The Metals Company is a key player in the deep sea mining industry. Photo: Facebook / The Metals Company
Tonga is considering a new deep sea mining contract with Canadian mining group The Metals Company (TMC) - and a local NGO says the government should not sign it.
The proposed contract comes at a time of increased uncertainty in the industry, with both the US and the International Seabed Authority (ISA) - the world's deep sea mining regulator - saying they offer a pathway to mine in international waters.
The Metals Company has been a key player in that dynamic as it has sought to undertake mining activity under both jurisdictions.
Civil Society Forum of Tonga's Drew Havea said the organisation had been invited by the Tonga government to consult on the proposed contract from TMC.
Under international oceans law, Tonga has special rights in an area of the Pacific Ocean that has deep sea minerals.
The country's existing contract with TMC covered mining activity for Tonga's block of that area, known as the Clarion Clipperton Zone (CCZ). That contract was signed in 2021 by then Prime Minister Pohiva Tu'ionetoa through the ISA framework.
Havea, who had not yet seen the proposed TMC contract, expected it would provide a path for Tonga and TMC to mine through the US as well as the ISA.
Just last month, the company announced it had signed a new contract with Nauru, another one of its Pacific partners.
That agreement detailed potential payment amounts to Nauru should mining occur through the US pathway.
Nauru, like Tonga, has special rights in the CCZ under international oceans law.
Havea said Tonga should use the current climate as a way of getting out of deep sea mining entirely. His organisation has been a long-standing opponent to Tonga's involvement in the industry.
"We are the sponsor country, and sponsor country will be responsible for any damages to the ocean," he said.
"It's not the company...that will be responsible. And I think from that perspective, we are quite concerned that we will be liable."
Havea believed TMC was already committed to mining through the US pathway - an observation backed by a previous statement from the company that it would only be seeking to mine commercially through the US pathway.
Havea said that pathway did not feature in the current Tonga-TMC contract and therefore it would have to be set it out in a new contract
"I know TMC has made the application to be part of the US [pathway]. So, from Civil Society [members], we hope that the Tongan government [doesn't] do anything.
"Because once [TMC is] into the US mining [pathway], that means they are out of the ISA, and the contract that we have signed has binded us into the ISA."
Risk for Tonga
International environmental lawyer Lori Osmundsen said the existing TMC-Tonga contract raised a range of legal concerns for Tonga.
In 2023, Osmundsen was commissioned by the Civil Society Forum of Tonga to evaluate the country's legislative framework for ocean issues and ocean management. That comprehensive review covered the existing Tonga-TMC contract and the circumstances of its signing in 2021.
To this day, the organisation had not received a clear answer on whether the contract had been approved by Cabinet before it was signed, as required by the country's laws.
"Now, there's a new sponsorship agreement between Nauru TMC subsidiary, which is called NORI, and the government of Nauru…that was signed at the very end of May," Osmundsen said.
"That is publicly available. And….if that's the recipe for a similar proposed new agreement between Tonga and TMC, it sort of continues on the problems, the legal risks and hazards of the current agreement, and then adds a whole new set."
Osmundsen said the major risk for Tonga in signing a TMC contract like Nauru's was that it opened itself up to being involved in a commercial mining arrangement under the US pathway.
That pathway would sit outside international laws, and any activity undertaken by Tonga through it would breach the UN Convention on the Law of the Sea, she said.
The ISA has also announced it is investigating contractors that hold mining exploration permits under its jurisdiction to ensure they haven't breached the terms of their ISA contracts. That includes TMC and its partnerships with Tonga and Nauru. Notably, no commercial deep sea mining has occurred, and the ISA was still finalising a mining code.
Osmundsen has urged Tonga to consider its next steps carefully.
"The contract that resulted [in 2021] is quite disadvantageous for Tonga, and we don't need to repeat that," he said.
"So greater scrutiny, greater awareness, availability to Tongan public stakeholders, all of governments to evaluate and weigh in on these incredibly important issues."
