tisdag 17 oktober 2017

Minerals and Mines in Sápmi

To clarify the standpoint of the Sami Parliament on how the natural resources within Sápmi shall be managed and especially in relationship to minerals mining, a strategy has been produced. It was adopted by the Plenary Assembly in Åre, Sweden on 20 May 2014.

The strategy shall be considered as a political standpoint as well as a comment to the Swedish government and counties in their development work and to the authorities who in different ways decide on and follow issues pertaining to environment, business development, land-use planning, resource exploitation and permit management.

The Overall Standpoint of the Swedish Sami Parliament

While waiting for the ratification and implementation in Swedish legislation of ILO 169 (Indigenous and Tribal Peoples Convention, 1989) and the Nordic Sami Covenant, the Swedish Sami Parliament would like a moratorium on all exploitation in Sápmi. All natural resources above and below ground within the traditional Sami land areas belong to the Sami people. This is clarified in, among others, article 26 of the Declaration on the Rights of Indigenous Peoples.

The right to self-determination is in its nature a collective right for a people and is therefore directly relevant to the management of natural resources. The right to self-determination follows Articles 1 and 27 of the UN International Covenant on Civil and Political Rights as wells as Articles 3 and 4 of the Declaration of Indigenous Peoples.

The provisions of Article 27 of the UN Covenant grant indigenous peoples the right to protection of their culture. This is an absolute and protects the Sami in practicing their culture, religion and traditional trades, as well as the modern ways that the traditional trades are practiced and the areas and natural resources that make up the foundation of these trades.

According to the Minority Languages Act 2009:724, opportunities shall be promoted for the Sami to sustain and develop their culture. Especially stressed is the development of children’s cultural identity.  This law should be applied in processes pertaining to mineral exploitations.

The fundamental principle for indigenous peoples on the right to participation and influence in all parts of the decision-making process in accordance with the right to property is expressed in the principle of Free, Prior and Informed Consent. This principle must be regulated in relationship to the Minerals Act and the Environmental Code.

Free, Prior and Informed Consent

The principle of indigenous people’s rights to free, prior and informed consent is based on that indigenous people have the right to say yes or no to operations that have an impact on their traditional land areas, before the operations start.  Specifically, this means the following:

Free:

  • The stakeholders (the Sami Parliament, concerned Sami and concerned Sami reindeer-herding and economic districts) shall have been informed of their right to say yes or no
  • The indigenous people shall have accepted the decision-making process and work process that will be used in every operation
  • The information initiative responsibility lies with the company, the information shall be transparent and objective
  • The process shall be free from bribery or coercion
  • Meetings and decisions shall take place at locations and times and in the languages and formats determined by the Sami
  • Mediation shall be implemented if an agreement cannot be met
  • The company undertakes to not continue the process without the consent of the indigenous people

Prior:

  • The information shall be provided as early as possible
  • Sufficient time must be provided to understand and analyse all relevant information and the consequences thereof
  • The decision-making process required in order to be able to submit their consent must be respected despite delay.

Informed:

  • Be objective, covering both the positive and negative consequences
  • Be complete, covering the spectrum of potential social, financial, cultural and environmental impacts as well as the impacts for the rights of the indigenous people
  • Be accessible, transparent, clear and in the language designated by the indigenous people
  • The indigenous people shall have the opportunity to be accompanied by advisors
  • The information shall be made available to all groups within the indigenous people.

Consent:

  • A freely given decision that may be a “Yes or a “No” to the proposed measure
  • The right to change one’s mind if new information comes to light
  • Shall be provided in the manner and through the decision-making process decided by the indigenous people
  • Not the same as consultations
  • Not indefinitely valid

A consultation procedure based on the principle of free, prior and informed consent places great demands on nations, authorities and legislation that must be adapted. Free, prior and informed consent also places great demands on how those companies who want to establish operations in Sápmi conduct their work.

Proposals to changes in the application of the in-force Minerals Act

Exploration permit

The basis for granting an exploration permit today is that these activities shall be able to be carried out with the least possible damage to both nature and the cultural environment.  Although, experience shows that more comprehensive exploration activities result in disturbances in reindeer husbandry and other Sami trades. Those agencies supplying the permits have very little knowledge, least of all the exploration companies, of the consequences of the impact those working with exploration have on reindeer husbandry and other ways the Sami use the land.

According to the Convention on Biological Diversity, CBD, the traditional knowledge of the indigenous people is to be heeded and taken into consideration, and it should not be possible to prospect without the consent of the indigenous people.

The Sami Parliament feels that before an application for an exploration permit can be drawn up, the prospector must consult the Sami Parliament, concerned Sami and concerned Sami reindeer-herding and economic districts. Prior to the consultation, the prospector shall draw up a report on the planned operations and in what way they shall affect reindeer husbandry and Sami interests as well as land and landscape impacts, impacts on the cultural environment, hunting and fishing.

Especially important is to report on surrounding exploration permits and current exploitations that already have an impact on the use of the land. Such a first report is not meant to correspond to the demands of an environmental impact report, but shall be enough information so that the Sami Parliament, concerned Sami, concerned Sami districts as well as the Mining Inspectorate of Sweden can be able to take a position on the exploration permit. All too often, an exploration permit is granted without taking any consideration to the impact of the exploration activities on reindeer husbandry.

The report, together with an approval or rejection of the operations from the Sami Parliament, concerned Sami and concerned Sami districts, shall accompany the application to the Mining Inspectorate of Sweden.

In their assessment of permit for exploration, the Inspectorate must take into consideration previously submitted exploration permits within the same Sami district and their collective impact.

If the Sami Parliament, concerned Sami and concerned Sami districts approve  the operations, the prospector and the Sami district as well as the Sami Parliament must be in agreement about the conditions of the work plan about taking consideration to Sami interests before it is sent to the Inspectorate and before it comes into force.

All changes to the conditions of the work plan while prospecting is taking place shall be approved of by the Sami Parliament, concerned Sami and concerned Sami reindeer-herding and economic districts.

The prospector must also set so high financial guarantees that the costs for the measures are covered. Early on, there should be a guarantee of decontamination and after-treatment.

Exploitation concession

An exploitation concession can only be granted after consensus from the Sami Parliament, concerned Sami and concerned Sami districts.

In their assessment of an exploration permit, the Mining Inspectorate of Sweden must take into consideration all previously-submitted exploration permits, other exploitations, other land infringements and the cumulative effects of these within the same Sami district and their overall impact.

A complete environmental impact report (EIA) concerning the impact of the operations on reindeer husbandry and other Sami land use shall be highlighted already at this stage. An environmental impact assessment on the use of land is not complete without social and cultural impact assessments.  There is a need of a comprehensive view based on the Sami Parliament Eallinbiras program.  The consequences for the entire program as well as the Sami community in general need to be investigated.

An EIA in this context is not only material for assessments by permit-granting agencies, but shall also be a support for the concerned Sami and concerned Sami districts to make their own decision on free, prior and informed consent or not.  Although, it shall be duly noted that it is concerned Sami and concerned Sami districts that on their own decide on whether an EIA needs to be drawn up in order to be able to come to a decision on the matter.

Compensation for Minerals and Infringement

Companies that mine mineral resources within traditional Sami land areas shall set aside funds.

The rights holders - the Sami Parliament, concerned Sami and concerned Sami reindeer-herding and economic districts – own the right to a portion of the profits (royalties) form mineral and ore mining in accordance with the Article 26 of the UN Declaration on the Rights of Indigenous Peoples. Today the property owners have the right to a mineral compensation of 1.5 ppm of the calculated value of the ore that has been mined during the year. If there are several properties within the concession area, the compensation is determined according to each property’s portion of the area. The company also pays 0.5 ppm to the government. All together, the company pays 2 ppm based on the mined ore.

Indigenous people’s local community property rights to land grant a right to deny or accept access to their individual traditional areas. This means that such usually connects a coming grant of access with the requirement of a portion of the income from the use of natural resources. Usually the profit sharing for the use of natural resources in indigenous people’s areas is included in an agreement.

The Sami Parliament feels that a portion of the funding from the companies operating within Sápmi shall be granted to Sami needs. This shall pertain to new establishments, current exploitations from now and in the future as well as retroactively.

The Sami Parliament feels that such funds shall reside in a fund under the Sami Parliament for reindeer husbandry and other Sami trades and Sami community development.

In addition, the rights holder shall be compensated for damages. Loss of for example reindeer foraging areas, fishing waters and hunting grounds shall be compensated to the injured party.

© Sametinget 2017
Uppdaterad: 2016-06-15

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