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1990

Australia and the Convention for the Regulation of Antarctic Mineral Resource Activities (CRAMRA)

Sam Blay

Ben M. Tsamenyi University of Wollongong, [email protected]

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Recommended Citation Blay, Sam and Tsamenyi, Ben M., "Australia and the Convention for the Regulation of Antarctic Mineral Resource Activities (CRAMRA)" (1990). Faculty of Law, Humanities and the Arts - Papers. 234. https://ro.uow.edu.au/lhapapers/234

Research Online is the open access institutional repository for the University of Wollongong. For further information contact the UOW Library: [email protected] Australia and the Convention for the Regulation of Antarctic Mineral Resource Activities (CRAMRA)

Abstract Australia, a leading Antarctic state that played a key role in negotiating the Convention for the Regulation of Antarctic Mineral Resource Activities, in May 1989 announced its opposition to the Convention and adoption instead of a World Park or Wilderness Reserve concept for Antarctica. This article examines possible environmental and economic reasons for Australia's attitude, which is likely to have significant implications for the future of the Convention and for the Antarctic Treaty System as a whole. -Authors

Keywords antarctic, regulation, resource, mineral, activities, australia, cramra, convention

Disciplines Arts and Humanities | Law

Publication Details S. Blay & B. M. Tsamenyi, 'Australia and the Convention for the Regulation of Antarctic Mineral Resource Activities (CRAMRA)' (1990) 26 (158) Polar Record 195-202.

This journal article is available at Research Online: https://ro.uow.edu.au/lhapapers/234 Polar Record 26(158): 195-202 (1990). Printed in Great Britain 195 Australia and the Convention for the Regulation of Antarctic Mineral Resource Activities (CRAMRA) S. K. N. Blay and B. M. Tsamenyi Law School and The Institute of Antarctic and Southern Ocean Studies, University of Tasmania 7001, Australia Received January 1990

ABSTRACT. Australia, a leading Antarctic state that played a key role in negotiating the Convention for the Regulation of Antarctic Mineral Resource Activities, in May 1989 announced its opposition to the Convention and adoption instead of a World Park or Wilderness Reserve concept for Antarctica. This article examines possible environmental and economic reasons for Australia's attitude, which is likely to have significant implications for the future of the Convention and for the Antarctic Treaty System as a whole.

Contents or prospecting in Antarctica (ibid.). Introduction 195 The Australian position is significant because Austra- Background to CRAMRA 195 lia claims 42% of the Antarctic. As an original signatory The Minerals Regime 196 of the Antarctic Treaty, Australia is also a leading Consul- Australia's responses to CRAMRA 197 tative Party and without doubt one of the most influential Reasons for rejecting CRAMRA 198 Antarctic Treaty states. The general view is that all Conclusion and overview 200 claimant states will need to ratify or accede to CRAMRA References 201 before it can enter into force. Australia's refusal to ratify or accede to the Convention could therefore constitute a Introduction veto. Given Australia's influential position, its apparent One of the most significant developments within the rejection of CRAMRA could have significant implica- Antarctic Treaty System in recent times is the successful tions for the future of the Convention and indeed of the negotiation of the Convention for the Regulation of Ant- Antarctic Treaty System as a whole. arctic Mineral Resource Activities (CRAMRA) in June Traditionally, Australia has supported Antarctic 1988. Since the adoption of the Convention, the enthusi- Treaty programmes and Consultative Meeting recommen- asm with which it was negotiated has not been matched by dations, and displayed commitment to the Treaty System. the support of all the Antarctic Treaty states. In a move that What could be the possible basis for its current position, surprised most of the other states, Australia, which is a that threatens the System so used to a tradition of consen- leading Antarctic state and one that played a key role in the sus? This article examines the basis of the Australian negotiation of the Convention, announced in May 1989 rejection of CRAMRA in favour of the Wilderness Re- that it is opposed to the Convention and that it would rather serve concept. support the declaration of Antarctica as a World Park or a Wilderness Reserve (The Australian 1989a). Background to CRAMRA In a press statement announcing the Australian posi- Since the discovery of mineral deposits in Antarctica tion, Mr Bob Hawke, the Prime Minister, was careful to mining prospects have always been a reality. The Antarc- note that, if the Australian initiative is unsuccessful, Aus- tic Treaty, adopted in 1959 to regulate specific aspects of tralia would consider acceding to the Convention. Antarctic activities, made no references to minerals ex- Nonetheless the Australian announcement met with mixed ploitation nor provided any regime to control resource responses from other treaty states. The United Kingdom, activities. At the time of the Treaty's negotiation, these New Zealand and the United States expressed disagree- issues were not considered vital. In any case technology at ment with Australia. The Foreign Minister of New Zea- the time and the availability of alternative sources for these land, Mr Russel Marshall, described the Australian deci- resources did not make it commercially attractive to pur- sion as 'dictated by political considerations rather than any sue the exploitation of the continent's resources. fine feelings about Antarctica' (The Australian 1989b). In In 1982 the Convention for the Conservation of Ant- the United Kingdom, the Foreign Office Minister Mr arctic Marine Living Resources (CCAMLR) was con- Timothy Eggar described the Australian decision as disap- cluded to regulate the exploitation of Antarctica's marine pointing (Sydney Morning Herald, 7 June 1989). On the living resources, in the face of mounting pressures, by other hand Belgium, France and India indicated their some distant-water fishing nations, to exploit the living re- support for the World Park concept. Belgium described sources of Antarctica, particularly krill. The issue of CRAMRA as 'dangerous and inappropriate' (Hobart minerals resource exploitation in Antarctica was first Mercury,! July 1989). The Belgian Parliament also voted discussed informally by the Antarctic Treaty Consultative to stop any Belgian national or corporations from mining Parties (ATCPs) as far back as the Sixth ATC Meeting in 196 BLAY AND TSAMENYI

1970, but it was not until December 1980 that a Special provision for the establishment of Regulatory Committees Meeting was called to discuss the form of the Minerals in respect of each area to be mined (Art. 29). Each Regime and the negotiating process. In March 1981 the Regulatory Committee is to be made up of ten members: meeting convened again in Buenos Aires and finished just six non-claimant states and four claimants including the in time for the Eleventh ATC meeting in the same city in claimant in whose area the mining activity is to take place June 1981. This meeting had the issue of the Minerals (Art. 18 (2)). All these institutions are to be assisted by a Regime as its main agenda item: its Recommendation XI- Scientific Advisory Committee (Art. 25) and a Secretariat 1 was devoted exclusively to the question of a Minerals (Art. 33). Regime for Antarctica. The recommendation called for The Convention makes provision for three levels of the development of the regime 'as a matter of urgency', mining activities: prospecting, exploration and develop- and further established a Special ATC Meeting to negoti- ment. Operators need no permits from the institutions of ate a minerals convention. the Convention to engage in mineral prospecting on the In June 1982 the Special ATC Meeting started its work continent, but any exploration or development activity can in Wellington, New Zealand. After ten meetings involving take place only after the issuing of a permit and the negotiations over six years, the ATCPs adopted approval of a Management Scheme for such purposes by CR AMR A. Throughout the negotiations Australia played the relevant Regulatory Committee. The issuing of the an active role, with one of the sessions being convened in permit and the approval of the Management Scheme are Hobart, Australia's 'Antarctic city'. Though the records of subject inter alia to strict environmental conditions. the meetings indicate that Australia was among the states Environmental conditions that unsuccessfully sought stringent environmental condi- tions in the Convention, and the payment of royalties to Given the delicate nature of the Antarctic environment, the claimants, there is no evidence that Australia rejected the negotiation and drafting of CRAMRA required the draw- consensus that was reached on the various clauses of the ing of a careful balance between the demands to exploit the Convention. At the end of the meeting that adopted continent's resources and the all-important need to pre- CRAMRA, a Final Report was issued (New Zealand serve its pristine environment. The protection of the Ministry of Foreign Affairs 1988a) which included re- Antarctic environment is therefore made one of the central marks and statements made by several delegates express- objectives of the Convention. Article 4 (1) of the Conven- ing their views on the Convention. The report does not tion provides in very clear terms that decisions about include any statements by Australia nor a statement by any Antarctic mineral resource activities ' ... shall be based state objecting to the Convention as such. Indeed the upon information adequate enough to enable informed statements issued after the Conference were generally in judgments to be made about their possible impacts and no praise of the Convention. One statement which came close such judgments shall take place unless this information is to an objection to the Convention was that of the Nether- available for decisions relevant to those activities'. lands, which had participated in the negotiations as an In this regard the Convention provides further that no observer. Antarctic mineral resource activity shall take place unless it is judged, based upon assessment of its possible impacts The Minerals Regime on the Antarctic environment and on dependent and asso- The Australian rejection of CRAMRA is based mainly on ciated ecosystems, that the activity shall have no signifi- what it considers to be faults with the Convention, particu- cant adverse effects on air and water quality, or cause larly in the area of the protection of the Antarctic environ- significant changes in atmospheric, terrestrial or marine ment. A brief discussion of the main features of the environments, or in the distribution, abundance or produc- Convention is therefore useful in an analysis of the Austra- tivity of Antarctic fauna or flora, or the degradation of lian position. areas of special biological, scientific, historic, aesthetic or The full text of the Convention appears in SCAR wilderness significance (Art. 4 (2)). The Convention Bulletin 94 (printed in Polar Record 1989:264). Mining further provides that no mineral activity is to take place activities under the Convention are regulated through a unless it is determined that the activity will not affect complex structure of institutions (Blay and Tsamenyi global or regional climatic or weather patterns signifi- 1989; Beck 1989). The primary institution of the Conven- cantly (Art. 4 (3)). tion is the Commission, which is composed of all ATCPs Since the use of the appropriate technology is crucial party to the Convention, sponsoring states which are not if the Antarctic environment is to be protected in the course ATCPs and any parties which may be actively engaged in of any mining activity, the Convention provides that no substantial scientific, technical or environmental research mining will take place in Antarctica unless it is judged that in the area to which the Convention applies directly rele- 'technology and procedures are available to provide for vant to decisions about Antarctic mineral resource activi- safe operations and compliance' with the environmental ties (Art. 18). The plenary body under the Convention is conditions under the Convention and there exists the the Special Meeting of Parties which comprises all the capacity to monitor key environmental parameters and the parties to the Convention (Art. 28). CRAMRA also makes impacts of any resource activity on the environment (Art AUSTRALIA AND CRAMRA 197

4 (4)). There must also exist the capacity to respond of regime. I think it has to be said that overwhelmingly effectively to environmental accidents before any mining ... we have been successful in achieving these various can be permitted (Art. 4 (4) (c)). objectives (Hansard 1989: 1652-53). Through the system of issuing permits and the approval This admission by Senator Evans only nineteen days of management schemes, the Regulatory Committees can before the Cabinet's decision not to sign CRAMRA brings maintain an effective control and monitoring system on us back to the central issue in this article: given that resource activities. Decisions in the Regulatory Commit- CRAMRA provides a legal framework within which each tee on the approval of management schemes and the claimant could play an effective role in the protection of issuing of permits for development are to be taken by a the Antarctic environment, why has Australia rejected it in two-thirds majority of the members present and voting favour of the seemingly unachievable ideal of a Wilder- including a simple majority of the claimant states on the ness Reserve? Committee present and voting, plus the US and the USSR, Australia's responses to CRAMRA which are mandatory members on all Regulatory Commit- tees (Art. 32 (1)). Decisions on all other matters of Apart from a few brief reports in the media, the conclusion substance are to be taken by a two-thirds majority of the of CRAMRA in June 1988 did not attract much publicity members present and voting (Art. 32 (3)). It follows that or attention in Australia. Despite the efforts of conserva- where an application is not supported by the requisite tionist groups to publicize the Convention before and after majority, the Regulatory Committee will not give the its conclusion as a disaster for the Antarctic environment, permit or authorization for a requested mineral resource the Australian public remained generally unaware of it. activity. Within Australian government circles there was initially The cumulative effect of the decision-making proce- some evidence of support for the Convention. Mr Michael dures in both the Commission and the Regulatory Com- Duffy, the then Acting Minister for Foreign Affairs and mittees is that the members are well placed to prevent Trade, welcomed the Convention indicating that 'Austra- mining in any area of Antarctica if they determine that a lia ... placed a high priority on the early conclusion of such particular activity will be detrimental to the Antarctic a Convention because of the need to have an effective environment or inconsistent with the objectives of the international system of control in place well in advance of Convention. Indeed, to the extent that the decision- any minerals activity in Antarctica' (Australian Foreign making process in the Commission requires consensus for Affairs Record 1988: 258-59). the identification of an area for mining activity (Art. 22), But disagreements later emerged within the Govern- any member of the Commission (eg Australia, if it chose ment over the Convention. The Minister for the Environ- to be party to CRAMRA) could theoretically veto any ment, Senator Richardson, and the Foreign Minister, mining activity through a negative vote on environmental Senator Evans, favoured Australia's ratification. Both or other relevant grounds. Senators, while opposed to mining in Antarctica in prin- With its stringent conditions, the regime under ciple, expressed the view that the ratification of CRAMRA CRAMRA provides a good opportunity for a claimant might be the only way to protect the Antarctic environ- such as Australia, concerned with the Antarctic environ- ment. As Senator Evans stated: ment, to control and influence mineral resource activities What the Convention does is provide a framework for there within an established framework. These environ- deciding whether or not [mining] may take place and, mental conditions were the product of the stance taken by if it's ever approved, for closely regulating it when it Australia and other pro-environmental groups during the does occur....In fact it provides that mining should not negotiation of the Convention. As the Minister for Foreign take place unless it's clear on the basis of objective Affairs, Senator Evans, admitted in the Senate debate on criteria that mining will cause no significant environ- CRAMRA: mental harm (Hansard 1989: 1653). Throughout the course of the negotiations we (ie On the other hand the Treasurer, Paul Keating, opposed Australia) argued vociferously, vigorously and, for the Australia's ratification (Hansard 1989: 1647). most part, pretty effectively for environmental protec- In early 1989 the issue of CRAMRA was tabled in the tion provisions in (the) Treaty which were far-ranging Australian Parliament for public debate. This heightened and of really significant impact in their character. We public interest in, and awareness of, CRAMRA and led to wanted strict liability; we wanted unlimited liability; pressures on the Government from different interest we wanted narrow defences for anyone who might groups. The Australian Mining Industry Council lobbied engage in such activity and cause environmental the Government to ratify the Convention, arguing that it damage in the process; we wanted strict threshold requirements to be satisfied before people could get in was opposed to any move that locked away any area of the there and do anything at all; we wanted an effective world from future development (The Sun, 23 May 1989). enforcement mechanism; and we wanted a substantial Australian conservationist groups led by the Australian role for the countries with actual territorial claims as Conservation Foundation called on the Government not to distinct from those who are just drifting around the sign CRAMRA in the interest of the Antarctic environ- edges, so as to enhance our capacity to impose this sort ment. 198 BLAY AND TSAMENYI

The conservationists' move in Australia received spelled gloom for Antarctica. One prominent newspaper considerable support from international conservationists reported it in these terms: groups including Greenpeace and the Cousteau Society. Diesel fuel, almost one million litres of it, is right now In April 1989 the French naturalist Jacques Cousteau spreading along the frigid Antarctic coast The suffo- called on the Australian Government not to sign the cating black slick, stretching more than 3 km is threat- Convention. In a letter addressed to the Australian Prime ing the wild life rich area with disaster. Penguins are Minister he pleaded: emerging from the icy depths covered in oil. Their natural oil glands clogged, they are unable to function ... on behalf of the more than 300,000 members of the and will die. Other animals such as seals will be Cousteau Society and Foundation Cousteau, we re- affected by the destruction of krill, the crustacean at the spectfully call upon you to help in protecting Earth's centre of the Antarctic's food chain (Sydney Morning last unspoiled continent of Antarctica from the threat Heraldll March 1989). of mineral exploitation ...Next week when your Parlia- A month later Exxon Valdez ran aground in Prince ment meets to consider the Wellington Convention... William Sound in Alaska, causing considerable damage to Australia will have the unprecedented opportunity to marine life and associated ecosystems over a wide area. save Antarctica from the type of devastation that is at The two incidents provided the basis for the conservation- this moment destroying sea life and polluting the ists' argument that whatever the safeguards in CRAMRA Arctic... [W]e appeal to you to oppose the Convention may be, they will not be capable of stopping accidents. (Sydney Morning Herald 18 April 1989). These events, along with the domestic political situation, In an increasingly environmentally conscious Austra- set the scene for the formal announcement of Australia's lia, the preponderance of public opinion appeared to fa- position on CRAMRA. vour any policy that would oppose mining activity in In mid-May the Prime Minister announced to the Antarctica irrespective of the environmental safeguards in Australia Mining Industry Council that Australia was CRAMRA. By April 1989, the protection of the Antarctic considering not signing the Convention. At a press confer- environment and the propriety of CRAMRA had assumed ence on 22 May 1988 he formally announced that Austral ia major national political significance. The major political would not sign CRAMRA. The press statement issued parties sought to gain electoral support by opposing min- jointly with the Ministers of Foreign Affairs and of the ing in Antarctica and rejecting CRAMRA. In early May Environment read in part: the Liberal-National opposition, which is not traditionally associated with environmental protection, tabled a motion The Australian Government is dedicated to the com- in the Senate calling on the Australian Government not to prehensive protection of the Antarctic environment sign CRAMRA (Hansard 1989:1645-1667). The motion and in that context our strong commitment is that no mining at all, including oil drilling—should take place was passed with the help of the Australian Democrats. in and around the continent. This was followed a day later by a similar motion in the Although we recognize that the recently concluded Victorian Upper House, jointly sponsored by the Liberal, ... CRAMRA is very much better than no protective National and Labour parties and the Independents. The regime of any kind in relation to these activities, we motion supported 'the principle of Antarctica becoming a believe that it is both desirable and possible to seek world heritage wilderness park' and called on the Victo- stronger protection for what remains the world's last rian Government to express the opposition of the Victorian great wilderness. Accordingly, we have decided that people to Australia becoming a signatory to CRAMRA Australia will not sign the Minerals Convention, but (Wilderness News 1999: 15). instead will pursue the urgent negotiation of a compre- The significance of environmental issues and indeed hensive environmental protection convention within the question of CRAMRA in Australian politics were the framework of the Antarctic Treaty System. In that underscored in early May 1989 when the Green Independ- context Australia will specifically explore the pros- pects for the establishment of an Antarctic 'Wilderness ents won sufficient seats to hold the balance of power in the Park' (Press Statement 22 June 1989). Tasmanian State Parliament in Australia. The Tasmanian State election had been fought on environmental issues. Reasons for rejecting CRAMRA The singular success of the Green Independents was there- The major reason given by the Prime Minister in support fore to be taken as an indicator of community concerns for of the Australian position was environmental. However, the protection of the environment and of future electoral since the announcement two other reasons have been trends. suggested; these are the prospects of subsidised mining Events outside Australia reinforced the environmen- activity in Antarctica, and the absence of any provision for talists arguments against mining in Antarctica and revenue in CRAMRA for claimants such as Australia. CRAMRA generally. In February 1989 an Argentinian naval ship Bahia Paraiso, with a load of oil became Environmental reasons wrecked in Antarctic waters near Anvers Island and thus In the press statement to announce the Australian position raised fears of possible damage to the Antarctic environ- on CRAMRA, the Prime Minister pointed to the inadequa- ment. Weeks after the incident, newspaper reports of it cies of the Convention protecting the Antarctic environ- AUSTRALIA AND CRAMRA 199 ment as the principal reason for Australia's rejection of testimony to the damage than an oil spill can do to such an CRAMRA. Since the announcement, neither the Prime environment' (Hobart Mercury 21 July 1989). In the Minister nor any Government official has elaborated on opinion of the Australian Government, mining or oil these inadequacies. In a speech to the National Press Club drilling is not consistent with the protection of the Antarc- in Washington, the Prime Minister emphasized the inade- tic environment. quacies of the Convention in general terms without refer- The current Australian position is hard to reconcile ence to any specific details. He simply noted that: with past official statements indicating Australia's Ant- Australia has recently decided not to sign the Antarctic arctic policies. Successive Australian governments have Minerals Convention because we did not believe that usually taken the general position that Australia would it provided proper safeguards against damage to this pursue and derive any reasonable economic benefits from the last pristine continent We believe all mining the living and non-living resources available in the Antarc- activity in Antarctica should be banned. We seek tic, while seeking at the same time to protect the instead a comprehensive Antarctic environment pro- continent's environment, and that the idea of an Antarctic tection convention and the creation of a wilderness World Park was not realistic. Senator Evans, now the reserve (Ministerial Document Service 8). Minister of Foreign Affairs, once described the idea of The Prime Minister then went on to explain the details Antarctica as a World Park as a 'dream of elves and fairies' of such a convention. Australian conservation movements when he was Minister for Resources and the Environment have, however, been more specific in their critique of the (Conservation News 1989). In a statement on the environ- Convention, identifying the following as some of its inade- ment entitled Our country, our future, released by the quacies. Prime Minister's Office in July 1989, the Government First, it is argued that the Convention does not delimit explained the apparent inconsistency in its policy with the the extent of liability for environmental damage (Moore statement that, consistent with its decision not to allow 1988: 22-23). This is to be done later in a protocol to be mining in Antarctica, it had amended previous Australian established under the Convention. Conservationists argue policy in favour of a comprehensive protection of the that under pressure from operators applying for mining Antarctic environment and a complete ban on mining. permits, the liability provisions to be included in the proposed protocol will be subject to interpretation and Economic reasons ultimately less stringent rules may be adopted to favour Australia's rejection of CRAMRA is partly motivated by operators. economic considerations. Australia is a leading producer of some of the minerals that may be mined in Antarctica. It is also argued that the protocol may provide limits There is a concern within the Australian Treasury that to the liability of operators and defences against liability. CRAMRA does not provide sufficient safeguards to pro- The basis of this argument is that the CRAMRA provisions tect the Australian mining industry against competition on environmental damage exclude liability for natural from Antarctic mineral resource activities. In particular it disasters of exceptional character which could not rea- is argued that the absence of an anti-subsidy provision in sonably have been foreseen and those caused as a result of CRAMRA may be inimical to Australia's interest. The armed conflict and acts of terrorism. Groups opposed to worry seems to be that without a provision on anti-subsidy the Convention argue that 'conservationists and scientists it is likely that some nations would subsidize their compa- who have wide knowledge and experience of the Antarctic nies operating in Antarctica with the result that minerals and sub-Antarctic region are hard pressed to think of any could be dumped on the world market. natural disaster that could be classified as exceptional or unforseen' (ibid.). During the negotiations on CRAMRA Australia and a number of ATS sought unsuccessfully to have an anti- Another argument fundamental to the conservation- subsidy clause in the Convention. In the end the Final ists' position is that, even if the liability provisions of the Report simply noted that: intended protocol were to be stringent, it may be practi- cally impossible to repair any resultant damage. This, it is The Meeting recognized that unfair economic prac- tices including certain forms of subsidies could cause argued, is well evidenced by the Exxon Valdez accident in adverse effects to the interests of Parties to the Conven- Prince William Sound. The logical extension of these tion and that such effects should be addressed in the arguments is that it is prudent to abolish all mining activity context of the relevant multilateral agreements. To on Antarctica. this end, the Meeting agreed that Parties to the Con ven- These views provided a basis for Australia's rejection tion which are also Parties to such multilateral agree- of the Convention. Other statements by the Prime Minister ments will determine conditions of application of these since the press statement endorsed the concern of the agreements to the Antarctic mineral resource activities conservationists. In a statement on the environment Mr (New Zealand Ministry of Foreign Affairs 1988b: Hawke indicated that a degradation of any part of the 2-3). Antarctic environment could destroy the entire ecosystem Another economic reason which influenced of Antarctica with far-reaching global implications and Australia's position on CRAMRA is the absence of royalty that '[t]he grounding of the Exxon Valdez in Alaska is provisions in the Convention for claimants such as Austra- 200 BLAY AND TSAMENYI

lia. During the negotiations on CRAMRA, the claimant have indicated, the World Park concept was earlier re- states persistently sought the payment of royalties for any jected by Australia; but Australia has explained its change mineral resource activities within their sectors. At an of policy on the grounds that new evidence suggests that Informal Group Meeting convened in Montevideo under the Antarctic environment is too fragile to accommodate the direction of Arthur Watts of the United Kingdom to mineral resource activities. The current Australian posi- consider how to finance the institutions of the Convention tion may well have been dictated by a genuine commit- and what to do with any profits that may accrue from ment by the present Labour Government to protect the mining activities on the continent, the issue of royalties Antarctic environment. However, in Australia where was discussed at length. The claimants viewed their rights environmental issues are becoming politically significant, to an automatic share of revenue from minerals activities the electoral advantages that the Government stands to as an important aspect of the 'internal accommodation' in gain cannot be overlooked. Given the political realities in the evolving minerals regime. It was argued that such a Australia, the Government's position is understandable share was based on their presumed 'right to tax activities and indeed quite pragmatic. in their respective areas, general compensation for deroga- It knows that it may well be impossible to secure tion of sovereignty rights, or payments for the special agreement for a World Park in Antarctica; but for domestic management role to be assumed by claimants' under the political purposes the World Park concept has an unmis- regime (Antarctic Briefing 1987: 9). takable appeal. Since the Convention would take a long These demands were rejected by non-claimants; in- time to come into force it makes little political sense to deed some were vehemently opposed to even discussing antagonize the environmentally-conscious Australian the issue since any concession on the question of royalties electorate by pursuing signature of CRAMRA. In this to claimants would have amounted to an implicit or a de regard it is important to note that Australia has left open its facto recognition of the territorial claims in Antarctica. option to accede to CRAMRA at a future date if it fails to The negotiations thus ended without any financial conces- gain international support for the Wilderness Reserve sions to claimants such as Australia. The point in issue proposal. It is also of interest to note that the Minister for here is that, in the absence of any substantive economic the Environment has stated on more than one occasion benefits, Australia left the negotiations at the end of the day that, in his view, mining in Antarctica is inevitable (The dissatisfied and that the situation provided the basis for its Sun 23 May 1989) and that 'the only way you'll stop them rejection of CRAMRA later in May 1989. The Australian (ie other nations from mining in Antarctica) will be if you Treasurer Mr Keating confirmed this in a letter he wrote to attempt to send in the gunboats' (JheSunS July 1989). For the Foreign Minister Senator Evans, in which he argued: the moment, however, the Australian Government prefers I do not believe that Australia should sign the Conven- to be seen by its electorate as being environmentally re- tion until we attempt further to negotiate provisions sponsible in Antarctica by rejecting the idea of mining on that better protect our national interesL...[S]ignature the continent. would mean we would, in effect, concede our eco- In place of the CRAMRA, Australia is seeking a nomic claims over Antarctica for virtually nothing, forfeiting our sovereignty over Antarctica and opening comprehensive Antarctic Environment Protection Con- up the possibility of subsidized production competing vention, '... the principal objective of which would be the with Australian mineral producers... (Hansard 1989: conservation and protection of Antarctica's unique envi- 1647). ronment and its associated ecosystems' (Ministerial Document Service 1989). In his speech to the National Conclusion and overview Press Club in Washington, and again at the Australian Three reasons have been given for Australia's rejection of Institute of International Affairs Conference on Antarctica CRAMRA. In our view the economic arguments based on in Hobart in November 1989, the Prime Minister ex- the absence of anti-subsidy and royalty provisions in plained (ibid.)\he main elements of such a convention as CRAMRA are of relative significance in any proper as- follows: sessment of Australia's position on the Convention. • an agreement to protect Antarctica's environment Australia entered and left the negotiations aware that it and its scientific value; could not realistically expect any substantial concessions • a ban on mining; on the issues of sovereignty rights and the entrenchment of • arrangements to which will allow an assessment of anti-subsidy provisions in the Convention. One can hardly proposed Antarctic activities or facilities; use the economic factors as the substantive bases for • a means of determining whether sufficient knowl- Australia's refusal to sign or ratify the Convention. In- edge exists to enable adequate impact assessment; deed, it is instructive to note that Australia has not publicly • an agreement not to undertake activities where there used these economic arguments as the justification for its is insufficient knowledge to judge whether they are en- rejection of CRAMRA. vironmentally sound; So far the stated official reasons for Australia's rejec- • criteria and standards to enable those judgments to be tion of the Convention have been environmental. As we made.. AUSTRALIA AND CRAMRA 201

The convention proposed by the Prime Minister would there will be little point in meeting to discuss the details of allow some activities in Antarctica but would ban mining such a protocol in 1990 if CRAMRA is a dead letter, it altogether. In this regard, the proposed convention will seems reasonable to conclude that, by adopting Recom- differ significantly from CRAMRA. The basis of the mendation XV-2, the ATCPs still consider CRAMRA as complete ban on mining is that mining is incompatible an active document notwithstanding the Australian posi- with the idea of a Wilderness Reserve. In this regard, the tion. Australian position on Antarctica seems inconsistent with It is of interest to note that so far neither Australia nor aspects of its domestic environmental policies. In the case France has declared CRAMRA dead because of their of Coronation Hill in the Kakadu National Park for in- opposition to it. But if indeed they do have a veto and the stance, the Government appears quite willing to accom- Convention is dead, the implications would be significant modate resource exploitation within its framework of for the Antarctic Treaty system as a whole in the 1990s. environmental protection regime for the area. It is a Even though the 'hands-off, no mining' approach being position which undermines the Government's view that championed by Australia has attracted the support of some minerals exploitation is inconsistent with the notion of a ATCPs, it has also attracted considerable opposition from Wilderness Reserve in Antarctica. influential ATCPs such as the United Kingdom and the In relation to CR AMR A itself, there is the general view United States. If CRAMRA is dead because of the absence that ratification or accession by all claimants is required to of consensus, Australia can hardly expect to gain the bring the Convention into force. The view is based on consensus it will need to negotiate, let alone implement, Article 62 of CRAMRA which provides that the ' ... the proposed comprehensive Antarctic Environmental Convention shall enter into force on the thirtieth day Convention which includes a ban on mining. It is a following the deposit of the instruments of ratification, situation that could destroy the consensus approach to acceptance, approval or accession by 16 Antarctic Treaty negotiations which has been a traditional features among Consultative Parties which participated as in the final the ATS. session of the Fourth Special Antarctic Consultative Meet- The death of CRAMRA could well mark a turning ing, provided that number includes all the states necessary point in the relations between the ATS. In specific terms, to establish all of the institutions of the Convention in the disunity Australia's position is likely to create may respect of every area of Antarctica, including five develop- well herald a review of the Antarctic Treaty in the period ing countries and 11 developed countries'. As a claimant after 1991. The irony is that if CRAMRA does not come state, Australia* s membership on any Regulatory Commit- into force and the Australian proposal for a Wilderness tee to be formed in respect of the Australian sector is Reserve is not adopted, the situation could leave mineral mandatory under the terms of the Convention. It therefore resource activities in Antarctica unregulated with all the follows that without Australia such a Regulatory Commit- attendant risks to the Antarctic environment. tee cannot be formed. The view is that in such a case a vital condition under Article 62 cannot be fulfilled; the Conven- References tion can, therefore, not enter into force. The Australian rejection of the Convention would thus constitute a veto. Antarctic Briefing. 1987. Statusof Antarctic minerals nego- This view that Australia can veto CRAMRA is debat- tiations. Washington, Antarctic and Southern Ocean Coalition. able. If Australia can indeed veto the Convention, then it Australian Foreign Affairs Record. 1988. Australian For- would follow that, by its repeated statements that it would eign Affairs Record. Canberra, Government of Austra- not sign it, the Convention has become a dead letter. But lia. despite the Australian position, current indications are that Beck, P. J. 1989. Convention on the Regulation of Antarc- CRAMRA is not dead. At the Fifteenth ATC Meeting in tic Mineral Resource Activities: a major addition to the Paris in October 1989, Australia actively pursued the Antarctic Treaty. Polar Record 25 (152): 19-32. Wilderness Reserve concept and tabled proposals for a Blay, S. K. N.andTsamenyi.B. M. 1989. The Convention comprehensive Antarctic Environment Convention. The on the Regulation of Antarctic Mineral Resource Activi- ties: can a claimant veto it? Hobart, University of Meeting adopted a Recommendation sponsored jointly by Tasmania Law School. (Antarctic and Southern Ocean Australia and France that' ... a Special Antarctic Treaty Law and Policy Occasional Papers, 1) Consultative Meeting be held in 1990 to explore and Conservation News. 1989. Antarctica — a great victory. discuss all proposals relating to the comprehensive protec- Conservation News (Newsletter of the Australian tion of the Antarctic environment and its dependent eco- Conservation Foundation) 21 (5) June. systems' (Rec. XV-1). However, the Meeting also Hansard. 1989. Commonwealth of Australia Parliamen- adopted another Recommendation to the effect that a tary Debates, Senate. Canberra, Government of Australia. meeting be held in 1990 to explore and discuss all propos- als relating to Article 8 (7) of CRAMRA (Rec. XV-2). Ministerial Document Service. 1989. Daily collation of Ministers' and Opposition Leaders' statements, No Article 8 (7) relates to the adoption of a separate protocol 230/88-89,28 June. Canberra, Government of Austra- in respect of the liability provisions of CRAMRA. Since lia. 202 BLAY AND TSAMENYI

Moore, M. 1988. Antarctica, miners cast their eyes on a Affairs. glittering prize. Habitat (Australia) 16 (August): 20. Polar Record. 1989. Convention on the Regulation of New Zealand Ministry of Foreign Affairs. 1988a. Final Antarctic Mineral Resource Activities. Polar Record report of the Fourth Special Antarctic Treaty Consulta- 25(154): 264-82. tive Meeting on Antarctic Mineral Resources. AMR/ The Australian. 1989a. Cabinet kills Antarctic Treaty. The SCM/88/79(2June1988). Wellington, New Zealand Ministry of Foreign Affairs. Australian 23 May. New Zealand Ministry of Foreign Affairs. 1988b. Final Act The Australian. 1989b. Antarctica worth a try. The of the Fourth Special Antarctic Consultative Meeting on Australian 24 May. Antarctic Mineral Resources. AMR/SCM/88/79(2June Wilderness News. 1989. Wilderness News (Newsletter of 1988). Wellington, New Zealand Ministry of Foreign the Australian Wilderness Society) 10 (July): 15.