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Legal alerts / 5 Apr 2018

Legal Alert – Supreme Administrative Court further clarifies Mining Authority’s cooperation duty with the Sámi people

The Supreme Administrative Court (SAC) has further clarified the Finnish Mining Authority’s cooperation duty with the Sámi Parliament and the obligation to assess the mining projects’ impacts on the Sámi people in its recent rulings. The recent rulings together with an earlier ruling from 2014 are expected to clear up some of the uncertainties involved with applications, which lie within the Sámi Homeland.

Background

The Northernmost areas of Finland are partly inhabited by the Sámi and the Skolt people that are considered indigenous. Finland has not ratified the ILO Convention on Indigenous People’s Rights, but the Convention has nevertheless influence on national legislation. In addition, the International Covenant on Civil and Political Rights and the basic rights under the Constitution of Finland guide the legislator to secure the rights of minorities to enjoy their own culture and language.

The influence of the international treaties can be seen throughout the Finnish Mining Act that introduced several novel provisions securing rights of the Sámi and Skolt people in 2011.

As an example, the Mining Act lays down an assessment and cooperation duty bound by the Mining Authority when exploration and mining activities are planned to occur on the Sámi Homeland. Accordingly, the Mining Authority is obliged to assess, in cooperation with the Sámi Parliament, the impacts on the rights of the Sámi people caused by planned exploration or mining activities that occur within or in the vicinity of the Sámi Homeland. Furthermore, measures required for mitigating and preventing adverse impacts on the rights of the Sámi people shall be considered. The assessment should take into account for example valid permits and other forms of land use within the project area or in its vicinity.

The Mining Authority’s struggle to find the appropriate means of putting the assessment and cooperation duty into practice has been subject to much attention since the adaption of the new mining act in 2011 and has put the decision process of numerous permit applications on hold for years resulting in a number of appeals lodged by the Sámi Parliament.

This rather unambiguous term “in cooperation” has been in the centre of debate as the Mining Act or the travaux préparatoires refuse to illuminate neither the level nor the methods of cooperation required. In addition, the question of appropriate level of assessment in connection with the referred obligation has been raised in the Sámi Parliament’s appeals.

Judicial precedents

In its precedent ruling, the SAC gave its long waited view on the matter. According to the SAC:

  • The Mining Authority is responsible for ensuring that proper conditions for the cooperation are in place. In practice, this calls for a set of adequate and comprehensive information to be provided to the Sámi Parliament, containing at least the exact position of the planned activity and a summary of other permits and other forms of land use within the project area and in its vicinity.
  • The Mining Authority may decide on the matter even if the Sámi Parliament refuses to cooperate. In such case, the Mining Authority shall assess the impacts of the planned activity without the participation or input from the Sámi Parliament.
  • The assessment must be conducted appropriately and the permit decision must indicate in a detailed manner how the assessment has been taken into account during the permit consideration. A mere general reference to the conducted assessment gives rise to the assumption that the conducted assessment does not satisfy the requirements set in the Mining Act.

In its most recent rulings, which were issued on 16 March 2018, the SAC further ruled that:

  • The impacts of the planned activity are to be assessed on a case-by-case basis.
  • Mere general remarks made by the Sámi Parliament regarding the planned activity does not solely create the assumption that the planned activity alone or together with other permits or other forms of land use has an adverse impact on the Sámi rights.
  • Permit provisions, which aim to mitigate the adverse impacts on the Sámi rights, must be precise and concrete.
  • Limits and restrictions concerning the planned activity presented by the operator may be taken into consideration as measures mitigating the adverse impacts on the Sámi rights even if not included as binding permit provisions. In addition, restrictions concerning the planned activity included in other permits required for the planned activity may mitigate the adverse impacts of the planned activity on the Sámi rights.
  • A three-year period of validity is temporally sufficient for the parties to assess the actual impacts of the permitted activity on the Sámi rights and it provides a possibility of introducing permit provisions to mitigate adverse impacts on the Sámi rights if the validity of the permit is sought to be extended.

Implications of these rulings

Although these rulings primarily concern the application of a provision governing the administrative procedure applicable to the Mining Authority, a process to which the applicant has no direct impact, they nevertheless help to understand the significance of proper impact assessment when establishing projects in sensitive areas (e.g. the Sámi Homeland).

Projects in sensitive areas not only require the operator to lodge applications fulfilling the minimum requirements but also include an appropriate impact assessment (i.e. impacts on Sámi rights, the environment, other forms of livelihood) and proposals on ways to mitigate such impacts. Operators should not leave the authorities without proper background material to assess the impacts that the project might have on the surroundings.

Every project should give focus on cooperation and good dialogue between operators, the local community and local stakeholders as well as the authorities. Efforts should be made by the operators to initiate dialogue already prior to the lodging of a permit application.

Read more about our views on the challenges faced by the mining industry when establishing exploration projects in sensitive areas here. The link takes you to an article “Exploration and Mining in Sensitive Areas – A Nordic View”, authored by Casper Herler and Niklas Vartiainen and appeared in the Who’s Who Legal: Mining; published by Law Business Research Ltd.

Borenius’ lawyers are available to assist in addressing any questions you may have regarding this legal alert. Please feel free to contact any of the Borenius’ attorneys listed in this alert or those with whom you usually work.

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