By Melino Maka
Political and Economic Commentator

In 2021, under the leadership of the late Prime Minister Pōhiva Tu’i’onetoa, the Government of Tonga quietly entered into a legally binding Sponsorship Agreement with Tonga Offshore Mining Limited (TOML) — authorizing the company to explore for deep sea minerals in the Clarion-Clipperton Zone (CCZ), a vast seabed region between Mexico and Hawaii.

This agreement was executed with little to no public consultation, no parliamentary transparency, and no national dialogue. Few Tongans knew it was happening. Fewer still understood what it meant. The deal essentially committed the Kingdom of Tonga to sponsor a foreign commercial venture to mine the ocean floor in international waters — with Tonga carrying the legal, financial, and environmental risk.

Today, as more scientific evidence emerges about the dangers of deep sea mining (DSM), it is time for Tonga to pause, reflect, and reassess its direction. This article explores the findings of a 2023 legal report commissioned by the Civil Society Forum of Tonga (CSFT), revealing serious gaps in Tonga’s legal readiness, oversight capacity, and long-term liability risks associated with DSM.

A Legacy Written in Secrecy

Deep sea mining is the extraction of minerals such as cobalt, nickel, copper, and manganese from the seabed, often at depths of 4,000 to 6,000 meters. These metals are considered critical to the global transition to renewable energy — yet their extraction carries profound environmental costs.

The government’s 2021 deal with TOML — a Canadian-owned company — was passed without national consultation, despite its serious implications. The Seabed Minerals Act and subsequent Sponsorship Agreement were enacted through executive action and Cabinet approval under Tu’i’onetoa’s leadership, bypassing any opportunity for open public dialogue.

Tonga’s Constitution (Clause 8) grants every citizen the right to petition the government and be informed of proposed legislation. That right was ignored.

Worse still, the Sponsorship Agreement — upon legal review — appears heavily skewed in favour of the contractor. The 2023 CSFT report warns that Tonga’s ability to amend contract terms, enforce new environmental laws, or hold the contractor accountable is weak. Any misstep or environmental damage by TOML could result in Tonga being held liable by international courts, including the International Tribunal for the Law of the Sea (ITLOS).

The Environmental Gamble

Tonga’s involvement in DSM includes activities within its own Exclusive Economic Zone (EEZ) and in the international seabed area, regulated by the International Seabed Authority (ISA). While the commercial incentives are alluring — potential royalties, economic growth, and foreign investment — the environmental and legal risks far outweigh the rewards.

DSM operations disturb the seabed using heavy equipment that scrapes up polymetallic nodules and discharges sediment plumes into the ocean. These plumes can travel vast distances, smothering marine habitats and contaminating the food chain. Scientific studies have raised alarm bells over irreversible damage to biodiversity, including species unknown to science, some of which play vital roles in climate regulation.

Yet, as the CSFT report points out, less than 20% of the global deep ocean has been mapped, and even less has been studied. We are digging in the dark — and Tonga is volunteering to hold the liability torch.

Learning from NORI’s Mistakes

The report draws extensively from the case of Nauru Ocean Resources Inc. (NORI), another Pacific-based contractor sponsored by the Government of Nauru. NORI’s environmental impact statement (EIS) was rushed, incomplete, and failed to include proper mitigation measures or baseline scientific data. After pushing its test-mining equipment into the CCZ, NORI experienced an accidental sediment discharge — which it failed to report until weeks later.

The ISA’s review process of NORI’s application has been widely criticized as opaque, biased, and riddled with conflicts of interest. Despite substantial shortcomings, NORI was allowed to proceed — revealing how weak the global regulatory system is when weighed against commercial pressure.

Tonga’s contractor TOML is poised to follow a similar path, and unless Tonga builds stronger legal protections, we risk repeating NORI’s failures — but bearing the consequences ourselves.

Gaps in Tonga’s Legal Armour

Tonga has over 20 different laws that govern various aspects of marine and resource management — including the Environmental Impact Assessment (EIA) Act, Fisheries Management Act, Parks and Reserves Act, and the Seabed Minerals Act. But as the CSFT report outlines, these laws are fragmented, conflicting, and woefully outdated for managing the complexities of DSM.

For example:

• Tonga’s EIA laws do not contain mandatory scientific benchmarks, stakeholder engagement protocols, or enforcement mechanisms.
• The Seabed Minerals Act offers no clear path for rejecting a mining application on environmental grounds.
• The current regulatory system lacks transparency, accountability, and procedural fairness.

Compounding the issue is the fact that Tonga, as a sponsoring state under the United Nations Convention on the Law of the Sea (UNCLOS), carries an international legal duty to ensure its contractors behave responsibly. Failure to meet these obligations could result in Tonga being sued by other countries or held responsible for environmental harm.