Cook Island News | June 01, 2019
Local non-government organisations Te Ipukarea Society and Kōrero O Te ‘Ōrau recently sourced funding for an independent legal opinion on the draft Seabed Minerals Bill 2019. This is the fourth in a series of articles outlining key points raised in the 51-page opinion.
According to a reputable environmental lawyer, the Seabed Minerals Bill 2019 in its current draft form does not encourage transparency and a free flow of information.
There “appears to be no overriding duty or principle of the presumption of open information, nor a presumption that all information submitted in an application is available to the community to assess as part of the public consultation process”, writes CJ Iorns Magallanes, a reader in law at Victoria University who was contracted by local nonprofit organisations to provide a legal opinion on the Bill.
In other words, the draft Seabed Minerals Bill 2019 does not require politicians and the Seabed Minerals Authority to disclose information about applications from mining companies and their operations.
This point reflects concerns raised in letters to the editor of this newspaper and voiced at public meetings. Seabed mining is an untested and unproven endeavour; going forward, information about possible impacts on the environment will be crucial for guiding responsible decisions. So far very little information has been made public; it was said that submissions and feedback on the draft bill would be shared, but since the deadline for submissions passed in February, members of the public are still waiting for news.
Not only does the proposed Seabed Minerals Bill 2019 not require government to share information, it actually imposes heavy consequences on anyone who leaks information that government considers sensitive. Magallanes calls the punishment — a five-year prison sentence — “particularly onerous”. She notes the consequences for sharing such information seems overly harsh – “(‘a sledgehammer to crack a nut’ is the phrase that comes to mind)”.
While sharing information is vital for democratic, participatory decision-making about shared resources, it is also already part of our law.
The Seabed Minerals Bill 2019 must comply with the provisions of the Marae Moana Act 2017, a piece of legislation that coordinates management of the marine environment.
The Marae Moana Act lists transparency in decision-making as one of its overriding principles. Bodies which advise the Marae Moana Coordination Office are required to make information publicly available unless there are good grounds for withholding it.
Magallanes’ legal opinion suggests that reports about seabed mining, as well as recommendations put forward by any potential advisors, should be shared with the public.
Her analysis discusses a recent case in New Zealand, which illustrates what can happen when information about a public resource is not made publicly available. A company’s application for a licence was shared but with large sections redacted (blacked out); the company claimed these sections were commercially sensitive. A complaint was filed. The case ended up in court and the complainants won, with the court ordering the disclosure of the information.
“Thought should therefore be given to the inclusion of an assumption of disclosure even for material that an applicant might claim is commercially sensitive, if it is necessary in order to assess the likely environmental effects,” Magallanes writes. “The public should have the right to this information and not have to take a judicial review case against the Authority in order to understand the activities applied for.”
There have been a number of issues raised that have been highlighted in this and the previous articles on the Magallenes review.
With transparency in mind, the public awaits the release of other submissions in order to see what other issues may have been identified. We have also just received news that a revised “final” Seabed Mining Bill has been released on Thursday this week. We note that this is to be considered the version to go to Cabinet and then on to Parliament when it sits in June.
Te Ipukarea Society and Korero O Te ‘Orau would welcome sufficient time to review this revised Bill, and be given an opportunity to see how our feedback, and that of other stakeholders, has been incorporated into this revised “final” Bill, before it finds its way to Cabinet and then into Parliament.