Abstract
Mining has proven to be a controversial form of resource development throughout the circumpolar north. This article compares two mining projects—the proposed Prosperity gold and copper mine in central British Columbia, Canada and the proposed Kallak iron ore mine in Norrbotten County in northern Sweden—that have endured long and protracted approval processes that have caused tensions and disputes between mining companies, Indigenous peoples, communities and state actors. In an effort understand the particular development paths taken by these two mining projects, this article examines the institutional determinants that structure relationships between industry, Indigenous communities and the state in Canada and Sweden. Using an historical institutionalist theoretical approach, the article focuses on the manner in which the structural features of the political systems and the environmental assessment and permitting processes in both countries have shaped the mine approval process. It also identifies particular critical junctures—important events and decisions that influenced the trajectory of the approval processes in profound and consequential ways. The article finds that institutional determinants, both historical and contemporary, have played a critical role in determining outcomes in both cases. In particular, it demonstrates the ways in which the structures of the Canadian and Swedish political systems have historically excluded Indigenous peoples from the decision-making process for resource development projects such as mines. It also shows how broader institutional contexts, as well as specific events and decisions, have complicated and politicized the mine approval processes, a situation that has heightened tensions on all sides.
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Notes
Other articles in this Special Section look specifically at Indigenous rights and land-use, resistance to and or active participation in mining projects, the legal frameworks that govern mining projects and Indigenous-state relations, and questions relating to corporate social responsibility (CSR) and social license to operate (SLO).
According to this definition, institutions can range from formal documents such as constitutions and statutes to more informal conventions (unwritten rules of political/legal behavior) and norms that influence the context in which actors operate and the decisions that they make.
These are referred to in the institutionalist literature as path dependencies where outcomes are structured by previous decisions or events.
The project consists of two separate proposals: the Prosperity Mine (2008) and the New Prosperity Mine (2011). The latter was a revised version of the former, rejected mine proposal and underwent a separate federal environmental review process.
In the cryptic words of one official, this would have effectively transformed the lake into an aquarium.
In 2015, the provincial government granted a one-time 5-year extension of the certificate it had initially granted in late 2009.
Gállok in Sami language.
In Sweden, reindeer herding is administratively organized into 51 RHCs (sameby in Swedish). The RHCs are autonomous legal entities, each constituting a geographical area, a form of economic association, and a social community between the RHC members who practice pastoralism collectively. The right to herd reindeer is a usufruct right and exists regardless of land title; this means that reindeer herders can allow the reindeer to graze freely on land irrespective of the ownership of the land. See Raitio et al., 2020.
If expanded to “Kallak South” it could be run another 10 years, according to the mining company.
See the webpage of Laponia at https://laponia.nu/en/ (Date accessed March 29, 2022). The closest distance from the mine to Laponia is 40 km. Laponia is a mixed site, meaning it is designated because of both its outstanding nature conservation interests and the unique Sami culture.
The British North America Act 1867.
Canada also has three territories and although they have powers that have been devolved from the federal government, their status is derived from federal legislation, not the Constitution.
Constitution Act, 1867, s. 92(13).
Constitution Act, 1867 ss. 92, 92 A. Municipalities, which are created under provincial laws, can make by-laws to deal with local matters, such as snow removal and parking.
The BC Environmental Assessment Act, 2002 was replaced by the BC Environmental Act, 2018, but to date this newer act has not influenced the Prosperity mine project.
In a 2016 the Auditor General of British Columbia commented that the provincial government should “remove its compliance and enforcement program for mining from MEM [Ministry of Energy and Mines]. MEM’s role to promote mining development is diametrically opposed to compliance and enforcement. This framework, of having both activities within MEM, creates an irreconcilable conflict” (Auditor General of British Columbia, 2016).
In the period before and during the Prosperity mine case, there were several environmental assessments of resource projects in British Columbia. As already noted, the Kemess North mine project in northwestern BC was reviewed by a Joint Review Panel and rejected by both the panel and the federal and provincial governments in 2008. The Red Chris mine in northwestern BC underwent two separate environmental assessments and was approved in the mid-2000s; although the Supreme Court of Canada later ruled that the federal review process was flawed. The Enbridge Northern Gateway pipeline project in northern BC was assessed by a Joint Review Panel, as was the Site C Dam project in northeastern BC.
Joint Review Panels are also outlined in the formal legislation.
In 2013, the federal and British Columbia governments signed an MOU on the substitution of environmental assessments in British Columbia. This allows for one assessment that meets both federal and provincial requirements. Although neither the Prosperity nor New Prosperity mine projects were assessed under this new regime, which came into being after their environmental assessments were conducted, this new system has been used in a number of projects since 2013 and represents a significant formalization of collaboration between the federal and BC governments.
The term “aboriginal” is a colonial construct and legal-constitutional term that refers specifically to the constitutionally recognized Indigenous peoples in Canada. We use the term Indigenous peoples in this article to refer to the original inhabitants of the territory now known as Canada and their descendants.
The Tŝilhqot’in, for example, have not signed a treaty with the Crown.
Guerin c. The Queen [1984] 2 SCR 335. Fiduciary responsibility means a responsibility to protect the interests of Aboriginal peoples. The original inhabitants of Canada are traditionally called Aboriginal peoples, but the term “Indigenous” peoples is becoming increasingly common. Three distinct aboriginal peoples are constitutionally acknowledged in Canada: First Nations, Inuit, and Métis (Constitution Act s. 35(2)).
Calder v. The Attorney General of British Columbia [1973] S.C.R 313. Through the Calder case, the SCC changed the future framework of aboriginal rights in the country by recognizing that aboriginal title was a justifiable right and not solely a moral or political concern.
R v. Sparrow [1990] 3 CNLR 160 SCC. In this landmark case, the SCC recognised harvesting rights, such a hunting, fishing and trapping rights
Tsilhqot’in Nation v. British Columbia [2014] SCC 44. The term Aboriginal title refers to the inherent right of Aboriginal peoples to land or territory based on cultural connections and protracted use and is a form of ownership of the lands albeit with restrictions.
From 2006-2011, the Conservatives had a minority government which means that they were dependent on the support of other parties in the legislature to stay in government. From 2011 to 2015, they had a majority government.
Under section 14 of the BC EAA, 2002, the provincial Environment Minister may determine the assessment scope, procedures and methods used for the assessment of a project.
A “Prop” is a government bill and is an important legal source in the Swedish legal system. Although directly elected by Sami citizens, the Sami Parliament is a government agency whose task is to monitor and comment on issues related to the Sami culture in Sweden. The government directs its tasks and powers through state legislation and annual decrees. Its function as a representative body for the Sami and its discretion could therefore be questioned.
The Act came into force March 1, 2022 and was drafted with the Norwegian consultation model in mind.
This legislation is also seen as unfair and anachronistic by others, chiefly non-Indigenous landowners.
CERD is a body of independent experts that monitors the implementation of the Convention on the Elimination of All Forms of Racial Discrimination by its States parties.
CERD found that Sweden had violated Articles 5 (d) (v) and 6 of the International Convention on the Elimination of All Forms of Racial Discrimination. This opinion related to the approved mining permits of the Rönnbäck mine, also situated in the Swedish north, which impacted the Vapsten RHCs grazing lands.
Special Rapporteur on the rights of indigenous peoples and the Special Rapporteur on the issue of human rights obligations relating to the enjoyment of a safe, clean, healthy and sustainable development.
These are minerals with economic and industrial value.
Natura 2000 is a network of conservation areas covering Europe’s most valuable and threatened species and habitats, established under the Birds and Habitats Directives. They are strictly protected.
Sweden has five basic permitting phases (Raitio et al., 2020: 3): (1) exploration permit with a work plan; (2) mining permit; (3) environmental permit; (4) expropriation of land for the mining site; and (5) permits for associated infrastructure.
These provisions are incorporated from the EU EIA Directive: Directive 2011/92/EU (amendment 2014/52/EU).
It was amended due to changes in the EIA Directive.
The first time, the government remitted the application back to the Mining Inspectorate in 2016 because of the Norra Kärr case.
This is required by law if the CAB and Mining Inspector disagree on the outcome.
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Wilson, G.N., Allard, C. Institutional Determinants of Mining Projects in Canada and Sweden: Insights from the Prosperity and Kallak Cases. Environmental Management 72, 53–69 (2023). https://doi.org/10.1007/s00267-022-01679-8
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DOI: https://doi.org/10.1007/s00267-022-01679-8