Introduction

On 12 January 2023, the Swedish mining company LKBA announced the discovery of Europe’s largest deposit of rare earth elements – materials that are crucial for the production of a variety of renewable energy technologies – in northern Sweden, in the area of the city of Kiruna. The news was delivered during the visit in Kiruna of members of the EU Commission, including President von der Leyen, which represented the perfect juncture for both the company and the Swedish Government to highlight the importance of the discovery for the purposes of EU’s green economic transition (European Green Deal). It was especially emphasised that the exploitation of the Swedish deposit could represent an important step for implementing EU’s self-sufficiency, considering current dependence on imports of rare earth elements.

At the same time, however, concerns were raised regarding the possible negative impacts of a new mining project on local communities. Kiruna is already home to the largest underground iron-ore mine in the world and in recent years the extractive activities in the area have resulted in the instability of several buildings, which led to the decision to relocate the entire city to a safer area. Moreover, it was highlighted that the planned expansion of the mine could entail serious threats to the traditional livelihood of local indigenous people, namely the Sami. Often referred to as the only recognised indigenous people in Europe, the Sami are the original inhabitants of northern Scandinavia and the Kola Peninsula, a territory called Sapmi that encompasses parts of Sweden, Norway, Finland and Russia. A core component of Sami traditional livelihood and culture is reindeer husbandry, which is directly affected by mining projects in terms of reducing grazing areas and preventing seasonal reindeer migrations.

International standards and Sweden’s implementation

Based on their status as indigenous people the Sami are entitled to individual and collective rights under international human rights law, enshrined in the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) of 2007. The cornerstone of the UNDRIP’s framework is the principle of self-determination which entails, among others, indigenous peoples’ rights over their ancestral lands and the natural resources therein. Strictly related to land rights are the political and participatory rights set forth in the UNDRIP, according to which indigenous peoples must be involved in decision-making concerning issues that would affect them. In particular, States should avoid approving projects on indigenous lands – and especially those entailing the exploitation of natural resources – before having consulted and cooperated with local communities in order to obtain their free, prior and informed consent.

Sweden signed the UNDRIP and it recognises the Sami as indigenous people in its Constitution. Nevertheless, over the last years the Swedish government received repeated critiques from UN organs for not sufficiently guaranteeing indigenous rights within its domestic legal framework, including with regards to the regulation of the extractive industry (e.g. by the CERD in 2018 and the HRC in 2016). Notably, under the Swedish framework the responsibility of assessing possible negative impacts of extractive projects is delegated to the companies applying for mining licences, which are required to consult affected stakeholders, including Sami communities, and to carry out Environmental Impact Assessments (EIAs). Yet, companies are not asked to take into consideration whether their activities might negatively impact Sami fundamental rights as provided for under international law, nor is it clarified how consultations with local communities should take place.

Such shortcomings in the mining legislation – besides amounting to a violation of binding international obligations – are in contrast with Sweden’s formal commitment to ensure that companies under its jurisdiction comply with internationally recognised human rights standards of conduct as provided by the UN Guiding Principles on Business and Human Rights (UNGPs). In 2015 the Swedish Government adopted a National Action Plan (NAP) on business and human rights but, to date, the compliance with such standards is left to businesses’ voluntary initiatives. In recent years mining companies have started to take into account, in the context of their risk-assessments, considerations related to Sami indigenous rights; though, voluntary practices proved to be inadequate to properly ensure full compliance with the international human rights framework and to avoid business-related violations. In 2022, for instance, UN human rights experts had urged Sweden not to authorise a mining project in the region of Gállok due to the lack of effective consultations with local Sami communities and proper consideration of possible impacts on their rights.

Conclusion

This being so, there is a serious risk of the new extractive project in Kiruna being approved without including local Sami community in the decision-making process, nor evaluating possible negative impact on indigenous rights. In June 2023 LKBA announced that it applied for a processing concession, which constitutes the first step for obtaining an exploitation licence. While the company acknowledged the existence of concerns about how the new mine would affect reindeer husbandry, it has not further addressed the issue nor has it explicitly referred to the Sami as indigenous communities entitled to internationally recognised rights. In any case, as current legislation does not currently provide for mandatory requirements in this regard, the decision on whether and to what extent assessing possible negative impacts on indigenous rights remains appanage of the applying company. While a fundamental review of the mining legislation remains a possibility, an option for Sweden to improve the protection of Sami communities from extractive projects could be the adoption of a normative instrument providing mandatory human rights standards of conduct for companies. At present, Sweden (as all EU Member States) might be soon required to do so if the EU Directive on corporate sustainability due diligence, currently under discussion, is eventually adopted. Until that time, however, the opportunities for Sami communities to intervene in the decision-making process, as well as to have access to effective remedies in cases where business-related human rights violations occur, will remain limited.

Carlo Mazzoleni is a PhD student in Public, Comparative and International Law (38th Cycle), within the “International Order and Human Rights” curriculum at Sapienza Universita di Roma.