Summary of the 2015 Inaugural Pacific Ocean Alliance Meeting High Hopes for High Seas

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1 Implementing the United Nations Convention on Law of the Sea for sustainable development of Areas Beyond National Jurisdiction (ABNJ) in the Pacific May 2015, Novotel Convention Centre, Lami Suva, Fiji Contents OBJECTIVES... 2 PARTICIPANTS... 2 MEETING FORMAT... 2 SUMMARY OF PRESENTATIONS and DISCUSSIONS... 3 DAY ONE 25 MAY Session 1 UN Conventionn on Law of the Sea in a Pacific Context... 4 Session 2 Economic values and impacts of economic activities in ABNJ... 5 Session 3 Environmental values and threats to the environment in ABNJ... 8 DAY TWO 26 MAY Session 4 - Marine Genetic Resources of Areas Beyond National Jurisdiction Session 5 Area Based Management DAY THREE 27 MAY Session 6 Impact Assessments Session 7 Capacity building and transfer of technology

2 OBJECTIVES 1. Assess emerging issues, manage risks and explore opportunities in areas beyond national jurisdiction [Action 6A, Framework for a Pacific Oceanscape] 2. Explore and build on national and regional approaches to conserve and manage high seas resources and deep sea ecosystems for the common good [Action 3C, Framework for a Pacific Oceanscape] 3. Connect people at national, regional and international levels to share knowledge, learn and take action on the sustainable development, management and conservationn of Pacific ocean resources in areas beyond national jurisdiction [Action 4C, Framework for a Pacific Oceanscape]. PARTICIPANTS There were approximately 120 registered participants. Pacific Island State representatives attended from the following countries, including UN based Mission representatives: The Cook Islands, Samoa, Palau, Tonga, Fiji, Nauru, Niue, Tuvalu, Kiribati, Vanuatu, the Solomon Islands, Papua New Guinea and RMI. The remaining participants included civil society organisations, non-government organisations, regional and international inter-governmental organisations, academia, the private sector, undergraduate and graduate students, youth organizations, interested members of the public and development partners (see Attachment for list of organizations/sectors represented). MEETING FORMAT The first day comprised a series s of 16 short presentations and panel discussions to highlight the economic, social and environmental value of areas beyond national jurisdiction to people of the Pacific Islands. The second and third days comprised two sessions each day. For each session a series of four short expert-based presentations were given followed by a short panel discussion and then a minute break out group discussion where groups of ~8-10 participants each discussed three key questions related to the session topic. Each session was based on one of the key elements of the package for negotiation with respect to biodiversity in areas beyond national jurisdiction: 1. Marine genetic resources, including questions on the sharing of benefits; 2. Measures such as area-based management tools, including marine protected areas; 3. Environmental impact assessments; and 4. Capacity-building and the transfer of marine technology. Information provided by speakers has been used to inform a technical paper being developed with Alliance partners under the leadership of the Office of the Pacific Ocean Commissioner. Outcomes of the breakout groups were used to guide work of the smaller Alliance technical working group that was held on 28 May, where some of these considerations and implications for the Pacific were further explored. 2

3 SUMMARY OF PRESENTATIONS and DISCUSSIONS DAY ONE 25 MAY 2015 Welcome Address - Dame Meg Taylor, Pacific Ocean Commissioner The objective of the meeting was to bring together these stakeholders to provide information, discuss and seek feedback from the Pacific on the issue of areas beyond national jurisdiction (ABNJ). ABNJ supports important biodiversity, fisheries, transport, deep sea minerals and marine genetic resources. The current management of ABNJ is fragmented and sectoral based, with some issues such as conservation of biodiversity, and access and benefit sharing of marine genetic resources, not explicitly addressed at all. As articulated in the Framework for a Pacific Oceanscape (FPO), the Pacific supports an integrated and holistic approach to managing the ocean from highlands to high seas. The meeting was the beginningg of preparations to support Pacific Island States to enter into negotiations on a new implementing agreement under the United Nations Convention on the Law of the Sea (UNCLOS) for the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction (BBNJ). Pacific Island Forum Leaders have expressed their support for this process 1. The UN process towards an implementing agreement under UNCLOS on BBNJ Ms Francella Strickland Counsellor, Permanent Mission of Samoa to the United Nations Key Messages In 2006, the United Nations (UN) established the Ad Hoc Open-ended Informal Working Group to study issues relating to the conservation and sustainable use of marine biological diversity beyond areas of national jurisdiction. In January 2015, the Working Group made recommendations to launch negotiations on a new implementing agreement under UNCLOS to address this issue 2. Preparations for negotiations of this instrument will commence with two meetings of a Preparatory Committee in 2016 and at least two meetings in 2017 to recommend the draft elements of the treaty. By the end of the 72 nd UN General Assembly session in 2018, the General Assembly will take a decision on whether to start the diplomatic conference based on the outcomes of the Preparatory Committee meetings. The instrument will be discussedd as a package of four elements: 1. Marine genetic resources access and benefit sharing 2. Area based management tools including marine protected areas 3. Environmental impact assessments 4. Capacity building and transfer of marine technology 1 45 th Pacific Island Forum Leaders Meeting Communiqué (2014) 2 NB: In the month following the POA meeting, the UN General Assembly on adopted resolution 69/292 giving the go-ahead to Development of an international legally-binding instrument under the United Nations Convention on the Law of the Sea on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction (19 June 2015). 3

4 Session 1 UN Convention on Law of the Sea in a Pacific Context Regional ocean governance and progress with respect to the sustainable development, management and conservationn of areas beyond national jurisdiction Ms Cristelle Pratt, Deputy Secretary General, Pacific Islands Forum Secretariat Collaboration and integration between new and existing institutions and instruments will be an essential element of any regimee for the high seas. A key priority for the Pacific is to formalize the maritime boundaries of all Pacific Island States ensuring they have been legislated and registered with the United Nations. This is crucial for securing the rights of Pacific Island States to their ocean resources, along with the ability to enforce national and international legislation. This will become even more important as work towards a new implementing agreement for biodiversity beyond national jurisdiction continues. The Pacific already has considerable experience in some elements of the proposed package, with the high seas pockets effectively closed to purse seine fishing through conditions on in- areas from zone licences, and the establishment of a number of large scale marine protected which lessons can be drawn from when considering similar regimes in ABNJ. United Nations Convention on the Law of the Sea Its Implementing Agreements General Assembly process on marine biodiversity of areas beyond national jurisdiction Ms Charlotte Salpin, Legal Officer and Deputy-Secretary of the of the Ad Hoc Open-ended Informal Working Group to study issues relating to the conservation and sustainable use of marine biological diversity beyond areas of national jurisdiction The existing legal framework for ABNJ under UNCLOS primarily consistss of the Part XI Agreement, and the Fish Stocks Agreement (UNFSA), supported by the International Maritime Organisation (IMO) for pollution, Regional Seas Agreements and Regional Fisheries Management Organisations, fisheries under the Fisheries and Agriculture Organisation of the United Nations, the Convention on Biological Diversity, Convention on Migratory Species and Convention on International Trade of Endangered Species, and customary international law. Currently, the high seas (water column) are managed under the principle of Freedom of the High Seas and flag state jurisdiction. The Area (seabed) is managed under the principle of Common Heritage of Mankind, with exploration and exploitation of minerals permitted through the International Seabed Authority (ISA). The issues raised through the Ad Hoc Open Ended Informal Working Group on BBNJ have included: the legal status and benefit sharing arrangements for marine genetic resources; conservation and management tools, such as area based management including marine protected areas and environmental impact assessments; capacity building and the transfer of marine technology, including cooperation in marine scientific research and implementing Part XIV of UNCLOS; and governance gaps, including the potential to strengthen existing regimes or the need for a new instrument to address these gaps and whether a global or regional approach would be more appropriate. The issue of whether fisheries are in or out of the scope of the new implementing agreement has not been resolved. However, the recommendations of the UN Working Group suggest that existing organizations and agreements should not be undermined, but should look to where they can be enhanced or complemented. 4

5 Practical insights into maritime boundary delimitation and policy implications (Papua New Guinea as a case study) Ms Masio Nidung, Project Coordinator, PNG Maritime Boundary Project, National Fisheries Authority, PNG Papua New Guinea (PNG) is currently undergoing the maritime boundary delimitation process. Declaring PNG s maritime boundaries under UNCLOS is a crucial step in the broader, integrated ocean planning process PNG is currently undertaking for their EEZ. Both the process of maritime boundary delimitation and development of the National Ocean Policy and management of PNG s maritime zones are highly resource intensive, costly and require specific technical skills. This is a key challenge for Pacific Island states. Timeframes are another important aspect of the process to be aware of, with time lags between industry development, government funding cycles and the legislative and policy processes creating additional hurdles. Session 2 Economic values and impacts of economic activities in ABNJ Pacific Island Fisheries Interests in Relation to Areas Beyond National Jurisdiction Mr James Movick, Director General, Forum Fisheries Agency Increased regulation or closure in one area tends to push fishing effort into other areas, for example the closure of the high seas pockets by the PNA saw fishing effort driven into national EEZs. The Pacific should aspire to effective regulation of the high seas pockets at least. Questions to consider: Is there more economic benefit to the Pacific by developing our own high seas fishery to displace current high seas fishing by distant water fishing nations, or in closing these areas and focusing fishing to EEZs? Given the migratory nature of tuna, what are the comparative advantages to the conservation of tuna of setting up MPAs in the high seas versus setting them up within Pacific EEZs? Any new instrument on BBNJ should not undermine existing instruments, and the gains achieved by Pacific Island States in the management of their highly migratory fish stocks. PNA experiences and lessons in dealing with emerging and unknownn opportunities Dr Transform Aqorau, CEO, Parties to the Nauru Agreement There are existing regional and international instruments in place which have the scope to allow for management of fisheries in ABNJ. The Parties to the Nauru Agreement (PNA) Vessel Day Scheme (VDS) is a cap and trade scheme, which has created scarcity of the resource, allowing PNA countries to auction off fishing days to distant water fishing nations. This has turned fishing rights into a seller s market, and significantly increased the rate of return from tuna fishing to Pacific Island countries. The PNA is an example of using existing instruments to manage the high seas by placing conditions on access to national waters which include activities undertaken on the highh seas. 5

6 Ideally, all high seas areas would be closed, however this argument is not based on conservation, but on the basis that it would support financial independence and integration into global trade and economy for Pacific Island States. The management of biological diversity should not be used as an excuse to limit the economic development of Pacific Island States. The social dimensions of these issues need to be given more consideration during these discussions. It is important that Pacific rights are protected, that the region has a voice in the negotiation process, and any position must be supported by a robust negotiation strategy. To this end, some options weree proposed for further consideration in the context of the new implementing agreement, such as the notion of adjacency, differentiatedd responsibilities entrenched in international law, and disproportionate burdens on developing countries, which should not become an instrument to limit Pacific participation. In addition to the work by FFA and PNA, there are many instruments and arrangements in place to manage and conserve fishery resources. The Western and Central Pacific Fisheries Commission (WCPFC) is based on the UNFSA. WCPFC closed areas to certain fishing activities ( ), and two high seas pockets are under more intense reporting requirements. Seabed minerals of the Clarion-Clipperton zone and deep sea mining potential for Pacific Islands in areas beyond national jurisdiction Ms Marie Bourrel, Legal Adviser, SPC-EU DSM Project, Secretariat of the Pacific Community The Pacific s Deep Sea Mineral (DSM) industry is rapidly emerging. The SPC-EU Deep Sea Minerals (DSM) project seeks to strengthen Pacific Island State governancee and capacity to manage DSM within their EEZs. DSM in ABNJ is currently regulated through UNCLOS according to the principle of Common Heritage of Mankind, affording preferential rights to developing countries through a system of site banking, which reserves a site for the sole use of developing countries on a one for one basis for every site licensed to a developed state or its sponsoring party. Challenges to managing the progression of DSM in the Pacific include the need for scientific data, lack of capacity, need for regulatory frameworks, contract negotiations, financial management and lag between the timeframe for developing regulations compared with the speed of industry progression. Participants discussed the principle of Common Heritage of Mankind and the work by ISA on an associated fiscal scheme for these resources. The ensuing discussions highlighted it is a highly complex principle which is difficult to implement. At the highest level, it means that all of humanity has the right to any resource deemed to be the Common Heritage of Mankind, it cannot be owned by anyone. The principle 6

7 has its history in seeking to independence. The International Seabed Authority (ISA) is still negotiating this principle and associated fiscal regimes, and it was recommended that PICs attend the ISA s annual meetings to participate in these discussions. In terms of the fiscal regime, some key questions to be addressed include what would constitute a fair share of ABNJ, and how would Pacific Island States benefit from it? Another principle to be considered in the context of marine genetic resources is that of the Freedom of the High Seas, a principle which is no longer absolute, as fisheries provisions override it. Participants were interested in the way competing interests and environmental requirements are being dealt with in relation to DSM. With regards to the SPC EU project, the Regional Legislative and Regulatory Framework for DSM Exploration encourages the adoption of key international law principles such as the precautionary approach, environmental best practice and marine spatial planning. In addition, it also promotes the inclusion of social considerations. Maritime Transport and Trade Mr Thierry Nervale, Deputy Directorr Transport, Secretariat of the Pacific Community Shipping is a key driver for socio-economic development in the Pacific (food security, migration and mobility, agriculture and trade, evacuation and disaster relief). The governance of shipping within EEZs has a strong influence on shipping activities in areas beyond national jurisdiction. Shipping governance in EEZs and in ABNJ should seek to coordinate and harmonise national, regional and global instruments and initiatives. secure rights for nations just emerging after gaining their Participants discussed the role of the International Maritime Organisation further, and the issues around the influence of metropolitan states imposing regulations and standards which create unmanageable burdens for developing states such as PICs. Mr Nervale concurred that this is a serious issue for the Pacific, and emphasised the role of south-south cooperation between Pacific Island States in alleviating this burden. This can include initiatives such as Memorandums of Understanding between Pacific Flag States and Port States to implement international conventions and capacity building activities. There was also an enquiry about the ability of the shipping industry to support research into the high seas for example through the collection bathymetry and topography data, for which there is currently little data in ABNJ. It was noted that there are similar initiatives where ships collect data such as temperature, however the practicalities of implementing such a program would be influenced by the type of data being collected, as collection of some data such as bathymetry have quite sophisticated technical requirements. 7

8 Marine Tourism and the Potential for Transboundary Impacts Mr Viliame Koyamaibole, Tourism Consultant, Caqalai Island Eco Resort & Moturika Island, Fiji Tourism is a key opportunity for the development of Pacific island communities through income generation, employment and economic independence of companies and individuals, resource based tourism supports local-ownershipamenities such as shelter, food, education, health and infrastructure. and increased access of local communities to Management of the high seas has implications for many factors which support the Pacific tourism industry. This includes implications for cruise ships, cargo ships, ocean catch and flagship migratory species that support Pacific tourism, such as whales and turtles. Protecting the high seas is protecting Pacific communities. Discussion focused on the role of conservation in supporting tourism, and the links between areas beyond national jurisdiction and local impacts. Mr Koyamaibole noted that marine protected areas have a history of supporting tourism in the Pacific. Areas beyond national jurisdiction form an international highway for migratory species which Pacific communities rely upon to support their tourism industry and food security. Session 3 Environmental values and threats to the environment in ABNJ Pacific navigation and culturall connections of the sea Mr Colin Philp, President Fiji Voyaging Society The ocean is central to the history and culture of Pacific people; it connects rather than divides the islands. The Pacific has a long history of traditional voyaging or wayfinding - over expansive distances, which spawned much of the migration and settlement of the nations we know today. The art of wayfinding has experienced a recent resurgence. Referencing the traditional Fijian concept of Vanua, Mr Philp encouraged all Pacific Islanders to demonstrate shared respect for all land, people and customs, regardless of borders or ownership. Participants discussed the possibility of using traditional canoes to replace fossil fuel powered sea transport, and Mr. Philp agreed that there is opportunity to incorporate traditional vessels, or aspects of traditional vessels, into some sea transport, which could have an impact on shipping carbon dioxide emissions. 8

9 Marine pollution and marine debris Ms Kelsey Richardson, SPREP The impacts of marine debris in ABNJ includes entanglement of highly migratory species such as whales and turtles, ingestionn of plastics by marine species which can result in toxins being passed up the food chain, navigation hazards to vessels and the smothering of deep sea benthic habitats. The source and quantity of marine debris deposited in the high seas is difficult to measure. Data is available from purse seine fleets as they have 100% observer coverage and included provisions for data collection on pollution incidents. This data shows over 300 pollution incidents from purse seiners in the high seas over a ten year period. By comparison, the data for long line fishing vessels is much less comprehensive. In addition, there is a higher rate of high seas fishing by long line vessels, which could indicate the overall amount of pollution being dumped is much higher than the data suggests. Pollution entering the high seas can drift into national EEZ s, and vice versa, meaning this is an issue which requires collective action. The participants discussed the limitations of current data collection methods, acknowledging that the recording of incidents only indicates the frequency of pollution activities, not the volume or type of pollution. Quantifying volume and type of pollution is also important from the perspective of identifying triggers for environmental impact assessments. The difficulty of measuring and controlling pollution from illegal fishing vesselss was noted as a problem. Ms Richardson advised that some work is being done to identify the characteristics and trends of high risk potential polluting vessels. It was also noted that of all marine pollution, 80% is estimated to come from land, and 20% from sea based activities. High Seas Ecosystems Sue Taei, Conservation International High seas ecosystems have been found to contain unique deep sea biodiversity, yield 10 million tonnes of fish and absorb 1.5 billion tonnes of atmospheric carbon dioxide, amongst other valuable ecosystem services. Historically however, the areas beyond national jurisdiction were thought to be nutrient poor, low in productivity and biodiversity. UNCLOS was developed while these assumptions were still considered correct. As a result, UNCLOS is now ill equipped to manage this valuable biodiversity beyond national jurisdiction. 9

10 The transboundary nature of the ocean means that the protection of biodiversity in the high seas has spill over benefits for national EEZs. Participants expressed concernn about the feasibility of establishing and implementing marine protected areas (MPAs) in the high seas, in light of the difficulties experienced in national MPAs. The counter argument to this is that the Pacific is in a better position now, as there are many lessons have been learned from national MPAs which can be applied to the high seas, including managing conflicts and the social dimensions of such areas. Participants discussed the significance of the historical connection with and use of the high seas by Pacific people in the context of UNCLOS, and whether these areas should be considered the common heritage of mankind. Conservation and management of migratory species in the Pacific Islands - ocean voyagers through EEZs and ABNJ Mr Mike Donoghue, Threatened and Migratory Species Advisor, Secretariat of the Pacific Regional Environment Programme Routes of migratory species such as humpback whales and green turtles pass right through multiple EEZ s and international waters of the Pacific Ocean. These species are culturally significant to many Pacific cultures, and their conservation in ABNJ is a key concern of SPREP member countries. Individual species are covered by various international and regional conventions; however there is still a need for effective and well-managed MPAs and sanctuaries - especially protection of breeding areas and critical habitat - in both EEZs and ABNJ. Further protection of these species can be achieved through a variety of measures, particularly around increasing observer coverage for long line fishing vessels and building research and monitoring capacity in the region. The contribution of migratory species to high seas ecosystems was discussed, particularly in terms of the impact of their decline on the rest of the ecosystem. Mr Donoghue noted that while this is a difficult thing to measure, research indicates that they do provide some benefits, such as the dissemination of nutrients throughout their migration path. This could result in lower nutrient availability to support the ecosystem. Vulnerable Marine Ecosystemss Identification Process and Deep Sea Fisheries Dr Jessica Sanders, Food and Agriculture Organization of the UN, Common Oceans Program The majority of ABNJ is covereded by Regional Fisheries Management Organisations (RFMOs), with some gaps in the Arctic, but most of these areas have no commercial fishing. The FAO supports deep sea fisheries in the high seas through: 10

11 The development of the FAO International Guidelines on Deep Sea Fisheries in the High Seas ; and Development of the Vulnerable Marine Ecosystem (VME) concept and support for its implementation VME s are designed specifically for use by RFMOs to identify and protect areas of important benthic habitat which are at risk from deep sea fishing practises. VMEs have specific identification criteria: uniquenesss or rarity, functional significance of habitat; fragility; life history traits of component species that make recovery difficult; and structural complexity. Convention on Biological Diversity and International Maritime Organisation regimes for identifying special environmental values and a regional integrated oceans assessment Dr Piers Dunstan, CSIRO and CBD Secretariat The Convention on Biological Diversity identifies areas as Ecologically or Biologically Significant Areas (EBSAs) based on scientific criteria. EBSA s are not MPAs, they are a tool to identify and describe significant marine biodiversity. The selection and implementationn of appropriate management measures is the responsibility of States and competent intergovernmental organisations. Overlaps with other national, regional and international processes (e.g. VME s, IUCN etc), however none of the other processes cover the entire 7 criteria required by the EBSA process. EBSA mapping makes it possible to overlay uses in the area and identify cumulative risks. both single and Further information was requested on the impacts of climate change and ocean acidification, and how the state of the ocean would change over time. It was acknowledged that climate change and ocean acidification are anticipated to have a significant impact, for example the productivity and distribution of fisheries are expected to shift as a result of changing ocean temperatures. The ongoing work on EBSAs was discussed, noting that the CBD passed a decision in 2014 to begin assessing activities and impacts occurring in identified EBSAs. Dr. Dunstan also noted that there is a significant amount of information already in existence which could be used by the EBSA process, but often this information is hidden. A participant also noted that seabirds are another important aspect of marine biodiversity which can contribute to ecosystems beyond national jurisdiction, and urged they be considered during discussions. 11

12 DAY TWO 26 MAY 2015 Session 4 - Marine Genetic Resources of Areas Beyond National Jurisdiction Ms Harriett Harden-Davies, Mr Geoff Burton, Dr Sonya Scott, Dr Jodi Richards and Dr Marjo Vierros There is currently no access and benefit sharing (ABS) regime in place for marine genetic resources (MGR) obtained in ABNJ. There is a low probability of monetary benefits from MGRs due to the capital cost of exploration and development, the length of time it takes to reach production and no guarantees it will reach a marketable product, which would mean if there were monetary benefits they would be rare and deferred to the end of the production process. The absence of sovereign control in ABNJ makes the probability of the Pacific receiving monetary benefits even more uncertain. On the other hand, there are immediatee non-monetary benefits (e.g. data sharing, research, capacity building) from which Pacific Island States could benefit. An ABS regime to enhance non-monetary benefits to Pacific Island States should seek to promote participation of Pacificc Island States in international research cooperation, provide access to data, samples and knowledge, and target research to priority needs. To enhance the monetary benefits to Pacific Island States, it should standardize and regulate payments, link ABS to intellectual property rights, consider how to best benefit future generations, incentivize research, development and innovation. The Convention on Biological Diversity s Nagoya Protocol for Access and Benefit Sharing is a bilateral access and benefit sharing regime for genetic resources. The Nagoya Protocol provides some important and useful lessons on which to build an international agreement for MGR in ABNJ. Legal certainty is essential for promoting investment in research and development, from which any benefits (monetary and non-monetary) would arise. The bio-prospecting process to develop commercial products from MGR is lengthy, expensive, and non-linear and involves a wide variety of stakeholders and management of logistical challenges. Establishing a network of formal MGR collections in the Pacific would benefit research and development by delivering economy of scale, logistical solutions and legal certainty of access to industry. The commercial interest in marine organisms has greatly increased in recent years, including organisms from ABNJ. Ninety per cent of MGR patents are owned by 10 developed countries. Managing inequalities between developed and developing countries needs to be a priority for any negotiation going forward. Currently, the majority of organisms contributing to commercial development come from within national jurisdiction, but some from beyond. Traceability of MGR is very important for informing policy makers and scientists of where and how MGRs were obtained, and when they become products. 12

13 MGR development generally has low environmental impact (provided continuous harvesting not needed) and may be a sustainable development option for PICs using local centres of excellence such as USP. Participants expressed some concerns around the growing number of MGR patents, the role of the private sector, the inequality between developing countries and developed countries, and the impacts of trade in this space. A country representative also added that they had been unsuccessful in obtaining MGR support from developed countries in the past. The panel advised that much of the research, development and storage of MGR collections is undertaken by universities rather than the private sector and are provided as open access. Also, there is already some non-monetarmarine scientific research. benefit sharing occurring within the Pacific in terms of Linking MGR research activities to the information needs of PICTs to manage ABNJ (e.g. to investigate environmental concerns) could provide significant non-monetary benefits to the Pacific. Transparency was also noted as an issue of key importance and that the Nagoya Protocol has transparency arrangements which could serve as an example for a new agreement for ABNJ. The possibility of expanding the International Seabed Authority (ISA) to manage MGR in ABNJ was put to the group. Participants did not disagree with this proposal, but a number of them flagged that any such expansion would require significant expansion of the capacity and technical expertise of the ISA. An alternative model would be to establish a new entity which draws on the lessons and successes of the ISA. The idea of setting up a PNA type arrangement for interim management of MGR in ABNJ was suggested. Responses concurred that controlling access to resources within EEZ on the condition of protecting resourcess in ABNJ can be a powerful tool. Session 5 Area Based Management Dr Hugh Govan, Ms Nenenteiti Teariki- Ruatu, Dr Jan Steffen, Mr Duncan Currie Area based management (ABM) tools should be selected to meet specified objectives in the context of available resources. Models need to be cost-effective and achievable within foreseeable government and governance contexts. Pacific Island States should be aware of, and prepared for the moment during the BBNJ negotiations when shared interests in the region may diverge. Marine Protected Areas (MPAs) should be designed based on appropriate policy, democratic and transparent processes that are legitimate and transparent; have considered potential impacts on the livelihoods and food security of local communities; and do not inadvertently create adverse impacts on the socio-ecological wellbeing of Pacific people. 13

14 Ecosystems provide a wide range of highly valuable goods and services. In the past, these goods and services have been perceived as free, resulting in an overexploitation of natural capital without realizing its true value (and therefore the cost of its depletion). Calculating the economic value of these services and incorporating this into policy development and decision making (i.e. for area based management) can support more sustainable use of the environment. It also supports implementation of Aichi Target 2 3. Aichi Target 11 4 tends to result in a focus on achieving the area targets. It is important to remember that the Target also requires that the conserved areas are effectively and equitably managed, ecologically representative and well connected systems. Under the current regime for areas beyond national jurisdiction, regulatory power is afforded only to activities with primary economic interests e.g. fisheries and deep sea minerals, without any links to existing conservationn instruments such as the Convention on Biological Diversity. Current ABM approaches are sectoral (i.e. fishing and mining). Limitations of this approach include: its failure to address other activities or all the features of conservationn importance; no avenue for overall conservationn management; short-term and unsystematic approaches; and there is a lack of coordination and a lack of common criteria or scientific advice leaving them open to potentially conflicting results. Area based management in ABNJ would allow for the management of conflicting uses, protection of sensitive areas, the incorporation of environmental impact assessments and strategic environmental assessments, and the establishment of high seas MPAs. Example of Kiribati s Phoenix Islands Protected Area (PIPA) Kiribati established the Pacific s first large scale protected area in 2008, the Phoenix Islands Protected Area (PIPA). The PIPA makes a significant contribution to Kiribati s national biodiversity objectives as well as towards their obligations under the CBD, particularly Aichi Target 11. Kiribati has also established a Trust Endowment Fund to finance the management of PIPA. Kiribati needs to be able to demonstrate the PIPA is effective in order to attract funding for the Trust. In terms of challenges in setting up PIPA, the Government of Kiribati has limited capacity and has relied upon support from regional organisations and donors, particularly in relation to monitoring and surveillance and has since developed more effective relationships with various development partners. There were also tensions related to the loss of revenue from tuna fishing, and that the Trust Fund was initially set up in an attempt to compensate for such losses. The size and remoteness of PIPA means it could represent a useful case study to draw lessons from when designing future high h seas MPAs. 3 By 2020, at the latest, biodiversity values have been integrated into national and local development and poverty reduction strategies and planning processes and are being incorporated into national accounting, as appropriate, and reporting systems. 4 By 2020, at least 17 per cent of terrestrial and inland water, and 10 per cent of coastal and marine areas, especially areas of particular importance for biodiversity and ecosystem services, are conserved through effectively and equitably managed, ecologically representative and well connected systems of protected areas and other effective area-based conservation measures, and integrated into the wider landscapes and seascapes. 14

15 It was noted that the commonly used IUCN definitions of protected areas were developed for the purposes of having internationally agreed and comparable categories which could be used to determine contributions to international obligations (i.e. CBD). Dr Govan noted that a limitation of using the IUCN definitions means that areas without conservation as the key objective are not counted against the CBD, even if they provide conservation outcomes. Dr Steffen followed this by noting that ecosystems often extend beyond the borders of protected areas (and particularly with regards to oceans), and suggested that it may be more beneficial to take a balanced approach to all areas instead of completely protecting some areas and fully exploiting others. DAY THREE 27 MAY 2015 Session 6 Impact Assessments Mr Duncan Currie, Dr Piers Dunstan, Mr Sainivalati Navoti, Mr Paul Lynch While there is much to be learned from existing environmental impact assessment (EIA) practice, conducting EIAs in ABNJ will also present some unique challenges. These include: Geographical difficulties - depth, extreme conditions, lower productivity and resilience to perturbation, lack of knowledge about biodiversity. Practical difficulties paucity of data, distance of flag state and industry from affected area, costliness, capacity needs. Governance difficulties different legal frameworks for seabed ( the area ) and water column ( the high seas ), different institutional frameworks and stakeholders, variable standards of compliance by States with international obligations on EIA/SEAs, lack of clarity defining stakeholders because there are no communities in direct proximity, and the central of role of the UNGA. Our limited knowledge of ABNJ environment, and the consequences of these limitations for EIAs, underlines importance of taking a precautionary approach to all activities in ABNJ. UNCLOS only addresses environmental impact assessments in general terms, making them difficult to implement. Effectivee protection of the marine environment requires environmental impact assessments and strategic environmental assessments that incorporate cumulative impacts and also address impacts from new and emerging activities, including experimental activities. The Convention on Biological Diversity s guidelines for EIAs and SEAs in marine and coastal areas (which include some guidance on ABNJ) are voluntary Parties are strongly encouraged to employ the guidelines but there is no legal requirement for them to do so. Under UNCLOS, the International Seabed Authority (ISA) has responsibility to prepare assessments of the environmental implications of activities in the Area. One option for managing EIAs in ABNJ would be to expand the mandate of the ISA. This option requires further investigation into the pros and cons of current operating procedures in ISA, particularly as the implementation of EIAs and associated guidelines is still in the very early stages. Some questions that would need to be considered include: What potential role could ISA claim in the 15

16 conservation and sustainable use of marine resources in the water column of ABNJ? What changes would be needed in the mandate of the ISA and what would be the process for making those changes? The Cook Islands present a useful case study on seabed mining both within their own EEZ and in ABNJ. They have enacted the world s first national seabed mining legislation, for which implementation is in the early stages. The legislation supports a precautionary approach, with exploratory licenses conditional to EIAs. In addition to their own national efforts, the Cook Islands Government has also partnered with the Belgium company GSR to apply for a joint exploratory license in the Clarion Clipperton Fracture Zone from the ISA. Consultation, transparency and disclosure of EIAs and activities are a concern, and should be a high priority for any future agreement on EIAs for BBNJ, for example in situations when there is a conflict between EBSAs and potential mining activity. The Noumea Convention is an example of an agreement which includes provisions for dispute resolution that might be beneficial for any new arrangement. The International Tribunal for the Law of the Sea (ITLOS) has set an example by reprimanding parties where there has been a clear lack of consultation. Another option is to establish a Pacific Ombudsman, something which has been discussed in the past, particularly during the development of the Pacific Islands Regional Ocean Policy (PIROP). This might be worth re-opening, particularly in the context of the newly established Office of the Pacific Ocean Commissioner. The ISA requires contractors to disclose environmental data but not the proprietary data used for their commercial projects. The environmental data being received so far is problematic because it is only collected sporadically on prospecting days, and so far dataa is received in a variety of formats, as the ISA is still in the process of standardizing dataa collection and processing, for which implementation and funding is proving difficult. Transparency and sharing of environmental data is also important to the assessment of cumulative impacts, and bearing in mind not only existing but future potential uses of the ocean, it is important that any agreement is capable of addressing future uses as well as current. Any future EIA framework should also address social impacts. Session 7 Capacity building and transfer of technology Dr. Marjo Vierros, Ms Emily Artack, Ms Lisepa Paeniu, Mr Geoff Burton A new agreement on ABNJ has the potential to provide two types of capacity building and technology transfer to the Pacificc Region: Physical (business, employment, skills, collaboration) and Digital (knowledge transfer and access to information and data). Technology and capacity are not equally distributed, often because research and access to information is expensive. This has resulted in the patenting of MGR being concentrated in developed countries so far. Key challenges for capacity building with regards to ABNJ include: ad hoc, fragmented and sectoral activities; marine genetic resources are not well addressed or understood; there is limited funding and a high turnover of staff; there is no central repository for ABNJ- related data 16

17 and information; and there is no international framework for cooperation and coordination (which could avoid duplication and ensure best use of finances). A priority for the Pacific should be to determine the needs of the region and what is wanted out of capacity building and technology transfer elements of the new agreement. Regional organisations can provide support to countries in the provision of sound technical and scientific advice however national governments must lead this process and need champions from each country to drive this process at the national level. The Nagoya Protocol representss a paradigm shift whereby developed countries are required to guarantee their compliance with the provider country s laws this removes a major administrative burden on provider countries. The application of the Common Heritage of Mankind would establish the principle that any benefits obtained from resources covered by the new agreement should be shared including non-monetary capacity building and technology transfer elements. Design of the ABNJ treaty should build on existing capacity building elements of existing agreements, and extension of arrangements applying within the EEZ to ABNJ. This makes sense where collections and marine research transcends boundaries. For MGR, the deposit of duplicates of collected organisms into approved collections should be an organizing principle of the treaty (subject to the collector s conditions for commercial use). A regionally consistent approach, between and outside national jurisdictions willl have a major normative affect on researchers and opens the door to the goal of making the Pacific a desirable place to conduct marine research. 17