Permits for mining and environmental aspects
– an international comparative study
We have reviewed the mining laws and environmental laws regulating prospecting and mining in six countries or regions with a well-developed mining industry: Sweden, Finland, Poland, Western Australia
(Australia), Minas Gerais (Brazil) and Ontario (Canada).
A global industry where mining policies are converging
During the past 50 years mining has gradually become a global industry. Producers compete internationally and prices are set on the world market. As a result, the mining industry’s development in each country has become heavily dependent on global trends and patterns, even as regards laws and regulations. Mineral strategies or policies in mineral-rich industrial countries are becoming increasingly comparable and related legislation less dissimilar that it has been historically.
In light of accelerated economic development in the emerging economies and the globalisation of the metals markets, many countries have chosen to revisit their mineral strategies more regularly with the aim of assuring the competitiveness of their mining industry as well as meeting demands for increased environmental protection and social acceptance. Striking a balance between the different, and often conflicting, interests is key. Efforts to find workable models for managing these difficult issues can be observed, not only in Sweden, but even in the other countries studied.
Separate administrative hearings are usually held for mining permits and environmental permits
The legal framework that regulates mining is similar in all the countries studied. There is generally a mining law that regulates the granting of permits for prospecting for minerals and mining activities and one or more environmental laws that regulate the granting of environmental permits for industry in general, i.e. not limited to the mining industry. Mining legislation appears to be converging and different countries’ laws regulating the sector are becoming increasingly comparable. We find that laws and regulations are being revised more frequently; in many countries minor amendments are even made annually. At present revisions are being made in four of the six countries in this study.
A separate administrative or judicial hearing is held for issuing permits in accordance with environmental laws in all of the countries studied. It is apparent that environmental issues are receiving higher priority and that they are also being handled earlier in the process, i.e. environmental issues are also addressed in the administrative hearings for prospecting permits and mining permits. We also observe that the process for granting mining permits are generally less conflict-ridden than that for granting environmental permits. In all of the countries studied both mining permits and environmental permits are granted at the central (provincial or national) level rather than the local level.
We do not find evidence of executive or ministerial interference in the process of granting permits. We do however observe a trend where issues related to mining law and environmental law are becoming increasingly politicised. Permits are granted after extensive discussions and political debate rather than solely on the basis of administrative hearings.
The state claims ownership of most types of mineral resources in the countries studied. In Western Australia and Ontario there are, however, some few remaining areas with private mineral rights granted during the colonial area. Even though there is a lack of clarity as to the formal ownership of minerals in Sweden and Finland, the right to grant access to minerals and permits to exploit deposits is reserved to the state.
Permits have different periods of validity; environmental assessments are always required
Environmental permits are generally not required for prospecting activities, with the exception of Poland. However, in all of the countries studied environmental permits and an environmental impact assessment are required to exploit a mineral deposit, i.e. for mining. It takes on average 6–18 months for a prospecting permit to be processed and granted, with the exception of Western Australia where the process only takes 1–2 months. The permit is then valid for 3–5 years with the possibility of an extension for up to 10–12 years. Mining permits are generally valid for 25–30 years but can be extended if the mine is still in operation. The law in Western Australia and Poland states that applications have to be processed within a specified period of time. It generally takes 2–4 years for a mining permit to be processed, but in many cases the process can take much longer. There are often long delays in the processing of environmental permits. These also require comprehensive environmental impact assessments and a number of other studies concerning e.g. socioeconomic issues. The total processing time depends largely on the number and nature of appeals lodged.
Public participation is increasing, but time-consuming
Swedish and Finnish legislation gives property owners the right to some financial compensation, based upon the value of the minerals extracted. This is a unique system as property owners do not formally have rights to the minerals. In this context it can be noted that many countries are developing systems for sharing tax revenues and royalties from prospecting and mining on the local, regional and national levels. These systems may be interesting to study for Sweden.
Mining laws are in many places being developed to better take into account indigenous peoples’ rights, such as in Western Australia, Ontario and Brazil. At present, new prospecting and mining activities may not be formally commenced in native territories in Brazil; however, laws regulating this have not been enacted. In many countries the so-called social licence to operate is an issue for debate. This refers to the sustainability of mining projects and the balance between conflicting interests – local concerns for the environment and culture, society’s need for jobs and metals and investors’ desire for profits.
An unpredictable permitting process is the norm; there is room for improvement
Long appeals processes are not only a Swedish phenomenon. Mining and environmental permits granted by the authorities can be appealed in all of the countries studied. A time-consuming and excessively lengthy process does not benefit any of the stakeholders, neither those in favour of, nor those opposed to a mining project.
Our interviews indicate that the process of granting permits and the amount of time it takes is not simply a product of countries’ legal and administrative systems. It is also a product of authorities’ resources and individual civil servant’s competence and ability to handle conflicts of interest and seek compromises. In order to reach decisions that balance social, environmental and economic sustainability, authorities need knowledge of what solutions are practical and possible as regards to mining technology and environmental impacts.
Based upon this international comparison we conclude that Swedish legislation and regulations and the Swedish process for granting mining and environmental permits cannot be described as unique or extreme. Instead, we find that the Swedish system, in an international comparison, is fairly average.