Introduction
Openness, transparency and public participation are three components of good governance, some of the most globally cited concepts in the discussion of the legitimacy of institutions (van Kersbergen & van Waarden, Reference van Kersbergen and van Waarden2004). A push for sufficient, early, open and systematic involvement of the ‘public concerned’ and more transparency are partially rooted in the belief that these principles, embedded in human rights, can assist to foster more democratic, legitimate, accountable and efficient decision-making. These principles are particularly relevant for resource extraction and especially for uranium. In Greenland, a lively debate is taking place about the extraction of rare earth elements (REEs) and uranium in Kvanefjeld (‘Kuannersuit’ in Greenlandic). Although many Greenlanders view resource development as the path to economic self-sufficiency, opening the way to independence, uranium mining is a sensitive issue. The environmental and social consequences of the decision in 2013 to lift the 1988 parliamentary zero-tolerance policy were not included in the report used in the parliamentary decision-making, and the preparation of the environmental impact assessment (EIA) connected to the licensing process of the Kvanefjeld deposits was not made public. Access to the draft EIA was suspended by the Greenlandic Government (Naalakkersuisut), which does not accept the international standards on EIAs. Political parties, local communities close to the deposits, and non-governmental organisations (NGOs) are all concerned about the potential environmental and health consequences of uranium extraction (McGwin, Reference McGwin2016). The challenges related to, for example, waste from uranium mining are not only critical in Greenland. In its description of the general management of uranium sites around the world the International Atomic Energy Agency (IAEA) admits that:
. . . little progress has been made in the management of such sites, particularly in the understanding of associated environmental and health risks, and the ability to apply prediction to future environmental and health standards. [. . .] It is crucial to recognize that remediation activities are not just determined by radiological or health risks. In many cases, other factors will prevail in the definition of the adopted strategy, and public perception will always be a key driver (IAEA, 2014, p. 1).
The principles of openness, transparency and public participation, which represent key components of democracy, refer to distinct realities.
Transparency is about public authorities operating in the light of full public scrutiny with individuals, NGOs and the press able to access full information on the records and activities of the authorities (Alfredsson, Reference Alfredsson and Loukacheva2013, p. 187).
The importance of transparency has led to the creation of several NGOs, including the global Transparency International and the Extractive Industries Transparency Initiative (EITI) (EITI, 2016). Public participation is a process that directly involves the public in decision-making. The procedure of participation and the definition of the ‘public concerned’ are now codified in international environmental law as explained below.
Openness is a concept that is often associated with transparency but is rarely defined separately. Compared to the latter, openness appears to lack operational quality (Götz, Reference Götz, Götz and Marklund2015). Recent focus in the Nordic countries (including Denmark) shows that openness is a means to facilitate transparency but it cannot be reduced to its instrumental aspect of ensuring transparency. Openness goes further than ensuring accessibility to relevant information for the public concerned: it is a broader process also associated with democracy involving participation of civil society organisations, political opposition parties and stakeholders in the policy-making process.
Clearly, the joint issue of openness/transparency and public participation is of the utmost importance at different levels and areas of governmental practices in extractive projects. The relevance of these principles is reflected in the ‘Common Future’ report of the World Commission on Environment and Development (WCED)–the most critical United Nations (UN) report on sustainability–that emphasises the special need for public participation in large-scale projects on a different and more directly impacting basis:
Public inquiries and hearing on the development and environmental impacts can help greatly in drawing attention to different points of view. Free access to relevant information and the availability of alternative sources of technical expertise can provide an informed basis for public discussion. When the environmental impact of a proposed project is particularly high, public scrutiny of the case should be mandatory and, wherever feasible, the decision should be subject to prior approval, perhaps by referendum (WCED, 1987, p. 63).
This article focuses on the principles of openness, transparency and public participation in an approach that aims to question the legal and political (mainly governmental) constraints on governance and explores the debates on the extent to which the Greenlanders–and not only Naalakkersuisut–should have a say in the decision-making regarding the conditions for uranium mining in Greenland. It tests the hypothesis that the issues of openness/transparency and public participation can be understood in the broader context of the issue of sovereignty of Greenland. This paper covers the period of exploration for minerals before World War II, the period after 1953 when the colonial status of Greenland was changed, the situation under the home rule period from 1979 to June 2009, and the period of self-government until 2017 when the current Greenlandic authorities prepared a licence for the extraction of REEs and uranium in Kvanefjeld.
In the first section of this article we outline the international legal framework (conventions and declarations) related to the principles of openness/transparency of relevance for uranium mining in Greenland, including the human rights and indigenous peoples’ rights perspectives, as 85% of the population of Greenland are Inuit. This section also includes the environmental law perspective–codified in the Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters (Aarhus Convention) and the Espoo Convention, which establishes the framework for EIAs. In the second section, we analyse the governance of uranium mining in Greenland and look into openness/transparency and public participation before and after the establishment of self-government, highlighting a longstanding issue in the governance of Greenland in which sovereignty plays a significant role. The third section focuses on the current governance of the uranium project at Kvanefjeld, as a case exemplifying the relationship between the lack of openness/transparency and public participation and the legal and political orders. A comparison between the international standards on procedural rights with the Greenlandic statutory rules and practices shows a lack of openness and transparency in the management of the public's interest in access to the administrative files on proposed uranium mining.
The article shows that sovereignty–its consolidation or the accession to it–has impacted the design of the governance of Greenland and that the constraints put on the full implementation of the legal principles of openness/transparency and public participation in the governance of uranium mining in Greenland point, amongst other factors, to the political agenda of independence and a current hybrid political and legal order.
The principles of openness, transparency and participation, and international agreements of relevance for uranium mining
Good governance, openness, transparency and participation
Since its introduction in 1989 by the World Bank, the concept of good governance has acquired multiple meanings and is marked with ambiguity. Several international agencies, such as the World Bank, the International Monetary Fund, the Organization for Economic Cooperation and Development (OECD) and the United Nations Development Program (UNDP), have tried to define the key aspects of the concept of good governance, as have an increasing number of scholars (Sano & Alfredsson, Reference Sano and Alfredsson2002; van Doeveren, Reference van Doeveren2011).
The importance of good governance for human rights has been acknowledged in many documents produced by various international agencies and organisations, NGOs (for example, Transparency International, the global coalition against corruption with its national division ‘Transparency International Greenland’) and other stakeholders. The principle of good governance has also been endorsed in many UN resolutions of the Human Rights Council (HRC) (for example, HRC, 2008, 2012).
Human rights impose three obligations on states: to respect, to protect and to fulfil substantive rights of the people living in the territories of those states (CESCR, 1999, para. 15). According to several authorities these obligations are essential for understanding good governance from a human rights perspective (for example, Eide Reference Eide, Sano and Alfredsson2002, p. 52; Sano, Reference Sano, Sano and Alfredsson2002, p. 137). The UNDP's support to the implementation of sustainable development goal 16 in the ‘2030 Agenda for Sustainable Development’ is centred on the promotion of just, peaceful and inclusive societies, providing equal access to justice, and building effective, accountable and inclusive institutions (UNDP, 2016, p. 5).
Substantive human rights are complemented by procedural rights, which to some extent are to be found in conventions–for example, the ILO Convention concerning Indigenous and Tribal Peoples in Independent Countries No. 169 (ILO Convention 169), ratified by Denmark in 1996–and declarations–for example, the 2007 United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) (UNDRIP, 2007), endorsed by Denmark in the same year (Danida, 2011, p. 22).
The link between human rights and procedural rights
The mapping report of the UN's independent experts on the issues of human rights obligations relating to the enjoyment of a safe, clean, healthy and sustainable environment from December 2013 describes procedural obligations in line with the Aarhus Convention (Knox, Reference Knox2013, p. 5). The convention is considered to be the most advanced agreement between nation states reflecting international norms on ‘environmental democracy’ built up over 30 years (Boyle & Boer, Reference Boyle and Boer2013). In Article 1 of the Aarhus Convention REFERENCE it is clearly stated that:
In order to contribute to the protection of the right of every person of present and future generations to live in an environment adequate to his or her health and well-being, each Party shall guarantee the rights of access to information, public participation in decision-making, and access to justice in environmental matters in accordance with the provisions of this Convention.
The Aarhus Convention is ratified by Denmark with reservation for Greenland. Its preamble recognises that sustainable and environmentally sound development depends on effective governmental decision-making that contains both environmental considerations and external inputs. The preamble explains that public participation enhances the quality and implementation of decisions, contributes to public awareness of environmental issues, gives the public an opportunity to express its concerns and enables the authorities to take due account of such concerns. The convention sets minimum standards empowering members of the public and the ‘public concerned’ to hold people performing public administration under national law accountable by providing procedural rights under the following three pillars: access to environmental information for the public; rights for the ‘public concerned’ to participate in environmental decision-making, including EIA procedures; and access to justice for the ‘public concerned’ in matters relating to the environment. Each party to the convention shall strive to promote effective participation of the ‘public concerned’ at an appropriate stage in the decision-making process on specific activities, plans and programmes. Public participation furthers accountability and transparency in decision-making and strengthens public support for decisions with consequences on the quality of the environment. The term ‘public concerned’ used in the convention means the public affected or likely to be affected, or having an interest in the environmental decision-making. According to this definition, NGOs promoting environmental protection and meeting any requirements under national law are deemed to have standing.
In 2014, in her proposal FM 2014/151, member of Inatsisartut Sara Olsvig, representing the Inuit Ataqatigiit Party, argued that Greenland should ask the Danish Government to cancel the reservation for Greenland in the Danish ratification of the Aarhus Convention (Olsvig, Reference Olsvig2014). Following this, a legal investigation was conducted at the request of Naalakkersuisut in 2014 (Basse, Reference Basse2014). The report was expected to be translated into Greenlandic for discussion in Inatsisartut during the 2014 autumn session; however, the session was cancelled due to the general elections and, so far, the report has not been presented to the parliament. The report is now published (in Danish) and is accessible on Naalakkersuisut's website (Basse, Reference Basse2014). None of the Greenlandic acts accept the concept of ‘public concerned’.
The Espoo Convention and its Protocol on Strategic Environmental Assessment (SEA)–that supplements the Aarhus Convention–are ratified by Denmark without reservation for Greenland. The EIA process is designed to ensure a fully informed and well-considered decision. It promotes inter-agency co-ordination, communication and consultation, and it provides an efficient mechanism for organising environmental data and scientific evaluation for decision-making. During the EIA process the responsible authorities must follow three mandatory steps: (1) provision of information on the environmental, social and economic effects; (2) consultation with other authorities; and (3) participation by the public concerned. The goal of an EIA is to ensure that the authorities know about all of the economic, social and environmental impacts connected to a proposed project and that they have to take into account the information gathered during the process as part of their evaluation for their decision on a licence.
Indigenous peoples rights–including rights to openness and transparency
With the evolution of international law, indigenous peoples have shifted from objects to subjects of law and have advanced the general acceptance of their rights (for example, Åhrén, Reference Åhrén2016; Anaya, Reference Anaya2004; Loukacheva, Reference Loukacheva2009; Watson, Reference Watson2017).
Article 2 of the ILO Convention 169 specifies rights to consultation and participation. Article 6 also highlights the rights for indigenous peoples to participate in decision-making. In respect to the issues related to sovereignty, it does not go as far as UNDRIP. The latter is based on the principle of the right of indigenous peoples to self-determination and governance over their natural resources. UNDRIP requires free, prior and informed consent before decisions are made by national state authorities on resource development projects or activities with consequences for indigenous peoples’ rights. There is a clear connection between the ILO Convention and Principle 10 of the Rio Declaration on Environment that acknowledges that states should recognise and duly support the identity, culture and interests of indigenous peoples and enable their effective participation in the achievement of sustainable development (Ebbesson, Reference Ebbesson1996, p. 52; HRC, 2010, 2011; John & Sambo Dorough, Reference John and Sambo Dorough2016). By using these procedural rights, the Inuit Circumpolar Council (ICC)–including ICC Greenland–can exercise political pressure on public authorities. However, the interpretation of these UNDRIP provisions by the Arctic states is not straightforward (see, for example, Government of Canada, 2014; INAC, 2016; Johnstone, Reference Johnstone, Pelaudeix and Basse2017).
Governance of uranium mining in Greenland and the various legal and political orders
The organisation of political power in Greenland has evolved from a colonial order to a self-government inter alia under the strain of international law and the increasing recognition of human rights. During this period, the issue of sovereignty has remained a crucial one and has had a significant effect on the design of governance.
From the colonial order to the home rule
The Danish Constitution of 5 June 1849–that established the modern democracy in Denmark–did not include the human rights for the citizens living in Greenland (Hingitaq 53 v. Denmark, 2003; Ross & Andersen, Reference Ross, Andersen and Schultz1952). At that time, organisation of power in the Greenlandic settlements was made at the household level. Some local councils, established by the Danish authorities, were transformed by 1910 into elected municipal councils and two provincial councils, but they enjoyed limited power (Petersen, Reference Petersen1995). In 1933, in its decision on eastern Greenland, the International Court of Justice in The Hague granted Denmark sovereignty over the entire Greenland territory. On several occasions, the consolidation of Danish sovereignty over Greenland has been made at the expense of human rights. This is illustrated by the establishment of the USA Thule Air Base in 1951–a decision that was made by the authorities in Copenhagen without the involvement of the Inuhuit people living in the area who were relocated as a consequence–a case that has been assessed several times by the Human Rights Committee (2011) and the Committee on the Elimination of all Forms of Racial Discrimination, as well as the Danish courts, including the Supreme Court, and the European Court of Human Rights (Hingitaq 53 v. Denmark, 2003; ICCPR, 2008). Another case that illustrates the lack of involvement of the public concerned is the end of Greenland's colonial status in June 1953, a change that was made through an amendment to the Danish Constitution without the involvement of the people living in Greenland (Alfredsson, Reference Alfredsson1982a, Reference Alfredsson1982b, Reference Alfredsson1999; Wulff, Reference Wulff2005). This constitutional change was actually consistent with the decolonisation process promoted by the international agenda, and for Denmark this move helped to prevent the UN from interfering in Danish-Greenland sovereignty issues (Alfredsson, Reference Alfredsson and Skaale2004).
In the period before World War II, the Danish Government–in collaboration with the Danish Atomic Energy Commission, the Danish Geological Survey of Greenland and a Danish company Øresund, as well as the Research Council of Danish Defence–had a number of uranium expeditions in Greenland in order to lead Denmark out of its near-total dependence of coal from Poland and the Middle East. Uranium was detected in Kvanefjeld as part of these activities. Leading politicians and scientists in Denmark were hesitant to support uranium exploration as they feared that uranium production would undermine Danish sovereignty over Greenland (Heymann, Reference Heymann2016). The quality of the uranium was judged to be relatively poor and with prices falling during the 1960s, mining for uranium was deemed uneconomic. At that time, Greenland had no autonomy and did not have its own sovereign authorities (Hubbard, Reference Hubbard2013, p. 107). There was no involvement of the public concerned in the decision about uranium mining.
The geopolitical interest of the USA in Greenland did not stop after World War II. During the early Cold War, Greenland was of interest as a consequence of the growing awareness that in all likelihood future conflicts between the USA and the Soviet Union would somehow involve this Arctic area (Henriksen & Rahbek-Clemmensen, Reference Henriksen and Rahbek-Clemmensen2017; Heymann, Reference Heymann2016). The geopolitical importance of Greenland is still very relevant for the Kingdom of Denmark and its obligations under NATO, and thus has always been more relevant for Denmark than Greenland's minerals (Rasmussen, Reference Rasmussen2013).
The Home Rule Act that was passed by the Danish Parliament in 1978–and which came into effect in 1979–ensured some autonomy to the Greenlanders. The Greenlandic home rule authorities took over the competence in respect to environmental protection in 1988, but Denmark remained firmly in control of the mineral resources until 1991 when the Danish Act on Mineral Resources in Greenland established a joint authority between Copenhagen and Nuuk in relation to the extraction of mineral resources.
Under self-government
The Danish Act on Greenlandic Self-Government of 2009 marked a decisive change in the relationship between Denmark and Greenland. The Act ensures that the Greenlandic people have a right to self-determination in nearly all sectors and lays down which competences can be taken over by the Greenlandic authorities. The Act covers some of the overall structure for the Greenlandic sovereignty over mineral resources. Furthermore, the Greenlandic population now has the right under international law to withdraw from the Kingdom of Denmark, if it so desires, when expressed in a referendum in Greenland, subject to approval by the Greenland Parliament and the Danish Parliament.
Currently, the Greenlandic authorities consist of the directly elected Greenland Parliament (Inatsisartut), the Government (Naalakkersuisut) and the Greenlandic courts (with judicial power at the first, second and third levels) (Commission of Greenland's Judicial System, 2004). These courts, which have judicial power in all fields, consist of four Greenlandic district courts (lay judges), the Court of Greenland and the High Court of Greenland. This court system has been described as very weak (The Danish Bar and Law Society, Reference van Doeveren2016)–and it has never been used in cases concerning decisions made by Naalakkersuisut under the Mineral Resources Act. The Danish Parliament (Folketinget) still retains legislative power over the judicial issues, and the administration is handled by Danish authorities. Furthermore, the judges who work in the Court of Greenland and the High Court of Greenland are all from Denmark. The Danish Constitution and some Danish laws still apply to Greenland. One of the consequences of the Constitution is that the Supreme Court in Copenhagen is still the highest court of appeal.
The majority of Greenland's 55,860 citizens are Inuit (Statistics Greenland, 2017), but they refer to themselves as a nation of Greenlanders (Kleist, Reference Kleist and Loukacheva2010, p. 181), and the Government is not an ethnic one but a public one. Still, the Inuit majority is reflected in the composition of Naalakersuisut (Kleist, Reference Kleist and Loukacheva2010, p. 182). Based on the general understanding that Inatsisartut and Naalakkersuisut represent the interests of Greenlanders, the Greenlandic authorities have not deemed it necessary to implement specific regulations or provisions for indigenous peoples in their legislation. The consequence of this position is that, according to the Greenlandic authorities, there is no need for special rights of indigenous peoples in the Greenlandic legislation.
Despite the statement of legal ‘equality’ between Denmark and Greenland in the Danish Act on Greenlandic Self-Government, a non-democratic approach is still at stake in the relationship between Denmark and Greenland, and it is reflected in the Danish Government's use of royal decrees in Greenland. With royal decrees, the Danish Government can put existing Danish legislation into force in Greenland without any public involvement and without taking the Greenlandic context into account (The Danish Institute for Human Rights, 2016, p. 151). An example of this is the Danish Royal Decision on the Environmental Protection of the Marine Area from 2004. It is currently the relevant regulation for the protection of the Greenlandic marine areas beyond three nautical miles from baseline and in the exclusive economic zone.
Moreover, openness, transparency and public participation also remain problematic under the self-government authorities as will be further explained in the final section of this paper. The Inatsisartut Act on Mineral Resources states that the administrative preparation of the decision-making on licensing is divided between the Mineral Licence and Safety Authority (under the Ministry of Mineral Resources) and the Environmental Agency for Mineral Resources Activities (under the Ministry of Nature and Environment), but they do not have the competences to make the final decisions. The Act is based on the ‘one door policy’ approach, as its rules also cover protection of the climate, environmental protection and conservation of nature in decision-making for onshore raw material extraction projects and the projects inside the territorial waters. The ‘one door policy’ means that the preparation of the decisions are made by one overarching institution, the Mineral Licence and Safety Authority (formerly known as BMP, Bureau of Minerals and Petroleum), and that there is no separation–and independence–between environmental and economic issues. Naalakkersuisut has the overall ‘one door administrative’ responsibility as the formal decision-maker on the use of raw materials, energy and water resources, the environmental protection and all other issues of relevance in the raw resources activities. The Mineral Licence and Safety Authority has the competence to act on behalf of Naalakkersuisut, and it is the only body that the operator really needs to deal with through the various stages of the preparation of a project's application, EIA, social impact assessment and impact benefit agreements. The risk of conflicts of interest between the economic interests in the investment and the monopoly competence of Naalakkersuisut in the ‘one door policy’ decision-making system has attracted a lot of criticism and generally damaged public confidence in Greenlandic governance (Aaen, Reference Aaen2012; Nuttall, Reference Nuttall2017, p. 26).
Ensuring that Greenlanders are meaningfully involved in processes that impact decision-making in mineral resources projects remains a challenge (Nuttall, Reference Nuttall2017, p. 40, 50). This situation led the ICC to publish the ICC Declaration on Sovereignty in the Arctic (ICC, 2009) and the ICC Declaration on Resource Development Principles in Inuit Nunaat (ICC, n.d.). The ICC sees itself as a human rights organisation, protecting the Inuit rights in the area of governance of the extraction of mineral resources, but is not ensured any special position in the abovementioned ‘one door policy’ decision-making. Through the voice of its former-Chair Aqqaluk Lynge (Reference Lynge2009), the ICC emphasised a growing gulf between the political discourse of Greenlandic leaders and the social and environmental realities. Lynge invoked the founding texts of international law in this area, starting with the International Convention on the Elimination of All Forms of Racial Discrimination in 1965 and ending with the UNDRIP, in order to hold Naalakkersuisut to its duty to obtain a free agreement from the affected communities concerning all initiatives and projects for development.
The lift of the uranium ban and the relationship of the Greenlandic authorities with the Kingdom of Denmark
Greenland has, in principle, been included in a Danish non-tolerance of nuclear power (Gunter, Reference Gunter2015, p. 433). A ban on the extraction of uranium was agreed between Denmark and Greenland and was passed as a home rule decision in 1988 by the Landstinget, which was the Danish word used for the parliament in Greenland under the home rule. However, the Joint Committee on Minerals in Greenland–which was in power as an advisory body during the home rule period–did not respect this ban when it recommended, in 1989, that licences were granted to different companies (Nuttall, Reference Nuttall2017, p. 43; Thomasen, Reference Thomasen2014). In 2013, Inatsisartut decided to lift the 25-year ban on uranium mining. The decision to lift the ban was based on a parliamentary vote in Greenland, won by a very small majority of only 15 to 14 votes and two absentees. The reports commissioned by Inatsisartut–that were the basis for the discussion in Inatsisartut pro and contra lifting the ban–did not consider or allude to the environmental consequences or potential social impacts of this decision (Nuttall, Reference Nuttall2017, p. 54).
There has been–and still is–considerable opposition amongst Greenlanders to the 2013 decision (McGwin, Reference McGwin2013; Nuttall, Reference Nuttall2017, p. 49). Sara Olsvig, then the opposition leader, highlighted the lack of public consultation on lifting the ban. She argued that this decision was made without free, prior and informed consent, and citizen involvement (Wilson, Reference Wilson2015). She pointed out that the inclusion and participation of indigenous peoples in the environmental management of resource projects on their lands is recognised as a common standard by international law and institutions, and is stipulated in UNDRIP (Nuttall, Reference Nuttall2017, p. 53).
In January 2015, Prime Minister Kielsen announced that Naalakkersuisut, formed after the parliamentary elections of 28 November 2014, would support a controversial uranium mining project in southern Greenland and uphold lifting the ban on uranium zero-tolerance policy (Kielsen, Reference Kielsen2015). Siumut–the political party that he represented–was (and still is) of the opinion that Naalakkersuisut, after lifting the ban, has a legitimate right to act in the public interest when it makes decisions about extraction of uranium as part of Greenland's future (Nuttall, Reference Nuttall2017, p. 54).
The decision on lifting the ban was followed by a discussion between the Danish Government and Naalakkersuisut concerning the competence of the Greenlandic authorities to start the extraction of uranium in Kvanefjeld. During these discussions, Denmark, which is still in charge of defence and security, put forward security as its argument against uranium extraction. Indeed, Greenland has responsibility in fields that exclusively concern Greenland but in the case of uranium, the use of a nuclear product and in particular its trade, may raise national security issues. Furthermore, Denmark is–as a consequence of the Danish Constitution–responsible for the fulfilment of international agreements on uranium security policies. The assessment made by the Danish authorities of the capability of the Greenlandic authorities to handle the special risks connected to extraction of uranium indicated a need for restrictions (Rasmussen, Reference Rasmussen2013, p. 21), in line with the Danish-Greenlandic Agreement of 26 January 2016 on the Special Foreign Affairs, Military and Safeguard Issues related to Extraction and Export of Uranium and other Nuclear Materials in Greenland and the ‘Declaration on Nuclear Safeguard’ connected to the agreement. The agreement builds upon the international treaty obligations of the Kingdom of Denmark, Denmark's EU membership and the Self-Government Act. Denmark respects that the Greenlandic authorities have the full authority over its natural resources in the new common approach and the administrative system to manage and govern uranium production and trade. However, the Danish Ministry of Foreign Affairs is–based on the agreement–responsible for dealing with the European Commission and the IAEA on nuclear safeguards (Vestergaard & Tomasen, Reference Vestergaard and Tomasen2016). The final part of the agreement specifies the obligation for both parties to provide information on all matters of importance to ensure the provision of the Kingdom of Denmark's special foreign–defence and security–interests.
Denmark sees itself as a ‘major Arctic power as well as a small European nation’ (Taksø-Jensen, Reference Taksø-Jensen2016, p. 5). The Danish political position vis-à-vis Greenland, as already mentioned, values the possibility to develop international relations with great powers such as the USA and Russia in the Arctic Council and Arctic costal states meetings while ensuring that its relations with Greenland are consistent with its positioning on the international scene as an ‘altruist state’ (Gad, Reference Gad2017). On this basis, Denmark engages in cooperation frameworks, but also in sovereignty issues with great powers–now together with the Greenlandic authorities.
The Greenlandic approach to openness, transparency and public participation
Preparation of the EIA for the extraction of REEs and uranium, and its non-communication to the public
To assess the position of the Greenlandic authorities on the issue of openness/transparency and public participation, this section mainly focuses on the Greenlandic rules on access to information, public participation in EIAs and access to justice as included in the Greenlandic Mineral Resources Act and in the old Home Rule Act on Public Access to Documents in the Administrative Files. This analysis is made in light of the international standards laid down in several environmental and human rights declarations and conventions described in the first section.
The Kvanefjeld project is financed by foreign mining companies, including Greenland Minerals and Energy Ltd (GMEL) from Australia and Shenghe Resources from China. GMEL has been developing the project in the Kvanefjeld since 2007. The extraction of REEs has to include uranium as it is bound to the REEs. REE and uranium extraction does not have an inherent strategic value for Denmark (Rasmussen, Reference Rasmussen2013) – although REEs have strategic value for the EU (Pelaudeix, Reference Pelaudeix, Heininen, Exner-Pirot and Plouffe2015a).
In October 2015, in accordance with Part 15 of the Inatsisartut Act on Mineral Resources, GMEL–as part of the preparation of the application for an exploitation licence on extraction of REEs and uranium at the Kvanefjeld site–presented a draft EIA to the Greenlandic authorities. Based on information published in January 2017, the application, along with the EIA, for the proposed project will now be assessed by the Greenlandic authorities and their consultants, the Danish Centre for Environment and Energy (DCE) and the Greenland Institute of Natural Resources (GINR) (Hansen et al., Reference Hansen, Søndergaard, Asmund, Aastrup, Gustavson, Garcia and Larsen2016, p. 16). However, a GMEL press release on 14 March 2017 stated that the company is currently working on updating its reports following detailed reviews by Naalakkersuisut and its advisory groups made in 2016.
As discussed in the next subsection, these reports and comments have not been made public, despite a number of concerns amongst Greenlanders regarding the extraction project at Kvanefjeld. The concerns raised include the risk of environmental degradation, impacts on land and harvesting, the influence of foreign capital and labour on the social environment, as well as the safety and health issues related to uranium mining (Oneal, Reference Oneal2017).
The environmental aspects and health hazards resulting from the proposed uranium project have been described in a scientific report–the Leeuwen report (Leeuwen, Reference Leeuwen2017). This report was commissioned and made public by several NGOs (NOAH, 2017). The Leeuwen report is based on the information included in the abovementioned draft EIA from October 2015. It underscores several points of concern, highlighting insufficient clarity in information related to, for example, identification of the chemicals used in the mining process and the potential negative environmental impacts and health effects associated with the storage of toxic tailing waste in a lake located on the slope of a mountain. The report also questions the clarity of issues related to responsibilities and liabilities.
Access for the public to environmental information in Greenland
Under the Greenlandic Home Rule Act on Public Access to Documents in the Administrative Files (1994), which is still in force, everybody has a right to ask for access to the documents in administrative cases if they can indicate the identity of the case in question. However, there are exceptions, for example, where the information relates to private or public interests that need to be protected. When the Ministry of Mineral Resources, which is responsible for licence administration, and technical and geological matters under the Mineral Resources Act, receives a request for access to public files, the Ministry and its agencies have to assess both the public interest in the access to the files and the public or private interests in non-transparency, and it has to weight such interests against each other.
There is currently a conflict concerning the interpretation of the abovementioned rules on access to public files in the governance of the uranium mining project: GMEL's interest in non-transparency and the public interest in the draft EIA. In October 2016, the Greenlandic Environmental Agency, which works in close collaboration with the Mineral Licence and Safety Authority without any formal competence in the licensing process under the Inatsisartut Mineral Resources Act, released the draft EIA to a Danish journalist working for Danish television. It is clear from letters between GMEL and the Greenlandic authorities that this release was not accepted by GMEL (Environmental Agency for Mineral Resource Activities, 2016; GMEL, 2016; Naalakkersuisut, 2017). GMEL strenuously objected to the release, arguing that the documents are not final and that GMEL has the property rights to these draft documents. In its letter to the Greenlandic Environmental Agency, GMEL states that the premature release of the draft documents to any third party undermines the integrity of the licensing process and unfairly exposes GMEL to commercial risks (GMEL, 2016). GMEL's letter was passed to Naalakkersuisut, which, in a letter of 2 December 2016 (Ministry of Independence, Nature Environment and Agriculture, 2016), stated that it considered the letter from GMEL to be a complaint against the decision of the Greenlandic Environmental Agency to grant access to the documents (Environmental Agency for Mineral Resource Activities, 2016). Naalakkersuisut–as the appeal body–started an evaluation of the decision. On the 1 March 2017 it made its final decision regarding the journalist's access to the draft EIA report (Naalakkersuisut, 2017). In a letter to GMEL, referencing several sections of the Act on Public Access to Documents in the Administrative Files, Naalakkersuisut states that there are no grounds for allowing the public access to the draft EIA. It is highlighted in the letter that the rules on access to public files were not properly understood and interpreted by the Environmental Agency. With reference to the Standard Terms–administrative guidelines set by Naalakkersuisut pursuant to the Act on Mineral Resources–it is the understanding of Naalakkersuisut that these standards impose an obligation on the Greenlandic authorities to maintain secrecy for a period of five years from the date of receipt of the report from GMEL. Without respect for the legal hierarchy that exists between an act and non-binding administrative guidelines and without any basis in the wording of the Greenlandic Home Rule Act on Public Access to Documents in the Administrative Files, the final decision of Naalakkersuisut was to deny the request for access to the draft EIA. Naalakkersuisut suspended the previously accepted access. This denial of public access to the draft EIA is an example of the problems related to transparency in the Greenlandic administration of its mineral resources.
This denial of public access to the files is neither in harmony with the referenced Act on Public Access to Documents that is in place to ensure the rights of the public to access files nor with the rules, goals and ambitions on access to environmental information under the Aarhus Convention. The convention very clearly establishes that in situations where the information relates to ‘emissions’ the national authorities may never refuse a request for access. Several aspects related to the draft EIA received by the Greenlandic authorities in the case described are related to information on emissions. Furthermore, the convention states that the grounds for refusal of access to other information (other than information on emissions) should be interpreted in a restrictive way: in every case for access to such information, ‘the public interest test’, that has to be respected, ensures a higher priority to the public interest in the disclosure of the information by weighing such interest against the interest in refusal of the access.
Participation of the ‘public concerned’ in the decision-making process
The Inatsisartut Mineral Resources Act includes rules on public participation and public hearing. The rules on EIAs and social impact assessments (known as ‘social sustainability assessments’ or SSAs)–including rules on the consultation with affected groups and the wider public–are described in Parts 15 and 16 of the Act. The objectives of these rules are to engage all relevant stakeholders in consultations and public hearings, to provide detailed descriptions and analyses of the environmental consequences in the EIA and the social pre-project baseline situation in the SSA. However, the Greenlandic rules on EIAs are strictly limited to environmental impacts, and only some of the environmental consequences are assessed. Furthermore, obligations for the presentation of the consequences of alternative project development strategies and long-term implications are very limited. No binding administrative statutory rules exist regarding the manner in which the EIA and SSA have to be made, or the manner in which the public should be involved (see Naalakkersuisut, 2009). The responsibility of the public hearing for the EIA lies with Naalakkersuisut, while the responsibility for the SSA lies with the operator as SSAs are not mandatory. It is at the Naalakkersuisut's discretion whether the proposed project will have a ‘significant impact’ and therefore require an SSA. Previous public consultation processes for mining projects have lacked any meaningful consultation (Nuttall, Reference Nuttall2012, p. 28).
The local communities and NGOs–including the ICC–are not stopping their protests against the extraction of uranium. They highlight the inadequacy of the regulatory process currently in place. The lack of an effective mechanism for public participation was the driving force behind a 2013 Inatsisartut vote and a consequent amendment of the Mineral Resources Act in 2014. The amendment involved the addition of Part 18a that mandates the requirement of a pre-hearing process for a project before the content of the EIA and SSA are developed. The purpose of the new rule was to clarify the framework for how and when the public is given the opportunity to express views on a proposed project (Sandroos, Reference Sandroos2015, p. 307). However, Transparency International Greenland made critical comments on these new rules, stating in a letter dated 22 January 2014 that the rules are neither in harmony with ILO Convention 169, nor in harmony with the Rio Declaration or the Council of Europe Code of Good Practice for Civil Participation in Decision-making Process–rules and guidelines that are relevant in Greenland. The NGO also mentioned that Article 8 (j) of the Convention on Biological Diversity–that is ratified by Denmark without reservation for Greenland–makes it mandatory for Naalakkersuisut to respect, preserve and maintain knowledge, innovations and practices of indigenous and local communities embodying traditional lifestyles relevant for the conservation and sustainable use of biological diversity. These comments were not considered in the drafting of the rules for Part 18a of the Mineral Resources Act.
The consultation has not started yet but Naalakersuisut and GMEL made it clear that they are not in favor of an open and transparent process. The EIA and the comments on the draft EIA from Naalakkersuisut and its consulting groups are currently considered to be confidential and therefore protected from public access.
Access to justice
As far as the third pillar of the Aarhus Convention is concerned–access to justice–there is no administrative appeal system (recourse system) in Greenland, as Naalakkersuisut is both the first instance and the appeal body under the Inatsisartut Mineral Resources Act. Through this Act, a licence may also stipulate that a dispute between Naalakkersuisut and the licencee must be brought before an arbitration body, and the body's decision is final. Such an arbitration process is non-transparent, as its decision-making does not involve public participation. The content of the agreement (the licence) is also covered by confidentiality.
Another problem related to access to justice is the approach to ‘standing’. The question on standing is regulated both in Greenland and Denmark by unwritten principles. It is a requirement under the judicial systems that the person who brings the case to the courts must demonstrate that he/she is one of the individuals with relevant interests that are protected by this Act, and that these interests have been affected by the decision (that the plaintiff brings to the court) in a manner that is significant as compared to other citizens. The starting point in Denmark is that delimitation of the right of standing is the same as the delimitation for the right of complaint, and NGOs are ensured such rights of complaints in Danish environmental acts. (Basse, Reference Basse2015, p. 446, 454). As already stated, there is no right of complaint within the Greenlandic Mineral Resources Act. Therefore, the difference between the situations in Greenland and Denmark is that the Danish court ensures standing for the NGOs that have their rights of complaint but, which is not possible in Greenland.
Discussion
The implementation of the principles of openness, transparency and public participation in Greenland appears limited in the context of uranium mining. The implementation of these principles is constrained by various factors linked to both legal and political contexts. However, other factors, such as physical and cultural constraints, should not be underestimated. It is obvious that physical, for example geographical, constraints in Greenland limit the capacity to involve the public in consultation processes for extractive projects–Greenland is the world's biggest island with an area of 2.2 million km2 and 85% of the island is covered with ice; the small population is scattered along the coast with great distances between isolated communities. Often, more distant communities, if consulted at all, are only consulted once. Limited capacity building and small population, in a country with a high turn-over of civil servants–generally non-Greenlanders that are newly graduated lawyers or economists educated in Denmark (Kleist, Reference Kleist and Loukacheva2010, p. 175)–also hamper the process of adaptation of institutional settings and legislative reforms. The specific cultural context in Greenland also impacts the consultation processes. In addition to various interests and cultural differences between stakeholders, a clan culture also constitutes an impediment to full participation of the public (Olsen & Hansen, Reference Olsen and Hansen2014). The lack of public participation has been related to complexities in the implementation pertaining to cultural barriers between stakeholders and to challenges of specific power relations in the Inuit culture constraining public participation (Olsen & Hansen, Reference Olsen and Hansen2014). This lack of engagement in the public debate is also related to a cultural tradition to ‘mind one's own business’ (Lynge, Reference Lynge2003).
As critical as these geographical and cultural factors might be in explaining the lack of openness, public participation and transparency in decision-making regarding uranium mining, of major importance are conjunctural administrative, legal and political aspects. First, the status and mandate of administrative structures within Naalakkersuisut and the administration of the mineral resources is not always clear or transparent. The ‘one door policy’ approach of licensing does not hedge against conflicts of interests and the appeal system–according to which Naalakkersuisut is both the first instance and the appeal body– is both illogical (as it is put in a position of being both the body under assessment and the assessing administrative recourse body) and not transparent. Second, the legal framework does not allow proper access to information, public participation, consultation or access to justice. Mineral resources legislation is not compatible with international standards–this is the case of the procedural rules for EIAs and SSAs: the access to information is not based on openness, and there are neither binding statutory rules for the content of the EIAs documents and processes nor for the content of the SSAs documents and processes. In addition, the EIA process does not appear to recognise cultural contexts and often information is primarily distributed in English or Danish (Hubbard, Reference Hubbard2014), not in the official Greenlandic language ‘Kalaallisut’. The current processes for EIAs and SSAs are characterised by asymmetries of power between the interests of global-oriented elites and local communities that want to ensure human–environmental relations. The processes downplay the possibility of looking at the environmental and social impacts from an Inuit perspective (Nuttall, Reference Nuttall2017, p. 59, 78). Another example of the weakness of the legal framework is the provisions on standing, for example, for NGOs and ICC, which are also not in line with international standards. Acknowledging both administrative and legal problems, the Human Rights Council of Greenland and the Danish Institute for Human Rights recommended in 2016 that the Greenlandic authorities change the system through the inclusion of two measures: (1) clarify the status and mandate of administrative structures within Naalakkersuisut and (2) establish a transparent administrative complaints structure with effective access to a complaints mechanism (Danish Institute of Human Rights, 2016; Inuit Pisinnaatitaaffinut Kalaallit Nunaata Siunnersuisoqatigiivi, 2016). Such measures might not be the be-all and end-all of an issue interweaving political and legal aspects, but they could represent a step towards improved good governance.
Third, in some circumstances the role of Naalakkersuisut in the decision-making process for uranium mining appears to have disproportionate weight with regards democracy, but in others its role is remarkably modest. The first case relates to the role that Naalakkersuisut deems it has in representing the interest of the Greenlandic population. After lifting the ban on the extraction of uranium Naalakkersuisut considers itself to have a legitimate right to act in the public interest when it makes decisions about uranium mining as part of Greenland's future (Nuttall, Reference Nuttall2017, p. 54). It also has a prominent role in justice matters, as shown in its interpretation of the Act on Access to Documents in Administrative Files in the GMEL case. In contrast, Naalakkersuisut's actions have been rather modest when it comes to regulation. It has neither shown a strong commitment to secure public participation nor has it been proactive in remedying the power asymmetries between its position in relation to industry and the lack of information for the public. Finally, the co-existence of various legal and political orders in Greenland also represents a constraint weighing on the implementation of the principles of public participation and consultation processes. The various legal-political orders in Greenland now include: (1) to a limited extent, the indigenous legal order, which is not necessarily monolithic, and which is made up of social norms and which relies on a community-based control, (2) the existing Danish legal order in all the sectors not taken over by the self-government, and (3) the self-rule legal order, which borrows some features both from the Inuit culture with no property rights to real estates and a decision-making process determined partly by family or small group dependency and partly by a former colonial order (Pelaudeix, Reference Pelaudeix2015b).
The political, administrative and legal contexts, which bring light to the lack of openness, public participation and transparency in decision-making regarding uranium mining, can themselves be explained by the Greenlandic political agenda of reaching full sovereignty. Public policies, such as in the energy sector, and regulation, for example, regarding economic incentive, environment protection and public participation, can indeed be significantly correlated (Pelaudeix, Reference Pelaudeix, Pelaudeix and Basse2017). In the case of Greenland, sovereignty games are structuring much of the political debate and are reflected in law (Gad, Reference Gad2017, p. 22). Indeed, the political agenda of acceding to independence and being a sovereign state is now a paramount objective of Naalakkersuisut's policy and is reflected in the creation of a Ministry for Independence in 2016 (Nuttall, Reference Nuttall2017). As envisaged by the Greenlandic authorities, future political Greenlandic independence and sovereignty imply economic self-sufficiency to maintain a standard of living. Currently, the Greenlandic economy remains dependent of the Danish annual block grant, which covers almost 60% of the Greenlandic budget (Nuttall, Reference Nuttall2017, p. 13). Therefore, the economic agenda in Greenland has two main goals: (1) to ensure a balanced self-governed economy during the decades ahead, whereas public spending is expected to increasingly exceed revenues in the years to come (Naalakkersuisut, 2014), and (2) to achieve a self-sufficient economy that is independent of subsidies from Denmark or other countries. Such an objective relies on resource development (Explanatory notes to the Act on Greenland Self-Government, 2009). The potential benefits from the extractive industry will–according to the Self-Governmental Act–be progressively deduced from the annual Danish block grant. While Greenland's potential deposits of uranium are projected to vault it into a leading position worldwide (Hubbard, Reference Hubbard2014), the extractive activities require massive external investments from private companies. Therefore, the Greenlandic authorities have invested in significant diplomatic efforts and legislative reforms to facilitate the development of extractive industries (Mortensen, Reference Mortensen2013). These reforms contribute to create an attractive investment environment for corporations in smoothing the licensing process; indeed, in a competitive international market, the main challenge for Greenland is to attract investment (J.-E. Kirkegaard, Greenlandic Minister of Industry and Mineral Resources, personal communication, 19 June 2014).
Conclusions
Manoeuvring with openness, public participation and transparency for sovereignty purposes is not new in the history of Greenland. The aims to maintain sovereignty (Danish sovereignty over Greenland through relocation processes or the 1953 referendum procedures) and to accede to it (Greenland sovereignty over Greenland through economic self-sufficiency) have led to maneuvers with openness, public participation and transparency. After the establishment of the self-governmental regulatory system, Greenlandic legislation and the functioning of governmental institutions have not, as demonstrated in the uranium mining case, permitted proper public consultation; indeed, Greenland is determined to design its future and so far, this objective has resulted in support to fast development of extractive industries, including uranium. Yet, in addition to provisions embedded in human rights, there are environmental instruments–including several relevant legal instruments with procedural recommendations, for example, the ILO Convention 169, the Espoo Convention and the Aarhus Convention– available that could ease the process of implementation of the principles of openness, transparency and participation in the governance of uranium mining in Greenland.
For now, public access to files related to the uranium mining in Kvanefjeld has been denied based on arguments for confidentiality that are not supported by the Act on Public Access to Documents in the Administrative Files. The decision to deny public access was based on non-legally binding administrative guidelines that are below parliamentary acts in the legal hierarchy. The argumentation is thus in conflict with the principle of legality. The consequence of Naalakkersuisut's decision of 1 March 2017 indicates that timely public participation and consultation in this decision-making processes is not ensured. Such involvement is only accepted very late in the decision-making process. Therefore, the opportunity for the public to voice their concerns will have little real bearing.
This lack of openness/transparency and participation appears to be counterproductive in terms of efficiency and legitimacy. From an economic perspective, the uranium mining could increase the probability of economic self-sufficiency, but the lack of compliance with the international standards on procedural rights may have consequences for predicting public reaction in the future. These governance issues are important for the mining companies’ assessments of the potential for natural resource extraction. Even though in terms of geopolitical security Greenland is still attractive because its democratic foundations offer more reliability than suppliers from authoritarian regimes, many investors are currently reluctant to invest in Greenland (Rosing, Reference Rosing2014, p. 31). The Fraser Institute's 2016 survey–an index that weighted the governance quality at 40% and the mineral potential at 60%–indicates the importance of compliance with international standards. Greenland had––the greatest decrease relative to 2015 in both score and rank in the Arctic region (Jackson & Green, Reference Jackson and Green2017). The fall of Greenland in the hierarchy reflects respondent ratings of its taxation regime, labour regulations and political stability (Jackson & Green, Reference Jackson and Green2017, p. 45).
From an internal political perspective, it is not clear if prioritising industrial development at the expense of openness/transparency and participation will help support a political agenda for independence. Extraction projects are planned in the absence of a debate of what an independent Greenlandic society could be in the future (Gad, Reference Gad2017, p. 124). As stated by Kuupik Kleist (ICC Alaska, 2011) when he was premier of Greenland, the decisions ahead will come at a price.
Economic, social and political realities make it imperative that Inuit develop a clear position on resource development [. . .] If Inuit want greater political and economic freedom, then the paramount question we must ask ourselves is, what price are we prepared to pay? (ICC Alaska, 2011, p. 3).
Balancing the risks and gains of industrial activities, and in particular uranium mining, requires a public governance vision, as well as informed participation of the public concerned. Greenland, on its way towards independence, is facing complex social, cultural and economic challenges in a rapidly changing Arctic, whereas openness, transparency and public participation in the Greenlandic governance of uranium mining and the development of a new area of public and institutional legitimacy are still at an early stage. The current public access policies denote a tension between the democratic requirement of legitimacy and the political goal of achieving full sovereignty in Greenland. Since unresolved tension ultimately has consequences on economic efficiency and political legitimacy, openness, transparency and public participation might be considered as a priority in Greenland's public policy.
