4 December 2018
By Ivana Figuli, Via Iuris
In October 2018, a Slovak regional court ruled that a mining company did not qualify for a permit to mine gold, putting a temporary end to a project that raised serious environmental concerns.
Since 2011 VIA IURIS has been providing legal aid to the civil society association Podpoľanie nad zlato, an association founded by local communities in order to impede the construction of a gold mine close to Detva town (region of Central Slovakia).
The request for a gold mining permit at Biely vrch close to Detva town was filed by the Cypriot company East Mediterranean Resources Ltd. The mining was planned to be realized by the open surface method, and the gold would be further extracted from the raw material by a method of cyanide leaching. This method of gold mining was rejected by the European Parliament given that cyanide is a highly toxic chemical and is one of the main pollutants under the Water Framework Directive. Cyanide can have catastrophic and irreversible effects on human health, on the environment and as well as on biodiversity.
Podpoľanie nad zlato had serious concerns about the planned mining and so they wanted to participate in the administrative procedure regarding designation of the mining area. The administrative mining authority refused to grant standing to the association because the Mining Act No. 44/1988 does not regulate public participation in this procedure.
The administrative decision refusing legal standing of Podpoľanie nad zlato was challenged before the court with legal help from VIA IURIS.
The plaintiff claimed that public participation in the procedure on designation of the mining area is regulated not only by specific mining legislation but also by the General Administrative Procedure Act. The fundamental principle is that national legislation must be applied in accordance with the Aarhus Convention.
The Court stated that the Aarhus Convention is an international treaty which takes precedence over national legislation, though it has no direct effect. Therefore, the national legislation shall be applied in compliance with the Aarhus Convention in order to achieve the aims set out in environmental legislation. Moreover, regulation on filing an appeal in administrative procedures must be interpreted in accordance with Article 9(3) of the Aarhus Convention in order to enable environmental organisation to judicially challenge any administrative decision.
So, with the help of VIA IURIS and thanks to Aarhus Convention Podpoľanie nad zlato succeeded in being recognized as a party to this procedure pursuant to the Mining Act.
After massive civil protests, the Cypriot company gave up its intention to obtain permits to extract the gold, but its legal successors (MNG Slovakia Ltd., BPP House Ltd., A1 RE Ltd., and finally Mining Gold Ltd.) continued in the initiated administrative proceedings.
In 2017 the mining authorities refused to deal with the legal successor of East Mediterranean Resources Ltd. – Mining Gold Ltd. as the party to proceedings and issued a decision to terminate the proceedings on the grounds that the legal successors of the original applicant did not qualify for a mining permit. The administrative mining authorities argued that not all of the legal successors of the Cypriot company possessed a mining licence for all phases of the administrative procedure, which is a condition sine qua non of the administrative procedure on designation of the mining area. So the mining authority stopped the proceeding and this decision was challenged before the court by the Mining Gold Ltd.
In October 2018, the District Court in Banská Bystrica dismissed this action and confirmed that Mining Gold Ltd, as a legal successor of the original applicant, does not have the standing of a party in the proceedings pursuant to the Mining Act. The court found that administrative proceedings on designation of the mining area is strictly linked to the entity possessing the mining licence which cannot be passed to another entity. If the legal successors of the initial mining company wanted to be party to the proceeding on the designation of the mining area, they need to initiate new proceedings with their own mining licence.
Thanks to legal standing of the Podpoľanie nad zlato in the administrative procedure, the association also had legal standing in the procedure before the District Court of Banská Bystrica and could bring its arguments against the recognition of Mining Gold Ltd. as a party to the proceeding and thus effectively defend its rights.
This Regional court´s decision may still be challenged in cassation before the Supreme Court of the Slovak Republic by the mining company.
Access to Justice is a fundamental means through which citizens and NGOs can support the implementation and enforcement of laws and policies to protect the environment. The goal of this ATOJ-EARL project is to achieve “Access to Justice for a Greener Europe”. It strives to enhance access to justice in environmental matters by providing information, training and support for the judiciary, public authorities and lawyers of eight European member states. ClientEarth and Justice and Environment are implementing this project with the financial support of the European Commission’s LIFE instrument.