seabed, although a sur- this perspective, onshore mining regulations might be face, exists beneath and within volumes, both geophysically turned to as a model for regulating DSM. Alternately, the and politically. Furthermore, seabed mining, although some- seabed could be understood as land that exists beneath times characterised as scraping that surface, creates distur- water, effectively acknowledging that this soil environ- bances to both the earth below and water column above, and ment is fundamentally different (geophysically and geo- to the biota dependent on these environments (Levin et al., politically) from soil beneath air. If one were to take this 2016; Niner et al., 2018; Van Dover et al., 2011). approach, existing systems for regulating offshore oil and To approach the seabed as lying within a volume, it is gas extraction might provide appropriate models for sea- useful to turn to a growing body of work calling for a ‘volu- bed mining policy. A third option would be to consider the metric’ approach to governance. This literature highlights seabed neither as an extension of land nor as land beneath how the seabed has historically come to be legally con- the ocean but as part of the ocean. In this case, models structed as distinct from the water column (Ranganathan, for best practice in seabed mining management might be 2019) and how its governance requires sensitivity to how it adopted from forms of marine management (e.g. Marine is simultaneously a voluminous mass from which minerals Protected Areas). are extracted, a ‘surface of earth’ below a ‘surface of water’, These ontological conceptualisations of the deep seabed and a ‘vibrant place…where earth’s hydrosphere, lithosphere mirror debates over its precise definition. For example, in and biosphere are in dynamic interaction with each other at UNCLOS, which establishes the framework for the regime different speeds’ (Childs, 2020a, 199). of the Area (where much DSM is likely to occur), the This directs our attention to other frames through which deep seabed’s extent is never clearly specified. Article 1 the seabed is known. The geosciences, for example, clas- of UNCLOS defines the Area as ‘the sea-bed and ocean sify (ontologically) the seabed as separate from the rest of floor and subsoil thereof, beyond the limits of national the ocean. Scientists recognise a clear distinction between jurisdiction’, but never specifies how one determines sub- the Benthic zone (related to the bottom of a body of water soil depth or defines its limits in a submarine environment. or the seafloor) and the Pelagic zone (related to the water Similarly, Article 145 charges the ISA with ‘the preven- column of the open oceans or seas), with each zone host- tion, reduction and control of pollution and other hazards ing different species, with different lifespans and essential to the marine environment, including the coastline, and biological characteristics (UNESCO, 2009). Even though of interference with the ecological balance of the marine it is acknowledged that ‘many uses and impacts carried out environment…[and] the protection and conservation of or occurring in one of the two realms, affects both realms’ (UNESCO, 2009, 15), scientists have tended to disregard 13 Maritime Studies these interactions; for instance, Soetaert et al. (2000) note (e.g. fish stocks) that move beneath the surface (see Peters, that mutual interactions between the water column and sedi- 2020). However, this areal perspective on marine policy is ments have been largely ignored by biogeochemical models. increasingly critiqued by planners who argue for a consid- These interactions, however, are highly relevant to under- eration of the ocean as a ‘dynamic’ or ‘lively space’ (e.g. standing the possible environmental impacts of DSM (Aley- Duck, 2012; Jay, 2018; Kidd & Ellis, 2012). This alerts us nik et al., 2017; Coulin et al., 2017), with recent research to the need to better interrogate the fundamental question suggesting that sediment could take longer to resettle and of what is being governed. The specific context of DSM — probably travel farther in the water column (Gillard et al., where exploration sites for manganese nodules in particular 2019). cover huge areal swathes of ocean-space on an entirely dif- In addition to these legal and scientific perspectives on ferent scale than found in land-based mining — suggests the seabed, the ontological what question is further compli- that the onshore ‘tradition’ may not be so appropriate. Yet in cated by cultural beliefs. For example, when Childs asked national law, the most common framework for understand- members of the Duke of York Tribes of Papua New Guinea ing the deep seabed seems to be as an extension of land, what the seabed was to them, they responded by referenc- whereby regulatory models are fashioned on land-based ing a relational cosmology that includes ‘the ocean as part mining and implementation is overseen by mining adminis- of the earth’: the people, the fish, and the masalai (spirits) trators rather than ocean management authorities. (Childs, 2020b, 120). One of these spirits, the Tamaidok, For example, Papua New Guinea (PNG) is generally rec- was described as the volcano god who ‘defends the sea’ and ognized as the country that first initiated attempts at under- is the ‘protector of the seabed’s treasures’ (Childs, 2020b, taking seabed mining since it granted the world’s first DSM 123). Such visions not only contrast with the corporate licence in 2011. While the company that was granted that vision of fixed riches ready to be exploited from the seabed initial licence went bankrupt before commercial mining (as constructed through economic ontologies) but also with started, the PNG case is still instructive due to its pioneer the notion of ‘depth’ and the division of the ocean into layers status. Permits issued in PNG were based on an extension posed by scientists and lawyers. Instead of a space of emp- of onshore mining protocols that, for purposes of the sea- tiness, the Duke of York islanders pointed to an intercon- bed, redefined ‘land’ as ‘the offshore area being the sea- nected ocean (including the seabed), inhabited by spiritual bed underlying the territorial sea from the mean low water beings. springs level of the sea to such depth as admits of explora- It should be clear, then, that neither legal, scientific, nor tion for or mining of minerals’ (Mining Act, 1992, Part I, cultural perspectives can, on their own, capture the many Sect. 2, “land” d). Many other states, including Namibia and relations of the seabed with marine ecosystems, geologic a host of industrialized countries including Japan, Canada, structures, and coastal economies. That is why we are sug- and most members of the European Union, have considered gesting that these perspectives receive explicit attention, extending existing onshore mining law to the seabed should so that they can be considered when designing and assess- offshore mining commence in areas of sovereign jurisdic- ing approaches to regulating DSM. Historically, planners tion (Ecorys, 2014). In PNG, environmentalists stress that and jurists have failed to explicitly ask these foundational this framing of the seabed as land has led to a general disre- questions when extending industrial activity to the ocean, gard for impacts on the water column above (PNGGASEM, having borrowed largely from spatial metrics developed for 2013), and it seems likely that similar objections would be governing land. For instance, in the mid-twentieth century, raised elsewhere if seabed mining were to be governed in states seeking to develop regulations for offshore oil and this way. This demonstrates that examining the question of gas drilling similarly faced the question of whether existing what the seabed is believed to be is crucial. Indeed, advo- regulations developed for regulating onshore drilling were cates of a cautious approach to seabed mining in the Area fit for the offshore environment (Dam, 1965; Young, 1965). have advocated that the ISA should adopt a holistic approach Writing specifically with reference to emergent British regu- to the marine ecosystem that draws on marine spatial plan- lations for offshore oil and gas extraction in the North Sea, ning initiatives (Tunnicliffe et al., 2018). Dam notes that onshore protocols were turned to for inspira- Meanwhile, a report produced by the European Union’s tion, even though that was ‘determined as much by tradition MIDAS project repeatedly highlights oil and gas industry as by logic’ (Dam, 1965, 54) and even though the adoption standards and practices as potential models for seabed min- of onshore regulations required significant modifications due ing industry regulation (MIDAS, 2015). Consistent with to the unique conditions of the offshore environment. To that recommendation, Norway has modelled its 2019 Sea- date, attempts at governing the ocean (e.g. through marine bed Minerals Act (Norwegian Petroleum Directorate, 2021) spatial planning) have tended to use land-based references on its offshore petroleum legislation, and its seabed mining such as demarcation, zoning, and ‘parcelling’ to define surfi- licencing system is managed by the Norwegian Petroleum cial areas of marine space, even when applied to resources Directorate (Schjødt, 2021). 13 Maritime Studies As a point of contrast, New Zealand has developed and Questioning the ‘who’: defining applied regulations on seabed mining that, rather than the stakeholders taking land as the (ontological) reference point or turn- ing to offshore drilling as the reference point for indus- Just as the question of what the seabed is has been gener- trial practice, place seabed mining within New Zealand’s ally overlooked in the rush to examine questions of possi- overall marine management strategy (EEZ Act, 2012). ble policy formulation, so too has a careful examination of Building on a recognition of the divisions within New who is subject to the processes and outcomes of potential Zealand’s maritime space — the territorial sea, exclusive DSM activities. Although there has been an increasing economic zone, and extended continental shelf, as well interest in, and attention to, ‘stakeholders’ — how they as in consideration for the role of the ocean (including might engage in DSM Environmental Impact Assessments the seabed) in Māori lifeways — New Zealand mandates and their limited participation (see Jaeckel et al., 2017; that when permitting seabed mining ‘the [Environmental Lallier & Maes, 2016), or as part of a wider ecosystem Protection Authority] must take into account the…effects approach (Vierros et al., 2006) — a careful analysis of who that may occur in New Zealand or in the waters above or stakeholders are (and could be) in this context remains beyond the continental shelf’ (EEZ Act, 2012). Likewise, underexplored. the United States’ Deep Seabed Hard Minerals Resources A stakeholder can be defined as ‘a person, organisation Act (DSHMRA), which was implemented to permit par- or group with an interest (professional or societal) or an ticipation by United States entities in DSM in areas beyond influence on the marine environment or who is influenced national jurisdiction in lieu of U.S. ratification of UNC- directly or indirectly by activities and management deci- LOS, explicitly extends the remit of environmental impact sions’ (Newton and Elliot, 2016, 2; see also Pomeroy and analyses to include not only ‘major benthic organisms’ and Douvere, 2008). Currently, many states, as well as the ISA, ‘deep seabed biota’ but also ‘midwater and surface organ- are in the process of developing regulations for seabed isms most likely to be affected by commercial recovery exploration and exploitation. Therefore, it is paramount activities’ (DSHMRA, 2002, Sec. 109). This directive is to interrogate who is identified and recognized as having considerably more detailed than UNCLOS’, which simply a connection or interest, as well as the access they have calls for the ISA to adopt rules to secure effective protec- in the drafting of regulations or their level of meaningful tion of an unspecified ‘marine environment’ (UNCLOS, participation in other aspects of policy development and 1982, Art. 145; Annex III, Art. 17). The differences in governance. approaches undertaken by the USA, New Zealand, PNG, Vierros et al. (2006) explore the identification of stake- and the ISA illustrate the impact that defining (or failing holders for areas beyond national jurisdiction. They pro- to define) the scope, character, and relative location of a pose a methodology where the first step involves circulat- geographic frontier like the seabed can have on the laws ing questionnaires to interested organisations, and where and policies that aim for environmental protection. data from these questionnaires is weighed up relative to Finally, even as some legislation has begun to account a set of criteria in order to classify stakeholders’ involve- for the seabed’s location in vertical space, relative to ment. Evaluating Vierros et al.’s methodology, Ritchie and the volume of the water column, few states have con- Ellis (2010, 710) find that it provides a good starting point, sidered the verticality of the seabed itself. This is likely but they fear that it can miss relevant stakeholders as well because most legislation, including that establishing the as their main interests, as a questionnaire-based methodol- ISA, was oriented toward the extraction of manganese ogy assumes that ‘researchers or policy experts have per- nodules, which lie at the surface of the seabed. The only fect knowledge’ of all stakeholders and their demands and piece of legislation that we are aware of that contains expectations, delivering ‘privileged’ stakeholders through an explicit definition of the seabed’s depth is the United their categorisation. States’ DSHMRA, which defines the applicable area as Indeed, in going back a step to ask who the stakeholder extending to a depth of 10 m beneath the seabed’s sur- is, we can identify how geo-political, spatial, and temporal face (DSHMRA, 2002, Sec. 4). The issue of seabed depth dimensions (Childs, 2019), as well as social and historical will likely require further attention in the future as miners aspects, shape how stakeholders are defined, identified, increasingly turn to the extraction of cobalt-rich crusts and and included in decision-making processes — in policy polymetallic sulphides that would require greater seabed and planning — that follow. The term itself reveals a nor- surface disturbance and as scientists increasingly under- mative focus as it has traditionally been used in corporate stand the impacts that this disturbance (and resulting sedi- governance (Post, 2003). Analysing stakeholder partici- ment plumes) are likely to have on the water column and pation in marine spatial planning, Tafon (2017) shows species within it (Heffernan, 2019). how certain knowledges and groups are marginalized, 13 Maritime Studies delimiting the policy outcomes and sustaining neoliberal given marine mining proposal and, moreover, ‘must conduct logics in marine resource management. Whilst the term a hearing on an application if the applicant or a submit- can potentially be used to involve a wide range of parties, ter requests a hearing’ or if the EPA considers it necessary an appeal to ‘incorporating stakeholder interests’ in itself (EEZ Act, 2012, 51). This was the case for the Trans-Tasman carries little meaning, as it depends on how stakeholders application to mine iron sands 20 km south of Taranakii are defined and included in each organisation or policy Bight. After 4680 public notices were submitted opposing making process (Fletcher, 2007). the project — garnered through the broad stakeholder defi- This is further complicated by the understanding of how nition — a robust hearing process took place during 2014 the stakeholder concept is applied to DSM, where people that resulted in the rejection of the application. A new min- have different connections to and dependencies on ocean ing application was submitted followed by a second round space. Since human beings neither settle in ocean space nor of submissions and hearings in 2017. This culminated in establish exclusive ownership over maritime zones beyond approval for the project. At this point, another provision national jurisdiction, it is often unclear who is affected by of the EEZ Act (2012, 105–113), which called for another seabed mining. We outline three factors that exemplify this round of stakeholder involvement, went into force, as the complexity. First, whilst it may be easier to establish the tra- High Court heard further objections made by a coalition ditional uses of ocean surface area up to a certain depth (for of iwi, conservation, and fishing interests. After the hear- example, as is the case with fishing activities), such claims ing, the project was stopped by the High Court in 2018 and are more difficult to extend to use of the seabed below the rejected again in 2021 after the company appealed to the depths most typically used by humans. Second, the separa- Supreme Court. Despite concerns, such as the short time tion of the seabed from the water column is fundamentally periods provided by the EEZ Act regulations for all parties, a legal construction dividing the two spaces in terms of in the case of New Zealand the breadth of identification of their regulation and use. This severance can significantly who a stakeholder has allowed for a wide participation of impact who is included or excluded as a seabed stakeholder. experts as well as concerned groups and everyday individu- Finally, stakeholder definition depends on the proposed min- als in four different hearing processes. The history of seabed ing activity’s proximity to the coast and whether it is within mining in New Zealand suggests that when stakeholders are national jurisdiction or in an area beyond national jurisdic- broadly defined and a transparent process is established for tion. To illustrate these points, the remainder of this section incorporating their views, a high threshold is set before sea- explores the politics of stakeholder definition in examples bed mining can take place. of DSM regulation, turning to areas of state control as well In a different example, the Cook Islands is like many as the Area, where ISA regulations are being developed. states (and also the ISA) in that, although they do have a The cases have been selected to exemplify differences in broad scope for the definition of stakeholder and a man- status of mining activities (planned, ongoing, or rejected); date to include their input, there are few specifics regard- status of DSM regulations (under development, enacted, or ing how stakeholders will be defined or identified, or how non-existing); and methods for defining stakeholders and their contribution will be incorporated into decision making. facilitating their input. The Cook Islands Seabed Minerals Policy, enacted in 2014, To begin, despite some gaps and criticisms (de Wit & states that ‘the entire nation and its people are the “commu- Barton, 2014), New Zealand has developed one of the most nity” affected by seabed mining activities and that related complete regulations to ‘promote the sustainable man- decisions are best-handled with participation of all con- agement of natural resources’ in its territorial waters and cerned citizens, at the relevant level’ (Cook Islands, 2014, Exclusive Economic Zone (EEZ Act, 2012). The regulations 5). The draft Seabed Minerals Policy Act 2019 exploitation enacted in 2012 provide for a Māori Advisory Committee regulations reiterate this commitment to ensure ‘participa- that can ‘advise’ and ‘comment on’ regulation changes as tion and consultation with other relevant Government agen- well as proposed projects to the Environmental Protection cies and the Cook Island Community’ (Kung, 2019). How- Authority (EPA). The iwi community are not the only ones ever, after a major public consultation process that resulted consulted; ‘submissions’ supporting or opposing a marine in numerous submissions, the majority of concerns raised project can be submitted by any person in New Zealand. were not addressed. The approved Bill only dedicates a short The EPA thus casts a wide net on who stakeholders are: section on consultations (amending the Environmental Act the affected ministries, iwi authorities, customary marine 2003) that lacks detailed procedures or specific time periods. title groups and protected customary rights groups, regional It does include the ‘Cook Islands Seabed Minerals Advi- councils, and any other person that the EPA considers to sory Committee’ whose aim is to provide the ‘perspective ‘have existing interests that may be affected by the appli- from the community’ to the Cook Islands Seabed Minerals cation’ (EEZ Act, 2012, 46–47). The EPA provides all Authority (Seabed Minerals Act, 2019, 35(2)). This commit- stakeholders that meet this wide definition with a copy of a tee is to be composed of at least seven members of whom 13 Maritime Studies ‘at least four members [are] appointed by the responsible national licensing procedures and the interests of provin- Minister to present a range of community perspectives or cial governments and local protests on the other, had to be expertise relevant to the achievement of the purpose of this addressed. In other words, the company needed to ‘invent’ a Act’ (Seabed Minerals Act, 2019, 36(b)). Concerns about stakeholder identification procedure to demonstrate that per- these regulations and the lack of representation and transpar- sons likely to be affected by its activities had been consulted. ency of the appointees of the Committee have been raised The company reached out to some villages selected largely (Cook Islands News, ­8th March 2013). In particular, oppo- by ‘closeness’ (geographical proximity) to their proposed nents of the Bill noted that it grants full authority to the production sites: New Ireland and the international port minister responsible for seabed minerals to grant the explo- proposed to be used on East New Britain (Nautilus Miner- ration licence (Asia Miner News, 23 January 2020) and that als, 2010, 21–22). The main goals of these consultations the minister can remove council members for public dissent. were to provide information about the Solwara-1 Project, to Kung (2019, 14) warns that these provisions could ‘illustrate provide an opportunity for residents to voice concerns, and a scenario of suppression of public opinion’. to comply with national legislation. Later on, the company The example of the world’s first approved DSM site, the invented the concept of a ‘Coastal Area of Benefit’, again aborted Solwara-1 project in PNG, illustrates that stake- using proximity as a basis to define an affected stakeholder holder identification is not self-evident and that it can stem community (Filer and Gabriel, 2018, 398–399), and negoti- from a framework of terrestrial mining legislation. Moreo- ated benefit-sharing agreements with the governments of the ver, in this instance imprecise national regulations provided two provinces closest to its mining areas. In this example, enormous regulatory freedom for the respective company to given the lack of legal guidance, the company was ultimately design policy itself. Solwara-1 was situated within the waters in charge of defining who the stakeholders were, which com- of PNG, approximately 30 km from New Ireland Island munities to consult, and how. Interrogating this process of and some 50 km from New Britain Island. It had attracted who the stakeholders are is vital, since in this example it strong interest from the Canadian firm Nautilus Minerals, would appear that the interest of the company lay in get- Inc., which sought to exploit massive sulphide deposits in ting a social license to operate and avoid conflict (as well as PNG’s waters. The 1992 Mining Act states that ‘any person comply with regulations) rather than providing a meaningful may object to the grant (…)’ of a mining lease before a fixed decision-making process. date (Mining Act, 1992, 107) and a ‘Warden’s Hearing’ is Also contentious is the development of seabed mining in to take place that will take into account landholders present Namibia, where offshore diamond mining in shallow waters as well as ‘other persons as the Warden considers will be has occurred since the beginning of the 1940s with no spe- affected by the applicant's programme or proposals’ (Mining cific seabed mining regulations in place. Although diamond Act, 1992, 108). In an apparent recognition that there is no mining operations have increased in size in recent years with straightforward definition of a marine stakeholder, the Green investments in new seabed mining vessels (Reuters, 1­ 6th Paper on Offshore Mining Policy issued by the Department May 2019), what has raised concerns by environmentalists, of Mineral Resources published in 1999 acknowledges that as well as the fishing industry, are new plans for phosphate ‘major stakeholders in the offshore include the coastal sub- mining near Walvis Bay. Currently, mining is governed by sistent, artisanal and commercial/industrial fisheries as well the 1992 Mining Act. In the Act, stakeholder consultations as navigators, the tourist industry and so on’ (Green Paper are encouraged as part of the EIA process, yet there is no 1999, 75). While the PNG Mineral Resource Authority is legal provision for them — nor is there any clear identifica- responsible for granting mining leases, mining projects tion of who should be involved (IGF, 2018). The Minerals also require approvals by the Conservation & Environment Policy draft made public in 2018 states that ‘the Government Protection Authority (CEPA, previously Department of will ensure community participation through consultation Environment and Conservation). In order to obtain an envi- before companies are allowed to commence metallurgical ronmental permit, which was granted to Nautilus in 2009, operations’. However, it is unclear how ‘communities’ are formal public consultations that discuss the environmental to be defined in the context of the seabed or if ‘metallurgi- impact statement with stakeholders are required (Environ- cal’ applies to seabed phosphates (Draft Minerals Policy of ment Act, 2000, 51, 54, 55). The Act itself does not use the Namibia, 2018, 3.2). Since the project was licensed in 2011, term ‘stakeholders’ but requires consultation with ‘persons it has endured a long battle between environmentalist groups who are likely to be affected by carrying out of the activity’ and the fishing industry on one side and the Chamber of (Environment Act, 2000, 55 c). Mines and the company on the other. A moratorium was set Nautilus Minerals emphasized that there were no com- in place in 2013, and the project was given environmental munities directly affected by their seabed mining projects clearance in 2015, but that clearance was subsequently chal- (Nautilus Minerals, 2015, 23). Yet the tension between lenged in the courts. The judicial battle that ensued has gone supposedly unaffected communities on the one hand, and through a consultation process of ‘concerned stakeholders’ 13 Maritime Studies (The New Era, 2­ nd November 2016; Benkenstein, 2014); approach. On the other hand, there is no formal mecha- however, who these stakeholders are, and how their voices nism to incorporate stakeholder comments in its decision- are to be included, is unknown. Presently the High Court making process. The 2020 zero draft on the ISA Com- has confirmed its mining license but a judge has denied its munications and Stakeholder Engagement Strategy lists environmental clearance (The Namibian, 6 July 2021). The member states, observers to the ISA, contractors, and battle continues. ‘other entities’ as recognized categories of stakeholders Japan has some of the world’s most advanced plans for (ISA 2020, 10). This wording suggests a rather small cir- achieving DSM. In 2017, Japan announced it had success- cle the organisation wishes to engage with. Additionally, fully carried out a DSM test of an inactive hydrothermal vent although the ISA is an organisation of states, not all states off the coast of Okinawa. A year later, Japanese engineers have equal voice. In its central decision-making body, announced that they had identified an estimated 16 million the Council, there are reserved seats for large consumers, tonnes of rare earth minerals offshore of Minamitori Island. major producers as well as ‘big’ investors in the respective Japan Oil, Gas & Metals National Corporation (JOGMEC) minerals, and for special interests, such as populous or announced in July 2020 that ‘it had collected 649 kg of economically disadvantaged states. Only accredited stake- cobalt and nickel-rich seabed crust during a world-first test’ holders may contribute to policy making. Currently, about (JOGMEC, 21 August 2020). This and future extractions 25 non-governmental organisations representing wider are being carried out under regulations developed accord- society interests enjoy observer status, giving them the ing to the mandate of Japan’s Third Basic Plan on Ocean opportunity to sit in on Assembly and Council sessions. Policy, published in 2018. With the double aim of promot- However, they do not have the right to vote and have been ing the ‘industrial use of the ocean’ as well as seeking to excluded from meetings of the Legal and Technical Com- ‘maintain and protect the maritime environment’, the policy, mittee (LTC) (Bourrel et al., 2018), so they too need to which tackles all aspects of ocean policy, specifically aims lobby governments to have their voices taken into account. at promoting ‘commercialisation’ of seafloor polymetallic Who is included and not, then, is a key question for how sulphides ‘with participation of private-sector corporations each state operates. after the mid-2020s’ (Third Basic Plan, 2018, 6). Although Whilst governments should represent a wide pool of specific regulations for exploration, exploitation, or envi- stakeholders, businesses tend to dominate this influence via ronmental protection are yet to be developed, it is noticeable their access to sponsoring governments as well as technical that the Basic Plan does not outline who the stakeholders of knowledge, and states are sometimes perceived to be prox- this ‘industrial use of the ocean’ are or by what participa- ies for corporate interests. This can be seen, for instance, in tory mechanisms particular stakeholders might be involved. the request made by Nauru in June 2021 to initiate a 2-year We conclude this section by shifting our attention to timeline for the ISA to finalise exploitation regulations. mineral seabed deposits in areas beyond national jurisdic- This would allow its contractor, Nauru Ocean Resources tion, where, as was noted earlier, the International Seabed Inc. (NORI), to begin exploitation in the portion of the Area Authority (ISA) is tasked with managing the seabed as ‘the where it holds an exploration licence. The government of common heritage of [hu]mankind’ (CHM). Therefore, in the Nauru has emphasized that this application, which is the first Area, all of humankind are stakeholders, and thus we may ever for exploitation in the Area, is motivated by its desire all be defined as the ‘who’ that should participate in the to be a leader in an industry that it considers instrumental debate. The implementation of this principle, however, has to combat climate change and to provide legal certainty for proven problematic. The ISA acts as an agent for human- the industry to move forward (Government of Nauru, 2021). kind to administer the exploration and eventual exploita- However, some have speculated that the move was driven at tion of seabed minerals; however, no clear guidance has the industry’s request (Taipei Times, 2021). In the Area, as been provided by the ISA for the interpretation of the CHM in portions of the seabed within national jurisdiction, ques- regime (Bourrel et al., 2018). The ISA faces several chal- tions of who counts as a stakeholder are interwoven with lenges in order to define who is a stakeholder, who forms questions regarding how stakeholder participation is facili- part of mankind. ISA members are states, so humankind is tated and how differences in social power among different represented by state governments, but a state government stakeholders are accounted for (Ardron et al., 2018; Bour- might not represent the perspectives of all voices within the rel et al., 2018; Lallier & Maes, 2016). It is not simply a state. Likewise, it is not clear if humankind should include case of broader inclusion of stakeholders or improving the future generations. So how can humankind be represented, mechanisms to enable their participation. Before, or along- and should this be left for each state or to the ISA to decide? side these changes, a more careful scrutiny is needed of who On the one hand, the ISA has conducted several rounds stakeholders even are — who should be involved, who is not of public consultations since 2014 that have allowed for involved and why, and who determines what voices are heard individuals to participate, thus taking a very inclusive and which perspectives are silenced. 13 Maritime Studies Conclusions show that there has been a reliance on ‘fuzzy’ or incom- plete accounts of what the seabed is and who a stakeholder We have argued that a greater interrogation of how the should be and how their views should be incorporated. For seabed is defined and understood, and a deeper consid- now, this fuzziness has all too often resulted in seabed eration of how stakeholders are identified and the politics policy relying on landed conceptions of mining laws and of their inclusion, is crucial to the enactment of policy codes that fail to appreciate the complexity of extraction in and planning techniques. We have shown that far from this very particular, underwater, environment (e.g. PNG), being ‘given’, particular (ontological) ways of thinking on a lack of clarity of who a stakeholder is (e.g. Namibia), about the very nature of the seabed and the very identity of on how a stakeholder can influence a process (e.g. Cook stakeholders reflect assumed ‘ways of knowing’. As such, Islands), or through broadly ‘fuzzy’ regulations for DSM these ‘deeper’ questions require greater consideration to (e.g. Japan). For now, this fuzziness has led either to min- enable more critical, fair, inclusive, and just approaches to ing companies organising their own ‘stakeholder’ identifi- the development and regulation of DSM. Indeed, defining cation (e.g. Nautilus in PNG) or civil society organisations what the seabed is — a surface, a volume, an extension speaking on behalf of stakeholders (Ovesen et al., 2018). of land, a space beneath the ocean, a part of the ocean, a To conclude, we raise some key points for what such space that is necessarily far removed from human settle- ontological discussions can do for the practical work of ment — is not just an academic exercise. Aside from shap- policy making and implementation. First, the efforts of this ing regulatory models, specific definitions of the seabed paper to seriously question the often ‘given’ understand- are likely to influence governance in national and inter- ings of what the seabed is and who stakeholders are needs national settings, from what particular ministry is given continual reflection. As Peters notes in relation to marine lead regulatory authority, to the scope of Environmental conservation policies, ‘[i]t is not sufficient to raise ontologi- Impact Assessments, to the calculation of risk, and a host cal examinations once, as if ways of understanding what “is” of related decisions that are made when designing and are finished and complete, and not always in the making’ implementing regulations. As we have shown, policies (2020, 8). As DSM continues developing, it is paramount to undertaken if, for instance, the seabed is considered as keep a check on how the seabed is being defined by whom an extension of land may ignore the specific impacts sea- for what purpose. For the acceptance of a new technology, it bed mining can cause, which range from the destruction is also important to be aware of how stakeholders are defined of entire species and communities to causing irreparable and included. What the seabed is and who stakeholders are damage to important ecosystem functions that can affect are not static, unchanging, or immovable ‘facts’ but socio- carbon sequestration or fisheries production (see for exam- political, legal, and economic constructions that will lead ple Levin et al., 2016). Additionally, and in conjunction, to specific social, economic, and environmental outcomes who stakeholders are — how they are politically defined in through their enrolment into policy outcomes and govern- acts and policies and how their voices may then be heard ance regimes. We thus urge, further, ongoing and continual or marginalized — must be addressed in order to con- work in interrogating these often-assumed questions. sider the political and social implications of DSM. Our Second, within this remit, identifying the ways that the review of several examples has highlighted that different seabed and stakeholders are understood may enable us regulating authorities have taken different decisions on to practically enact policy differently. For example, what these matters, and in consequence drafted different poli- might be the implication of defining the seabed as part of cies. Depending on different contexts, the definition of the ecosystem above and below the seabed’s surface? How stakeholders who benefit from the seabed (or who could be might policy be enhanced by taking into account cultural impacted by its disturbance) can range from all of society or spiritual understandings of ‘what’ the seabed is, or by to a local fishing community. including likewise emergent geospatial/geologic or biologi- The risk of not seriously questioning what the seabed is, cal and chemical understandings of the constitution of the and of not examining the politics of who stakeholders even benthic environment? Seriously interrogating what the sea- are, is great. A lack of clarity regarding what the seabed bed is will enable policy to better take into account different is and who can participate in its governance can favour forms of knowledge that may in turn improve how DSM is business interests that have the power and knowledge to undertaken. construct the seabed according to their will, potentially The definition of the seabed also has important implica- overriding environmental, social justice, or more localized tions for how stakeholders are defined. A comprehensive concerns. Moreover, where stakeholders are defined by consideration of the politics of ‘who’ stakeholders are states and businesses, the voices of many stakeholders may may permit a greater transparency, equity, and justness go unheard. In this sense, most cases analyzed in this paper to participation. Revisiting some of the cases reviewed 13 Maritime Studies in this article, for instance, we might ask how a consid- provide a link to the Creative Commons licence, and indicate if changes eration of local cosmologies, regional policies for inte- were made. The images or other third party material in this article are included in the article's Creative Commons licence, unless indicated grating ocean-space into coastal management policies, otherwise in a credit line to the material. If material is not included in and national ocean strategies redefine the identification the article's Creative Commons licence and your intended use is not of stakeholders and, consequently, the concerns that are permitted by statutory regulation or exceeds the permitted use, you will brought to the table. Why not go one step further and uni- need to obtain permission directly from the copyright holder. To view a copy of this licence, visit http://​creat​iveco​mmons.​org/​licen​ses/​by/4.​0/. versalise the concept of stakeholdership (as New Zealand and the ISA have sought to do, albeit in different ways and to varying effect)? In this respect (and following Vierros et al., 2006), given the wide range of ‘uses’ of the seabed and the implications seabed mining can have, a more criti- References cal and open view of who a stakeholder is should not only Aleynik, D., M.E. Inall, A. Dale, and A. Vink. 2017. Impact of be determined by policymakers and scientists, but argu- remotely generated eddies on plume dispersion at abyssal mining ably needs to involve a wider range of actors and spaces sites in the Pacific. Scientific Reports 7 (1): 1–14. (Ritchie & Ellis, 2010). Ardron, J.A., H.A. Ruhl, and D.O. Jones. 2018. Incorporating trans- parency into the governance of deep-seabed mining in the Area In order to forestall what Ranganathan (2019) calls an beyond national jurisdiction. 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