EU’s Critical Raw Materials Act fails to protect Sámi rights – here’s how to strengthen it

Evidence of human rights abuses on the territory of the indigenous Sámi people, and accusations of green colonialism, must prompt EU politicians to amend the law by adding clear provisions on indigenous rights, write Rasmus Kløcker Larsen and Kaisa Raitio.

Rasmus Kløcker Larsen is senior research fellow at the Stockholm Environment Institute (SEI) where he leads the rights and equity team. Kaisa Raitio is associate professor at the Swedish University of Agricultural Science (SLU).

In Northern Europe there is evidence of human rights breaches in the homeland of the Indigenous Sámi people, and accusations of green colonialism brought about by the rapid increase in investments in the name of the green transition.

There is a risk that the proposed EU Critical Raw Materials Act will both compound these injustices and fail in its objective to speed up mineral extraction for the climate transition. We call on EU policymakers to amend the act with clear provisions on Indigenous rights, and propose three ways to do so.

The outcomes of the ongoing trialogue between the European Commission, Council, and Parliament on the proposed act will have lasting consequences – both for the Indigenous Sámi people and for EU’s democratic legitimacy.

In September, the European Parliament decided on some welcome amendments to the Commission’s draft that aim to provide stronger social and environmental safeguards, complementing international standards such as due diligence norms under business and human rights law.

Of greatest interest to Indigenous Peoples is the proposed addition, in Annex 3 and referring to article 5.1, of a reference to the United Nations Declaration on the Rights of Indigenous Peoples and, especially, the right to give or withhold free, prior and informed consent (FPIC). Mining projects in Indigenous areas that wish to qualify as “strategic”, and thus merit fast-tracking and financial support from the EU, would have to – so the thinking goes – demonstrate that consent has been obtained.

While this FPIC amendment is both welcome and necessary, it is also insufficient. In its present form the act – counter to stated policy objectives – is bound to fail in addressing already extensive mining impacts on Sámi lands and culture.

The Critical Raw Materials Act, launched to complement the European Green Deal, is motivated not only by climate concerns but also by geopolitical and financial interests, driven by global competition for raw materials and land for commercial activities. However, prioritising mineral extraction over other concerns and imposing time limits on project permitting and consultation processes is likely to exacerbate already significant – and often legitimate – resistance from Sámi and environmental groups. In Sweden, these issues have recently been epitomised by state-owned company LKAB’s announcement of plans to exploit rare earth minerals near Kiruna, triggering opposition from affected Sámi reindeer herding communities.

Our analysis reveals three key weaknesses in the draft act:

• It assumes that Member State bureaucracies would consult in good faith with the Sámi. In doing so it ignores the shortcomings in national legislation in Sweden and Finland (and Norway, although it is not part of the EU), which lack effective provisions on Sámi rights in mineral laws and environmental licensing procedures. Our research in Sweden has pointed to significant regulatory gaps and capacity constraints in government agencies. Well-intentioned FPIC provisions in the EU act would, without additional implementing mechanisms, become paper tigers without practical relevance.
• It provides an “escape” route for developers to demonstrate compliance with safeguards via the use of certification schemes. Whereas it is positive that Annex 4, which lists criteria for recognizing certification schemes, requires multi-stakeholder governance, it is void of references to FPIC or other explicit mechanisms to protect Indigenous rights. When studying other sectors than mining we have seen that certification schemes often provoke a race to the bottom, with industries opting for the least stringent scheme, and auditors failing to ensure compliance.
• Nowhere does the draft act address the issue of how affected Sámi shall find the time and resources to effectively respond to fast-tracked licensing. Even today, without added time pressure, such constraints are key barriers to Sámi participation in resource decisions. This is a problem because one of the main factors that determines how mining projects perform on Indigenous rights appears to be the capacity of affected rights-holders to exert their agency, claim rights, and meaningfully influence decisions.

What do we recommend, based on available research on resource governance and Sámi Indigenous rights? Leaving aside contention about the act’s underlying rationale, the actions below would help to tackle, in turn, each of the weaknesses outlined above:

• Incorporate an oversight mechanism at EU level, mandating the Commission to receive grievances and ensure that safeguards are properly implemented, such as on FPIC. The draft act already notes an ambition to support third countries in reinforcing good governance – this should also be the case within the EU.
• Add a provision in Annex 4, clarifying that recognized certification schemes must include in their standards a firm adherence to the right of Indigenous Peoples to give or withhold FPIC, and that the certification standards themselves have obtained the free prior and informed consent of the representative bodies of the Indigenous Peoples where the scheme is intended to be used.
• Integrate provisions on the creation of a funding mechanism for affected rights-holders. One model could comprise of mining companies paying into a fund governed by the Commission. Here, affected social groups, such as the Sámi, should be eligible to apply for funds to cover their engagement in processes that – taken together – would be exhausting and last for long periods of time.

The world is looking to the EU to show leadership on a just and sustainable climate transition. Even with our proposed amendments, the Critical Raw Materials Act would still contain unresolved issues. But it would at least have some potential to protect Indigenous Peoples’ human rights – and demonstrate to the world that this is both necessary and possible. If, on the other hand, the EU and its wealthy Western democracies fail to live up to their stated human rights commitments, then the message is the opposite, and it will likely have repercussions for Indigenous peoples around the world.