The Azorean case

Since the end of the first decade of the 2000s Portugal hosted several initiatives, in which different public and private entities have taken part, in order to adjudicate and promote the exploration of deep sea resources. The knowledge about the deep sea (or the lack of it) has always been the common point to get funding for projects, both in the areas of conservation and exploration.

It was within the extinct Interministerial Committee of the Continental Shelf that the first steps were taken towards the 2005 Proposal for the Extension of the Continental Shelf (EMEPC), that had the aim to prepare, present and ensure the defence of the proposal for the continental shelf extension before the Commission on the Limits of the Continental Shelf (CLCS) of the United Nations. One year before Portugal had submitted its Proposal for the Extension of the  Continental Shelf to CLCS (2009), the company Nautilus Minerals Inc. presented to the Regional Secretary for the Sea, Science and Technology an application for mineral prospection and exploration in six areas in the Azorean Sea. This request expired due to the applicable legislation and existing regulation. Later in 2011, the Azorean government created the Azores Marine Park, banning any extractive activity and encompassing in its network of Marine Protected Areas (MPA) different types of ecosystems, such as hydrothermal vents, banks and seamounts.

At a second stage, in 2012, Nautilus Minerals Inc. submited five requests for deep sea mining, implicating prospection and exploration in peripheral areas to the Azores Marine Park. In the same year, the Azorean government decided to legislate the exploitation of natural resources found in the earth crust (excluding hydrocarbons, natural gas and methane hydrate). This legislation is considered to be unconstitutional by the portuguese Constitutional Court in 2014.

In 2013, the European Union signed, in alliance with Canada and the USA, the Galway Statement on the Atlantic Ocean Cooperation. This cooperation plans to promote the knowledge about the Atlantic Ocean and its systems’ dynamics, including the connections to the Arctic region that borders the Atlantic. Considering monitorization as crucial to the ocean’s understanding and to forecast its future, the Statement puts forward the development of activities that might improve the exchange of data, interoperability, the coordination of infrastructures for monitorization and the mapping of benthic habitats and the seabed. That same year, through a consortium of 32 established organisations in the EU, the MIDAS (Managing Impacts of Deep SeA reSource exploitation) project is born, funded by the European Commission for a three year period. This project presented a multidisciplinary program that aimed to examine the impacts associated to the extraction of energy and mineral resources from the deep sea.

In 2014, the multidisciplinary project Blue Mining began, with a three year plan undersigned by an international european consortium of 19 organisations, including among them the Fundação da Faculdade de Ciência da Universidade de Lisboa (FFCUL) and several members from the academia and industry. This project examined the impacts caused by the extraction of mineral and energetic resources in the deep sea. The workplan of the project included the exploration of materials such as polymetallic nodules and sulphides, cobalt-rich ferromanganese crusts, methane hydrates and rare earth elements.

Between 2014 and 2015, the portuguese central government realised the conflict between the Azores Marine Park and Nautilus Minerals Inc. solicitations, and in response, implemented a framework directive reducing the competences of the autonomous regions in the approval of spatial plans concerning the uses and activities, limiting the regional competences beyond the 200 nm. Afterwards, the portuguese central government approved a new decree-Law establishing that any new proposal from autonomous regions to implement MPAs within the 200 nm requires previous permission from the central government, which needs to be consulted. It also established that the central government has the authority not to include (totally or partially), or exclude the MPAs designated prior to the decree-law of the national spatial plan.

The regional azorean government attempted, without success, through appeals to the Constitutional Court, to bypass these decree-laws. After the change of the central government in November 2015 negotiations continued, and the Azores government eventually lost its focus keeping the non-cooperation regarding the national spatial planning. Nevertheless, it is important to note that the political administrative status of the Azores government conferred by then, full environmental competences to the regional government, without setting limits to the continental shelf beyond the 200 nm.

The Portuguese Parliament published in 2015 a new law that established a legal framework for the exploration and exploitation of geological resources in the national territory, including those located in the national maritime space. This law lacks any concern about the environmental protection before, during or after the proposed activities that may be taking place. For license grant purposes, both the regional and national governments must be signatories. After the approval of this law, the regional government reacted, approving the expansion of the Azores Marine Park, created in 2011, and included the areas submitted by Nautilus Minerals Inc. for license applications for exploration, keeping the prohibition of mining within the park's protected areas.

The main MPAs within the Azores Marine Park are recognised by the European Commission as Sites of Conservation Interest and Community Importance, part of Natura 2000 network, and their disqualification entails the approval of the European Commission. Other MPAs within the Azores Marine Park are recognised by OSPAR, entity that needs always to be involved in a potential disqualification process. In 2015, Portugal submitted as well the proposal of naming the MPA Rainbow as Site of Conservation Interest and Community Importance, however still lacking the European Commission approval, the Rainbow area might be disqualified as MPA.

In 2016, in a further attempt to accuse one of the decree-laws published by the central government as unconstitutional, the regional azorean government opened a new process in order to repeal the validity of the decree-law. This request was once more rejected by the Constitutional Court, declaring that the decree-law in dispute is in accordance with the Constitution, and confirming the regional government’s dependence towards the portuguese central government.

Recently, in July 2017, the European Union, Brazil and South Africa, signed the Belém Statement, an agreement that strengthens the commitment to develop research and innovation in the Atlantic Ocean. This statement was signed within the conference “A New Era of Blue Enlightenment”, which promoted the Azores as a geostrategic point for the convergence of partners and entities that study the Atlantic, but also as a source of mineral resources to be explored.

Development of the legal context for deep sea mining in Azorean waters – download pdf here.