1The possibility of exploiting the Polynesian seafloor raises the urgent question of the sociopolitical and legal framework in which it would take place. From the outset, two aspects loom large: the legal framework for this type of activity in light of its social and environmental impact and stakeholder participation in preparing and implementing projects. An approach incorporating these two aspects would help identify the means French Polynesia would have to implement to promote mining operations that comply with social and environmental best practices for the field.

2This would ultimately require the formulation of a suitable public policy well in advance and overseeing (monitoring and assessing) the ensuing governance of deep-sea mineral resources. In this respect, the matter of the stakeholders involved in the deep-sea mining arena is closely tied to that of governance. Indeed, if we understand governance in its descriptive sense as a method of regulation that emerges from interactions between stakeholders and institutions, whether governmental or non-governmental (Le Meur, 2011), a definition of the arena of stakeholders directly or indirectly involved in the issue at stake will impact the method of governance.

Allocation of responsibilities for deep-sea mining in French Polynesia

3It appears vital to begin by addressing the issue of how responsibilities for deep-sea mineral exploration and exploitation are shared between the French government and French Polynesia (see contribution II-1).

4As an overseas political entity (collectivité) endowed with autonomy, French Polynesia has primary jurisdiction by virtue of Article 13 of the organic statutory law of 2004, the government and communes being endowed with statutory jurisdiction. With regard to jurisdiction in the area of mining, it seems that while French Polynesia possesses statutory competence by virtue of Article 47 of the organic statutory law, the French government retains residual jurisdiction for metals considered “strategic”.

5Thus, the determination of a clear division between the jurisdictions of France and French Polynesia requires a clear definition of “strategic metals”. However, there is no legal definition or scientific classification for the term “strategic metals”, unless we consider the finding of 14 April 1959, which is of uncertain legal soundness (not being a decree).

6The European concept of “critical metals” does not appear to be a convincing option, since while the application of the concept is more or less clear, it is largely irrelevant in terms of legal stability and certainty. This would constitute a change of register, shifting away from a political concept of sovereignty to an economic concept relating to the functioning of the sector based on issues of supply, substitutability and the rate of recycling for the metals. There is of course a European list of critical metals that was published in 2010 and revised in 2014. This document, which is to be revised again in 2017, is intended solely for informational purposes and possesses no legal status.

7In all events, the allocation of jurisdiction must be addressed with regard to exploring and exploiting the Polynesian seafloor. As the legislation currently refers to a residual jurisdiction for the French government for “strategic metals” and these having been categorised as “substances needed for atomic energy (helium, uranium, thorium, beryllium, lithium and their composites)” and liquid and gaseous hydrocarbons, it is possible to conclude that in the case of the ores identified in the Polynesian seafloor, the residual jurisdiction of the French government does not apply.

The legal framework for deep-sea mining operations

8The review of the legal framework was conducted at several levels: an analysis of positive law (all the applicable rules in a given legal context), an identification of the existing reference bases (including non-legally binding international standards or soft law) and a forward-looking approach. At the outset, a survey of the existing legal constraints concerning the environment and mining was conducted (II-1). Starting with the gaps identified in Polynesian law and the aim of recommending desirable improvements to the positive law (II-3), an inventory of the main relevant foreign and international reference bases and regulatory measures was drawn up (II-2).

Positive law

9The study of positive law applicable to French Polynesia with regard to the environment and mining yields two types of standard: those imposed on Polynesian authorities and those adopted by French Polynesia itself.

10Among the environmental standards imposed on Polynesian authorities through the hierarchy of standards, the most important is the Environmental Charter of 2004, which has constitutional value.

11Some principles laid down by the Constituant have a direct effect on French Polynesia. Such is the case for the right to live in a clean, balanced environment and the duty to participate in protecting the environment, which form the basis for an obligation of environmental vigilance according to the Constitutional Council. This is also the case for the precautionary principle, omnipresent in the context of activities such as exploring and exploiting deep-sea mineral resources since such activities are subject to a number of uncertainties as to their environmental impact, from both the technological (impact of exploration/exploitation techniques) and biological (identifying the existing biodiversity and the impact of sampling on biodiversity) points of view.

12Other principles set out in the Charter do not have a direct effect and require that the legislator intervene in order to implement them. To that end, in February 2015 the Council of State stated that as the “country laws” for Polynesia apply to the substantive scope of national law, the Assembly of French Polynesia could be considered as the authority with jurisdiction to implement constitutional provisions through “country laws”. The relevant principles are:

• the duty of prevention, according to which all individuals must prevent any damage that they are likely to cause to the environment or, failing this, must limit the consequences;
• the contribution to repairing the damage that each individual causes to the environment;
• the principles of public information and participation in the decision-making process, the scope of which the Constitutional Council has defined in several decisions.

13In addition to the constitutional provisions, international law has defined a number of standards, though there are few international conventions applying to deep-sea mining. The 1982 Convention on the Law of the Sea applies primarily to the spatial and substantive demarcation of national jurisdiction in maritime areas; only the Nouméa convention of 1986 requires that nations take all appropriate measures to prevent, reduce and control any pollution that could result, directly or indirectly, from exploration and exploitation activities on and below the seafloor, with no further clarification. Despite its binding character, however, this convention does not provide for instruments that would make it possible to penalise nations and territories for violations.

14Moreover, it follows that although they do not specifically address the issue of deep-sea mining, all of the international conventions applicable in French Polynesia, particularly the conventions relating to the environment, are designed to have an effect, the first being the 1992 convention on biological diversity.

15Existing Polynesian standards that apply to deep-sea mining activities should also be considered. These are primarily found in the Polynesian Mining Code and Environmental Code.

16Due to the limited development of mining activities, the Mining Code of French Polynesia is extremely brief. Written in an often imprecise and archaic manner, local regulations seem ill-suited to the specific characteristics of deep-sea mining and contain very few provisions on the environment. Indeed, most of these provisions are focused on determining the legal system that would cover mining claims.

17On the other hand, the Environmental Code contains provisions that are likely to affect the legal framework for deep-sea mining. In addition to the legal status of classified installations for the protection of the environment (ICPE), the regulations on natural areas and species stipulate constraints that must be followed by operators. In this regard, it must be emphasised that the somewhat illegible nature of certain regulations, especially those relating to natural species, hinders proper reception -and therefore the optimal effectiveness -of these rules. In addition, the current form of certain provisions on waste seems unsuitable if they are to be applied to deep-sea mining activities. Such is the case for the possibility of submerging platforms and other structures at sea.

Foreign and international reference bases and regulatory instruments

18In addition to binding reference standards, thinking on the enactment of regulations tailored to the particular characteristics of deep-sea mining activities may draw on references to existing regulatory instruments in this area:

• international standards laid down by the International Seabed Authority (ISA) as part of its power to regulate the activity in international zones, comprising seabeds located outside of national jurisdictions;
• instruments that are part of soft law and take the form of recommendations or guides to best practices;
• laws passed by other nations for comparative purposes.

19One particularly useful tool is the code for mining operations written by the ISA; it includes a detailed set of rules, recommendations and procedures enacted to regulate the prospecting, exploration and exploitation of marine minerals in international seabed areas. These could serve as a reference base when writing regulations. This is also the case for the framework project for regulations on deep-sea mining exploration enacted by the ISA in March 2015 (ISA, 2015). Other instruments could prove relevant, such as the regional legislative and regulatory framework enacted in 2012 by SOPAC (the GeoScience Division of the Secretariat of the Pacific Community) or the code for managing deep-sea mining issued by the International Marine Minerals Society (IMMS) in 2010.

20Lastly, a small number of existing national laws could provide useful information, such as the Seabed Minerals Act of the Cook Islands from 2009 or that of the Kingdom of the Tongas from 2014. The Cook Islands took a forward-looking approach and established discussions and an original political framework, both in terms of instruments (most notably with the creation of an authority for managing and regulating deep-sea mining) and of defining an approach to promote the development of its assets (launching a call for tenders to obtain exploration permits).

Possible changes to the legal framework

21While the allocation of jurisdiction between France and French Polynesia attracts attention due to its political aspect, it is not in this field that the most decisive legal changes will take place with regard to exploiting marine mineral resources, but rather in the area of higher-order standards imposed on French Polynesia in the exercise of its mining jurisdiction. Just as they required modifications to the French national mining code, the requirements set out by the Environmental Charter require modifications to the Polynesian mining code, including specific developments relating to underwater activities. With so little known about the environmental impact of these deep-sea mining activities, it seems that it would be reasonable to apply the constitutional principles of prevention and precaution set out in the Environmental Charter much more strictly than for onshore mining activities, so long as a balance can be struck that would avoid blocking development of the activity altogether.

22Besides this imperative, the creation of a framework that appeals to economic operators is undoubtedly one of the main reasons for updating the Polynesian mining code. Firstly, an attractive framework requires the implementation of taxation specially adapted to the nature, extent, duration and hazardous character of mining projects and, secondly, predictable and stable regulations. Lastly, given the experimental nature of deep-sea mining activities, a reform of Polynesian mining law should be guided by the principles laid down at international level by the ISA, by feedback from several pilot projects currently in place and by the instruments put in place in neighbouring countries (e.g. Cook Islands and Tonga), while incorporating the best practices developed in the offshore industry and following the (still somewhat weak) regulations they must abide by.

Participation

23A relatively new subject - the issue of exploiting deep-sea mineral resources - is just beginning to emerge as part of the public debate. As a result, the reactions of stakeholders affected by the issue can only be analysed prospectively. It should be noted, however, that since 2004 the Environmental Charter includes the right for the public to be informed and involved in the body of constitutional rules applicable in French Polynesia.

24Although deep-sea mining takes place far from the coasts, making it more difficult to determine the “scope of the public” affected, this does not make the issue of social acceptability any less challenging, the dual continuum of land/sea and culture/nature being so important in French Polynesia. In this context, stakeholder involvement, understood as the participation of players in a public initiative or a development project, is crucial (see contributions II-4, II-5 and IV-3).

25Consideration of this issue is intended to help outline the participatory governance for deep-sea mining in which prior, free and informed consent (PFIC) plays a central role, as it leads to a system based not on consultation but on consent, which must be expressed before a decision can be made. Moreover, it is clear that this instrument must be adaptive and devised for the long term. For this to come about, it must be subject to regular monitoring and re-evaluation measures as part of an ongoing, interactive process.

Identifying stakeholders

26First, a stakeholder map must be created (Mason et al., 2010) to identify the groups affected in a broad sense; then the concerns of different groups will be targeted and information requirements anticipated. One important way of minimising the number of debates is to identify and evaluate pre-existing arenas for debate, in order to mobilise them as part of the project.

27Given that the areas of potential interest for deep-sea mining are located in the open oceans, the number of stakeholders affected will necessarily be smaller than for onshore mining. Nonetheless, in the context of a democratic society, of increasing institutionalisation of heritage (of nature in particular) extending beyond a circle of directly affected stakeholders, of the increasing dissemination of information through communication networks, and of the specific nature-culture relationships in Polynesia, it is likely that these stakeholders, or their representatives, will express specific concerns and expectations. They must therefore be identified. Setting aside civil society and various public authorities, fishing remains a key issue, because the waters that contain a potential wealth of mineral resources are also said to possess a significant amount of biodiversity. Longline fishing is therefore the most affected, though other forms are also concerned. Coastal, and even lagoon, fishing could be affected and it is therefore worthwhile considering the concerns of all stakeholders in the fishing sector.

28Other activities can also be identified, such as tourism. Mining activities might lead to degradation in water quality (suspended particles) and in aesthetics (structures built for exploitation) at a time when nautical tourism (unlike onshore tourism) is booming in French Polynesia. Lastly, the shipping and cruise sectors (another form of tourism) might also be affected by deep-sea mining projects. It should also be noted that the scientific value of these areas is demonstrated by the large number of research organisations present there.

29Environmental issues, and the associated stakeholders and tools, will be subject to specific focus in the debate likely to arise over mining. French Polynesia contains 32 protected and/or managed natural areas, on 15 of the islands in the Society, Tuamotu and Marquesas archipelagos. These include various marine or marine/terrestrial reserves and a diverse array of projects at various stages, which could all have an impact on the exploration and exploitation of deep-sea mineral resources and vice versa. This general issue also applies differently to different locations, depending on the particular cultural or ecological conditions of the Polynesian archipelagos and their vulnerability, as well as on existing environmental initiatives: the creation of an extensive marine protected area in the Austral Islands, classifying the Marquesas as a UNESCO World Heritage site, establishing the biosphere reserve in Tuamotu (Fakarava), among others.

Methodology

30In order to truly understand how deep-sea mining activities are perceived, it is necessary to implement fora at various levels: for the country, affected archipelago or the more localised area surrounding the planned sites.

31The information provided must furthermore be seen as independent and transparent and render residents more capable of forming an opinion on the project. For this, it is necessary to present a non-technical summary of current scientific knowledge, as well as any gaps in the science. This summary, which should go beyond the usual environmental and social impact studies (EIS/SIS), must be accompanied by technical information on the procedures for exploration and exploitation. This information should be contextualised in order to provide the best possible basis for an interactive, back-and-forth discussion.

32French Polynesia contains a number of maritime areas that are currently protected or that are in the process of becoming so. Thus, it seems that the existing and planned protected areas should certainly be taken into consideration when determining which areas are likely to be the site of deep-sea mining activities. Such is the case for the marine protected area of the Tuamotus (UNESCO Commune of Fakarava Biosphere Reserve), for which an extension is currently under discussion; any activity that threatens biodiversity and its associated landscapes there is strictly prohibited. Thus, while exploration activities could be conducted there, an exploitation project could not. Another case worth mentioning is the project for a protected marine area in the Marquesas Islands, whose current objectives are incompatible with mineral exploitation. This would also be the case for the planned marine protected area in the Australs.

The time factor

33The time factor plays a vital role when organising participation in a mining development project and, more broadly, in implementing public policy in this area (see Adam, 1998; Kirsch, 2014). It can be broken down into several forms:

• anticipation: it has been shown that the earlier participation takes place, the more influence it has on the decision. This is why it is extremely important to provide mechanisms for participation, bearing in mind that the debate may not necessarily take place in the areas envisioned by public authorities. A major advantage for French Polynesia is the fact that it is considering the impact of developing deep-sea mining projects well in advance, before any permit for exploration or prospecting has been issued or even applied for;
• adaptability: a mining project takes place over a long period of time, so the issues, risks and benefits will vary over time. The key moments where it is necessary to involve stakeholders must be identified, while taking into account technological developments that might require the project to be re-evaluated;
• the assimilation period: this involves reformulating in the various arenas, making it possible for the stakeholders to take ownership of the project;
• relaying information: this must be performed by legitimate third parties so that the information is disseminated as widely as possible;
• closing the debate: this is necessary to prevent reopening cases for “tactical” reasons; the interactive process must be continued, however, particularly to ensure that people can still express themselves as time goes on.

Governance issues and mechanisms

34The aim is to create a tailored mining policy and to support forms of regulation gradually implemented through the array of actors and institutions (see II-6 and IV-4).

Issues: imbalances and asymmetries, transparency and conflicts of interest

35The situation created by major mining development in a small country is characterised by risks of imbalance and dependence:

• the flows of financial and material resources enabled by a mining project are considerable and are capable of generating various active capture strategies;
• the technology brought in for a mining project is often imported and not well understood by local bodies, and this understanding (or lack thereof) is another factor that results in an imbalance;
• the influx of resources generated by a mining project is often accompanied by a certain absence of norms and therefore a high level of uncertainty concerning the “rules of the game”.

36Re-establishing a balance in relations in terms of bargaining power requires an anticipatory strategy: the necessary skills must be developed prior to any project so that the authorities involved are able to respond effectively when a permit application is submitted.

37The ability to anticipate must be accompanied by a policy of transparency. The dissemination of (clear and accessible) information and consultation with/participation of local populations must be organised early on, we have observed, in order to avoid presenting the affected individuals with an actual or perceived fait accompli. This political necessity – transparency – must work against any tendency towards concealment, which generates suspicion (Larmour, 2012) and mistrust that are quite difficult to combat once they have taken root. In French Polynesia, however, this tendency is firmly entrenched, as a result of the secretive policy that surrounded the nuclear undertakings of the French military. This legacy weighs heavily and the slate has not yet been wiped clean.

38Transparency is also needed to identify and settle conflicts of interest. This issue requires careful attention, as the biases that could arise are strong and hard to rectify, including various forms of corruption, which can be rooted in culturally accepted practices or in a specific culture of corruption. Conflicts of interest can take many forms. The major categories can be identified based on contradictions between functions, such as evaluators and operators or regulators and shareholders. Resolving functional conflicts involves designing, implementing and monitoring a whole set of administrative procedures, sectoral distinctions, judicial measures – in fine policy decisions combined with mechanisms of accountability.

Necessary capabilities

39Different initiatives could be developed to meet the needs in terms of mine-related capabilities (see III-5).

• Develop a mining department within the Polynesian government, most notably to implement a strategy for awarding and monitoring mining permits.
• Create a resource agency. Given the cross-functionality of the issues to be addressed (awarding permits, managing environmental issues, combating ocean pollution, informing residents and holding discussions with stakeholders), a resources agency with authority over all these fields overlap should be created.
• Work more closely with the Cook Islands: in the interest of pooling resources (including equipment for ocean exploration) and mining-related capabilities, it would be wise to work more closely with the Cook Islands, which have signalled their intentions for marine mineral resources, or with the Secretariat of the Pacific Community (SPC).
• Create a joint research unit: a structure that is more focused on research, especially with regard to exploring and evaluating the resource, the impact on ecosystems and the sociocultural aspects. This could be a joint research unit (JRU) making it possible for several different organisations to work together.
• Create a public interest group: a semi-public structure focusing on preparations for exploiting the resource while calling for and encouraging greater involvement from the mining industry. It would also be responsible for preparing and funding the projects for data collection and processing, infrastructure, ore processing and social acceptability. Ideally, this structure would be a public interest group (PIG), that leads to the implementation of a genuine public-private partnership and that could eventually become an economic interest group (EIG).

Governance mechanisms: addressing the idea of a mining authority

40Given the governance issues (participation, transparency, conflicts of interest and accountability) listed above, a study of the topic should explore the possibility for a mining authority. This authority could be made responsible for regulating the deep-sea and onshore mining sectors (permits, impact studies, etc.) and/or consider preparing a mining strategy for French Polynesia. In this context, it would be helpful to imagine possible overlaps between sectoral policy and cross-cutting or territorial issues (the ocean and the environment). Work on setting up this type of institution must take place as part of a forward-looking policy for the actual launch of deep-sea mining activities, whether from the perspective of strategic directions for the country, developing skills and expertise or the regulatory framework.

41The work could cover several aspects: roles, legal forms, relationships with other administrative entities, human, material or budgetary resources, duties, powers, or evaluation indicators.

42For comparison, the Cook Islands and the Kingdom of Tonga have implemented this kind of authority as part of their regulatory framework for deep-sea mining. Upon closer inspection, however, it seems that these are in fact agencies reporting to the government, whose real autonomy vis-à-vis public authorities is unclear. To achieve real autonomy, the most appropriate legal form seems to be an independent administrative authority (possible through a country law), insofar as the goal of this type of authority is to separate the decision process from the executive branch in sensitive sectors, particularly economically sensitive ones.

43At the same time, it is necessary to find a way for this independent authority to work effectively with the participatory procedures.

Formulating a deep-sea mining policy and monitoring and evaluation issues

44Setting aside the issue of the institutional form of the political, administrative and legal mechanisms needed to ensure that a potential deep-sea mining activity is received appropriately, the problem must be posed in terms of public policy. The issue of monitoring and evaluation is crucial in this area and its effectiveness depends on the existence of a clearly defined political strategy.

45One of the main problems for evaluating and monitoring the environmental impact of marine exploitation is identifying at which scales – vertical and/or horizontal – ecological processes may be impacted. Only a strategy for knowledge acquisition with spatial priorities and covering all the biological compartments of the water column would make it possible to identify the relevant scale to be employed in environmental impact studies and monitoring.

46The environmental issues and impact of deep-sea mining activities are not solely ecological; they are also social and cultural, due to the Polynesian understanding of a nature/culture continuum. As such, they are not localised at the areas being mined, but instead extend spatially across distances that are sometimes quite vast. They are closely linked to the question of use and representations of the marine area. Monitoring and evaluating the changes brought about by deep-sea mining activities must therefore be socio-environmental in nature, and the impact studies should be designed with sustainable development (contribution IV-4) and sustainability in mind.

47The issue of monitoring and evaluation also leads back to issues of participation and consent. It would be a mistake to perceive prior, free and informed consent (PFIC) as a transaction that happens once at the beginning of the project, settling the issue of consent from potentially affected populations for good. Implementing the concept of PFIC can be problematic and it must be thought of as a political and moral instrument that incorporates the stakeholders into a set of rights and obligations. These must be clarified, but they can also be re-evaluated based on events that change the landscape to an extent recognised by all the parties (in accordance with defined procedures). The ability and opportunity to express opinions (including dissenting voices) must be assured for the long term. At a minimum, obligations of transparency, extensive reporting on social, economic, environmental and governance outcomes, and a mechanism for settling conflicts must be provided for. In other words, prior, free and informed consent (PFIC) is not merely a necessary preliminary step but instead a process to be actively maintained throughout the project. As such, it is a part of the monitoring and evaluation mechanisms.