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CCPR/C/76/D/942/2000
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Communication
No 942/2000 :
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CCPR/C/76/D/942/2000.
(Jurisprudence) |
Convention Abbreviation: CCPR
Human Rights
Committee
Seventy-sixth session
14 October-
ANNEX
Decisions of
the Human Rights Committee declaring communications
inadmissible under the
Optional Protocol to the International
Covenant on Civil
and Political Rights**
Communication No. 942/2000*
Submitted by: Mr. Jarle Jonassen and members of the Riast/Hylling reindeer herding
district represented by Law firm Hjort DA by Attorney Erik Keiserud
Alleged victim: The authors
State party:
Date of communication:
The Human Rights Committee, established under article 28 of the International Covenant on Civil
and Political Rights,
Meeting on
Adopts the following:
Decision on admissibility
1. The authors of the communication,
are the herdsmen of the Riast/Hylling reindeer herding district, Norwegian
citizens, of Sami ethnic origin. They claim to be victims of a violation by
The facts as submitted by the authors
2.1 The Samis are an indigenous people
constituting an ethnic minority in
2.2 The authors are Sami reindeer
herdsmen. They belong to the reindeer district of Riast/Hylling, an area which
is traditionally used for reindeer grazing grounds every year from March/April
to December/January. The boundaries of the Riast/Hylling reindeer herding
district were determined by a Royal Decree dated
2.3 At present, the authors possess 10
herds, amounting to a total of approximately 4,500 animals (winter stock before
calving). Within the district of Riast/Hylling, traditional Sami reindeer
husbandry is the main livelihood and source of income for approximately 45
people of Sami origin.
2.4 Pursuant to the Norwegian Reindeer
Husbandry Act of
2.5 The "Korssjofjell Case"concerned
a large part of the Femund reindeer herding district. The landowners claimed
that the authors were not entitled to let their herds graze in the western
parts of the district, which are suitable for winter herding. The Supreme Court
decided that the authors were not entitled to let their reindeer graze in this
area. The area in question covers approximately 119 square kilometres, and
constitutes approximately 11 per cent of the district's total gross area (not
including Lake Store Korssjo).
2.6 On
2.7 In the "Aursunden Case 1997",
the Supreme Court attached substantial importance to its previous judgement of
6 July 1897, concerning the rights to reindeer grazing in the western part of
the disputed area. The Court considered that "the courts were
considerably closer to the evidence a century ago" and that "one
must be wary of disregarding the Supreme Court's 1897 assessment of the
evidence". The area under dispute in 1897 did, however, extend further
to the west than the claim presented in the 1997 Supreme Court case. Regarding
the question of reindeer grazing rights in the eastern part of the area under
dispute in the 1997 case, which had not been covered by the 1897 judgement, the
Court found that the Supreme Court's 1897 ruling "must have more or
less the same legal force".
2.8 The dissenting Supreme Court Justice Matningsdal, stated however, that "In evaluating the
facts of the case, I assign less importance to the 1897 Supreme Court judgement
than the first-voting Justice does. If the starting point is that the grazing
rights are not legally binding on the eastern part of the area, there will have
to be a complete reassessment of the evidence without prejudice to the result
of the Supreme Court's 1897 evaluation of evidence." Although the
majority in the "Aursunden Case 1997"stated that the question
in dispute in many respects implied a recurrence of the dispute that led to the
Supreme Court's 1897 ruling, it made its decision on the basis of current
legislation.
2.9 The disputed area in the "Aursunden
Case 1997" constitutes 4-5 per cent of the Riast/Hylling reindeer
herding district, but according to the authors, its grazing value is far more
important. Furthermore, the authors' loss of the herding rights in the "Storskarven
area", that was disputed in both the "Aursunden Case 1997"
and the 1897 ruling and which is quite limited in size, makes it impossible for
them to gain access to large continuous surrounding areas which in practice
only may be accessed by encroaching on the forbidden area.
2.10 As a consequence of the Supreme
Court's ruling in the "Aursunden Case 1997", the authors lost
approximately 120 square kilometres of grazing fields in the reindeer district
of Ryast/Hylling. Additionally, the authors have lost approximately 33 square
kilometres in another court case, the "Tamnes Case" of
2.11 There are also other cases pending
which, due to the practice of the Supreme Court, could result in further loss
of grazing fields for the authors.
2.12 First, the authors and herdsmen of
the Essand reindeer herding district are engaged in a new court case concerning
the North/West parts of the district, the "Selbu Case",
covering approximately 90 square kilometres of the Riast/Hylling area. In this
case, the Frostating Court of Appeal on
2.13 Second, a new conflict has arisen in
the "Holtålen", in the eastern part of Riast/Hylling reindeer
herding district, covering approximately 450 square kilometres. However in
another dispute, the so-called "Kvipsdal Case", concerning a
small area in the middle of the Femund reindeer herding district, the court
ruled in favour of the authors.
2.14 In the aforesaid "Aursunden
Case 1997", the Supreme Court relied on the 1897 judgement, and in the
latter case, the Supreme Court made reference to a Supreme Court decision from
1892 in respect of the same area. Part of the material submitted to the Supreme
Court both in the 1897-case and the 1892-case, was a study on the Sami
population in southern
2.15 To illustrate the Lap Commission's
approach to the Samis, the authors have submitted the following translation of
its report, page 33: "Another matter is that one should respect the
laps' rights. But also, when evaluating the laps and the inhabitants' mutual
rights and obligations towards one another, one must keep in mind the various
circumstances of their trade, and the farmer, during his hard and difficult cultivating
work, often carries hard burdens, while the lap, whose life style changes from
hardship to laziness, usually escapes those."
2.16 The Lap Commission continues as
follows on page 41: "… when it comes to the communities of Sondre
Trondhjem and Hedemarken, the farmers began cultivating land long before the
laps arrived, and had to a large extent started to exploit valleys and
mountains. Therefore, there is no doubt that it is the laps who forced
themselves on the farmers and have been a nuisance ever since. In later times,
the farmers apparently have cultivated acres, established mountain farms and
carried out other clearance work in the mountain areas where the laps
previously might have wandered without restrictions, but usually the laps'
rights cannot be assumed to have been violated, due to the fact - as stated in
the Commission's proposal of 1883 - that these rights cannot be recognized to
be of such nature that they might exclude or prevent a rational development of
agriculture and progress."
2.17 At the end of the nineteenth century,
the Norwegian Government issued instructions denying Sami children the right to
use the Sami language in school and adopted provisions entailing that only
persons who spoke Norwegian were entitled to have properties apportioned. The
Ministry of Interior stated (2) on 2 February 1869 that: "… in
the economic respect and, except for the nomads of Finmark County, who remain
in Norway all year round, there can be no doubt that the nomadic culture is
such a great burden for Norway and that it has no corresponding advantages,
that one must unconditionally desire its cessation."
2.18 The communication is supported by the
Sami Assembly, the Board of Reindeer Husbandry and the Sami Reindeer Herder's
Association of Norway.
The Complaint
3.1 The authors allege violations of their
Covenant rights because the State party has failed to recognize and protect
their right to let their herds graze on their traditional grazing grounds, in
violation of article 27 in conjunction with article 2 of the Covenant.
Furthermore, they allege a violation of article 26, because the Norwegian
Supreme Court based its considerations on establishment of facts made in the
nineteenth century when the Samis where discriminated against and the Norwegian
landowners' claim for private property rights were favoured.
3.2 The authors allege that the State
party has violated article 27 in conjunction with article 2 of the Covenant by
failing to ensure the authors' right to enjoy their own culture. They refer to
the Committee's General Comments No. 23 and 18, (3) and to the cases of Ominayak
v. Canada, (4) Sara et al. v. Finland, (5) Ilmari
Länsman et al. v. Finland, (6) Kitok v. Sweden, (7) and
Jouni E. Länsman v. Finland, (8) which concern the rights
of indigenous people under the Covenant.
3.3 In particular, the authors recall that
the Committee has recognized that article 27 imposes an obligation on the State
parties, not only to protect immaterial aspects of indigenous culture, but also
to offer legal protection for the material foundation of such culture (9).
Subsequently, for the interpretation of article 27 of the Covenant, the
authors refer to article 1, paragraph 2 of the Covenant which requires that all
peoples must be able to freely dispose of their natural wealth and resources,
and that they may not be deprived of their own means of subsistence (10).
3.4 With regard to the two cases of Länsman
v. Finland, where the Committee did not find violations of article 27, the
authors point to four differences between those cases and the present case.
First, they allege that the question at issue in the two Länsman cases
was whether or not an isolated action from the State party represented a denial
of the rights under article 27, whereas in the present case the authors claim
that the current system of justice violates these rights. Second, the reindeer
herding activities in the Länsman cases were only disturbed by
activities in the area, whereas the authors are deprived of reindeer herding
areas. Due to the negative outcome of the "Aursunden Case 1997",
the "Korssjofjell Case" and the "Tamnes Case",
as well as possible negative outcomes of the pending "Selbu"
and "Holtaalen" cases, the authors have experienced several
reductions of their reindeer grazing rights.
3.5 Furthermore, since the Aursunden area
is an integrated part of a herding area of vital importance for the district of
Riast/Hylling, and by denying the authors access to
Aursunden, they have practically no access to attached areas. Thus, the authors
run a risk of having to close down their entire reindeer husbandry. They
contend that the only means to prevent the reindeer from grazing in the area in
dispute in the "Aursunden Case 1997" and the "Korssjofjell
Case", would be to either fence in the outer boundary of the area, or
to intensify the watching of the herds. According to the authors, neither one
of the alternatives would be realistic, since the fences would be covered by
snow in the winter season, and the expenses of upkeep would be unduly heavy.
3.6 Third, it should be noted that
contrary to the two Länsman cases, the Supreme Court in the "Aursunden
Case 1997", dismissed the appeal without discussing the authors'
rights under article 27 of the Covenant. Finally, the authors point to that the
Supreme Court in the "Aursunden Case 1997" attached decisive
importance to the judgement of the Supreme Court in 1897, when the Samis where
subjected to blatant discrimination.
3.7 They contend that the Norwegian Supreme
Court and the State party in general have failed to protect the material
foundation of the southern Sami culture in accordance with the provisions set
forth in article 27 and article 2 of the Covenant, by attaching crucial
importance to assessments made in a period of time characterized by
discrimination and forced integration of the Sami people and by an official
view that Sami reindeer breeding was a burden to the Norwegian farming
population.
3.8 The authors' also contend that
Norwegian law regarding the acquisition of rights derived by use since time
immemorial, as it has been interpreted and practised by the Norwegian courts,
in itself constitutes a violation of article 27. By failing to recognize Sami
culture and perception of law, and by setting the same requirements for the
acquisition of the right to herd reindeer as it sets in other matters of
property law, Norwegian courts have, in effect, made it impossible for the
authors and Sami people in many areas, due to their nomadic lifestyle, to acquire
legal grazing rights and thereby to enjoy their own culture.
3.9 To acquire legal grazing rights on the
basis of use since time immemorial, the authors will have to prove to the Court
that they have used the area in question for more than a hundred years. This
has proven to be difficult in practice, since the requirements for the
acquisition of grazing rights derived by use since time immemorial, do not take
into its consideration either the specific features of reindeer herding, nor
Sami culture and perception of land rights. The requirements are established on
the basis of grazing rights for livestock, thus, sporadic grazing is not
considered sufficient for establishing legal grazing rights.
3.10 Reindeer herding makes heavy demands
on acreage, and reindeers virtually never graze in the same area year after
year. Instead, reindeers make use of the whole area fitted for grazing. It is
the nature for reindeer to adapt to their surroundings, the topography, the pasture situation, weather and wind conditions. These
conditions determine the extensiveness of the area needed for grazing. Since
the use of land is necessary for the maintenance of the authors' culture, the
effect of the Norwegian requirements for land acquisition is that the authors
are deprived of their fundamental rights under article 27 of the Covenant. The
authors refer to the Sami Parliament's statement of
3.11 The authors contend that it is
difficult to prove earlier settlements in disputed areas, since their huts and
fences have been made of material that decomposes, and the Sami people has
never had a written culture.
3.12 They further claim that the State
party has failed to take an active role in protecting their rights, by not
intervening in the numerous conflicts that have been brought before the courts
by landowners of the authors' reindeer herding districts over the past 10
years. The authors and Samis in general endure years of conflicts, court
actions, and personal suffering, both economically and personally, because of
the State party's reluctance to intervene before the conflict is determined by
a Supreme Court judgement.
3.13 The authors have requested that the
State party expropriate the right to reindeer grazing in the areas of the
"Korssjofjell Case" and the "Aursunden Case 1997",
but the petitions are still pending before the administrative authorities.
3.14 Finally, the authors claim that the
State party has violated article 2 in conjunction with article 27, by failing
to ensure the authors' rights to enjoy their own culture.
3.15 In respect of their claim of a
violation under article 26 of the Covenant, the authors claim that the Supreme
Court in the "Aursunden Case 1997" judgement, failed to
protect the authors from discrimination, since it based its establishment of
facts on those made by the Supreme Court in 1897, at a time where the general
opinion of the Samis was discriminatory. They contend that the distinction
between the authors and the private landowners in the disputed area is not
based on objective and reasonable criteria.
3.16 The authors contend that the domestic
remedies have been exhausted through the national lawsuits of the "Korssjofjell
Case", the "Aursunden Case 1997", and the "Tamnes
Case" which have all been decided finally by the Norwegian Supreme
Court. There is still a lawsuit pending, in the "Selbu Case",
and a new conflict has arisen in a large area between Aursunden and Selbu
called "Holtaalen". Although the authors primarily request the
Committee to evaluate whether the Supreme Court in the "Aursunden Case
1997" and the "Korssjofjell Case", and whether the
State party in general have failed to protect the material foundation of the
southern Sami culture, and whether the Norwegian legal system in itself
comprises violations of the Covenant, the authors contend that the Committee
should take both final and pending cases into its consideration. The authors
believe that they cannot be expected to continue to make the same requests to
the same national courts, on the basis of almost the same facts for each and
every area within their district, before the Committee can decide whether or
not the Covenant has been violated.
3.17 The authors have filed an application
for expropriation to the administrative authorities in
The State party's submission on the
admissibility of the communication
4.1 By note verbale of
4.2 In relation to the claim under article
27 and the requirement under article 1 of the Optional Protocol, it points to
the authors' "main argument is that Norwegian law regarding the
acquisition of rights derived by use since time immemorial, as it has been
interpreted and practised by the Norwegian courts, in itself constitutes a
violation of article 27." and considers this to be an actio
popularis which should not be addressed by the Committee. The State party
contends that the issue before the Committee should be whether the authors'
rights under the Covenant have been violated by the decisions of the courts in
the specific cases, which concern the authors.
4.3 Furthermore, the State party recalls
that all the court cases referred to in the communication,
concern the authors' grazing rights on privately owned land, under Norwegian
private law. The State party emphasizes that such cases involve the balancing
of legitimate private interests, on the one hand that of the Sami population,
and, on the other hand, the landowners' right to protection of their property.
It recalls that private ownership is protected by the Norwegian Constitution,
and as part of the First Protocol to the European Convention on Human Rights,
which is incorporated into Norwegian law, and considers that these provisions
should be regarded when considering to what extent the State parties are under
an obligation to implement standards in civil law, whereby a group enjoys
preferential treatment due to their ethnicity.
4.4 The State party recalls that the
establishment of a reindeer herding district does not in itself establish
grazing rights within that district. The herdsmen must in addition to belonging
to the particular herding district, have a legal basis in Norwegian law for
their grazing rights in relation to the landowners, such as use since time
immemorial, contract or expropriation. In this context, it emphasizes that in
both the "Korssjofjell Case" and the "Aursunden Case
1997", the Supreme Court found that the authors had not acquired
grazing rights in the disputed area, i.e. the authors had never had such rights
to the areas in question. This is contrary to the apparent supposition of the
communication, that the grazing rights have been lost.
4.5 With regard to the authors' claims
under articles 2 and 26, the State party argues that the evidential weight
given by the Supreme Court in the "Aursunden Case 1997" to the
findings in the 1897 judgement was based on the authors' arguments that the
Supreme Court's assessment of the facts in 1897 had been wrongful. The essence
of the authors' claims was, as opposed to the 1897 ruling, that they had
acquired grazing rights to the area through sufficient use of the land since
time immemorial. As regards the 1897 case, the Supreme Court stated in 1997:
4.6 "This case
involved the submission of copious evidence, with testimony from parties and
witnesses on behalf of the Samis and the landowners alike. In addition, the court of first instance visited the site. At that
time, a question regarding the remains of Sami settlements was also at issue. I
attach importance to the fact that the courts were considerably closer to the
evidence a century ago, mainly the alleged use of the area under dispute for
the purpose of grazing reindeer. Several of the witnesses who testified in the
court of first instance, on whose ruling the Supreme Court founded its
judgement, had experience (of the situation) dating all the way back to the
1820s."
4.7 According to the State party, the
Supreme Court in 1997, also considered the authors'
claims put forward to the Committee under articles 26 and 2, and found that
there was no evidence supporting that the Supreme Court judges in 1897 had been
biased in their assessment of evidence. The Supreme Court in 1997,
stated that:
4.8 "It is clear from the Supreme
Court's judgement (of 1897) that the court attached decisive importance to
comprehensive testimony on the existence and frequency of reindeer grazing in
the disputed area itself. There are no grounds for the view that the court was
biased from the outset in the weighing of evidence."
4.9 The State party submits that the
authors de facto request review of the court's findings as to the evidence of
the case. On the basis that the authors have not adduced any material, which
could give basis for a review of the Supreme Court's findings, the State party
contends that the authors' claims under articles 26 and 2 of the Covenant
should be declared inadmissible for lack of substantiation.
4.10 In relation to article 27 of the
Covenant, the State refers to the authors' allegations that the State party has
failed to fulfil its positive obligations imposed by that article, in
particular by setting the same requirements for the acquisition of rights to
the use of land by the Samis as it would in other matters of property law. In
this connection, the State party submits that even if one presupposes that such
obligations are applicable in the present case, it does not necessarily follow
that the State would have to fulfil them by lowering the requirements in
domestic property law with regard to the Samis. Instead, the Samis interests
have been safeguarded through the institute of expropriation if sufficient
grazing rights have not been established previously within the reindeer herding
areas.
4.11 To that effect, the authors have been
afforded the right to petition the State party to secure necessary grazing
rights through expropriation. The State party submits that this option
constitutes an available and effective remedy that has not been exhausted in
the present case.
4.12 In that connection, pursuant to the
"Korssjofjell Case" in which the Supreme Court stated that the
administrative designation of herding districts was not decisive for grazing
rights under private law, the Reindeer Husbandry Act Section 31 was amended in
1996. In order to extend the Sami users' rights within the herding areas, the
law was amended to allow for expropriation of land to ensure such users'
rights. According to the preparatory works of the law,(11)
the purpose of the amendment was to:
4.13 "give governmental
authorities the necessary means of taking active steps to secure Sami reindeer
herding interests. Current legislation provides no such powers. Without such an
extension of the statutory provision for expropriation, it will not be possible
for the authorities to prevent or resolve conflicts".
4.14 Following this amendment, the
principle of securing necessary grazing rights through expropriation has been
part of the State party's policy, and of the Ministry of Agriculture's
instructions to the concerned authorities. Furthermore, with particular regard
to the areas concerned in the "Aursunden Case 1997" and the
"Korssjofjell Case", the Ministry of Local Government and
Regional Development in a report to the Parliament,(12)
states that expropriation of reindeer herding rights may be introduced to
secure the Sami situation, but that before going to the extent of
expropriation, every effort should be made to achieve amicable arrangements
like leasing agreements in which the State takes a part.
4.15 On
4.16 According to Section 12 of the
Expropriation Act of
4.17 The agreement includes approximately
80 per cent of the 121 square kilometres grazing land comprising the subject of
the petition for expropriation, and the erection of a reindeer fence of
approximately 40 kilometres. The purpose of the fence is to facilitate the
fulfilling of the herdsmen's statutory obligation to keep their reindeer under
adequate control and on legal grazing land. According to the proposed
agreement, the State party will pay the annual grazing rent and the cost of
erecting and maintaining the reindeer fence. The State party has paid all the
negotiating costs, amounting to NOK 430,000, and the stipulating cost of erecting
the reindeer fence is NOK 4.2 million.
4.18 In spite of this recommended
agreement, the authors advised the Ministry of Agriculture in May 2000, that
they maintained their petition for expropriation. The Government is confident
that the Ministry of Agriculture will secure the authors' interests either by
entering into the recommended agreement and/or by deciding to expropriate.
Either way, the Norwegian Government will propose to the Parliament to grant
the costs involved.
4.19 The same procedure as described above
will probably be applied to the petition for expropriation concerning the
disputed land in the "Korssjofjell Case". Furthermore, the
State party submits that the court decisions at issue so far have had no
effect on the authors' actual use of the disputed land for reindeer herding
purposes, and that the recommended agreement in the "Aursunden Case
1997" presupposes that the State party shall pay for the Sami use of
the disputed land from the date of the Aursunden judgement of 24 October 1997.
4.20 The State party submits that the
possibility of petitioning for expropriation constitutes an available remedy
within the meaning of article 5 of the Optional Protocol. It considers that the
Committee is not in a position to consider whether the authors are victims of a
violation of article 27 as long as their expropriation petitions are pending.
The Comments by the authors
5.1 By letter of
5.2 The authors contest the State party's
allegation that they are not victims within the meaning of article 1 of the
Optional Protocol because it considers that the claim constitutes an actio
popularis. They contend that they are personally affected by the law
regarding the acquisition of rights derived by use since time immemorial as it
has been interpreted in both the "Aursunden Case 1997" and the
"Korssjofjell Case". Thus, they do not ask the Committee to
review national legislation in abstracto, but the loss of grazing rights
in disputed areas should be seen in connection with prior reductions of grazing
rights in the same district due to final court decisions, as well as possible
reductions due to cases pending before the courts or administrative
authorities.
5.3 In this context, the authors inform
that the dispute with the landowners in the Selbu municipality, the "Selbu
Case", was decided by the Supreme Court in plenary on
5.4 The authors contend that the approach
applied in the "Selbu Case", was not applied in either the
"Korssjofjell Case" or the "Aursunden Case 1997",
thus leading to the loss of grazing areas of vital importance to the authors,
in violation of their Covenant rights. Furthermore, the Supreme Court in the
two latter cases seemed unwilling to pay the same attention to the topography
when drawing a line between legal and illegal herding areas.
5.5 With regard to the State party's
statement that the authors' claims under article 27 need to be balanced with
legitimate private property interests, the authors submit that their rights
under article 27 of the Covenant were not given due weight in the "Aursunden
Case 1997" and the "Korssjofjell Case" judgements.
They find that the practice of the law regarding acquisition of rights derived
by use since time immemorial in these decisions does not take into proper
account the special characteristics of reindeer herding compared with e.g. the
herding of sheep and cows, and is not fitted to secure the authors' rights to
practice their culture. The authors contend that this lack of due regard to the
special situation of the Sami people with respect to the application of
Norwegian rules on users rights has led to a distinction between Norwegian
farmers and the Sami reindeer herdsmen which is not built on reasonable and
objective criteria. On the contrary, the authors should have been subjected to
preferential treatment pursuant to articles 26 and 27 in order to regain
balance and equality between the authors and the landowners, to protect the
Sami culture.
5.6 In response to the State party's
allegation that the authors' supposition that they had lost the grazing areas
in the disputed areas of both the "Korssjöfjell Case" and the
"Aursunden Case 1997" is incorrect since the Supreme Court
found that the authors had not acquired grazing rights in the disputed area in
the first place, the authors state that the Supreme Court accepted that the
Sami people had used the areas in question for more than 100 years, and thus
maintain their allegation that the authors de facto lost their grazing rights
in these areas.
5.7 In respect of their claim of a
violation of articles 26 and 2 of the Covenant, the authors submit that they do
not ask the Committee to evaluate all facts in the "Aursunden Case 1997",
but maintain their allegation that the Supreme Court in that case did not make
a full and independent evaluation of the facts, but instead attached decisive
importance to prior evaluations of facts based upon unacceptable views of the
Samis. This opinion has been supported by professor, and now Supreme Court
justice Jens Edvin A. Skoghoy,(13) who
states the following regarding the "Aursunden Case":
5.8 "In my
opinion the majority in the Riast/Hylling Case attached too great importance to
the ruling from 1897. The view of
the public authority on the Sami culture has changed since then, and one cannot
rule out that the evaluation of evidence made by the Supreme Court in 1897 was
influenced by the attitude of the public authorities at that time. In addition,
recent historical research has supplied the Supreme Court's historical picture
from that time. In my opinion, the Supreme Court should have made an
independent assessment of evidence."
5.9 In respect of the State party's
allegation that the authors have not exhausted domestic remedies by not
pursuing administrative avenues for expropriation, the authors recall the
principle that only such remedies must be sought that are effective and
available to the authors and the application of which is not unreasonably
prolonged.
5.10 With regard to the recommended
agreement for the disputed areas in the "Aursunden Case 1997",
the authors attach two letters of January 2001 from the Ministry of
Agriculture, where the Ministry informs that only 38 per cent of the landowners
wish to enter into the agreement. In a letter from the landowners' attorney of
5.11 Furthermore, the authors note that
their petition for expropriation in the "Aursunden Case 1997"
was filed more than three years ago (on 2 April 1998), and is still pending in
spite of the State party's statement, that the decision regarding the land
under dispute is expected in the first part of 2001. The authors consider it
uncertain whether the outcome of this petition will be satisfactory.
5.12 The State party argued that the court
decisions at issue so far have had no effect on the authors' actual use of the
disputed land for reindeer grazing purposes. However, while awaiting the
outcome of their petitions for expropriation, the authors on
5.13 Finally, the authors draw attention to
the economic impact the private lawsuits have on the authors. In principle the
authors must personally cover expenses related to the lawsuits. However, these
expenses have so far been recovered from the State funded Reindeer Herding
Fund, with approximately NOK 1.3 million. The consequence is that the funding
of other projects through the Reindeer Herding Fund suffers.
Additional observations by the State party
6. By note verbale of
Issues and proceedings before the
Committee
7. By decision of
Consideration of admissibility
8.1 Before considering any claim contained
in a communication, the Human Rights Committee must, in accordance with rule 87
of its rules of procedure, decide whether or not the communication is
admissible under the Optional Protocol to the Covenant.
8.2 The Committee has ascertained that the
same matter is not being examined under another procedure of international
investigation or settlement for purposes of article 5, paragraph 2 (a) of the
Optional Protocol.
8.3 In respect of articles 26 and 2, the
Committee notes the authors' arguments that the Supreme Court in the "Aursunden
Case 1997" attached importance to the Supreme Court decision in 1897,
and that the latter decision was based upon discriminatory views of the Samis.
However, the authors have not provided information which would call into doubt
the finding of the Supreme Court in the "Aursunden Case 1997"
that the Supreme Court in 1897 was not biased against the Samis. It is not for
the Committee to re-evaluate the facts that have been considered by the Supreme
Court in the "Aursunden Case 1997". The Committee is of the
opinion that the authors have failed to substantiate this part of their claim,
for the purposes of admissibility, and it is therefore inadmissible under
article 2 of the Optional Protocol.
8.4 In respect of the alleged violation of
article 27 in conjunction with article 2 of the Covenant, the State party
objects to the admissibility on the grounds that the authors are not victims in
the terms of article 1 of the Optional Protocol, and that the authors have
failed to exhaust domestic remedies under article 5, paragraph 2 (b) of the
Optional Protocol.
8.5 The Committee notes the State party's
argument that the authors' claim constitutes an actio popularis, since
the authors cannot be considered victims of a violation by the State party of
article 27 of the Covenant, in the terms of article 1 of the Optional Protocol.
However, the Committee finds that the authors' claim relates to denial of their
reindeer herding rights in specific areas. It therefore rejects the State
party's claim that this part of the communication be rejected under article 1
of the Optional Protocol.
8.6 Regarding the State party's allegation
under article 5, paragraph 2 (b) of the Optional Protocol, that the authors
have failed to exhaust domestic remedies, the Committee notes that the State
party has argued that the authors have not exhausted the remedy of claiming
expropriation to the administrative authorities. Although the authors have
pursued the domestic judicial remedies in their disputes with the landowners in
the "Tamnes Case", the "Aursunden Case 1997"
and the "Korssjofjell Case", their petitions for expropriation
in the two latter cases are still pending, whereas the authors have not
petitioned for expropriation in the former case. The Committee recalls (14) that
for the purpose of article 5, paragraph 2 (b) of the Optional Protocol, an
applicant must make use of all judicial or administrative avenues that offer
him a reasonable prospect of redress. The application for expropriation, a
remedy provided by the 1996 law, is still pending. It would therefore appear
that domestic remedies have not been exhausted.
8.7 However, the question is whether the
application of these remedies has been unreasonably prolonged. The Committee
notes the authors' argument that they have pursued domestic judicial remedies
for more than a century and that their petitions for expropriation, which were
initiated in 1998 and 1999, are still pending, making the avenues for a remedy
unreasonably prolonged.
8.8 The Committee considers that the
period of time it has taken for the authors to obtain a remedy, may not be
gauged from the time the Samis have litigated grazing rights, but from the time
the authors themselves have sought a remedy. The Committee notes that the
authors brought their claims for expropriation on
8.9 The Committee considers that the
amendment of the Reindeer Husbandry Act and the subsequent negotiations aiming
at providing a remedy for the authors, provide a reasonable explanation for the
length of the examination of the authors' claim. It cannot conclude that the
Norwegian legislation, obliging the authors to follow the procedure of settling
their claims with the landowners before bringing a claim of expropriation, is
unreasonable. The Committee also notes that while the authors have been
subjected to one case of a criminal charge for illegal use of the disputed land
for which they have been acquitted, they have been able to continue their
reindeer herding to the same extent as before the relevant Supreme Court
judgements. The Committee therefore cannot conclude that the application of
domestic remedies has been unduly prolonged. The authors' claim under article
27 is inadmissible for the non-exhaustion of domestic remedies, under article
5, paragraph 2 (b) of the Optional Protocol.
8.10 The Committee is of the opinion that
given the new remedy provided by the 1996 law, the claim must be considered
inadmissible. Nevertheless, the State party is urged to complete all
proceedings regarding the authors' herding rights expeditiously.
9. The Committee therefore decides:
(a) that the
communication is inadmissible under articles 2 and 5, paragraph 2 (b) of the
Optional Protocol;
(b) that this
decision shall be communicated to the author and to the State party.
_____________
[Done 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.]
* The following members of the Committee
participated in the examination of the present communication: Mr. Abdelfattah
Amor, Mr. Nisuke Ando, Mr. Prafullachandra Natwarlal Bhagwati, Mr. Maurice
Glèlè Ahanhanzo, Mr. Louis Henkin, Mr. Ahmed Tawfik Khalil, Mr. Eckart Klein,
Mr. David Kretzmer, Mr. Rajsoomer Lallah, Ms. Cecilia Medina Quiroga, Mr.
Rafael Rivas Posada, Sir Nigel Rodley, Mr. Martin Scheinin, Mr. Ivan Shearer,
Mr. Hipólito Solari Yrigoyen and Mr. Maxwell Yalden.
** The texts of a dissenting individual
opinion signed by Committee members Mr. Louis Henkin, Mr. Martin Scheinin and
Mr. Solari Yrigoyen is appended to the present document.
Dissenting individual opinion by Committee members
Mr. Louis Henkin, Mr. Martin Scheinin and Mr. Solari Yrigoyen
We are of the view that the communication should have been heard on its merits.
The main ground on which the majority bases its inadmissibility decision is
article 5, paragraph 2 (b), of the Optional Protocol, i.e., non-exhaustion of
domestic remedies. For several reasons, in our view this conclusion is
erroneous.
First and foremost, we do not agree that petitioning the administrative
authorities of the State party, for the purpose that they institute
expropriation proceedings to secure the reindeer herding rights of the authors,
is at all an effective remedy within the meaning of article 5 (2) (b) of the
Optional Protocol. The authors have already exhausted one line of judicial
remedies by having their case adjudicated up to the Supreme Court. The authors
are not even a party in the expropriation proceedings (see paragraph 4.16),
which, therefore, cannot be taken as constituting an effective domestic remedy
to be pursued by the authors. At most, the authors have exhausted their
additional remedy related to expropriation simply by filing the petition
in a manner that allows the initiation of the expropriation proceedings. What results
from those expropriation proceedings, and within which time frame, would be a
matter for the consideration of merits when the Committee addresses the
State party's measures aimed at giving effect to the article 27 rights of the
authors.
Secondly, even assuming that the actual expropriation proceedings constitute a
remedy that needs to be exhausted by the authors, those proceedings are already
unreasonably prolonged within the meaning of the last sentence of article 5, paragraph
2, of the Optional Protocol. After losing the Aursunden case in the
Supreme Court - which process itself required some time - the authors filed
their petition for expropriation on
Thirdly, it appears that the article 27 rights of the authors are being
affected by the Supreme Court rulings against them. Herding in areas previously
used by them has become illegal, and the authors are subject to the risk of
further legal proceedings and legal sanctions if they continue to herd their
reindeer in those areas. It has not even been argued that the outcome of the
expropriation proceedings would be relevant as a remedy for this part of the
authors' claim under article 27.
Finally, in addition to the legal arguments above, there is also a reason of
policy. Non-exhaustion of domestic remedies is a recoverable ground for
inadmissibility. Even the majority of the Committee alludes to Rule 92.2 of the
Committee's Rules of Procedure, according to which the authors may later
request the Committee to review its inadmissibility decision. We find it
unreasonable to declare the communication inadmissible although there is a
clear expectation that the authors will in the near future request
revitalization of their case.
As to the authors' claim under article 26, we find that it is unsubstantiated
only if their claims under article 27 are declared inadmissible. In the context
of their article 27 claims, which we find admissible, the article 26 claim is
in our view also admissible.
(Signed): Mr. Louis Henkin
(Signed): Mr. Martin Scheinin
(Signed): Mr. Solari Yrigoyen
-----
Notes
1. The Covenant and the Optional Protocol
to the Covenant entered into force for the State party on
2. Reference is made to the proposition to
the Odelsting (a part of the Parliament), from 1871, p. 31.
3. Human Rights Committee's General
Comment No. 23 (50), adopted on
4. Communication No. 167/1984, adopted on
5. Communication No. 431/1990, adopted on
6. Communication No. 511/1992, adopted on
7. Communication No. 197/1985, adopted on
8. Communication No. 671/1995, adopted on
9. Reference is made to Ilmari Länsman
et al. v. Finland.
10. See the Human Rights Committee's
consideration of
11. Proposition No. 28 to the Odelsting
(1994-95) p. 31.
12. Report to the Parliament No.
18/1997-98.
13. Reference is made to his book
"Tvistemaal" (1998), p. 757.
14. Reference is made to Pereira v.
Panama, Case No. 437/1990, adopted on
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