Proposed legislative amendments for mining operations – potential change of regime in 2024 for Natura 2000 permit assessment

In 2024, certain changes may be implemented to the legislation regulating the permitting process of mining operations. In March 2023, investigator Inge Karlström submitted a ministerial memorandum to the Swedish Government with proposals for legislative changes regarding the assessment of mining operations. In the report, it is proposed that the assessment of Natura 2000 permits should no longer take place in connection with the application for an exploitation concession under the Minerals Act, but instead in connection with the assessment of permit under the Environmental Code. The amendments in question are proposed to be effective as of 1 July 2024.

The proposed legislative amendments are put forward, among other things, with consideration to that the current regulation have been criticized on several points. In short, the current legislation means that Natura 2000 permit, where required, must be in place before an exploitation concession can be decided on. The permitting process of mining operations is structured, at a general level, as an assessment in several stages and based on different legislations, where the level of detail of the planned operation should generally reflect the relevant stage in the permitting process. Decisions on exploitation concessions under the Minerals Act and permits under the Environmental Code are two important steps in this process.

In somewhat simplified terms, the review of the application for an exploitation concession involves evaluating whether it is appropriate to use the area in question for mining operations. The next step is to assess in more detail the design, operation, and environmental impact of the mining operation, which is done as part of the permitting process under the Environmental Code. The current regime has been criticised for the fact that, in contrast to the permitting system described above, the review of Natura 2000 permits, which relate to issues of impact on protected areas, is currently addressed at an inappropriately early stage in the process. It has therefore been suggested that it would be more appropriate for Natura 2000 permits to be assessed in the context of the Environmental Code permit assessments. At this stage, the operation is generally planned in more detail and more extensive studies of expected environmental effects have been carried out. The need to obtain Natura 2000 permits at such an early stage in the permitting process, as required by the current regime, has contributed to unjustifiably costly, unpredictable, and long permitting processes, and has made it difficult for mining entities to raise capital.

If the proposed legislative changes are adopted as they stand, the main effects will be as follows:

• The assessment of Natura 2000 permits will be moved from the assessment of exploitation concessions to the assessment of permits under the Environmental Code, meaning that a Natura 2000 permit, if required, will no longer be a prerequisite for the granting of an exploitation concession.
• Some minor correlative changes to the assessment of applications for conditional amendments or extensions of the concession period under the Minerals Act, so that Natura 2000 permit will no longer be a prerequisite for amendments or extensions in these cases.
• The amendments are proposed to enter into force on 1 July 2024, without transitional provisions, which means that the legislative change will also apply to ongoing processes.

According to the investigator, the proposed legislative changes will result in more efficient permitting processes of mining operations. The lead times in the different stages of the assessment of a mining operation can be reduced, while a full assessment of Natura 2000 permits can be carried out in a more appropriate manner in connection with the assessment of permits under the Environmental Code, in line with EU law requirements for a full, accurate and final assessment of the environmental impact of the operation. This, in turn, is expected to create more predictable processes and improve the prospects to raise capital for mining investments.

The proposed legislative amendments have been circulated for consultation and are currently with the government departments for further administration. Setterwalls will follow the ongoing legislative process with interest, including any changes to the proposed timetable for implementation.

Please contact us if you require advice on permitting issues in the mining and extractive industries or if you have any questions regarding the current legislative proposal.