The practicalities of domestic legislation to prohibit mining activity in Antarctica: a comment on the Australian perspective

Abstract

AbstractAfter its rejection of the Minerals Convention adopted by the Antarctic Treaty Consultative Parties (ATCPs) in 1988, Australia took a major step in its domestic law by enacting the Antarctic Mining Prohibition Act of 1991 (AMPA), to reinforce its general objection to mineral resource activities in Antarctica and its commitment to the protection ofthe Antarctic environment. With the adoption of the Protocol on Environmental Protectionto the Antarctic Treaty (the Madrid Protocol) – which required the parties to take steps to implement its provisions, including the enactment of domestic legislation – Australia enacted the Antarctic Treaty (Environmental Protection) Act (ATEPA). The ATEPA is meant to replace the AMPA once the Madrid Protocol comes into force. The Protocol bans mineral resource activities in Antarctica and adopts a comprehensive regime toregulate all human activity in Antarctica in an effort to protect the region's environment. As legislation to implement the Protocol, the principal objectives of the ATEPAare to prohibit mineral resource activities in the Australian Antarctic Territory and toregulate all human activity that may have a direct impact on the environment in the area. It also prohibits Australian nationals from engaging in mineral resource activities elsewhere in Antarctica. Like Australia, a number of ATCPs have either adopted legislationor are developing legislation in their domestic legal systems to implement the Protocol.It is one thing for the Protocol to demand the adoption of domestic legislation to ensure compliance with its provisions, including the ban on mining; it is quite another thingto develop effective domestic legislation on the issue. Given the absence of any knowncommercially exploitable deposits of minerals in Antarctica, the likelihood of any mineralresource activity in the region is very remote. But should mining activity occur in Antarctica in breach of the Protocol, the enforcement of the ban could be fraught with practical, legal, and policy difficulties. This paper examines the domestic legislative efforts by Australia as a leading ATCP to ban mining activity in Antarctica. Even though the discussion focuses on Australia by examining its legislation, the problems and the issues raised in the Australian context are also relevant to other ATCPs generally and to claimants in particular.