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CCPR/C/52/D/511/1992
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Communication
No 511/1992 : Finland. 08/11/94.
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CCPR/C/52/D/511/1992.
(Jurisprudence) |
Convention Abbreviation: CCPR
Human Rights
Committee
Fifty-second session
ANNEX
Views of the
Human Rights Committee under article 5, paragraph 4,
of the
Optional Protocol to the International Covenant on Civil
and
Political Rights
- Fifty-second
session -
Communication No. 511/1992
Submitted by: Ilmari Länsman et al.
[represented by counsel]
Victims: The
authors
State party: Finland
Date of communication: 11 June 1992 (initial submission)
Date of decision on admissibility: 14 October 1993
The Human Rights Committee, established under article 28 of the International Covenant on Civil
and Political Rights,
Meeting on
26 October 1994,
Having concluded its consideration of communication No. 511/1992 submitted to the Human
Rights Committee by Ilmari Länsman et al. under the Optional Protocol to
the International Covenant on Civil and Political Rights,
Having taken into account all written information made available to it by the authors of the
communication, their counsel and the State party,
Adopts its
Views under article 5, paragraph 4, of the Optional Protocol.
1. The authors of the communication are
Ilmari Länsman and forty-seven other members of the Muotkatunturi Herdsmen's
Committee and members of the Angeli local community. They claim to be the
victims of a violation by Finland of article 27 of the International Covenant
on Civil and Political Rights. They are represented by counsel.
The facts as presented by the authors:
2.1 The authors are all reindeer breeders
of Sami ethnic origin from the area of Angeli and Inari; they challenge the
decision of the Central Forestry Board to pass a contract with a private
company, Arktinen Kivi Oy (Arctic Stone Company) in 1989, which would allow the
quarrying of stone in an area covering ten hectares on the flank of the
mountain Etela-Riutusvaara. Under the terms of the initial contract, this
activity would be authorized until 1993.
2.2 The members of the Muotkatunturi
Herdsmen's Committee occupy an area ranging from the Norwegian border in the
West, to Kaamanen in the East, comprising both sides on the road between Inari
and Angeli, a territory traditionally owned by them. The area is officially
administered by the Central Forestry Board. For reindeer herding purposes,
special pens and fences, designed for example to direct the reindeers to
particular pastures or locations, have been built around the village of Angeli.
The authors point out that the question of ownership of lands traditionally
used by the Samis is disputed between the Government and the Sami community.
2.3 The authors contend that the contract
signed between the Arctic Stone Company and the Central Forestry Board would
not only allow the company to extract stone but also to transport it right
through the complex system of reindeer fences to the Angeli-Inari road. They
note that in January of 1990, the company was granted a permit by the Inari
municipal authorities for the extraction of some 5,000 cubic metres of building
stone, and that it obtained a grant from the Ministry of Trade and Industry for
this very purpose.
2.4 The authors admit that until now, only
some limited test-quarrying has been carried out; by September 1992, some
100,000 kilograms of stone (approximately 30 cubic metres) had been extracted.
The authors concede that the economic value of the special type of stone
concerned, anorthocite, is considerable, since it may replace marble in, above
all, representative public buildings, given that it is more resistant to
air-borne pollution.
2.5 The authors affirm that the village of
Angeli is the only remaining area in Finland with a homogenous and solid Sami
population. The quarrying and transport of anorthocite would disturb their
reindeer herding activities and the complex system of reindeer fences determined
by the natural environment. They add that the transport of the stone would run
next to a modern slaughterhouse already under construction, where all reindeer
slaughtering must be carried out as of 1994, so as to meet strict export
standards.
2.6 Furthermore, the authors observe that
the site of the quarry, mount Etelä-Riutusvaara, is a sacred place of the old
Sami religion, where in old times reindeer were slaughtered, although the Samis
now inhabiting the area are not known to have followed these traditional
practices for several decades.
2.7 As to the requirement of exhaustion of
domestic remedies, the authors point out that 67 members of the Angeli local
community appealed, without success, against the quarrying permit to the
Lapland Provincial Administrative Board as well as to the Supreme
Administrative Court It should be noted that not all of the
authors of the communication before the Committee appealed to the Supreme
Court., where they specifically invoked article 27 of the Covenant. On 16 April
1992, the Supreme Administrative Court dismissed the appeal without addressing
the alleged violations of the Covenant. According to the authors, no further
domestic remedies are available.
2.8 Finally, at the time of submission of
the communication in June 1992, the authors, fearing that further quarrying is
imminent, requested the adoption of interim measures of protection, under rule
86 of the Committee's rules of procedure, so as to avoid irreparable damage.
The complaint:
3.1 The authors affirm that the quarrying
of stone on the flank of the Etelä-Riutusvaara mountain and its transportation
through their reindeer herding territory would violate their rights under
article 27 of the Covenant, in particular their right to enjoy their own
culture, which has traditionally been and remains essentially based on reindeer
husbandry.
3.2 In support of their contention of a
violation of article 27, the authors refer to the Views adopted by the
Committee in the cases of Ivan Kitok (No. 197/1985) and B. Ominayak
and members of the Lubicon Lake Band v. Canada (No. 167/1984), as well as
to ILO Convention No.169 concerning the rights of indigenous and tribal people
in independent countries.
The State party's information and
observations and counsel's comments thereon:
4.1 The State party confirms that
quarrying of stone in the area claimed by the authors was made possible by a
permit granted by the Angeli Municipal Board on 8 January 1990. Pursuant to Act
No. 555/1981 on extractable land resources, this permit was at the basis of a
contract passed between the Central Forestry Board and a private company, which
is valid until 31 December 1993.
4.2 The State party opines that those
communicants to the Committee who, in the matter under consideration, have
applied both to the Lapland Provincial Administrative Board and to the
Supreme Administrative Court have exhausted all available domestic remedies. As
the number of individuals who appealed to the Supreme Administrative Court is
however lower than the number of those who filed a complaint with the
Committee, the State party considers the communication inadmissible on the
ground of non-exhaustion of domestic remedies in respect of those authors who
were not a party to the case before the Supreme Administrative Court.
4.3 The State party concedes that
"extraordinary appeals" against the decision of the Supreme
Administrative Court would have no prospect of success, and that there are no
other impediments, on procedural grounds, to the admissibility of the communication.
On the other hand, it submits that the authors' request for the adoption of
interim measures of protection was "clearly premature", as only test
quarrying on the contested site has been carried out.
5.1 In his comments, counsel rejects the
State party's argument that those authors who did not personally sign the
appeal to the Supreme Administrative Court failed to exhaust available domestic
remedies. He argues that "[a]ll the signatories of domestic appeals and
the communication have invoked the same grounds, both on the domestic level and
before the Human Rights Committee. The number and identity of signatories was
of no relevance for the outcome of the Supreme Court judgment, since the legal
matter was the same for all the signatories of the communication...".
5.2 Counsel contends that in the light of
the Committee's jurisprudence in the case of Sandra Lovelace v. Canada, all
the authors should be deemed to have complied with the requirements of article
5, paragraph 2(b), of the Optional Protocol. In this case, he recalls, the
Committee decided that the Protocol does not impose on authors the obligation
to seize the domestic courts if the highest domestic court has already
substantially decided the question at issue. He affirms that in the case of Mr.
Länsman and his co-authors, the Supreme Administrative Court has already
decided the matter in respect of all the authors.
5.3 In further comments dated 16 August
1993, counsel notes that the lease contract for Arktinen Kivi Oy expires at the
end of 1993, and that negotiations for a longer lease are underway. If
agreement on a long-term lease is reached, Arktinen intends to undertake
considerable investments, inter alia for road construction. Counsel
further notes that even the limited test quarrying carried out so far has left
considerable marks on Mount Etelä-Riutusvaara. Similarly, the marks and scars
left by the provisional road allegedly will remain in the landscape for
hundreds of years, because of extreme climatic conditions. Hence, the
consequences for reindeer herding are greater and will last longer than the
total amount of stone to be taken from the quarry (5,000 cubic metres) would
suggest. Finally, counsel reiterates that the location of the quarry and the
road leading to it are of crucial importance for the activities of the
Muotkatunturi Herdsmen's Committee, because their new slaughterhouse and the
area used for rounding up reindeers are situated in the immediate vicinity.
The Committee's admissibility decision:
6.1 During its 49th session, the Committee
considered the admissibility of the communication. It noted that the State
party did not object to the admissibility of the complaint in respect of all
those authors which had appealed the quarrying permit both to the Lapland
Provincial Administrative Board and to the Supreme Administrative Court
of Finland, and that only in respect of those authors who had not personally
appealed to the Supreme Administrative Court did it contend that domestic
remedies had not been exhausted.
6.2 The Committee disagreed with the State
party's reasoning and recalled that the facts at the basis of the decision of
the Supreme Administrative Court of 16 April 1992 and of the case before the
Committee were identical; had those who did not personally sign the appeal to
the Supreme Administrative Court done so, their appeal would have been
dismissed along with that of the other appellants. It was unreasonable to
expect that if they applied to the Supreme Administrative Court now, on the
same facts and with the same legal arguments, this court would hand down
another decision. The Committee reiterated its earlier jurisprudence that
wherever the jurisprudence of the highest domestic tribunal has decided the
matter at issue, thereby eliminating any prospect of success of an appeal to
the domestic courts, authors are not required to exhaust domestic remedies, for
the purposes of the Optional Protocol. The Committee therefore concluded that
the requirements of article 5, paragraph 2(b), of the Optional Protocol had
been met.
6.3 The Committee considered that the
authors' claims pertaining to article 27 had been substantiated, for purposes
of admissibility, and that they should be considered on their merits. As to the
authors' request for interim measures of protection, it noted that the
application of rule 86 of the rules of procedure would be premature but that
the authors retained the right to address another request under rule 86 to the
Committee if there were reasonably justified concerns that quarrying might
resume.
6.4 On 14 October 1993, therefore, the
Committee declared the communication admissible in so far as it appeared to
raise issues under article 27 of the Covenant.
State party's submission on the merits and
counsel's comments thereon:
7.1 In its submission under article 4,
paragraph 2, dated 26 July 1994, the State party supplements and corrects the
facts of the case. Concerning the issue of ownership of the area in question,
it notes that the area is state-owned, as it had been awarded to the State in a
general reparceling. It was inscribed as state-owned in the land register and
is regarded as such in the jurisprudence of the Supreme Court (judgment of 27
June 1984 dealing with the determination of water limits in the Inari municipality).
Powers inherent in the ownership are used by the Finnish Forestry and Park
Service (formerly the Central Forestry Board), which is entitled, inter alia,
to construct roads.
7.2 The State party further provides
information on another case involving planned logging and road construction
activities in the Inari District, which had been decided by the Inari District
Court and the Rovaniemi Court of Appeal. These courts assessed the matter at
issue in the light of article 27 of the Covenant but concluded that the
contested activities did not prevent the complainants from practising reindeer
herding.
7.3 As to the merits of the authors' claim
under article 27, the State party concedes that the concept "culture"
in article 27 also covers reindeer herding as an "essential component of
the Sami culture". It examines whether the quarrying permit, its
exploitation, and the contract between the Central Forestry Board and Arktinen
Kivi Oy violates the authors' rights under article 27. In this connection, several
provisions of Act No. 555/1981 on Extractable Land resources are relevant.
Thus, Section 6 stipulates that an extraction (quarrying) permit may be
delivered if certain conditions laid down in the Act have been met. Section 11
defines these conditions as "orders which the applicant must follow in
order to avoid or restrict damages caused by the project in question".
Under Section 9, subsection 1, the contractor is liable to compensate the owner
of real estate for any extraction of land resources which causes (environmental
or other) damage which cannot be qualified as minor. Section 16, litera 3,
allows the State authority to amend the conditions of the initial permit or to
withdraw it, especially when extraction of land resources has had unpredictable
harmful environmental effects.
7.4 As to the permit issued to Arktinen
Kivi Oy, the State party notes that it is valid until 31 December 1999, but
only if the Finnish Forestry and Park Service upholds the contract until that
date. Another condition requires that during and after the quarrying, the area
in question must be kept "clear and safe". Condition No. 3 lays down
that every year, quarrying should be carried out within the period 1 April to
30 September, as requested by the Muotkatunturi Herdsmens' Committee in its
letter of 5 November 1989 to the Inari municipality. This is because reindeers
do not pasture in the area during this period. The same condition also
stipulates that means of communication (transport) to and within the area must
be arranged in coordination with the Herdsmens' Committee, and that any demands
of the Angeli Community Committee should be given due consideration.
7.5 In October 1989, a contract between
the Central Forestry Board and the company was concluded, which gave the company
the right to use and extract stone in an area covering 10 hectares, to a
maximum of 200 cubic metres. This contract was valid until the end of 1993.
Under the terms of the contract, means of transportation/communication had to
be agreed upon with the district forester. Edges of holes had to be smoothed
during quarrying; after quarrying, the slopes had to be remodelled in such a
way as not to constitute a danger for animals and men and not to disfigure the
landscape. In March 1993, the company requested a new land lease contract; an
inspection of the site on 30 July 1993 was attended by a representative of the
Forest District, the company, the Angeli Community Committee, the Herdsmens'
Committee, and the building inspector of Inari community. The company representatives
noted that the construction of a proper road was necessary for the project's
profitability; the representative of the Forest District replied that the
Herdsmens' Committee and the company had to find a negotiated solution. The
State party adds that the Forestry and Park Service has informed the Government
that a decision on a possible new contract with the company will be taken only after
the adoption of Views by the Committee in the present case.
7.6 As to actual quarrying, the State
party notes that the company's activity in the area has been insignificant,
both in terms of amount of extracted stone (30 cubic metres) and the extent (10
hectares) of the quarrying area on Mt. Riutusvaara. By comparison, the total
area used by the Muotkatunturi Herdsmens' Committee covers 2,586 square
kilometres, whereas the area fenced in for quarrying covered only approximately
one hectare and is only four kilometres away from the main road. In two expert
statements dated 25 October 1991 submitted to the Supreme Administrative Court,
it is noted that "extraction of land resources from Etelä-Riutusvaara has,
as regards its size, no significance on the bearing capacity of the pastures of
the Muotkatunturi Herdsmens' Committee". Neither can, in the State party's
opinion, the extraction have any other negative effects on reindeer husbandry.
The Government disagrees with the authors' assertion that already limited test
quarrying has caused considerable damage to Etelä-Riutusvaara.
7.7 In the above context, the State party
notes that it appears from an opinion of the Environmental Office of the
Lapland County Administrative Board (dated 8 May 1991) that only low pressure
explosives are used to extract stone from the rock: "Extraction is carried
out my means of sawing and wedging techniques ... to keep the rock as whole as
possible". As a result, possible harm to the environment remains minor.
Furthermore, it transpires from a statement dated 19 August 1990 from the Inari
Municipal Executive Board to the County Administrative Board that special
attention was paid by the Board and the company to avoid disturbing reindeer
husbandry in the area. The State party refers to Section 2, subsection 2, of
the Reindeer Husbandry Act, which requires that the northernmost State-owned
areas shall not be used in ways which can seriously impair reindeer husbandry;
it adds that the obligations imposed by article 27 were observed in the permit
proceedings.
7.8 With regard to the question of road
construction in the quarrying area, the State party notes that transport of the
test blocks of stone initially took place on an existing road line, with the
help of one of the authors. The company only extended the road line for
approximately one kilometre into another direction (not through the authors'
reindeer fences), while using the existing road for transport of stone to the
main road. The State party observes that the road line has thus been decided
upon by the authors themselves. At a meeting on 15 October 1993 of the Inari
Advisory Board, the company advised that the construction of a proper road
would improve the profitability of the project; and as conceded by the Inari
Municipal Board in a written submission to the Supreme Administrative Court in
August 1991, the construction of such a road is technically possible without
causing disturbances for reindeer husbandry.
7.9 The State party submits that in the
light of the above and given that only 30 cubic metres of rock have actually
been extracted, the company's activity has been insignificant in relation to
the authors' rights under article 27, especially reindeer herding. Similar
conclusions would apply to the possible quarrying of the total allowable
extractable amount of stone and its transport over a proper road to the main
road. In this context, the State party recalls the Committee's Views in Lovelace
v. Canada, which state that "not every interference can be regarded as
a denial of rights within the meaning of article 27 ... (but) restrictions must
have both a reasonable and objective justification and be consistent with the
other provisions of the Covenant...". This principle, according to the
State party, applies to the present case.
7.10 The State party concedes "that
the concept of culture in the sense of article 27 provides for a certain
protection of the traditional means of livelihood for national minorities and
can be deemed to cover livelihood and related conditions insofar as they are
essential for the culture and necessary for its survival. This means that not
every measure and every effect of it, which in some way alters the previous
conditions, can be construed as adverse interference in the rights of
minorities to enjoy their own culture under article 27". Relevant
references to the issue have been made by the Parliamentary Committee for
Constitutional Law, in relation with Government Bill 244/1989, to the effect
that reindeer husbandry exercised by Samis shall not be subject to unnecessary
restrictions.
7.11 This principle, the State party
notes, was underlined by the authors themselves in their appeal to the Lapland
County Administrative Board: thus, before the domestic authorities, the authors
themselves took the stand that only unnecessary and essential interferences
with their means of livelihood, in particular reindeer husbandry, would raise
the spectre of a possible violation of the Covenant.
7.12 The State disagrees with the
statement of the authors' counsel before the Supreme Administrative Court (10
June 1991) according to which, by reference to the Committee's Views in the
case of B. Ominayak and members of the Lubicon Lake Band v. Canada Views
adopted by the Committee at its 38th session, 26 March 1990., every measure,
even a minor one, which obstructs or impairs reindeer husbandry must be
interpreted as prohibited by the Covenant. In this context, the State party
quotes from paragraph 9 of the Committee's General Comment on article 27, which
lays down that the rights under article 27 are "directed to ensure the
survival and continued development of the cultural, religious and social
identity of the minorities concerned...". Furthermore, the question of
"historical inequities", which arose in the Lubicon Lake Band
case, does not arise in the present case. The State party rejects as irrelevant
the authors' reliance on certain academic interpretations of article 27 and on
certain national court decisions. It claims that the Human Rights Committee's
Views in the case of Kitok Case No. 197/1985, Views adopted
during the Committee's 33rd session on 27 July 1988, paragraph 9.3. imply that
the Committee endorses the principle that States enjoy a certain degree of
discretion in the application of article 27 - which is normal in all regulation
of economic activities. According to the State party, this view is supported by
the decisions of the highest tribunals of States parties to the Covenant and
the European Commission on Human Rights.
7.13 The State party concludes that the
requirements of article 27 have "continuously been taken into
consideration by the national authorities in their application and
implementation of the national legislation and the measures in question".
It reiterates that a margin of discretion must be left to national authorities
even in the application of article 27: "As confirmed by the European Court
of Human Rights in many cases ..., the national judge is in a better position
than the international judge to make a decision. In the present case, two
administrative authorities and ... the Supreme Administrative Court, have
examined the granting of the permit and related measures and considered them as
lawful and appropriate". It is submitted that the authors can continue to
practise reindeer husbandry and are not forced to abandon their lifestyle. The
quarrying and the use of the old forest road line, or the possible construction
of a proper road, are insignificant or at most have a very limited impact on
this means of livelihood.
8.1 In his comments, dated 31 August 1994,
counsel informs the Committee that since the initial submission of the complaint,
the Muotkatunturi Herdsmens' Committee has somewhat changed its reindeer
herding methods. As of spring 1994, young fawns are not kept fenced in with
their mothers, so that the reindeer pasture more freely and for a larger part
of the year than previously in areas north of the road between Angeli and
Inari, including Southern Riutusvaara. Reindeer now also pasture in the area in
April and September. Counsel adds that Southern Riutusvaara is definitely not
unsuitable for reindeer pasture, as contended by the State party, as the
reindeer find edible lichen there.
8.2 As to the supplementary information
provided by the State party, the authors note that thus far, the companies
quarrying on Mount Etelä-Riutusvaara have not covered any holes or
smoothed edges and slopes after the expiry of their contracts. The authors
attach particular importance to the State party's observation that the lease
contract between the Central Forestry Board and Arktinen Kivi Oy was valid
until the end of 1993. This implies that no contractual obligations would be
breached if the Human Rights Committee were to find that any further quarrying
would be unacceptable in the light of article 27.
8.3 As to the road leading to the quarry,
the authors dismiss as misleading the State party's argument that the disputed
road has been or would have been constructed in part "by one of the
authors". They explain that the road line has been drawn by the two
companies wishing to extract stone from the area. Counsel concedes however that
the first company used a Sami as "employee or subcontractor in opening the
road line. This is probably the reason why the person in question ... did not
want to sign the communication to the Human Rights Committee".
8.4 The authors criticize that the State
party has set an unacceptably high threshold for the application of article 27
of the Covenant and note that what the Finnish authorities appear to suggest is
that only once a State party has explicitly conceded that a certain minority
has suffered historical inequities, it might be possible to conclude that new
developments which obstruct the cultural life of a minority constitute a
violation of article 27. To the authors, this interpretation of the Committee's
Views in the Lubicon Lake Band case is erroneous. They contend that what
was decisive in Ominayak was that a series of incremental adverse events
could together constitute a 'historical inequity' which amounted to a violation
of article 27. In this context, the authors refer to the analysis of
the Views in the Lubicon Lake Band case by Professor Benedict Kingsbury
(25 Cornell International Law Journal (1992)), and by Professor Manfred Nowak
(CCPR Commentary, 1993).
8.5 According to counsel, the situation of
the Samis in the Angeli area may be compared with "assimilation
practices", or at least as a threat to the cohesiveness of their group
through quarrying, logging and other forms of exploitation of traditional Sami
land for purposes other than reindeer herding.
8.6 While the authors agree that the
question of ownership of the land tracts at issue is not per se the
subject matter of the case, they observe that (a) ILO Convention No. 169,
although not yet ratified by Finland, has a relevance for domestic authorities
which is comparable to the effect of concluded treaties (opinion No. 30 of 1993
by the Parliamentary Constitutional Law Committee) and (b) neither the general
reparceling nor the entries into the land register can have constitutive effect
for the ownership of traditional Sami territory. In this context, the authors
note that the legislator is considering a proposal to create a system of
collective land ownership by the Sami villages:
"As
long as the land title controversy remains unsettled..., Finnish Samis live in
a situation that is very sensitive and vulnerable in relation to any measures
threatening their traditional economic activities. Therefore, the existing
Riutusvaara quarry and the road to it, created with the involvement of public
authorities, are to be considered a violation of article 27... The renewal of a
land lease contract between the Central Forestry Board [sc.: its legal
successor] and the ... company would also violate article 27".
8.7 Finally, the authors point to new
developments in Finland which are said to highlight the vulnerability of their
own situation. As a consequence of the Agreement on the European Economic Area
(EEA), which entered into force on 1 January 1994, foreign and transnational
companies registered within the EEA obtain a broader access to the Finnish
market than before. The most visible consequence has been the activity of
multinational mining companies in Finnish Lapland, including the northernmost
parts inhabited by Samis. Two large foreign mining companies have registered
large land tracts for research into the possibility of mining operations. These
areas are located in the herding areas of some Reindeer Herding Committees. On
11 June 1994, the Sami Parliament expressed concern over this development. The
authors consider that the outcome of the present case will have a bearing on
the operation of the foreign mining companies in question.
8.8 The information detailed in 8.7 above
is supplemented by a further submission from counsel dated 9 September 1994. He
notes that the activity of multinational mining companies in Northern Lapland
has led to a resurgence of interest among Finnish companies in the area. Even a
Government agency, the Centre for Geological Research (Geologian
tutkimuskeskus) has applied for land reservations on the basis of the Finnish
Mining Act. This agency has entered six land reservations of 9 square
kilometres each in the immediate vicinity of the Angeli village and
partly on the slopes of Mt. Riutusvaara. Two of these land tracts are
located within an area which is the subject of a legal controversy about
logging activities between the local Samis and the government forestry
authorities.
Examination of the merits:
9.1 The Committee has examined the present
communication in the light of all the information provided by the parties. The
issue to be determined by the Committee is whether quarrying on the flank of
Mt. Etelä-Riutusvaara, in the amount that has taken place until the present
time or in the amount that would be permissible under the permit issued to the
company which has expressed its intention to extract stone from the mountain
(i.e. up to a total of 5,000 cubic metres), would violate the authors' rights
under article 27 of the Covenant.
9.2 It is undisputed that the authors are
members of a minority within the meaning of article 27 and as such have the
right to enjoy their own culture; it is further undisputed that reindeer
husbandry is an essential element of their culture. In this context, the
Committee recalls that economic activities may come within the ambit of article
27, if they are an essential element of the culture of an ethnic community
Views on communication No. 197/1985 (Kitok v. Sweden), adopted on
27 July 1988, paragraph 9.2..
9.3 The right to enjoy one's culture cannot
be determined in abstracto but has to be placed in context. In this
connection, the Committee observes that article 27 does not only protect traditional
means of livelihood of national minorities, as indicated in the State party's
submission. Therefore, that the authors may have adapted their methods of
reindeer herding over the years and practice it with the help of modern
technology does not prevent them from invoking article 27 of the Covenant.
Furthermore, mountain Riutusvaara continues to have a spiritual significance
relevant to their culture. The Committee also notes the concern of the authors
that the quality of slaughtered reindeer could be adversely affected by a
disturbed environment.
9.4 A State may understandably wish to
encourage development or allow economic activity by enterprises. The scope of
its freedom to do so is not to be assessed by reference to a margin of
appreciation, but by reference to the obligations it has undertaken in article
27. Article 27 requires that a member of a minority shall not be denied his
right to enjoy his culture. Thus, measures whose impact amount to a denial of
the right will not be compatible with the obligations under article 27.
However, measures that have a certain limited impact on the way of life of
persons belonging to a minority will not necessarily amount to a denial of the
right under article 27.
9.5 The question that therefore arises in
this case is whether the impact of the quarrying on Mount Riutusvaara is so
substantial that it does effectively deny to the authors the right to enjoy
their cultural rights in that region. The Committee recalls paragraph 7 of its
General Comment on article 27, according to which minorities or indigenous
groups have a right to the protection of traditional activities such as
hunting, fishing or, as in the instant case, reindeer husbandry, and that
measures must be taken "to ensure the effective participation of members
of minority communities in decisions which affect them".
9.6 Against this background, the Committee
concludes that quarrying on the slopes of Mt. Riutusvaara, in the amount that
has already taken place, does not constitute a denial of the authors' right,
under article 27, to enjoy their own culture. It notes in particular that the
interests of the Muotkatunturi Herdsmens' Committee and of the authors were
considered during the proceedings leading to the delivery of the quarrying
permit, that the authors were consulted during the proceedings, and that
reindeer herding in the area does not appear to have been adversely affected by
such quarrying as has occurred.
9.7 As far as future activities which may
be approved by the authorities are concerned, the Committee further notes that
the information available to it indicates that the State party's authorities
have endeavoured to permit only quarrying which would minimize the impact on
any reindeer herding activity in Southern Riutusvaara and on the environment;
the intention to minimize the effects of extraction of stone from the area on
reindeer husbandry is reflected in the conditions laid down in the quarrying
permit. Moreover, it has been agreed that such activities should be carried out
primarily outside the period used for reindeer pasturing in the area. Nothing
indicates that the change in herding methods by the Muotkatunturi Herdsmens'
Committee (see paragraph 8.1 above) could not be accommodated by the local
forestry authorities and/or the company.
9.8 With regard to the authors' concerns
about future activities, the Committee notes that economic activities must, in
order to comply with article 27, be carried out in a way that the authors
continue to benefit from reindeer husbandry. Furthermore, if mining
activities in the Angeli area were to be approved on a large scale and
significantly expanded by those companies to which exploitation permits have
been issued, then this may constitute a violation of the authors' rights under
article 27, in particular of their right to enjoy their own culture. The State
party is under a duty to bear this in mind when either extending existing
contracts or granting new ones.
10. The Human Rights Committee, acting
under article 5, paragraph 4, of the Optional Protocol to the International
Covenant on Civil and Political Rights, is of the view that the facts as found by
the Committee do not reveal a breach of article 27 or any other provision of
the Covenant.
[Adopted in English, French and Spanish,
the English text being the original version. Subsequently to be issued also in
Arabic, Chinese and Russian as part of the Committee's annual report to the
General Assembly.]
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©1996-2001
Office of the United Nations High Commissioner for
Human Rights
Geneva, Switzerland