A commentary on “Part 4: Minerals have rights”
When Donna Beneteau asked if I could be a potential contributor to this article (one night at the start of a CIM event), I believe I said the premise — that mineral deposits could be granted legal personhood, was both intriguing and complex, and that I would be happy to investigate the matter. Further review of the article and others around the topic of extending legal personhood further into the natural world (i.e., beyond rivers, glaciers, and waves) has confirmed my initial reaction.
Downing and Beneteau propose that mineral deposits be granted legal recognition and the special status of personhood. Legal personhood has roots in Roman and English law and has evolved over time and is a foundation of “Western law.” At least one author (Ripkin 2019) has described the power to make and define a legal person as perhaps the most powerful act of law. For her, a legal person is the subject of legal rights and duties and only those who are legally recognized as persons have the capacity to participate in legal relations. She notes that legal personhood has never been a self-evident classification that applies only to living human beings, with one’s status as a human being neither necessary nor sufficient to be a person in the eyes of the law. Non-human organizational entities are treated as legal persons for some purposes, while human beings like infants and mentally impaired individuals are not regarded as full-fledged legal persons for other purposes. The question of legal personhood has been the subject of legal cases involving natural persons (e.g., slavery, women) and artificial persons (e.g., corporations). In corporate law, cases have influenced the degree to which corporations may be found liable, how they may be regulated, whether they are beholding to shareholders or stakeholders, and even political contributions (in the U.S.). It is a question still being debated today, in context of both nature (as noted by the authors) and artificial intelligence (AI).
When first approached, I assumed the reason for exploring the question was a defensive one, raised in response to the rights of nature and environmental personhood being sought to protect natural values from resource development activities, including mining. I took this to be a reasonable basis as some would say that legal personhood is being utilized to challenge the current governance systems for natural resource development and increasingly influence the political agenda around development. However, the argument advanced instead is that mineral deposits should be recognized for their intrinsic right to be mined and practical right to be processed to provide sustenance to mankind. Why? Because minerals form the foundation of all sustainable life and are essential to human existence.
Both individual and intrinsic reasons are also apparent in the case of Rights of Nature and AI legal personhood. For instance, Rights of Nature and environmental personhood can be seen as motivated by the ultimate value of nature or some natural entities, but it can also be seen as a tool for preserving some natural entities for future human generations. The rights of nature are said to encompass “the right to exist, persist, maintain, and regenerate its vital life cycle” for all forms of life in nature.
In a law review article from 2021, entitled “Constructing legal personhood: corporate law’s legacy,” Worthington and Spender aimed to sound a warning in confirming legal personality upon new categories of non-human persons such as natural systems (e.g., rivers) or algorithmic systems (e.g., AI). They cautioned that “emerging enthusiasm for new forms of legal personality must be tempered by an understanding of the risks that inhere in the development and activation of legal persons.”
This caution has raised the following questions with respect to operationalizing this concept for mining and minerals:
- What could be the added value of seeking legal personhood for mineral deposits?
- What legal pathway would be followed to grant personhood (I am not aware of any country that has established a systematic process that would allow private individuals or groups to apply for the registration of a particular natural entity as a legal person, even while this is possible for the establishment of companies, charities, and other non-human entities)?
- Technically, when could/should/would personhood be recognized? At staking? At discovery? When a reserve is delineated?
- How would rights associated with personhood be effectively implemented and upheld? For example, would the deposit have the right to define and enforce contracts for its development?
- Which human representative would advocate for the right of the deposit or mineral? How would counter claims making be addressed (e.g., over what is the best interest of the deposit)? Could a deposit oppose a new public policy?
There will also be questions for governments and companies.
Under common law tradition, minerals rights belong to the crown (the government), and in Canada, the provinces, as both fee simple owner of Crown lands and due to mineral reservations from historic Crown grants. How would companies, who have traditionally acquired rights to minerals from governments, acquire development rights from a deposit as a private legal person? Would companies have or own obligations to deposits where legal personhood has been expanded (the authors suggest this could be a positive obligation for the deposit)? Could a deposit own shares in a private company and how might their interests be represented on that company’s board? What happens when the private property rights of corporations clash with rights of the deposit? How would human representatives who exercise discretion on behalf of a deposit be held accountable if they make decisions which may be considered short-sighted, self-serving, or even fraudulent?
In reviewing the recent article by Downing and Beneteau, I appreciate them for bringing forward the fact that emerging categories of legal personhood (e.g., for rivers, glaciers, and waves) have upset traditional boundaries of legal personhood. Asking whether such legal status could/should be extended to mineral deposits brings our sector into the debate underway as scholars, activists, and policymakers debate the legal personhood of animals, ecosystems, and AI systems. As recognized, the Rights of Nature movement — demanding that nature or some parts of nature be given rights or legal personhood — has been quite successful in some parts of the world (though this success has been place-based and not sectoral). This success could either present a challenge to the mining and minerals industry or provide an avenue for a new way to support sustainable mineral development. When presenting the case of the conferral of legal personality on the Whanganui River in New Zealand as an exemplar, Worthington and Spender conclude that:
“However, consistent with our view that legal personality is best described as designated legal processes or functions, the new institutional framework developed by the Whanganui River Act changes the way in which decisions will be made about the environment. As expressed by Sanders, the grant of legal personality provides a forum for disagreement and compromise and the opportunity for relationships between peoples, land, and authority to be reframed. The legal person will therefore evolve over time — perhaps iteratively — with the development of further explicit and implicit conditions.”
I am unsure if minerals deposits should become legal persons, or remain legal nonpersons, things, or objects without rights. I tend, however, to think that moral and practical reasons are not necessarily legal reasons. In other words, the practical reasons for mining a deposit (i.e., to provide the minerals needed for life) does not necessarily mean that a deposit should, practically, be treated as a legal person.
On the matter of could they, one set of authors proposed a set of three questions for AI that could pertain to legal personhood for mineral deposits: “(1) Under what conditions is an entity considered a person in law (trigger conditions)? (2) What consequences follow from having personality (legal implications)? (3) What set of facts explains/justifies why the trigger conditions activate the legal justifications (background reasons)?”
I do not have or offer answers to these questions but still do find them intriguing. And complex too. 
Al Shpyth is the soon to be retired executive director of the International Minerals Innovation Institute (IMII). He has master’s degrees in environmental studies (York University) and in environmental law and policy (Vermont Law School). The views and opinions expressed in this commentary are his, and do not represent the views of the IMII or its members.
