Decision on merits; Subjects: CIVIL AND POLITICAL RIGHTS, NORWAY; [CCPR: UNO-Pakt II, Internationaler Pakt über bürgerliche und politische Rechte; Pacte international relatif aux droits civils et politiques; Patto II]
Volltext (verifizierbarer Originaltext)
GE.24-15517 (E) 110924 120924
Human Rights Committee
Views adopted by the Committee under article 5 (4)
of the Optional Protocol, concerning
communication No. 3588/2019*, **, ***
Communication submitted by:
Jovsset Ante Sara (represented by counsel Trond
Biti)
Alleged victim:
The author
State party:
Norway
Date of communication:
6 December 2018 (initial submission)
Document references:
Decision taken pursuant to rule 92 of the
Committee’s rules of procedure, transmitted to
the State party on 12 April 2019 (not issued in
document form)
Date of adoption of Views:
19 July 2024
Subject matter:
Mandatory order to cull reindeer
Procedural issues:
None
Substantive issue:
Right to enjoy one’s own culture
Article of the Covenant:
27
Article of the Optional Protocol:
None
1.1
The author of the communication is Jovsset Ante Sara, a national of Norway born in
1992. He claims that, by ordering him to reduce his reindeer herd, the State party has violated
his rights under article 27 of the Covenant. The Optional Protocol entered into force for the
State party on 23 March 1976. The author is represented by counsel.
1.2
On 24 May 2019, pursuant to rule 96 of its rules of procedure, the Committee, acting
through its Special Rapporteurs on new communications and interim measures, granted a
request by the Sami Parliament of Norway, joined by the Sami Reindeer Herders’ Association
of Norway, to submit a third-party submission on the complaint.
1.3
On 26 June 2019, pursuant to rule 94 of its rules of procedure, the Committee, acting
through its Special Rapporteurs on new communications and interim measures, requested the
* Adopted by the Committee at its 141st session (1–23 July 2024).
** The following members of the Committee participated in the examination of the communication:
Tania Maria Abdo Rocholl, Wafaa Ashraf Moharram Bassim, Rodrigo A. Carazo, Yvonne Donders,
Mahjoub El Haiba, Carlos Gómez Martínez, Laurence R. Helfer, Marcia V.J. Kran, Bacre Waly
Ndiaye, Hernán Quezada Cabrera, José Manuel Santos Pais, Soh Changrok, Tijana Šurlan, Kobauyah
Tchamdja Kpatcha, Teraya Koji, Hélène Tigroudja and Imeru Tamerat Yigezu.
*** A joint opinion by Committee members Marcia V.J. Kran, José Manuel Santos Pais and Teraya Koji
(dissenting) is annexed to the present Views.
United Nations
CCPR/C/141/D/3588/2019
International Covenant on
Civil and Political Rights
Distr.: General
12 September 2024
Original: English
CCPR/C/141/D/3588/2019
2
GE.24-15517
State party not to enforce the culling orders issued to the author on 26 February 2013 and
20 February 2019, respectively, while the communication was under consideration by the
Committee. The State party was also informed that the request was issued without prejudice
to the implementation of aspects of the culling policy not covered by the orders.1
1.4
On 23 September 2019, pursuant to rule 94 of its rules of procedure, the Committee,
acting through its Special Rapporteurs on new communications and interim measures, denied
the State party’s request to lift the interim measures.
Facts as submitted by the author
2.1
The author is a Sami reindeer herder. He is the leader of a siida unit in herding district
No. 20 in Fálá, in Finnmark county. A siida is a group of reindeer owners who engage jointly
in reindeer husbandry in specific areas. A siida unit is a family group or an individual who is
part of a siida and who engages in reindeer husbandry under the leadership of one person.
The author’s father and grandfather also practised reindeer husbandry until they discontinued
their practices in 2001/02 and 2003/04, respectively. The author’s grandfather transferred his
reindeer to his daughter, the author’s aunt, who in turn transferred her siida unit to the author
in 2010. The author had always wanted to participate in reindeer husbandry and, after
attending a Sami upper secondary school, he attended a reindeer husbandry school.
2.2
When the author took over as leader of the siida unit in 2010, the unit had 71 reindeer.
By 2011, the number had increased to 94, in 2012 to 116, in 2013 to 150, in 2014 to 145 and
in 2015 to 215 reindeer. At the time of the submission of the complaint in 2018, there were
approximately 350 reindeer in the siida unit. The reindeer numbers from 2010 to 2014 are
indicative of reindeer husbandry in the establishment phase. There are nine other members
in the siida unit. According to the reindeer husbandry report of 2014/15, the author’s aunt
had 33 reindeer in the siida unit, while the author’s grandfather, father, brother, sister and
three cousins had between zero and four reindeer each.
2.3
The author’s reindeer husbandry is economically marginal. Since 2012, the operation
has suffered a deficit. As the author’s husbandry is in the establishment phase, it is necessary
to build up the reindeer herd to achieve economically sustainable reindeer husbandry.
2.4
On 15 June 2007, the Reindeer Husbandry Act was adopted. It entered into force on
1 July 2007. Section 60 of the Act contains provisions on the number of reindeer per siida
unit. Pursuant to section 60 (1), a maximum number of reindeer should be stipulated for each
summer for the reindeer herding districts, based on the grazing resources available to the
siida. Likewise, in order to ensure responsible use of winter grazing areas, the number of
reindeer must be stipulated for the various winter siidas. Section 60 (3) of the Act contains
provisions on herd reduction in cases where the number of reindeer exceeds the maximum
established, setting out that the siida is obliged to prepare a culling plan. If the siida does not
prepare a plan or fails to implement it, each siida unit must reduce its excess number of
animals proportionally. The Reindeer Husbandry Board is responsible for ensuring that the
reduction is carried out. Deadlines must be set for the preparation of a plan and
implementation of the reduction of the number of reindeer.
2.5
In accordance with the agreement on procedures for consultations on the provisions
of the Reindeer Husbandry Act between State authorities and the Sami Parliament signed by
the Minister of Local Government and Regional Development and the President of the Sami
Parliament on 11 May 2005, a position memorandum prepared by the Sami Parliament, dated
10 February 2006, stated that the Sami Parliament supported the idea of minority protection
in order to maintain economically sustainable reindeer husbandry and to protect herders in
the establishment phase. After the conclusion of the consultations on 6 June 2006, the
Ministry of Agriculture and Food prepared a bill that was submitted to the Sami Parliament
for review. Having considered the bill in September 2006 in a plenary session, the Sami
Parliament proposed that siida units with 200 or fewer reindeer should be protected in the
1 In its observations of 14 October 2019, the State party confirmed that, further to the Committee’s
request for interim measures, the culling orders issued to the author had not been enforced.
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event of a reduction of the number of reindeer.2 The Ministry did not agree with that proposal,
considering that in the long-term, it could result in an industrial structure that would weaken
the overall average profitability of the siida.
2.6
After the adoption of the Reindeer Husbandry Act, a process was initiated for setting
the maximum number of reindeer in the herding districts. On 2 July 2011, Fálá herding
district No. 20 applied for permission to herd a maximum of 2,000 reindeer, which was
eventually approved by the Ministry. At the end of 2011, a maximum number had been set
for all herding districts, after which the Reindeer Husbandry Administration notified the
district of an order to prepare a reduction plan, as the district had 3,105 reindeers as of
31 March 2012. On 2 July 2012, a notification was also sent to the author indicating that,
when the number of reindeer exceeded the maximum stipulated, there was an obligation to
prepare a reduction plan, in accordance with the Act. If the Reindeer Husbandry
Administration did not receive a reduction plan by 10 September 2012, the Reindeer
Husbandry Board would carry out a proportionate reduction of the number of reindeer in
accordance with the Act.
2.7
While the herding district failed to agree on a reduction plan, four of its six siida unit
leaders agreed on 8 September 2012 that they would jointly herd four sixths of the district’s
total number of reindeer. The Reindeer Husbandry Administration did not accept that
agreement as a reduction plan and, at a meeting on 26 February 2013, the Reindeer
Husbandry Board decided to order the author to cull the spring herd of his siida unit from
116 to 114 reindeer by 31 March 2013, to 94 by 31 March 2014 and to 75 by 31 March 2015.
2.8
The author appealed against the culling order and the Reindeer Husbandry Board
reviewed the case on 20 November 2013, dismissing the appeal but forwarding it to the
Ministry, which also dismissed it, on 10 March 2014. On 16 September 2015, the Board
ordered the author to cull his herd in accordance with the Ministry’s cull order of 10 March
2014. He was also fined, pursuant to the Act, 2 kroner (about $0.19) per day for each reindeer
in excess of the maximum number. On 22 May 2015, the author brought an action against
the State party before Indre Finnmark District Court claiming that the Ministry’s cull order
of 10 March 2014 was invalid.
2.9
On 18 March 2016, the District Court held that, as the cull order violated the author’s
right to protection of property under the first Protocol to the Convention for the Protection of
Human Rights and Fundamental Freedoms (European Convention on Human Rights), it was
invalid. The Court stressed that the author was one of very few reindeer herders who were
significantly affected by the decision to reduce the number of reindeer, that its purpose could
have been fulfilled otherwise and that it particularly affected young herders in the
establishment phase. The State, represented by the Ministry of Agriculture and Food,
appealed the judgment to Hålogaland Court of Appeal, which dismissed the appeal on
17 March 2017. It held that the cull order was invalid as it violated article 27 of the Covenant,
namely the author’s right to enjoy his own culture. The Court found that it was impossible to
make a profit with a herd of only 75 reindeer and that the author would not have the means
to garner continued economic benefit from reindeer husbandry after the required reduction
in his herd.
2.10
The Ministry appealed the judgment to the Supreme Court which, on 21 December
2017, found that the cull order did not violate the author’s rights. The Court noted that: (a) the
validity of the cull order depended on whether it was in conflict with article 27 of the
Covenant or the right to protection of property under the first Protocol to the European
2 The author notes that, during the plenary session in September 2006, the Sami Parliament stated that,
in accordance with the Law Committee’s proposal, a provision must be included concerning protection
of those with an average or lower than average number of reindeer in the case of a mandatory reduction
pursuant to section 64 of the bill. The siidas must stipulate a minimum number of reindeer, by means
of a unanimous decision in the siida. Each of the responsible units that had more than the stipulated
minimum number of reindeer, determined by the siida, should reduce the excess number proportionally.
If the siida could not reach a unanimous decision on the stipulated minimum number of reindeer, the
Law Committee’s proposal of 200 reindeer should apply. That would contribute to protecting young
persons engaged in reindeer husbandry in the establishment phase and ensure economically sustainable
reindeer husbandry for all those engaged in reindeer husbandry.
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Convention on Human Rights; (b) the Reindeer Husbandry Act had been enacted to ensure
ecologically, economically and culturally sustainable reindeer husbandry based on the Sami
culture, tradition and customs in the interests of the herders and society in general; (c) the
reduction in the number of reindeer pursuant to the Act had been ordered in the interests of
the reindeer herders due to overgrazing; and (d) the Sami Parliament had agreed that the
number of reindeer had to be reduced. The Court found that the proportionate reduction
maintained the reindeer herders’ interests as a group; the regulation affected everyone and
ensured that the owners of the largest herds had to cull the highest number of reindeer. The
reduction system met the criteria of being objective, reasonable and necessary to maintain
the interests of the reindeer herders. While the system deprived the author, at least for a period,
of the possibility of developing his business into a profitable one, his herd had been too small
to begin with to yield an acceptable income. The Sami Parliament had been consulted
throughout the legislative process and had had the opportunity to influence the regulation.
The Court therefore concluded that there had been no violation of the author’s rights under
article 27 of the Covenant or his right to property under the first Protocol to the European
Convention.
2.11
The author notes that the culling order of 26 February 2013 requires him to reduce his
unit to 75 reindeer. He argues that it would be impossible to engage in reindeer husbandry as
a principal business with such a low number, as it would mean slaughtering an estimated
25 animals per year, which would result in sales revenue of approximately 25,000 kroner
(about $2,338). In order to be eligible for a grant under the Reindeer Husbandry Agreement,
the leader of a siida unit must have a minimum revenue of 50,000 kroner (about $4,676),
excluding value added tax, for the previous calendar year. Even with sales revenue that would
trigger a grant, the operating expenses would far exceed the operating revenue. Since
operating expenses, such as agricultural buildings and vehicles, are not proportionate to the
size of the reindeer herd, siida units with fewer than 200 reindeer have the highest costs
per reindeer. Compliance with the culling order would thus mean that the author would be
unable to make a profit from reindeer husbandry, entailing a real risk that he would have to
discontinue his reindeer husbandry. Moreover, with only 75 reindeer, there would be a real
risk that the number of reindeer would fall to 50 in case of difficult weather conditions and
due to predators. Section 16 (4) of the Reindeer Husbandry Act stipulates that siida units with
fewer than 50 reindeer for five years must be terminated.
Complaint
3.1
The author claims that by ordering him to reduce his reindeer herd, the State party has
denied him the right to enjoy his own culture, in violation of his rights under article 27 of the
Covenant. While the purpose of the reduction of the number of reindeer under the Reindeer
Husbandry Act may have been based on reasonable and objective grounds, namely, to
preserve ecologically, economically and culturally sustainable reindeer husbandry based on
Sami culture, the method chosen for regulating the reindeer numbers was neither reasonable
nor necessary.
3.2
The author notes that he was in the establishment phase of his practice and was
cautiously building up his herd in order to reach a level at which he could make a financial
profit when the decision on reducing the number of reindeer was made. He argues that the
authorities’ decision prevents him from engaging in reindeer husbandry in accordance with
the traditions of the reindeer husbandry culture.3 He also argues that it was not reasonable or
necessary in order to ensure the continued sustainability of reindeer husbandry in the area to
extend the culling order to reindeer units with fewer than 200 reindeer, considering the view
of the Sami Parliament that small siida units should be exempted from such orders.
3.3
The author argues that, by failing to take the Sami Parliament’s view into account, the
State party authorities failed to consult properly with the Sami community and to consider
3 The author refers to the Committee’s jurisprudence in Kitok v. Sweden, communication No. 197/1985,
and Mahuika et al. v. New Zealand (CCPR/C/70/D/547/1993).
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the community’s rights to self-determination and to real and effective participation in the
decision-making process.4
State party’s observations on the merits
4.1
In its observations dated 14 October 2019, the State party notes that the author’s
complaint concerns the decision of the Ministry of Agriculture and Food of 10 March 2014,
upholding the decision of the Reindeer Husbandry Board of 26 February 2013 ordering the
author to reduce his herd from 116 to 75 reindeer by 31 March 2015. The State party confirms
that, further to the Committee’s request for interim measures, the culling order has not been
enforced. The author has entered into an agreement with other reindeer herders for the
transfer of the majority of his reindeer to another district by the end of 2019. By using the
flexibility and self-governance inherent in the Reindeer Husbandry Act, the author has found
a way to comply with the Ministry’s decision.
4.2
The State party notes that in Norway, the right to carry out reindeer husbandry within
the Sami reindeer area is reserved exclusively for the Sami population. About 94 per cent of
all reindeer in Norway are found in the Sami reindeer area, which stretches from Hedmark
county in the south to Finnmark county, which is the northernmost county in Norway. Despite
the vast area of land used for reindeer husbandry, the pressure on the industry and the grazing
land from existing reindeer herders and individuals who want to enter the industry has been
high for decades and has reached critical levels. Overgrazing posed a threat to the welfare of
the animals and the industry at the time of the enactment of the Reindeer Husbandry Act in
2007. It also has the potential to have severe effects on Sami reindeer husbandry in the area
for decades to come due to the risk of long-term damage to the grazing land. Facilitating an
ecologically sustainable reindeer industry, where the number of reindeer is adjusted to the
available grazing resources, was thus crucial to secure the basis for the industry for future
generations of reindeer herders. It was therefore of utmost importance to succeed in bringing
the number of reindeer down to a sustainable level.
4.3
Against this background, Parliament decided to include the rule of proportionate
reduction in the Reindeer Husbandry Act of 2007. It made the rule secondary in nature,
meaning that it would apply: (a) only insofar as a district had not used internal
self-governance for the reindeer owners to make alternative arrangements, if they did not
want a proportionate reduction; and (b) only temporarily, until the reduction was carried out.
Following the entry into force of the Act in 2007, an interdisciplinary working group
consisting of reindeer herders, scientists and representatives from the Ministry spent about
four years determining the maximum number of reindeer that the grazing land of each siida
could support in a sustainable manner. In Finnmark county alone, 29 siidas consisting of
289 siida shares exceeded the maximum number of reindeer and therefore needed to reduce
their herds by a total of 42,700 animals. Of the 29 siidas, everyone – except the author –
complied with the reduction decisions and together reduced the number of reindeer from a
total of 191,012 in 2011/12 to 145,795 by the end of 2014/15.
4.4
The State party stresses that the rule of proportionate reduction was introduced in the
Reindeer Husbandry Act with the aim, as stipulated in section 1 (1), of arranging for
ecologically, economically and culturally sustainable reindeer husbandry based on Sami
culture, tradition and customs for the benefit of the population conducting reindeer husbandry
and of society in general. Section 60 of the Act stipulates the rules regarding the
determination of reindeer numbers for the siidas. Section 60 (3) stipulates that if the number
of reindeer in the siida exceeds the maximum number, the siida must prepare a reduction
plan. If the siida fails to do this or is not able to carry out the plan, each siida share must
reduce the excessive number proportionally.
4.5
The State party argues that, when the author took over as siida unit leader, the
available grazing land in Fálá did not give him any legitimate expectations of being able to
increase his herd, as the grazing resources of the district represented a natural cap on the
number of reindeer that could be supported in sustainable husbandry. When he acquired his
aunt’s siida share in 2010, the maximum number of reindeer in the district of Fálá was 1,300.
4 The author refers to Mahuika et al. v. New Zealand.
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At that time, the number of reindeer for 2009/10 was 2,196. Hence, in 2010, there was no
room for further growth of any of the siida shares. The State party also notes that the district
has had very low slaughter weights, reaching an all-time low in 2016/17 when they dropped
to 13.9 kg. This shows that there was no room to increase the maximum number of reindeer
in the district and emphasized the need for the author to reduce his herd.
4.6
Regarding the merits of the author’s claims under article 27 of the Covenant, the State
party notes that it is undisputed that the Sami population is an Indigenous People and
therefore a minority within the meaning of article 27, and that reindeer herding is a part of
Sami culture. Nevertheless, it emphasizes that, since reindeer herding can also be a business
activity, the term “culture” refers to the way of life related to reindeer herding and not the
economic aspects of reindeer herding per se.5 It argues that article 27 does not indicate that
the right to enjoy culture cannot be regulated or that it cannot be restricted. Hence, article 27
does not prevent a State party from regulating activity, including where the activity is an
essential element of the culture of an ethnic community.
4.7
The State party submits that the decision to impose a culling order on the author does
not represent a violation of his rights under article 27 of the Covenant because he has not
been denied the right to enjoy the Sami reindeer husbandry culture for the following reasons:
(a) the decision involved an obligation to reduce his herd from 116 to 75 reindeer, thereby
bringing the number of reindeer in the siida down to a sustainable level; (b) the decision is
limited in time, and it therefore prevents the author from increasing his herd only temporarily.
When he has complied with the decision, he will be able to increase his herd, provided that
there is room for an increase within the maximum number of 2,000 reindeer that the siida
can support; (c) each of the six siida shares were ordered to carry out a proportionate
reduction of 35 per cent of their herds and were thus to carry the burden of reduction
collectively and in accordance with their abilities, thereby constituting fair treatment of all
Sami reindeer herders in the siida and securing equal treatment in compliance with article 26
of the Covenant; and (d) the decision did not interfere with the author’s legal right to own
reindeer and to take part in the way of life associated with reindeer husbandry. In fact, the
decision gave the author the possibility to continue to enjoy the way of life associated with
reindeer husbandry to the very same degree as he could reasonably have expected when he
acquired the siida share in 2010. The State party stresses that, when considering this case, it
is important not to lose sight of this aspect; if the author is permitted to expand his herd, it
will have a detrimental impact on other families’ established way of life. None of these
families have a large income from reindeer herding. Most families that have reindeer
husbandry as their primary source of income are unlikely to be able to reduce their herds
significantly. Should the author and the other smaller siida shares in Fálá be entitled to
increase their herds, it would force the established families to reduce their herds by more than
a proportionate share, leading to an unsustainable outcome for the established herders.
4.8
The State party notes that under the Reindeer Husbandry Act, the allocation of
reindeer between the Sami siida shares is an internal matter within the siida. How a reduction
should take place if the number of reindeer is too high is also primarily an internal matter.
The siida in Fálá could therefore have shielded the author through a simple majority decision,
by setting a cap on the number of reindeer per siida share. Alternatively, the siida shares
could have agreed on a reduction plan, or the author could have enforced any private law
rights vis-à-vis the other siida shares through ordinary legal action. Indeed, the State party
notes that the Sami Reindeer Herders’ Association of Norway requested that more matters
be left to the internal self-governance of the Sami herders during the consultations prior to
the enactment of the Reindeer Husbandry Act. As this request was met, it is to be expected
that the industry will make use of the possibilities provided. Due consideration must be given
to the secondary nature of the rule of proportionate reduction.
4.9
The State party argues that the proportionate reduction rule under the Reindeer
Husbandry Act strikes a fair balance between the interests of the smaller and the larger siida
shares. The proportionate reduction in the author’s case meant that the relationship between
the various siida shares would remain the same after the reduction. This is particularly
5 The State party refers to the Committee’s general comment No. 23 (1994), para. 7, and Kitok v.
Sweden, para. 9.2.
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important, since the other Sami siida shares and families in Fálá would also be able to assert
individual rights under article 27 of the Covenant.
4.10
Regarding the author’s claims concerning the right of the Sami to be consulted, the
State party notes that consultations were carried out prior to the enactment of the Reindeer
Husbandry Act. A total of seven consultations were held with the Sami Parliament and the
Sami Reindeer Herders’ Association of Norway. After the consultations were concluded at
the end of June 2006, the Ministry prepared a bill which was sent to the Sami Parliament for
consideration at a plenary meeting, and the Association was also given the opportunity to
comment on the final draft. The Sami Parliament’s suggestion to shield siida shares with
fewer 200 reindeer in a reduction process, to which the author refers, was a legitimate
political view. When enacting the rule of proportionate reduction, the Parliament of Norway
chose a solution that was more in line with the industry’s request for more self-governance
and the need to protect established families that have reindeer husbandry as a primary income.
In this respect, the State party stresses the need to regard the reindeer legislation as a whole
and appreciate the possibilities of self-governance provided to the Sami for reindeer
husbandry. The State party argues that Sami interests were also represented in the
administration’s decision-making process, as three of the seven members of the Reindeer
Husbandry Board, which ordered the proportionate reduction in the first place, are Sami.
4.11
The State party notes that the right of a minority group to be consulted does not feature
in the Committee’s jurisprudence on similar cases in which an individual has claimed
individual rights that are in conflict with the interests and the exercise of parallel rights of
other individuals within the group.6 Hence, the question of a right to be consulted is not
relevant when assessing whether there has been a violation of article 27 of the Covenant in
the matter at hand. Even if a right to be consulted were to be applied in the present case, the
State party argues that any such criteria must be considered to have been met. The right to be
consulted cannot reasonably be understood as a veto right or the right to a particular outcome
of the decision-making process. The aim of introducing a procedural aspect of article 27 must
be to involve the minority group in the process to ensure that the facts and interests pertaining
to the minorities are being brought to light, with the aim of reaching an agreement on
proposed measures.
4.12
The State party thus argues that the allocation of reindeer between the various siida
shares is a zero-sum situation where each reindeer added to the author’s herd will result in a
corresponding reduction of another family’s herd. In other words, there is a conflict between
the asserted individual rights of the author and the parallel rights and interests of the other
siida shares. The internal conflict of interest distinguishes the present case from cases where
States take resources from the minority for the benefit of society at large, such as Poma Poma
v. Peru,7 or the three cases concerning Länsman et al. v. Finland.8 The State party also refers
to the Committee’s jurisprudence in Kitok v. Sweden9 and Mahuika et al. v. New Zealand10
and argues that, in cases of internal conflict of interest, there is no violation of article 27 of
the Covenant if: (a) the limitation of the enjoyment of culture serves the interests of the
affected group; and (b) there is a reasonable and objective justification for the application of
the limitation to the individual who claims to be adversely affected.
4.13
In the present case, the State party argues that the rule of proportionate reduction
served the interests of the affected siidas as it was necessary to reduce the number of reindeer
because of overgrazing. The Sami Parliament also agreed that reindeer numbers had to be
reduced. In order to achieve this, the authorities introduced a rule which made effective
enforcement possible. Equal treatment in the form of proportional reduction was the solution.
The State party notes that in the preparation of the legislation, the Ministry emphasized that
protecting the smallest siida shares could give the industry an unfavourable structure and that
6 The State party refers to Lovelace v. Canada, communication No. 24/1977, Kitok v. Sweden and
Paadar et al. v. Finland (CCPR/C/110/D/2102/2011).
7 Poma Poma v. Peru (CCPR/C/95/D/1457/2006).
8 Länsman et al. v. Finland (CCPR/C/52/D/511/1992), (CCPR/C/58/D/671/1995) and
(CCPR/C/83/D/1023/2001).
9 Kitok v. Sweden, para. 9.8.
10 Mahuika et al. v. New Zealand, para. 9.6.
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it could weaken its overall and average profitability. The Ministry believed that the
opportunity to practise financially profitable reindeer husbandry could be undermined.11
4.14
The State party reiterates its argument that the application of the rule of proportionate
reduction to the author’s herd had a reasonable and objective justification. By enacting a rule
of proportionate reduction, a method was chosen that meant that everyone contributed
according to their abilities and thereby shared the burden of reducing the herds in a fair
manner. The State party notes that the profitability of reindeer husbandry is generally low
and the industry needs financial support from the State. The reason profitability is low is not
that it is impossible to make money from reindeer husbandry, but that there are too many
people and too many reindeer involved for the industry to be able to support itself fully. The
State party argues that it is imperative for the fair and equal treatment of other reindeer
owners that the author does not benefit from resisting the reductions where others have taken
responsibility for preserving the Sami reindeer herding culture for future generations.
Author’s comments on the State party’s observations on the merits
5.1
On 3 February and 17 March 2020, the author submitted his comments on the State
party’s observations. He reiterates his claim that the culling order issued in 2013 amounted
to a violation of his rights under article 27 of the Covenant. While noting the State party’s
argument that the culling order is time-limited, he argues that the decision has long-term
effects and can be extended for up to five years.
5.2
The author notes the State party’s argument that a solution could have been found
between the siida members that would have protected him as a herder with a small herd. He
argues that this was only a theoretical possibility, as there would always be some members
who would not accept such an agreement. He reiterates his arguments that it would not be
possible to have a profitable operation with only 75 reindeer and that when the Sami
Parliament considered the draft of the Reindeer Husbandry Act in September 2006, it
supported the proposal to protect siida units with 200 or fewer reindeer in the event of a
reduction, which was also supported by the Sami Reindeer Herders’ Association. It was not
supported by the Ministry and was thus not included in the Act. As such, the participation of
the reindeer industry and the Sami Parliament had no impact on the content of the Act and
cannot therefore be considered to fulfil the requirement of effective participation under
article 27 of the Covenant. Clearly, the Sami Parliament and the Association are best placed
to determine the interests of the Sami community and the reindeer husbandry industry. The
author also argues that protecting siida units with fewer than 200 reindeer would have had
limited consequences for the larger siida units. He notes that, in a 2012 report, a working
group on the regulation of reindeer numbers in which several ministries, the Sami Parliament
and the Association participated, found that in West Finnmark, where the Fàlà district is
located, 15 of the 157 siida shares had fewer than 200 reindeer before the culling orders were
issued.
5.3
The author argues that the position of the Sami Parliament and the Sami Reindeer
Herders’ Association on the smallest siida units means that there is no conflict between
individual and collective minority rights. If the Sami Parliament’s recommendation had been
followed in the present case, his herd would have been protected from reduction. He also
argues that the decision to issue the culling order in his case was not necessary in order to
ensure the continued viability and welfare of the reindeer husbandry industry. The decision
not to protect the smallest siida units was not taken out of necessity, but based on an
assessment of what an appropriate industrial structure was considered to be.
State party’s additional observations
6.1
On 4 June 2020 and 3 November 2021, the State party submitted additional
observations. It notes the author’s claims that there was only a theoretical possibility of
finding a solution within the siida because the reduction plan required the six affected siida
shares to reach a unanimous decision. The State party maintains its position that the rule of
11 The State party refers to Supreme Court of Norway, Case No. 2017/981, Judgment HR-2017-2428-A,
21 December 2017, paras. 80–82.
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proportionate reduction is of a secondary nature, and that the internal self-government
inherent in the Reindeer Husbandry Act provides realistic opportunities to influence how the
burden of reduction should be distributed between the siida shares if the number of reindeer
exceeds the maximum number permitted in the siida. The possibility for a siida to protect the
smallest siida shares by setting an upper limit of reindeer per siida share requires only a
simple majority of votes.
6.2
The State party argues that, in order for the author to expand his herd, someone else
would have to reduce their own herd correspondingly. In such cases, where the author’s
interests are in direct conflict with the reindeer husbandry of the other siida shares in the
district, the question is whether there is a reasonable and objective justification for the
application of the limitation to the individual who claims to be adversely affected.12 The State
party disagrees that the decision to reduce the number of reindeer to 75 has made the author’s
reindeer husbandry unprofitable. It argues that in fact, the author will have a better financial
outcome with 75 healthy and properly fed reindeer than with 116 malnourished reindeer. The
State party does not dispute that the author is unlikely to be able to have reindeer husbandry
as a primary source of income with 75 animals. However, it reiterates that the decision of
proportionate reduction is temporary, as it applies only for the reduction period. Hence, the
decision does not prevent the author from increasing his herd in the future. Whether there is
room for future growth of the author’s herd is a factual question that is not influenced by the
time-limited decision. Such room could be created if some of the other siida shares reduced
their herds, or if the siida shares use the possibilities of self-determination provided by the
Reindeer Husbandry Act. The reindeer district to which the author belongs can, for example,
change the district’s usage rules to include a cap on the maximum number of reindeer per
siida share, thereby allowing the author to increase his herd. Furthermore, it should be noted
that the author is able to take part in the reindeer husbandry way of life to the same extent as
his aunt was doing. The number of reindeer in his aunt’s siida share for most of the 10 years
preceding the author’s acquisition of it in 2010 was fewer than 71 reindeer.
6.3
The State party stresses that, at the time of the culling orders, the author had submitted
to the authorities that he had 116 reindeer in his herd for 2011/12. That was the only number
available when the reduction process in the siida was initiated in February 2013, as the
numbers for 2012/13 were not reported until 1 April 2013. The State party maintains that 116
was thus the correct number to use as the basis for the reduction. In any case, the question of
whether the author had 116 or 150 reindeer cannot be decisive. The more important issue is
that he had no legitimate expectation of increasing his herd from 71 animals in 2010, as the
siida was already full. His subsequent increase to 150 and then to between 300 and 350
reindeer was unlawful and negatively affected the other herders in the district. The State party
also stresses that there is no basis in the Covenant or elsewhere for a provision guaranteeing
any reindeer owner a particular financial outcome. In a situation of overgrazing, such a
provision could threaten reindeer husbandry for future generations, since it would
subsequently be practicably impossible to reduce the number of reindeer to a sustainable
level.
Third-party submission by the Sami Parliament of Norway, joined by the Sami
Reindeer Herders’ Association of Norway
7.1
On 3 June 2019, the Sami Parliament of Norway, joined by the Sami Reindeer Herders’
Association of Norway, submitted a third-party submission on the complaint.13 The Sami
Parliament is the elected and representative body for the Sami people, the Indigenous People
of Norway. The Sami Reindeer Herders’ Association is an non-governmental organization
that represents Sami reindeer herders in Norway. The submission aims to explain the
domestic decisions in the author’s case in the light of the Committee’s previous jurisprudence,
the potential threats to the author’s right to enjoy his own culture caused by the domestic
legislation and the lack of effective participation in the decision-making process.
12 Mahuika et al. v. New Zealand, para. 9.6.
13 At the request of the Sami Parliament, the submission was prepared by professors of international law
Martin Scheinin, Kirsti Strøm Bull and Geir Ulfstein.
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7.2
In 2006, the Sami Parliament made the following submission to the authorities about
amendments to the Reindeer Husbandry Act concerning the reduction of reindeer numbers:
(a) the proposal had been sent to the Sami Parliament without the full details of the
preparatory work concerning the law, and thus in violation of the State party’s consultation
obligations; (b) the Sami Parliament objected to the proposal that it would be for the State
party authorities to unilaterally decide about the reindeer numbers and their reduction; and
(c) the Sami Parliament proposed that, unless agreement could be reached within a siida, a
minimum herd size of 200 animals per owner would apply before a proportional reduction
was ordered to the number of animals beyond that minimum. The Sami Parliament referred
specifically to the importance of enabling young reindeer owners to attain economic
sustainability at the stage when they are establishing themselves as reindeer herders.
However, the State party authorities decided to not follow that position. Consequently, the
complaint results from the State party authorities’ unilateral decisions.
7.3
The case primarily concerns the internal allocation of reindeer herd quotas between
Sami herders. In Norway, reindeer herding as an economic activity is reserved exclusively
for the Sami people. The complaint therefore, along with Lovelace v. Canada, Kitok v.
Sweden and Mahuika et al. v. New Zealand, concerns the role of an individual or a group of
individuals within the broader Indigenous community, rather than interference in traditional
or typical Indigenous activities through competing use of traditional lands, as tolerated or
authorized by the State party. In its general comment No. 23 (1994), the Committee
recognized States parties’ obligation to take measures to ensure the effective participation of
members of minority communities in decisions which affect them (para. 7). In cases
concerning external interference in traditional or typical Indigenous activities, the Committee
has combined the requirement for effective participation with continued sustainability,
upholding the right to continue to benefit from Indigenous economic activity. In Poma Poma
v. Peru, the Committee’s Views suggest a move towards applying a more demanding test of
free, prior and informed consent when addressing the permissibility of interference. While
that case concerned external interference in the economic activity of an Indigenous group,
rather than internal allocation, it remains relevant. If the current test for permissibility of
interference is free, prior and informed consent, then it is clear that the standard for a role for
the Indigenous community itself in decisions concerning the internal allocation of a scarce
resource cannot be lower than that applicable in respect of external interference.
7.4
It is highly instructive for the assessment of the present case that, in its most recent
cases concerning article 27, the Committee has introduced the notion of internal
self-determination as an aspect of the rights of an Indigenous People under articles 27 and
25, interpreted in the light of article 1. In doing so, the Committee explicitly relied upon the
provisions of the United Nations Declaration on the Rights of Indigenous Peoples when
interpreting the Covenant. In Sanila-Aikio v. Finland14 and Käkkäläjärvi et al. v. Finland,15
it established that the State party had violated article 25 of the Covenant when it intervened
in the ongoing Sami Parliament elections of 2015 by ordering the inclusion of a relatively
high number of individuals in the electoral rolls of that Parliament. In those cases, the
Committee appeared to accept that there may be some room for interference by the State
party, even in matters that fall under the Indigenous group’s internal self-determination, but
only when it is based on objective and reasonable criteria. The threshold for permissible State
party interference in decision-making in matters pertaining to the internal self-determination
of an Indigenous group, such as internal allocation of resources, must be higher than for
external interference in the economic activities of an Indigenous group. There should be a
presumption that the Sami Parliament has exclusive jurisdiction in such internal matters. The
State party should be required to demonstrate that the interference is necessary to the extent
that the matter has effects beyond the Sami community. The State party has failed to show
why the default minimum herd size of 200 reindeer per owner was unacceptable.
7.5
As has been confirmed by the domestic courts, it is not economically sustainable to
maintain a herd of only 75 reindeer when a family seeks to participate in reindeer herding as
the main source of its subsistence. Any regulation should be designed in a way that supports
14 Sanila-Aikio v. Finland (CCPR/C/124/D/2668/2015).
15 Käkkäläjärvi et al. v. Finland (CCPR/C/124/D/2950/2017).
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the purpose of article 27, namely, to protect the minority community. Shielding a minimum
number of reindeer from eventual cuts will more effectively protect the culture. It should be
for the State party to show why such a measure is not feasible. The fact that the author is a
young father, who together with his spouse wishes to continue the centuries-old tradition of
reindeer herding, also transmitting this constitutive dimension of Sami culture to the next
generation, supports the conclusion that the culling order is not based on considerations
related to securing the continued viability of Sami reindeer herding and the continued welfare
of the Sami as an Indigenous People.
State party’s observations on the third-party submission
8.
On 14 October 2019, the State party submitted that it disagreed with the notion of
internal self-determination as an aspect of the rights of an Indigenous People under the
Covenant. Neither Poma Poma v. Peru nor Mahuika et al. v. New Zealand could be taken as
the basis for such a right. It reiterated its argument that, in cases where the exercise of parallel
rights and interests are in conflict with each other, the tests are whether: (a) the limitation of
the enjoyment of culture serves the interests of the affected group; and (b) there is a
reasonable and objective justification for the application of the limitation to the individual
who claims to be adversely affected. It also reiterated its argument that self-determination is
provided to reindeer herders under the Reindeer Husbandry Act by giving the siidas the
authority to set a maximum number of reindeer per siida share through a simple majority
decision. It emphasized that it strongly objects to the assertion that it has not based its actions
on a quest for the continued viability and welfare of the Sami people and their reindeer
herding, as argued in the third-party submission. It noted that the rule of proportionate
reduction was based on the need to protect the interests of the established families,
substantiated with evidence of the low profitability in the siida. The third-party submission
fails to explain why the Sami culture is better protected by making it even more difficult for
the established families to make a living from reindeer herding than it would be following a
proportionate reduction.
Issues and proceedings before the Committee
Consideration of admissibility
9.1
Before considering any claims contained in a communication, the Committee must
decide, in accordance with rule 97 of its rules of procedure, whether the communication is
admissible under the Optional Protocol.
9.2
The Committee has ascertained, as required under article 5 (2) (a) of the Optional
Protocol, that the same matter is not being examined under another procedure of international
investigation or settlement.
9.3
The Committee notes the author’s claim that he has exhausted all effective domestic
remedies available to him. It also notes that the State party has not objected to the
admissibility of the present communication. It therefore considers that the requirements of
article 5 (2) (b) of the Optional Protocol have been met and that the author has sufficiently
substantiated his claims under article 27 of the Covenant for the purposes of admissibility,
and proceeds with its consideration on the merits.
Consideration of the merits
10.1 The Committee has considered the communication in the light of all the information
submitted to it by the parties, in accordance with article 5 (1) of the Optional Protocol.
10.2 The Committee notes the author’s claim that, by ordering him to reduce his reindeer
herd, the State party has denied him the right to enjoy his own culture, in violation of his
rights under article 27 of the Covenant. It also notes his submission that, by failing to take
the view of the Sami Parliament and the Sami Reindeer Herders’ Association into account,
the State party authorities failed to consult properly with the Sami community and to respect
their right to real and effective participation in the decision-making process, also in violation
of the requirements of article 27 of the Covenant. The Committee further notes the State
party’s submission that the decision imposing a culling order on the author does not represent
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a violation of his rights under article 27 of the Covenant, as the author has not been denied
the right to enjoy the Sami reindeer husbandry culture. It notes the State party’s additional
argument that the rule of proportionate reduction, as stipulated in the Reindeer Husbandry
Act, served the interests of the affected siidas as it was necessary to reduce the number of
reindeer in the siida because of overgrazing, and that there was a reasonable and objective
justification for applying the reduction rule to the author. It also notes the State party’s
arguments that extensive consultations were held with the Sami community prior to the
enactment of the Act and that there is a conflict between the asserted individual rights of the
author and the parallel rights and interests of the other siida shares regarding the number of
reindeer to be culled.
10.3
The Committee recalls that article 27 establishes and recognizes a right which is
conferred on individuals belonging to minority groups and which is distinct from, and
additional to, all the other rights that all persons are entitled to enjoy under the Covenant.16
In accordance with article 27, members of minorities groups shall not be denied the right to
enjoy their culture and measures whose impact amounts to a denial of that right are
incompatible with the obligations under article 27.17 The enjoyment of that right may require
positive legal measures of protection and measures to ensure the effective participation of
members of minority communities in decisions that affect them. The protection of the rights
enshrined in article 27 is directed towards ensuring the survival and continued development
of the cultural identity of the minority concerned, thus enriching the fabric of society as a
whole.18
10.4
The Committee notes that, in the present case, the author is a member of an Indigenous
People within the meaning of article 27 of the Covenant who, as such, has the right to enjoy
his own culture. It is undisputed that reindeer husbandry is an essential element of that
culture.19 In this context, the Committee recalls its previous jurisprudence that economic
activities may come within the ambit of article 27 if they are an essential element of the
culture of a community.20 The Committee also recalls that, in the case of Indigenous Peoples,
the enjoyment of their culture may relate to a way of life which is closely associated with
their traditional lands, territories and resources, including such traditional activities as fishing
and hunting, and that the protection of this right is directed towards ensuring the survival and
continued development of the cultural identity of the minority concerned. 21 Therefore,
Indigenous Peoples’ cultural values and rights associated with their ancestral lands and their
relationship with nature should be regarded with respect and protected, in order to prevent
the degradation of their particular way of life.22 Furthermore, the Committee recalls its
jurisprudence that the close ties of Indigenous Peoples to the land must be recognized and
understood as the fundamental basis of their cultures, spiritual life, integrity and economic
survival; their relations to the land are a material and spiritual element which they must fully
enjoy to preserve their cultural legacy and transmit it to future generations and are, therefore,
a prerequisite to prevent their extinction as a people.23
10.5
The Committee notes that the author is directly affected by the regulation under the
Reindeer Husbandry Act and the orders imposed on him to reduce to 75 the number of
reindeer in his herd. It also notes that it is undisputed between the parties that the purpose of
the reduction regulation in the Reindeer Husbandry Act is based on reasonable and objective
aims, namely, to preserve ecologically, economically and culturally sustainable reindeer
16 General comment No. 23 (1994), para. 1.
17 Mahuika et al. v. New Zealand, para. 9.4. See also Länsman et al. v. Finland
(CCPR/C/83/D/1023/2001), para. 10.1.
18 General comment No. 23 (1994), paras. 6.1 and 9, Poma Poma v. Peru, para. 7.2, and Roy v.
Australia (CCPR/C/137/D/3585/2019), paras. 8.2 and 8.3.
19 See, for example, Paadar et al. v. Finland, para. 7.5.
20 Mahuika et al. v. New Zealand, para. 9.3, and Kitok v. Sweden, para. 9.2.
21 General comment No. 23 (1994), paras. 3.2, 7 and 9, Oliveira Pereira et al. v. Paraguay
(CCPR/C/132/D/2552/2015), para. 8.6, and Poma Poma v. Peru, para. 7.2.
22 Oliveira Pereira et al. v. Paraguay, para. 8.6, Committee on Economic, Social and Cultural Rights,
general comment No. 21 (2009), para. 36, and United Nations Declaration on the Rights of Indigenous
Peoples, arts. 20, 26 (1) and 33.
23 Roy v. Australia, para. 8.3, and Agren et al. v. Sweden (CERD/C/102/D/54/2013) para. 6.6.
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husbandry. Nevertheless, the parties disagree as to the methods chosen for the reduction in
the number of reindeer, and whether such methods were reasonable, justified and necessary.
In this connection, the Committee notes the State party’s argument that the proportionate
reduction rule under the Reindeer Husbandry Act struck a fair balance between the interests
of the smaller and the larger siida shares, and that the allocation of reindeer between the
various siida shares is a zero-sum situation in which each reindeer added to the author’s herd
would result in a corresponding reduction of another family’s herd. The Committee recalls
that, in circumstances where the right of individuals to enjoy their own culture is in conflict
with the exercise of parallel rights by other members of the minority group or of the minority
as a whole, the Committee may consider: (a) whether the limitation in question is in the
interests of all members of the minority; (b) whether there is reasonable and objective
justification for its application to the individuals who claim to be adversely affected; and
(c) whether the limitation is necessary for the continued viability and welfare of the minority
as a whole.24 In the present case, the Committee considers that the reduction policy was issued
in the interest of the reindeer herding community as a whole, as it was issued because of
overgrazing and in the interest of preserving ecologically, economically and culturally
sustainable reindeer herding currently and in the future. The question before the Committee
is therefore whether there is reasonable and objective justification for not exempting herders
with a small number of reindeer, such as the author, from the reduction policy, and whether
issuing the culling orders in question to herders like the author, who only had a small number
of reindeer, was necessary for the continued viability and welfare of the community as a
whole.
10.6
In this connection, the Committee notes the State party’s argument that the first point
to consider is that, under the Reindeer Husbandry Act, the proportionate reduction rule is
secondary in nature as the allocation of reindeer between the siida shares is an internal matter
within the siida, meaning that the siida in Fálá could have shielded the author from the
reduction through a simple majority decision, by setting a cap on the number of reindeer per
siida share. The Committee also notes the author’s argument that this arrangement was only
a theoretical possibility, as there would always be some members who would not join the
agreement, and that in practice, it was not possible to reach such an agreement within the
siida. The Committee recognizes the State party’s argument that the culling order imposed
on the author is time-limited and that the author can thus increase his herd in the future.
Nevertheless, the Committee notes the author’s assertion that the reduction decision has
long-term effects and can be extended for up to five years. The Committee observes that the
author could only increase his herd in the future provided that there is room for an increase
within the maximum number of 2,000 reindeer that the siida in question can support.
Consequently, the Committee considers that the secondary nature of the proportionate
reduction rule and the time-limited nature of the culling order did not in practice shield the
author from an order by the State party authorities to reduce his herd to 75 animals.
10.7
The Committee notes the author’s argument that it would be impossible to make a
financial profit from a small herd of 75 reindeer in line with the culling orders imposed on
him, which would risk him having to discontinue his reindeer husbandry practice, preventing
him from engaging in reindeer husbandry in accordance with the traditions of the Sami
reindeer husbandry culture. It also acknowledges the State party’s argument that the rule of
proportionate reduction had a reasonable and objective justification as it meant that the
biggest entities would have to bear the brunt of the stipulated reduction and that an exemption
for small herds could in the longer term give the industry an unfavourable structure that
would weaken both the total and average profitability of a siida, thus undermining the
opportunity to practise financially viable reindeer husbandry. In this connection, however,
the Committee notes the author’s argument that it was not reasonable and necessary to ensure
the continued sustainability of the reindeer husbandry in the area to extend the culling order
to small siida units, such as his, of 200 reindeer or fewer, as the effect of protecting siida
units with 200 or fewer reindeer would have had limited consequences for the larger siida
units. The Committee observes that the author’s claim is supported by a report of a working
group on the regulation of reindeer numbers from 2012, in which several ministries, the Sami
Parliament and the Sami Reindeer Herders’ Association participated. The report substantiates
24 Mahuika et al. v. New Zealand, para. 9.6, and Kitok v. Sweden, para. 9.8.
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that in West Finnmark, 15 out of the 157 siida shares had fewer than 200 reindeer before the
culling orders were issued and that consequently, exempting the small siida shares from the
reduction policy would have a had a limited impact on the community as a whole.
10.8
The Committee observes that, during the preparatory work on the Reindeer
Husbandry Act, the Sami Parliament and the Sami Reindeer Herders’ Association supported
exempting herders with 200 or fewer reindeer from the reduction policy. The Sami
Parliament and the Association have also endorsed this position in their third-party
submission in the present case. The Committee notes that, in that submission, they also
argued that the State party has failed to explain why the default minimum herd size of
200 reindeer per owner was not acceptable. The Committee also notes that the Sami
Parliament argued its position by referring to the importance of enabling young reindeer
owners to attain economic sustainability at the stage when they are establishing themselves
as reindeer herders. The Committee further notes the Sami Parliament’s and the Association’s
argument that the author is a young father who, together with his spouse, wishes to continue
the centuries-old tradition of reindeer herding and to transmit this constitutive dimension of
Sami culture to the next generation. According to the Sami Parliament and the Association,
this supports the conclusion that the culling order is not based on considerations related to
securing the continued viability of Sami reindeer herding and the continued welfare of the
Sami as an Indigenous People. In this connection, the Committee notes that the author’s
argument that the Sami Parliament and the Association are best placed to determine the
interests of the Sami community and the reindeer husbandry industry is consistent with the
Committee’s jurisprudence.25
10.9
The Committee observes that, in the domestic proceedings pertaining to the present
communication, the District Court stressed that the author was one of very few reindeer
herders who were significantly affected by the decision to reduce the number of reindeer, that
its purpose could have been fulfilled otherwise and that it particularly affected young herders
in their establishment phase (see para. 2.9). The Court of Appeal likewise held that the cull
order was invalid as it was in violation of article 27 of the Covenant, finding that it would be
impossible to make a profit with a herd of only 75 reindeer and that the author would not
have the means to garner continued economic benefit from reindeer husbandry after the
required reduction in his herd.
10.10 The Committee thus recognizes that the reduction regulation enacted in the Reindeer
Husbandry Act was in pursuit of a legitimate aim, namely, to preserve ecologically,
economically and culturally sustainable reindeer husbandry. However, taking the above
considerations into account (see paras. 10.5–10.9), the Committee considers that the State
party has not demonstrated that the methods chosen to implement said reindeer reduction
policy in the present case, namely not exempting herders such as the author, who have 200
or fewer reindeer from the reduction policy, in accordance with the position of the Sami
Parliament and the Sami Reindeer Herders’ Association, was based on reasonable and
objective justifications, nor has it demonstrated that not including such an exemption was
necessary in order to ensure the continued viability and welfare of the Sami reindeer
husbandry industry. The Committee therefore concludes that the facts before it reveal a
violation of the author’s rights under article 27 of the Covenant.
10.11 Having thus concluded, the Committee does not consider it necessary to examine the
author’s remaining claims under article 27 concerning the right to effective participation in
the decision-making process.
11.
The Committee, acting under article 5 (4) of the Optional Protocol, is of the view that
the facts before it discloses a violation by the State party of article 27 of the Covenant.
12.
Pursuant to article 2 (3) (a) of the Covenant, the State party is under an obligation to
provide the author with an effective remedy. This requires it to make full reparation to
individuals whose Covenant rights have been violated. Accordingly, the State party is
obligated to review the culling orders issued to the author, taking into account the
Committee’s findings in the present Views. The State party is also under an obligation to take
all steps necessary to prevent similar violations from occurring in the future, including by
25 Sanila-Aikio v. Finland, paras. 6.8–6.10, and Käkkäläjärvi et al. v. Finland, paras. 9.8–9.10.
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reviewing the provisions of section 60 of the Reindeer Husbandry Act in order to ensure that
they are in compliance with its obligations under article 27 of the Covenant.
13.
Bearing in mind that, by becoming a party to the Optional Protocol, the State party
has recognized the competence of the Committee to determine whether there has been a
violation of the Covenant and that, pursuant to article 2 of the Covenant, the State party has
undertaken to ensure to all individuals within its territory or subject to its jurisdiction the
rights recognized in the Covenant and to provide an effective and enforceable remedy when
it has been determined that a violation has occurred, the Committee wishes to receive from
the State party, within 180 days, information about the measures taken to give effect to the
Committee’s Views. The State party is also requested to publish the present Views and to
have them widely disseminated in the official language of the State party, including by
ensuring that the Views are accessible to the members of the Sami indigenous community.
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Annex
[English only]
Joint opinion of Committee members Marcia V.J. Kran, José
Manuel Santos Pais and Teraya Koji (dissenting)
1.
We have come to a different conclusion from the majority of the Committee, which
found a violation of the author’s rights under article 27 of the Covenant.
2.
The author is a Sami reindeer herder and has been the leader of a siida unit since 2010
(paras 2.1 and 2.2 of the Committee’s Views). He claims that, since his reindeer husbandry
is economically marginal and in the establishment phase, he needs to build up the reindeer
herd to achieve economically sustainable reindeer husbandry (para. 2.3). However, his aunt’s
siida share for most of the 10 years before he acquired it and took over as leader of a siida
unit was fewer than 71 reindeer.
3.
After consultations conducted in 2005 and 2006, the Government of Norway
submitted a draft act to the Sami Parliament for review. The Sami Parliament considered that
siida units with 200 or fewer reindeer should be protected in the event of a reduction in the
number of reindeer, but the Government did not agree, as in the long-term, that could result
in an industrial structure that would weaken the overall average profitability of the siida
(para. 2.5). Ultimately, the Parliament of Norway chose a solution more in line with the
industry’s request for more self-governance and the need to protect established families for
which reindeer husbandry was the primary income.
4.
In June 2007, the Reindeer Husbandry Act was adopted, containing provisions on the
number of reindeer per siida unit. A maximum number of reindeer was stipulated for each
summer for the reindeer herding districts, based on the grazing resources available to the
siida, as well as for the various winter siidas. There would be herd reduction in cases where
the number of reindeer exceeded the maximum established, the siida being obliged to prepare
a culling plan. In the absence of such a plan, each siida unit must reduce its excess number
of animals proportionally. The Reindeer Husbandry Board is responsible for ensuring the
reduction is carried out (para. 2.4).
5.
In February 2013, the Reindeer Husbandry Board ordered the author to cull the spring
herd of his siida unit from 116 to 75 reindeer by March 2015 (para. 2.7). Three of the seven
members of the Board that ordered the proportionate reduction are Sami. The author, while
entering into an agreement with other reindeer herders for the transfer of the majority of his
reindeer to another district by the end of 2019 (para. 4.1), appealed the culling order. Both
the Board and the Ministry of Agriculture and Food dismissed his appeal. The author then
brought an action against the State before the District Court claiming that the Ministry’s cull
order of March 2014 was invalid (para. 2.8).
6.
Both the District Court, in 2016, and the Court of Appeal, in 2017, held that the cull
order was invalid, the latter considering that it violated article 27 of the Covenant (the
author’s right to enjoy his own culture) (para. 2.9). However, in December 2017, the Supreme
Court found differently, noting that: (a) the Reindeer Husbandry Act had been enacted to
ensure ecologically, economically and culturally sustainable reindeer husbandry based on the
Sami culture, tradition and customs in the interest of herders and society in general; (b) the
reduction in the number of reindeer had been ordered in the interest of the reindeer herders
due to problems with overgrazing; (c) the Sami Parliament had agreed that the number of
reindeer had to be reduced; and (d) proportionate reduction maintained the reindeer herders’
interests as a group, since the regulation affected everyone, with owners of the largest herds
having to cull the highest number of reindeer. The Supreme Court found that the reduction
system met the criteria of being objective, reasonable and necessary to maintain the interests
of the reindeer herders.
7.
We consider this to be a reasonable decision, taken to attain a legitimate purpose.
According to the State party, the pressure on the industry and the grazing land from existing
reindeer herders and individuals wanting to enter the industry has been high for decades and
CCPR/C/141/D/3588/2019
GE.24-15517
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has reached critical levels. As such, overgrazing posed a threat to the welfare of both the
animals and the industry due to the risk of long-term damage to the grazing land (para. 4.2).
8.
Thus, the option chosen was a proportionate reduction in reindeer numbers, applied
temporarily and left to Sami self-governance. An interdisciplinary working group of reindeer
herders, scientists and representatives from the Ministry was established to determine the
maximum sustainable level of reindeer per siida (para. 4.3), aiming at ecologically,
economically and culturally sustainable reindeer husbandry based on Sami culture, tradition
and customs for the benefit of the population conducting reindeer husbandry (para. 4.4).
9.
In 2010, when the author took over as a leader of a siida unit, there was already no
room for further growth of siida shares (para. 4.5). If the author expands his herd, this will
likely have a detrimental impact on other families’ established way of life (paras. 4.7 and
6.2). Thus the proportionate reduction is necessary and strikes a fair balance between the
interests of the smaller and the larger siida shares (para. 4.9). Through the Reindeer
Husbandry Act, Parliament made the reduction provision “secondary in nature”, as it only
applies insofar as a district has not used the opportunities of internal self-governance for the
reindeer herders to make alternative arrangements (paras. 4.3 and 10.6). The State party has
made clear that the Reindeer Husbandry Act inherently prioritizes self-governance for Sami
reindeer herders, as it allows siida shares the flexibility to distribute the allocation of reindeer
and any subsequent culling orders by means of a simple majority vote (paras. 4.8, 6.1 and
10.6).
10.
The parties agree that a framework is necessary to manage and sustain reindeer
husbandry. Parliament agreed to the need for a reduction to attain a valid legislative objective.
Furthermore, during seven prior consultations, the Sami Parliament was thoroughly
consulted by the State party with respect to the means to be applied. In these circumstances,
we find the Government’s action reasonable and well-grounded and find no violation of the
author’s rights under article 27 of the Covenant. The majority relied on a third-party
submission reflecting the interests of the Sami Parliament and herders themselves. However,
in the absence of scientific information countering the State party’s arguments, we consider
the latter’s position more able to offer sustainability to the reindeer husbandry industry, a
vital aspect of Sami culture. It would be deeply regrettable for the Committee’s Views to
have a negative effect on such sustainability while aiming at preserving Sami culture,
tradition and customs.