The responsibilities of LKAB to respect the rights of the Sami people - a Business and Human Rights perspective on access to remedy in the Swedish mining sector

Abstract: In 2023, the Swedish state-owned enterprise LKAB revealed that it had found Europe’s largest deposit of critical minerals, which are needed in green technology. Being located on indigenous territory, a mine would impact the migration of reindeers, a Sami practice which form the basis of their culture and status as indigenous peoples under international law. This prompted questions about what responsibilities LKAB, as a state-owned enterprise, has to respect the rights of the Sami people to meaningfully participate and influence deci-sions that may impact them under the business and human rights framework. First, it was discovered that the State has an obligation to take additional steps to ensure compliance of its state-owned enterprises with human rights due diligence requirements. Although accountability can be attributed to the State for the conduct of its state-owned enterprises under international law, the emerging business and human rights framework in relation to state-owned enterprises builds on the principle of separate legal personality. Second, indigenous peoples right to self-determination and to give or withhold their free, prior, and informed consent in matters of importance to their culture and way of life is to be understood as a sliding scale, i.e., the requirement to obtain consent depends on the degree of impact. Third, although the principle of free, prior and informed consent is a standard for States, it is emerging as a business standard and responsibility through international sector guidelines. Hu-man rights impact assessments shall be conducted by companies continuously and before the go no-go decision, i.e., at the start of the exploration phase. Imbalance of power between rightsholders and companies shall not be exacerbated in mitigation efforts and remediation. However, there is an implementation gap in the global mining sector between recognised corporate responsibilities and practice on the ground. The inherent business centricity together with exclusion of social and cultural aspects, ignores the particularities of indigenous experiences. The Sami people have limited formal ability to influence the permitting of a mining concession – forming a regulatory gap between Sweden’s international obligations and domestic law. Coupled with issues of claiming formal title to land and narrow routes to accessing justice, Sami Communities are often left to defend their rights by participating in corporate-owned consultation procedures. Although recognising their role as a state-owned enterprise to lead by example, LKAB’s conduct does not reach up to international standards for best practice in terms of engagement and dialogue with the Sami people. The knowledge gap in the Swedish mining sector about indigenous peoples’ rights and corporate responsibilities under emerging international legal frameworks lead to exacerbated power imbalances and one-sided agreements. The thesis concludes that the significant resource imbalance between mining companies and Sami Communities as well as hate crimes needs to be addressed by legislation as to ensure removal of barriers to effective remedies.