Decision on merits; Subjects: ECONOMIC, SOCIAL AND CULTURAL RIGHTS, FINLAND; [CESCR: UNO-Pakt I, Internationaler Pakt über wirtschaftliche, soziale und kulturelle Rechte; Pacte international relatif aux droits économiques, sociaux et culturels]
Volltext (verifizierbarer Originaltext)
GE.24-18518 (E) 091224 091224
Committee on Economic, Social and Cultural Rights
Views adopted by the Committee under the Optional
Protocol to the International Covenant on Economic,
Social and Cultural Rights, concerning communications
No. 251/2022 and No. 289/2022*, **, ***, ****
Communications submitted by:
J.T., J.P.V., P-M.V., P-A.L., P-T.J., O.A.V.,
M-L.V., N-M.V., L-T.V., J-O.J., N-A.L.,
Á-M.L., M.L., M.L., J-T.L., V.T. and N-M.V.
(represented by counsel, Martin Scheinin)
Alleged victims:
The authors and S.V., E.S.V. and E.A.V.
State party:
Finland
Dates of communications:
31 December 2021 (communication
No. 251/2022) and 15 May 2022
(communication No. 289/2022) (initial
submissions)
Date of adoption of Views:
27 September 2024
Subject matter:
Granting of a mineral exploration permit
(communication No. 251/2022) and a reservation
(communication No. 289/2022) in respect of
areas on the Sami people’s traditional territory
without an impact assessment or free, prior and
informed consent
Procedural issues:
Victim status; exhaustion of domestic remedies;
substantiation of claims
Substantive issues:
Right to self-determination; non-discrimination
and equality; right to an adequate standard of
living; right to take part in the cultural life of a
community; Indigenous Peoples; right to land
Articles of the Covenant:
1, 2 (2), 6, 7 (a) (ii), 11, 12 and 15 (1) (a)
* Adopted by the Committee at its seventy-sixth session (9–27 September 2024).
** The following members of the Committee participated in the examination of the communication: Aslan
Abashidze, Mohamed Ezzeldin Abdel-Moneim, Nadir Adilov, Mohammed Amarti, Asraf Ally
Caunhye, Laura-Maria Crăciunean-Tatu, Peters Sunday Omologbe Emuze, Santiago Manuel Fiorio
Vaesken, Ludovic Hennebel, Joo-Young Lee, Karla Vanessa Lemus de Vásquez, Mikel Mancisidor de
la Fuente, Seree Nonthasoot, Lydia Carmelita Ravenberg, Julieta Rossi, Preeti Saran, Shen Yongxiang
and Michael Windfuhr.
*** An individual opinion by Committee member Ludovic Hennebel (concurring) is annexed to the present
Views.
**** The annex is being circulated in the language of submission only.
United Nations
E/C.12/76/D/251/2022
E/C.12/76/D/289/2022
Economic and Social Council
Distr.: General
9 December 2024
Original: English
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Article of the Optional Protocol:
3 (1) and (2) (e)
1.1
The authors of the communications are J.T. (born in 1960), J.P.V. (born in 1945),
P-M.V. (born in 1981), P-A.L. (born in 1981), P-T.J. (born in 1937), O.A.V. (born in 1970),
M-L.V. (born in 1971), N-M.V. (born in 1998), L-T.V. (born in 2000), J-O.J. (born in 1948),
N-A.L. (born in 1960), Á-M.L. (born in 1990), M.L. (born in 1996), M.L. (born in 1998),
J-T.L. (born in 1957), V.T. (born in 1954) and N-M.V. (born in 1965), nationals of Finland
all belonging to Kova-Labba Siida, a community of Sami reindeer herders. J.T., J.P.V. and
P-M.V. submit the communications on their own behalf and on behalf of three children, S.V.,
E.S.V. and E.A.V. The other authors submit the communications on their own behalf only.
The authors submit that, by granting a mineral exploration permit (communication
No. 251/2022) and a reservation (communication No. 289/2022) in respect of areas on their
traditional territory without proper impact assessment and without a process of consultation
aimed at obtaining their free, prior and informed consent, the State party violated their rights
to take part in the cultural life of a community (art. 15) and to enjoy just and favourable
conditions of work that ensure remuneration that provides them with a decent living
(art. 7 (a) (ii)), both interpreted in the light of the rights to self-determination (art. 1), to work
(art. 6), to an adequate standard of living (art. 11) and to health (art. 12), and both interpreted
in conjunction with the right not to be discriminated against (art. 2 (2)). The authors requested
the adoption of interim measures to halt the exploration works (communication No. 251/2022)
and to ensure the refusal of any request for exploration works in the reservation area
(communication No. 289/2022). The Optional Protocol entered into force for the State party
in April 2014. The authors are represented by counsel.
1.2
On 12 January 2022, pursuant to article 6 of the Optional Protocol, the Committee,
acting through its Working Group on Communications, registered communication
No. 251/2022 and requested the State party, pursuant to article 5 of the Optional Protocol, to
postpone the mining exploration project while the case was under consideration by the
Committee. On 22 August 2022, the Committee registered communication No. 289/2022,
deciding to join it with communication No. 251/2022, and requested the State party to
postpone the mining exploration project while the case was under consideration by the
Committee.
1.3
On 14 March 2022 (communication No. 251/2022) and 15 October 2022
(communication No. 289/2022), the State party requested the Committee to examine the
question of admissibility separately from the merits and, for communication No. 251/2022,
informed the Committee that the permit holder had not taken any practical measures after
receiving the permit and did not intend to conduct survey drillings until winter 2023/24 at the
earliest. On 23 March 2023, the Committee decided, pursuant to rule 6 of its rules of
procedure under the Optional Protocol, to examine the admissibility of the communications
together with the merits.
A.
Summary of the information and arguments submitted by the parties
Factual background1
2.1
The authors are Indigenous Sami persons and practise traditional Sami reindeer
herding. They belong to Kova-Labba Siida, which is one of the three traditional reindeer
herding villages that are part of the Käsivarsi Reindeer Herders’ Cooperative.2 Sami reindeer
husbandry is semi-nomadic due to the seasonal and weather-dependent rotation of pastures
and is an essential part of Sami culture, maintained by small groups of kin- or village-based
herders (“siida” in the Northern Sami language) and transmitted from generation to
generation.
2.2
The State party’s Forest Agency (Metsähallitus) is the landowner of approximately
90 per cent of the Sami homeland, including the authors’ traditional reindeer herding territory.
1 The factual background has been reconstructed on the basis of the initial submissions and the
information subsequently provided by the parties.
2 The cooperative is an administrative division of the State party.
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3
According to the Mining Act, exploration work can be carried out with the consent of the
landowner, and the exploration permit holder is obliged to pay compensation to the owners
of the land included in the exploration area (sects. 7 and 99).
2.3
The regions where the Sami live are warming more than three times faster than the
global average. Frozen and mouldy pastures and extreme snow conditions pose challenges
for reindeer and reindeer herders, threatening the ability of the Sami to continue reindeer
herding. This has a detrimental effect on the culture, language and traditional knowledge of
the Sami, as it disrupts the practice of their traditional livelihoods, which is central to
maintaining and transmitting their culture.3
Communication No. 251/2022
2.4
On 28 March 2014, the Geological Survey of Finland, an agency under the Ministry
of Economic Affairs and Employment, applied for a mineral exploration permit, for a project
called “Lätäs 1”, requesting permission for exploration works for gold, copper and iron, to
include the drilling of 100- to 300-metre-deep holes into the bedrock in about 20 different
locations over an area of 390 hectares in Kova-Labba Siida, the authors’ traditional reindeer
herding territory. The project entails bringing into the territory one-ton drilling machines and
five-ton support vehicles to provide a water source for the drilling.
2.5
The Safety and Chemicals Agency, which is responsible for mining permits, sought
written comments from the Sami Parliament and the Käsivarsi Reindeer Herders’
Cooperative in October and November 2014 and invited them to participate in meetings on
17 May 2015 and 17 May 2016. On 14 November 2014 and 19 June 2016, the Käsivarsi
Reindeer Herders’ Cooperative, acting on behalf of its members, including the authors,
submitted statements concerning the negative impact of the mineral exploration works on
Sami reindeer herding. The Sami Parliament stated on three occasions – 13 November and
15 December 2014 and 22 June 2016 – that the basic preconditions for free, prior and
informed consent had not been met, given the lack of an assessment of the impact of the
works on Sami culture. Under the Mining Act, the State party’s mining authority is obliged
to assess the impact of mining or exploratory activities under consideration on the rights of
the Sami as an Indigenous People (sect. 38). In this regard, the Supreme Administrative Court
clarified, in its ruling KHO 2014:111, that the Safety and Chemicals Agency, as the permit
authority, was obliged to contribute to ensuring that appropriate opportunities existed for the
cooperation procedure, which involved making sufficient materials available to the Sami
Parliament for assessing the impacts that the activities referred to in the application would
have on Sami culture.
2.6
On 7 July 2016, the Safety and Chemicals Agency granted the Geological Survey of
Finland a permit for an initial period of four years, renewable for up to 15 years, finding that
the application met the requirements of the Mining Act.
2.7
On 8 August 2016, the Käsivarsi Reindeer Herders’ Cooperative submitted an appeal,
signed by J.T., one of the authors of the communications, on behalf of all members of the
cooperative, including himself and the other authors, to the Administrative Court of Northern
Finland.
2.8
On 19 December 2018, the Administrative Court of Northern Finland dismissed the
appeal and upheld the decision to grant the exploration permit, noting the involvement of the
Sami Parliament and the Käsivarsi Reindeer Herders’ Cooperative in the permit procedure.
2.9
On 18 January 2019, the Käsivarsi Reindeer Herders’ Cooperative, together with the
Sami Parliament, filed a request for leave to appeal and an appeal before the Supreme
Administrative Court.
2.10
On 21 June 2021, the Supreme Administrative Court rejected the appeal, considering:
(a) that the cooperation procedure had ensured that the Sami had had a de facto opportunity
to participate in the permit procedure; (b) that the exploration permit included conditions
intended to reduce and prevent possible damage to reindeer herding, such as the conditions
3 Finland, “The Sámi in Finland and Climate Change” (2023), available at
https://unfccc.int/documents/628002.
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that work must be carried out outside the calving season, limited during times important for
reindeer husbandry and commenced only after areas possibly containing reindeer had been
cleared in advance; that the permit holder must secure agreement, at the local level, on the
means by which the harmful movement of reindeer from one area to another were to be
prevented; that the permit holder must notify the cooperative and the siida of the date and
time of any exploration activities in advance; and that the permit holder must ensure that any
tracks left by snowmobiles or tracked vehicles that were temporarily visible in the area or
disturbances caused by off-road traffic did not increase the uncontrolled movement of
reindeer from one area to another; and (c) that the exploration work was to be carried out
over a relatively small area. The authors note that the Court compared the exploration area
not with the size of Kova-Labba Siida but with the size of the Käsivarsi Reindeer Herders’
Cooperative, consisting of Kova-Labba Siida and two other villages.
2.11
The authors submit that the Safety and Chemicals Agency granted the Geological
Survey of Finland an exploration permit in respect of an area within their traditional reindeer
herding lands without a proper assessment of the adverse impact of the exploration activities
on Sami reindeer herding and without good faith efforts to obtain their free, prior and
informed consent. The obligations arising from the Mining Act regarding the impact
assessment must be interpreted in the light of international standards on Indigenous rights.
However, the State party replaced the impact assessment with a pro forma consultation.
Moreover, given that the Sami should be consulted on the basis of an impact assessment, the
procedure followed before the permit was issued did not meet the standards of free, prior and
informed consent.
2.12
The authors argue that the exploration permit area is in the heart of their winter
herding lands. The winter months are critical for reindeer’s survival. Indeed, in winter, snow
cover is at its thickest, and the reindeer have either to dig through layers of snow to reach the
ground lichen or, in pristine forests, to feed on the lichen growing on the branches of old
trees. Moreover, climate change-induced frozen and mouldy pastures and extreme snow
conditions add to the difficulties of reindeer herding. Ensuring that the reindeer graze in
winter is very delicate work; grazing can be easily disturbed. The presence of heavy
machinery, support vehicles and workers and the tracks left in the snow would cause great
harm to the herders. Allowing the herds to leave their natural winter grazing areas would
disrupt the annual cycle between seasonal herding lands and thus the sustainable use of scarce
natural resources. The provisions of the exploration permit aimed at reducing damage to
reindeer herding are impossible to enforce in practice, considering the natural environment
and reindeer behaviour. In addition, the herders’ working conditions would become more
demanding and, despite all their extra effort, the benefits of the work, including remuneration,
would be less than would otherwise be the case. This would make Sami reindeer herding
unsustainable.
2.13
The authors submit that all domestic remedies have been exhausted, as they appealed
against the exploration permit to the Supreme Administrative Court, the highest competent
court, explicitly invoking the same substantive rights that are invoked in the communication:
their rights to take part in the cultural life of their community, to property, not to be
discriminated against and to work or livelihood of their choice.
Communication No. 289/2022
2.14
On 16 March 2022, a private mining company, Element 92 Suomi Oy, submitted an
application to the Safety and Chemicals Agency to reserve 284 km² in Kova-Labba Siida for
the purpose of surveying the area for battery minerals (nickel, copper and cobalt).
2.15
On 20 April 2022, the Safety and Chemicals Agency granted a reservation, in respect
of an area called “Ruossakero”, for a period of two years.
2.16
The company did not make any contact with the authors before or after submitting the
application, and the mining authority did not contact them before or after taking its decision.
2.17
Under the Mining Act, exploration can be carried out with the consent of the
landowner. The owner of the Sami lands in question is the Forest Agency, meaning that the
State can determine the nature and scope of the reserving company’s exploration works on
the authors’ traditional lands, including highly intrusive operations such as the use of heavy
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machinery and drilling into the bedrock. The authors submit that, together with the highly
unstable weather conditions driven by ongoing climate change, any new disturbances could
lead to unpredictable and adverse consequences for both the reindeer and their herders.
2.18
According to the authors, the Ruossakero area contains important reindeer pastures
and critical winter herding lands. Rich with lichen and ecologically diverse, it provides the
Sami with crucial flexibility in the annual herding cycle, as it can be used at different times
of the year, depending on weather conditions. This is an important factor, as climate change
has made weather conditions more unpredictable. Consequently, any lack of availability of
the area will disrupt the annual cycle between seasonal herding lands, as winter pastures
recover only if the reindeer are kept elsewhere. The area reservation will inevitably lead to
an increase in the human presence in an area that has been a refuge for reindeer even during
the active tourist season. The granting of the reservation will affect the sustainability of Sami
reindeer herding, regardless of the kind of exploration work that the company intends to carry
out at a later stage.
2.19
According to the authors, there is no domestic remedy available to them, as the
Supreme Administrative Court has already firmly established that they do not have legal
standing to appeal against the granting of a reservation.4
Complaint
3.1
The authors submit that the granting, despite their consistent opposition and in the
absence of an impact assessment, of a permit for a mineral exploration project
(communication No. 251/2022) and the granting of a reservation (communication No.
289/2022) in respect of areas on their traditional territory without obtaining their free, prior
and informed consent and in the context of ongoing climate change and the cumulative effect
of other interferences, such as wind farms, military activities and organized group tourism,
have the effect of eroding the preconditions for communal reindeer herding and its
transmission from generation to generation. Consequently, these acts constitute a violation
of their rights to take part in the cultural life of a community and to enjoy just and favourable
conditions of work that ensure remuneration that provides them with a decent living for
themselves and their families, both of these rights being interpreted in the light of articles 1,
6, 11 and 12, and both in conjunction with article 2 (2), of the Covenant. The right to transmit
an Indigenous way of life and a traditional economic activity from generation to generation
constitutes a core dimension of articles 15 and 7 (a) (ii) of the Covenant in the context of
Indigenous Peoples.
3.2
In submitting that both provisions should be read alone and in conjunction with
article 2 (2) of the Covenant, the authors claim, for communication No. 251/2022, that they
are subject to substantial, indirect and systematic discrimination in respect of the unilateral
power of the State party to conduct (through the Geological Survey of Finland), authorize
(through the Safety and Chemicals Agency) and uphold authorization to conduct (through
the courts) mineral exploration works on their traditional territory without good faith efforts
to obtain their free, prior and informed consent. Furthermore, the discriminatory nature of
the Mining Act is demonstrated by the fact that, as the State has declared itself to be the
owner of their lands, it will receive annual compensation from its own agency (the Geological
Survey of Finland), while, by contrast, the Sami, who are not recognized as owners of their
traditional lands, will not receive any compensation for the adverse impact on their lands.
While clarifying that this does not imply that they would accept monetary compensation as
an adequate remedy, the authors assert that no landowner is in the same situation as the Sami,
where even their right to compensation is denied. In communication No. 289/2022, the
authors are at the mercy of the State party’s Forest Agency with regard to the intensity of the
exploration works that will be conducted. Furthermore, the discriminatory nature of the
Mining Act is demonstrated by the fact that they have no right of appeal against the granting
of a reservation, nor are they in a position to control the nature of the works.
4 The authors were denied victim status when appealing against the granting of the reservation for the
“Lätäs 1” project (Supreme Administrative Court, KHO 2013:179). The Supreme Administrative Court
later upheld this precedent, declaring inadmissible an appeal filed by another siida against another
request for reservation (KHO H731/2021).
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3.3
In both communications, the authors argue that their claims of violations of the
Covenant must be assessed in the context of the cumulative effects of earlier interventions
on their lands, aggravated by ongoing climate change, leading to an increase in work for the
Sami and unpredictability in the direction and timing of the reindeer’s movements. They
draw attention to the concern that the Committee has expressed about the impact of climate
change on Indigenous Peoples living in the Arctic region.5
State party’s observations on admissibility
4.1
The State party submitted its observations on admissibility in relation to
communications No. 251/2022 and No. 289/2022 on 14 March and 15 October 2022,
respectively. The State party submits that both communications have an actio popularis
nature, as the authors lack locus standi and the communications are premature. For
communication No. 251/2022, the authors have not yet been personally affected by the permit,
as the Geological Survey of Finland has not taken any practical measures since receiving it,
has no ongoing project or exploration activities in the area, has no potential survey drillings
scheduled and will not conduct a survey until the communication has been decided.
4.2
For both communications, the State party submits that the areas in question are owned
by the State, that determining the owner is ultimately a private law issue and that the Mining
Act is not discriminatory, as it applies to both Sami and non-Sami persons, regardless of
origin.
Communication No. 251/2022
4.3
The State party submits that the Geological Survey of Finland conducts self-financed
geological research for the needs of businesses and society in general; it does not conduct
mining but surveys the bedrock to map the mineral potential of the region, focusing on data
collection. It has no reasonable grounds to deviate from the position of the Supreme
Administrative Court, as, taken as a whole, the exploration area is relatively small-scale, and
the permit contains conditions to alleviate and prevent damage to reindeer herding during the
exploration.
4.4
The State party recalls relevant domestic legislation. First, the Constitution provides
that the Sami have linguistic and cultural self-government in their native region and the right
to maintain and develop their own language and culture, which safeguards the practice of
their traditional livelihoods, such as reindeer herding. The Human Rights Committee has
connected the concept of the right of Indigenous Peoples to self-determination not only with
article 1 but also with article 27 of the International Covenant on Civil and Political Rights,
which served as a model for the Constitution of Finland. Second, the Act on the Sami
Parliament obligates the public authorities to negotiate with the Sami Parliament regarding
all far-reaching and important measures that may directly affect the status of the Sami as an
Indigenous People. In November 2017, the Ministry of Justice issued a memorandum on the
obligation to negotiate under the Act on the Sami Parliament, according to which consensus
must be sought in all negotiations between the public authorities and the Sami Parliament.
Third, the Mining Act provides that the permit authority must establish the impacts caused
by the planned activities on the rights of the Sami and consider measures required for
reducing and preventing damage. A permit must not be granted if activities would cause
considerable harm to reindeer herding.
4.5
The State party submits that the communication should be declared inadmissible
because the authors have not exhausted domestic remedies in relation to their allegations
concerning climate change.
4.6
The State party also submits that the Committee should decline to consider the
communication, as it does not reveal any clear or concrete disadvantage suffered by the
authors and does not raise any serious issue of general importance.
4.7
Lastly, the State party claims that the communication is manifestly ill-founded on the
ground that the authors have failed to substantiate how their rights under each of the articles
5 E/C.12/RUS/CO/6, paras. 42 and 43; and E/C.12/CAN/CO/6, paras. 53 and 54.
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of the Covenant that they invoke have been violated. The core of the communication appears
to be the authors’ dissatisfaction with the outcome of the domestic proceedings, but it is not
the role of the Committee to act as a fourth instance.
Communication No. 289/2022
4.8
The State party notes that the Mining Act is being reformed, with a new, tax-like
charge for reservation areas and a shorter reservation period. A reservation gives the
reserving party priority to submit an exploration permit application for the reservation area
but does not entitle the reserving party to commence exploration. Thus, a reservation does
not affect the practice of reindeer herding or the right to pursue this livelihood. Exploration
with the consent of the landowner is permissible, unless the use of the land is unlawful or
subject to a permit.
4.9
The State party claims that the authors have not exhausted domestic remedies, as they
did not appeal against the decision of the Safety and Chemicals Agency of 20 April 2022.
The Mining Act provides for the right of the Sami Parliament to appeal against a decision to
grant an exploration permit or a mining permit but not against reservation decisions. The
right of appeal against reservation decisions is determined in accordance with the
Administrative Judicial Procedure Act, and a person concerned by an administrative decision,
or whose right, obligation or interest is directly affected by the decision, may seek review of
the decision by means of an appeal. The party making the reservation, a holder of a permit
for the same area or an applicant who has filed an application for the same area may be
considered to have a right of appeal. According to the Supreme Administrative Court, a
reservation decision has no impact on the practice of reindeer herding, as it does not grant a
right to explore for ore; it merely grants priority to submit an exploration permit application
in respect of the reservation area. The purpose of the reservation procedure, according to the
Court, is to ensure that a potential applicant for an exploration permit has sufficient
opportunity to prepare the application carefully. 6 The State party therefore claims that,
according to its domestic law, the Sami do not have an automatic right to appeal against
reservation decisions but may have the right to appeal, depending on the case.
4.10
Lastly, the State party claims that the communication is manifestly ill-founded, citing
the finding of the Supreme Administrative Court that a reservation decision does not affect
the practice of reindeer herding or restrict the right of the Sami as an Indigenous People to
maintain and develop their culture.
Authors’ comments on the State party’s observations on admissibility
5.1
In their comments of 5 May and 26 September 2022 regarding communication
No. 251/2022, the authors observe that some of the State party’s observations on
admissibility pertain to the merits of the case and demonstrate ignorance of Indigenous
Peoples’ rights. The State party misunderstands their claim in respect of article 2 (2) of the
Covenant. They clarify that the issue of compensation was mentioned in their complaint as a
factual matter in order to demonstrate the discrimination faced by the Sami when they are
not in control of their own lands. As the Committee on the Elimination of Racial
Discrimination has explained, international human rights law, including article 2 (2) of the
Covenant, requires that Sami be treated differently from non-Sami who use so-called
government-owned lands. Discrimination occurs when groups or individuals in different
situations are treated identically, with the State failing to address their particular situation.7
The Sami are discriminated against under mining legislation, not because they are treated
differently from the rest of the population thereunder, but because, as they are not treated
differently, the particularities of Sami cultural identity, traditional livelihoods and
dependence on reindeer herding for survival are ignored.
5.2
According to the authors, another matter pertaining to the merits of the case and
demonstrating ignorance of reindeer behaviour is the State party’s assertion that, taken as a
6 See Supreme Administrative Court, KHO 2013:179 and KHO 2021:145.
7 Ågren et al. v. Sweden (CERD/C/102/D/54/2013), para. 6.23. See also European Court of Human
Rights, Thlimmenos v. Greece, Application No. 34369/97, Judgment, 6 April 2000.
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whole, the exploration area is relatively small-scale and that the exploration will be temporary.
The area of the “Lätäs 1” project falls within a scarce resource, namely, critical winter herding
lands, the availability of which determines the size of the herd that the whole area of the siida
can sustain. Disrupting herding in the critical winter months in the scarce winter herding
pastures would cause permanent damage to reindeer herds and to Sami reindeer herding.
5.3
The authors contend that the State party’s submission that the Geological Survey of
Finland has a merely scientific mission is misleading. The State party confirms that the
mission of the Survey includes serving the needs of businesses and society in general. While
it does not engage in mining as such, its activities promote “the competitiveness of business
and regions”, according to the Act on the Geological Survey of Finland (sect. 2), and pave
the way for companies interested in exploiting mineral resources. Its permit application
indicated that it was looking for copper, iron and gold; the permit was granted for the purpose
of exploring for deposits of these metals.
5.4
According to the authors, the State party’s submission is misleading regarding the
memorandum prepared by the Ministry of Justice in November 2017, which states that
consensus must be sought in all negotiations between the public authorities and the Sami
Parliament. The memorandum has no legal force; it was issued after the exploration permit
had been granted and was not subsequently applied by the Administrative Court of Northern
Finland or the Supreme Administrative Court.
5.5
As for the State party’s argument that they lack victim status, the authors submit that
the violations have already occurred, as the international standard of free, prior and informed
consent was not complied with when the Safety and Chemicals Agency granted the permit
and the Supreme Administrative Court upheld that decision. Indeed, in its Views in Billy et
al. v. Australia, the Human Rights Committee considered that the risk of impairment of the
authors’ rights was more than a theoretical possibility, given that their lives were highly
dependent on the availability of the limited natural resources to which they had access.8
According to the authors, taking into account the intergenerational nature of the right of
Indigenous Peoples to transmit their culture to new generations, a chain of cultural
transmission is interfered with much earlier than an Indigenous culture is destroyed, such
that, when such interference with cultural transmission occurs, the admissibility conditions
of victimhood and substantiation are already met.
5.6
With regard to the State party’s argument that they have not exhausted domestic
remedies, the authors claim that they did raise climate change arguments in the domestic
proceedings and that they have raised the issue before the Committee not to include a claim
that climate change as such would constitute a violation but only to substantiate their claims.
5.7
With regard to the State party’s argument that communication No. 251/2022 is
manifestly ill-founded and that the authors seek to have the Committee act as a fourth
instance, the authors submit that the Supreme Administrative Court was both formalistic and
wrong in holding that the international standard of free, prior and informed consent had been
met merely by giving the Sami an opportunity to be heard.
5.8
Lastly, the authors indicate that some children who are members of their community
have submitted a communication to the Committee on the Rights of the Child, but that case
relates to different victims and a different set of human rights violations.
5.9
In their comments of 23 February 2023 regarding communication No. 289/2022, in
response to the State party’s argument relating to their alleged lack of victim status, the
authors claim that the principle of free, prior and informed consent was not upheld before the
reservation decision and that, under Finnish law, they have no judicial recourse. They submit
that the mere existence of the area reservation places them in a position of vulnerability and
unpredictability and could have a grave adverse effect on the transmission of Sami culture
from generation to generation, as this process requires the Sami to have confidence that their
efforts to cope with the challenges caused by climate change will not be frustrated by mineral
exploration works.
8 CCPR/C/135/D/3624/2019, paras. 7.10 and 8.14.
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5.10
With regard to the alleged non-exhaustion of domestic remedies, the authors submit
that, in a ruling that set a precedent (KHO 2013:179), the Supreme Administrative Court held
that reindeer-herding Sami were not entitled to appeal against a decision to grant a reservation
pursuant to the Mining Act. On the basis of this precedent, the Sami have been denied
standing in domestic proceedings seeking to challenge area reservations.
5.11
Lastly, with regard to the alleged lack of substantiation, the authors observe that the
State party cites only the ruling in which the Supreme Administrative Court set its precedent,
in which the Court held that a reservation as such had no impact on reindeer herding or the
right of the Sami as an Indigenous People to maintain and develop their culture. The Court
did not examine how their rights and culture were affected by an area reservation but instead
issued a blanket, in abstracto denial of such effects.
State party’s observations on the merits
6.1
In its observations of 14 July 2023, the State party submits the following common
considerations in respect of both communications: (a) according to the Constitution, the Sami
have linguistic and cultural self-government in their native region, and the right to reindeer
herding is a Sami historical usufruct right; (b) article 15 of the Covenant, like the Constitution,
guarantees the right to transfer culture and language to the next generations; (c) in interpreting
the provisions of the Covenant, it is necessary to take into account article 27 of the
International Covenant on Civil and Political Rights, which, according to the jurisprudence
of the Human Rights Committee, must be read in the light of the right of Indigenous Peoples
to self-determination; (d) the United Nations Declaration on the Rights of Indigenous Peoples
reflects the legal principles and aspirational goals followed by Finland; (e) a working group
is preparing a reform of the Act on the Sami Parliament to strengthen the current obligation
to negotiate in order to obtain free, prior and informed consent; (f) as reindeer herding
cooperatives carry out their activities over a wide area, it is necessary to reconcile “different
interests” with regard to land use; (g) the Mining Act is not discriminatory, as it applies to
both Sami and non-Sami and the determination of the owner is ultimately a private law issue;
and (h) a new Mining Act entered into force on 1 June 2023 (Act No. 505/2023), setting
additional conditions for the granting of a mining permit and for extending the validity of an
exploration permit and setting a new reservation fee to discourage reservations that are
unnecessarily extensive.
6.2
With regard to the merits of communication No. 251/2022, the State party submits:
(a) that the permit procedure included an extensive opinion-gathering and consultation
procedure; (b) that consensus was sought on concrete solutions that could minimize the
effects of mineral exploration on the rights of the Sami (such as the placement of barriers or
tarpaulins to control the movement of reindeer and thus prevent their dispersal); (c) that the
exploration permit decision included conditions aimed at reducing the harm caused to
reindeer herding; and (d) that the Mining Act requires the exploration permit holder to pay
annual compensation to landowners in the area.
6.3
With regard to the merits of communication No. 289/2022, the State party observed
that, according to the legislation currently in force and the well-established case law of the
Supreme Administrative Court, the authors did not have a right to appeal against an area
reservation decision. It adds that, in 2014, the Forest Agency concluded an agreement with
the Sami Parliament on forest management, according to which it will not give consent to
exploration within the Sami homeland unless the Safety and Chemicals Agency has given its
authorization.
Authors’ comments on the State party’s observations on the merits
7.1
In their comments of 28 August 2023 regarding communication No. 251/2022, the
authors argue that they did not consent to the exploration project, contrary to the State party’s
claims. There is no reference to agreement in the minutes of the meetings, at which none of
the authors was present. They objected to the project and appealed through the domestic
courts before submitting the communication.
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7.2
The authors claim that the failure to conduct an impact assessment is visible in the
State party’s erroneous argument that the reindeer could be moved away from where the
Geological Survey of Finland conducts drilling works when it conducts them.
7.3
The authors argue that the State party admits to practising discrimination when it
asserts that the law treats the Sami identically to non-Sami.
7.4
Regarding communication No. 289/2022, the authors observe that there is no
disagreement between the parties that the State party explicitly confirmed that they did not
have a right to appeal the granting of a reservation, but they disagree as to whether an area
reservation affects the rights of the Sami. According to the authors, as it is possible for a
reservation holder – with the consent of the landowner (the State party’s own Forest Agency)
– to conduct intrusive exploration works before applying for an exploration permit, they have
been placed in a situation of uncertainty concerning whether they can use their lands
according to their traditions and the needs of their reindeer, as any day the reservation holder
may enter their lands.
7.5
The authors request, for communication No. 251/2022, that the Geological Survey of
Finland refrain from any exploration works on their lands; for communication No. 289/2022,
that the Forest Agency refrain from giving its consent to any exploration works on their lands;
and, for both communications, that the State party proceed to amend the Mining Act to
recognize a special status for the Sami people, including new provisions on the free, prior
and informed consent of the Sami.
Additional information from the parties
8.
In additional information provided on 30 October 2023, the State party clarifies that
it does not follow from the principle of free, prior and informed consent that consensus must
be reached if sufficient guarantees of effective participation have been provided
(communication No. 251/2022). Even though the Sami do not have an automatic right to
appeal against reservation decisions, they may have such a right, depending on the case
(communication No. 289/2022).
9.
In additional information provided on 23 November 2023, the authors observe that
the State party no longer claims that they consented to the project (communication
No. 251/2022). It appears to reopen the matter of whether they had a right to appeal against
the reservation decision (communication No. 289/2022).
B.
Committee’s consideration of admissibility
10.1
Before considering any claim contained in a communication, the Committee must
decide, in accordance with rule 10 (2) of its rules of procedure under the Optional Protocol,
whether the communication is admissible.
10.2
The Committee recalls that, under article 3 (2) (c) of the Optional Protocol, it shall
declare inadmissible any communication that concerns a matter that has already been or is
being examined under another procedure of international investigation or settlement. The
Committee takes note of the authors’ statement that children from their community have
submitted a communication to the Committee on the Rights of the Child concerning the same
mineral exploration project as that dealt with in communication No. 251/2022. The
Committee on Economic, Social and Cultural Rights notes that the communications
procedure of the Committee on the Rights of the Child constitutes a “procedure of
international investigation or settlement” within the meaning of the above-mentioned
provision. The Committee on Economic, Social and Cultural Rights recalls that the “same
matter” means one and the same claim relating to the same parties, events and substantive
rights.9 Given that the complaint filed with the Committee on the Rights of the Child does
not have the same authors, the Committee on Economic, Social and Cultural Rights
concludes that it is not the “same matter” and that article 3 (2) (c) of the Optional Protocol is
therefore not an obstacle to the admissibility of the present communications.
9 See, mutatis mutandis, Merino Sierra and Merino Sierra v. Spain (E/C.12/59/D/4/2014), para. 6.4.
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10.3
The Committee notes the State party’s argument that the authors’ claims are of an
actio popularis and premature nature and that the authors thus lack victim status. The
Committee notes, however, that the authors allege that the State party failed to obtain their
free, prior and informed consent or to make good faith efforts to obtain it when granting the
exploration permit (communication No. 251/2022) and the reservation (communication
No. 289/2022) in respect of areas on their traditional territory and that this allegedly
constitutes a violation of their own rights, irrespective of any future development. The
Committee accordingly considers that the authors have victim status and that article 2 of the
Optional Protocol is not an obstacle to the admissibility of the communications.
10.4
The Committee notes the State party’s claims of inadmissibility for lack of exhaustion
of domestic remedies regarding communication No. 251/2022, on the basis that the authors
did not raise an allegation relating to climate change before the domestic courts, and
regarding communication No. 289/2022, on the basis that the authors did not appeal against
the decision granting the reservation.
10.5
The Committee notes the authors’ argument, regarding communication No. 251/2022,
that the issue of climate change has been raised before the Committee to substantiate their
claims and not as part of a separate claim based on climate change. The Committee also notes
the authors’ uncontested argument that they explicitly invoked before the national courts the
same substantive rights that are invoked in the communication (rights to take part in the
cultural life of the community, to traditional property, not to be discriminated against and to
work or livelihood of their own choice). The Committee observes that the authors pursued
their claims through the courts, including the highest competent court, namely, the Supreme
Administrative Court. The Committee considers, therefore, that all available domestic
remedies have been exhausted and concludes that communication No. 251/2022 is admissible
under article 3 (1) of the Optional Protocol.
10.6
Regarding communication No. 289/2022, the Committee notes the authors’ argument
that there is no domestic remedy to exhaust in respect of either the absence of free, prior and
informed consent or the granting of a reservation. The Committee notes the State party’s
observations that the Sami do not have an automatic right to appeal against reservation
decisions, which allegedly have no impact on the practice of reindeer herding or on the rights
of the Sami as an Indigenous People, and that, according to the legislation currently in force
and the well-established case law of the Supreme Administrative Court, the authors did not
have a right to appeal against such an area reservation decision. The Committee therefore
concludes that article 3 (1) of the Optional Protocol does not constitute an obstacle to the
admissibility of communication No. 289/2022.
10.7
The Committee notes the State party’s argument that the communications should be
declared inadmissible as manifestly ill-founded on the basis that the Supreme Administrative
Court has already held that a reservation decision does not affect the practice of reindeer
herding (communication No. 289/2022) and that the Committee cannot act as a fourth
instance (communication No. 251/2022). However, the Committee notes the authors’
arguments that, in communication No. 251/2022, the domestic courts did not adequately
examine the impact on their rights and concluded that the international standard relating to
the rights of Indigenous Peoples of free, prior and informed consent had been met by merely
giving the Sami an opportunity to be heard and that, in communication No. 289/2022, the
ruling in which the Supreme Administrative Court set its precedent did not examine how the
rights and culture of the Sami were affected by an area reservation but instead amounted to a
blanket, in abstracto denial of such effects.
10.8
The Committee considers that the authors have sufficiently substantiated their claims,
for the purpose of admissibility, that the State party’s failure to ensure a process of free, prior
and informed consent in the granting of the mineral exploration permit and the reservation
has violated their rights to enjoy their own culture (art. 15 (1) (a)), read alone and in
conjunction with their rights to an adequate standard of living, through their traditional means
of livelihood, that is, reindeer herding (art. 11), to non-discrimination (art. 2 (2)) and to
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self-determination (art. 1), in particular with regard to the economic and cultural dimensions
of the right of Indigenous Peoples to self-determination.10
10.9
The Committee nevertheless considers that the authors have not sufficiently
substantiated their claim under article 15 (1) (a) of the Covenant, read in the light of the rights
to work (art. 6) and to health (art. 12), and their claim under article 7 (a) (ii), read alone and
in the light of articles 1, 6, 11 and 12, in conjunction with article 2 (2), of the Covenant. The
Committee therefore declares these claims inadmissible under article 3 (e) of the Optional
Protocol.
10.10 The Committee concludes that the communications are admissible insofar as they
raise issues under article 15 (1) (a) of the Covenant, read alone and in conjunction with
articles 1, 2 (2) and 11 of the Covenant, and proceeds to examine the merits.
C.
Committee’s consideration of article 4 of the Optional Protocol and
rule 13 of the rules of procedure thereunder
11.
The Committee notes the State party’s argument that the Committee should decline to
consider communication No. 251/2022 pursuant to article 4 of the Optional Protocol, as it
does not reveal that the authors have suffered any clear disadvantage and does not raise a
serious issue of general importance. The Committee clarifies that the purpose of article 4 is
to provide the Committee with discretionary power and not to establish an admissibility
requirement. In addition, the Committee considers that both communications reveal that the
authors have suffered a clear disadvantage and that they raise a serious issue of general
importance, namely, the protection of Indigenous Peoples’ rights under the Covenant.
D.
Committee’s consideration of the merits
Facts and legal issues
12.1
The Committee has considered the present communications, taking into account all
the information provided to it, in accordance with the provisions of article 8 of the Optional
Protocol.
12.2
The Committee will proceed to set out the facts that it deems to be established and
relevant.
Communication No. 251/2022
12.3
The authors belong to a Sami traditional semi-nomadic herding community, reindeer
herding being a cornerstone of Sami culture and way of life. On 28 March 2014, the
Geological Survey of Finland applied for a permit for exploration works for gold, copper and
iron, entailing the drilling of 100- to 300-metre-deep holes into the bedrock in about
20 different locations over an area of 390 hectares in the authors’ traditional reindeer herding
territory. The Safety and Chemicals Agency sought written comments from the Sami
Parliament and the Käsivarsi Reindeer Herders’ Cooperative in 2014 and invited them to
participate in meetings in 2015 and 2016. Both institutions opposed the granting of the permit.
However, the permit was granted on 7 July 2016. Both institutions appealed this decision.
On 19 December 2018, the Administrative Court of Northern Finland dismissed the appeal
and upheld the decision to grant the exploration permit. Both institutions appealed again, to
the Supreme Administrative Court, which rejected their appeal on 21 June 2021, considering
that the Sami had been sufficiently consulted for the purposes of the Mining Act, that the
conditions set out in the exploration permit to reduce possible damage to reindeer herding
were sufficient and that the surface area of the exploration works was relatively small.
10 Article 2 of the Optional Protocol states that a communication may be submitted regarding a violation
of any of the rights set forth in the Covenant, and it is possible to infer from the relevant travaux
préparatoires an intention to include article 1 within the scope of the communications procedure, since
its initial exclusion (with specific reference to the jurisprudence of the Human Rights Committee) was
eventually undone.
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Communication No. 289/2022
12.4
On 16 March 2022, the company Element 92 Suomi Oy submitted to the Safety and
Chemicals Agency a request to reserve 284 km² in Kova-Labba Siida for the purpose of
surveying the area for battery minerals (nickel, copper and cobalt). On 20 April 2022, the
Safety and Chemicals Agency granted the reservation for a period of two years, renewable
for one more year. The authors were not contacted at any point in the process of the granting
of this reservation. The authors did not file any domestic remedies, since it had been
established in the case law of the Supreme Administrative Court that a reservation decision
did not affect the practice of reindeer herding or restrict the right of the Sami as an Indigenous
People to maintain and develop their culture and that the Sami did not have legal standing to
appeal against the granting of a reservation.
12.5
The Committee considers that the issue before it is to determine whether the granting,
despite the authors’ consistent opposition and in the absence of an impact assessment, of an
exploration permit (communication No. 251/2022) and the granting of a reservation
(communication No. 289/2022) in respect of areas on their traditional territory without
obtaining their free, prior and informed consent, in the context of ongoing climate change
and the cumulative effect of other interferences with reindeer herding, constitute a violation
of the authors’ right to take part in the cultural life of their community (art. 15 (1) (a)), read
alone and in conjunction with articles 1, 2 (2) and 11 of the Covenant.
General considerations
13.
The Committee concurs with the State party that human rights treaties are living
instruments.11 The Committee will, therefore, read the Covenant in the light of the evolving
interpretation of the rights of Indigenous Peoples, as reflected in relevant general comments
of the Committee.
Article 15 (1) (a), read alone and in conjunction with articles 1, 2 (2) and 11, of the
Covenant
14.1
The Committee notes that the authors are Indigenous Sami persons and practise
reindeer herding on their traditional territory, which is an essential part of Sami culture and
livelihood and has been transmitted from generation to generation. This is uncontested by the
State party. The Committee considers that the aforementioned elements can be considered to
fall within the scope of the right to take part in the cultural life of the community, as enshrined
in article 15 (1) (a) of the Covenant, and the right to an adequate standard of living, as
provided for in article 11 of the Covenant.
14.2
The Committee recalls its general comment No. 21 (2009), in which it notes that
article 15 (1) (a) of the Covenant recognizes the right of all persons to exercise their cultural
practices and way of life and that, in the case of Indigenous Peoples, the value of the
communal dimension of cultural life should be taken into account (paras. 49 (a) and 36,
respectively). The Committee also recalls that the right to take part in the cultural life of a
community includes traditional economic activities, such as reindeer herding and fishing, as
a means of subsistence,12 which has a bearing on the right to an adequate standard of living.
The Committee further recalls that the communal dimension of Indigenous Peoples’ cultural
life, including traditional activities, is closely linked to their traditional lands, territories and
resources, and is indispensable to their existence, well-being and full development.13 The
Committee recalls its general comments No. 21 (2009) and No. 26 (2022), in which it notes
that article 15 (1) (a) of the Covenant enshrines the inalienable right of Indigenous Peoples
to the lands, territories and resources that they have traditionally owned, occupied or
otherwise used or acquired.14 In this respect, Indigenous Peoples’ cultural values and rights
11 Human Rights Committee, Roy et al. v. Australia (CCPR/C/137/D/3585/2019), para. 8.14; European
Court of Human Rights, Tyrer v. the United Kingdom, Application No. 5856/72, Judgment, 25 April
1978, para. 31; and Inter-American Court of Human Rights, Mayagna (Sumo) Awas Tingni
Community v. Nicaragua, Judgment, 31 August 2001, para. 146.
12 Human Rights Committee, general comment No. 23 (1994), para. 7.
13 General comment No. 21 (2009), para. 36.
14 Ibid.; and general comment No. 26 (2022).
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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,
including their means of subsistence, and the loss of their natural resources and, ultimately,
their cultural identity.15 The Committee observes that the protection of traditional lands,
territories and resources is a prerequisite for the right to an adequate standard of living for
Indigenous Peoples, as their traditional lands, territories and resources are an important basis
for their livelihoods.
14.3
The Committee notes that the recognition of Indigenous Peoples’ right to land as an
indispensable part of their right to take part in cultural life is in line with international human
rights jurisprudence in this area. The Committee on the Elimination of Racial Discrimination
has affirmed 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 and that their relations to the land are a material and spiritual element that they must
fully enjoy, even to preserve their cultural legacy and transmit it to future generations, and
are, therefore, a prerequisite to prevent their extinction as a people.16 The Human Rights
Committee has recognized that ownership of and control over ancestral territories are
essential to Indigenous Peoples’ survival as peoples, with the preservation of their distinct
culture; and that any denial of the exercise of their territorial rights is detrimental to values
that are very representative for members of Indigenous Peoples who are at risk of losing their
cultural identity and the heritage to be passed on to future generations.17 The Inter-American
Court of Human Rights has held that the culture of the members of Indigenous Peoples
“corresponds to a specific way of life, of being, seeing and acting in the world, constituted
on the basis of their close relationship with their traditional lands and natural resources, not
only because these are their main means of subsistence, but also because they are an integral
element of their cosmology, their spirituality and, consequently, their cultural identity”.18
Cultural rights have an intergenerational aspect, which is fundamental to the cultural identity,
survival and viability of Indigenous Peoples.19
14.4
The Committee recalls that land is closely linked with the right to self-determination,
as enshrined in article 1 of the Covenant. 20 Indeed, it is in the light of the right to
self-determination, as set out in the International Covenants on Human Rights, that the
Inter-American Court of Human Rights interprets the rights of Indigenous Peoples to
traditional property, understood as traditional territories, lands and resources. 21 The
Committee observes that there is a “growing tendency to recognize more forcefully the right
to self-determination as a key principle when it concerns the collective rights” of Indigenous
Peoples.22 In particular, the three United Nations mechanisms for the rights of Indigenous
Peoples have considered that the most important right for Indigenous Peoples is the right to
self-determination, as, without the enjoyment of this right, they could not enjoy their other
fundamental human rights.23 Accordingly, the Committee reiterates that the realization of
self-determination is an essential condition for the effective guarantee and observance of the
15 General comment No. 21 (2009), para. 36.
16 Ågren et al. v. Sweden, para. 6.6, quoting the Inter-American Court of Human Rights, Mayagna
(Sumo) Awas Tingni Community v. Nicaragua, Judgment, 31 August 2001, para. 149; and Saramaka
People v. Suriname, Judgment, 28 November 2007, para. 121.
17 Roy et al. v. Australia, para. 8.3, quoting the Inter-American Court on Human Rights, Yakye Axa
Indigenous Community v. Paraguay, Judgment, 17 June 2005, para. 203; the African Commission on
Human and Peoples’ Rights, Centre for Minority Rights Development (Kenya) and Minority Rights
Group (on behalf of Endorois Welfare Council) v. Kenya, No. 276/03, Decision, 2009, paras. 158
and 227; and the African Court on Human and Peoples’ Rights, African Commission on Human and
Peoples’ Rights v. Republic of Kenya, Application No. 006/2012, Judgment, 26 May 2017, para. 109.
18 Xákmok Kásek Indigenous Community v. Paraguay, Judgment, 24 August 2010, para. 174.
19 E/CN.4/Sub.2/2001/21, para. 20.
20 General comment No. 26 (2022), para. 11.
21 Saramaka People v. Suriname, Judgment, 28 November 2007, para. 93.
22 Separate Opinion of Judge Eduardo Ferrer Mac-Gregor Poisot, para. 69, in Inter-American Court of
Human Rights, Maya Kaqchikel Indigenous Peoples of Sumpango et al. v. Guatemala, Judgment, 6
October 2021.
23 E/C.19/2013/16, para. 19. See also United Nations Declaration on the Rights of Indigenous Peoples,
art. 3.
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rights of Indigenous Peoples24 and is considered to be the fundamental premise of the right
to consultation and consent.25
14.5
The Committee, therefore, is of the view that, in the context of Indigenous Peoples,
article 15 (1) (a), read in conjunction with articles 1 and 11, of the Covenant entails the right
of Indigenous Peoples to the lands, territories and resources that they have traditionally
owned, occupied or otherwise used or acquired and requires States parties to take measures
to recognize and protect the rights of Indigenous Peoples to own, develop, control and use
their communal lands, territories and resources.26 It follows that States parties must ensure
the effective participation of Indigenous Peoples in decision-making processes that may
affect their way of life, in particular their right to land, based on the principle of their free,
prior and informed consent, so as not to endanger the very survival of the community and its
members,27 as enshrined in article 32 (2) of the United Nations Declaration on the Rights of
Indigenous Peoples and reaffirmed in the Committee’s general comments.28
14.6
In the case of communication No. 251/2022, the Committee notes that the State party
invited comments from the Käsivarsi Reindeer Herders’ Cooperative and the Sami
Parliament and arranged two negotiation meetings to consider the exploration permit with
them. The Committee also notes that, despite both institutions’ opposition, the Safety and
Chemicals Agency granted the permit to the Geological Survey of Finland. The Committee
further notes that the Supreme Administrative Court considered that the aforementioned
procedure had provided the conditions to ensure that the Sami, as an Indigenous People, had
had a de facto opportunity to participate in the permit procedure.29 The Committee observes
that, throughout the process, there was no independent assessment of the impact of the
exploration activities on reindeer herding as a fundamental part of the Sami culture and
livelihood, the intergenerational transmission of the practice and the right of the Sami as an
Indigenous People to engage in the practice. The Committee is of the view that an adequate
and effective process of free, prior and informed consent, when the rights of Indigenous
Peoples may be affected by projects carried out in their traditional territories, must include
not only the sharing of information with and the gathering of comments from the affected
community, but also an interactive and continuous dialogue through Indigenous Peoples’
own representative institutions, from the outset and through culturally appropriate procedures,
respecting the right of Indigenous Peoples to influence the outcome of decision-making
processes affecting them. The Committee considers that environmental, social and cultural
impact studies, conducted by independent and technically competent entities, should serve as
the basis for a process of consultation aimed at obtaining free, prior and informed consent.30
The Committee notes the State party’s observation that the principle of free, prior and
informed consent does not mean that consensus must be reached, as long as sufficient
guarantees of effective participation have been provided. The Committee finds, nonetheless,
that the procedure provided in this case does not meet the standard of effective participation
in accordance with the principle of free, prior and informed consent.
14.7
In the case of communication No. 289/2022, the Committee notes that the authors
were not contacted at any point in the process of the granting of the reservation, that,
24 General comment No. 26 (2022), para. 11; Human Rights Committee, general comment No. 12 (1984),
para. 1; and A/HRC/48/75, para. 62.
25 Inter-American Commission on Human Rights, Derecho a la libre determinación de los Pueblos
Indígenas y Tribales (2021), para. 177.
26 General comment No. 21 (2009), para. 36; and the United Nations Declaration on the Rights of
Indigenous Peoples, art. 26 (2).
27 Human Rights Committee, Oliveira Pereira et al. v. Paraguay (CCPR/C/132/D/2552/2015), para. 8.7;
and Roy et al. v. Australia.
28 General comments No. 21 (2009), paras. 37, 49 (e) and 54 (a); No. 24 (2017), paras. 12 and 17; and
No. 26 (2022), para. 21.
29 Supreme Administrative Court, KHO 2021:83.
30 See also general comments No. 26 (2022), para. 21; and No. 24 (2017), paras. 12 and 17; Committee
on the Elimination of Racial Discrimination, Ågren et al. v. Sweden, para. 6.18; A/HRC/39/62;
Inter-American Court of Human Rights, Kichwa Indigenous People of Sarayaku v. Ecuador, Judgment,
27 June 2012, para. 167; and Saramaka People v. Suriname, Judgment, 28 November 2007, para. 133;
and Inter-American Commission on Human Rights, Indigenous and Tribal Peoples’ Rights over their
Ancestral Lands and Natural Resources (2010), paras. 318 and 319.
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according to a precedent set by the Supreme Administrative Court, a reservation decision
does not affect the practice of reindeer herding or restrict the right of the Sami as an
Indigenous People to maintain and develop their culture and that the Sami do not have legal
standing to appeal against the granting of a reservation. The Committee notes that, according
to a report commissioned by the Ministry of Economic Affairs and Employment of the State
party on the functioning of the reservation mechanism under the Mining Act, while “a
reservation under the Mining Act has not been considered to have legal effects extending
beyond the parties engaged in exploration”, “making a reservation notification creates
uncertainty regarding the future opportunities to use and manage the area subject to the
reservation”. It was stated in the report that this uncertainty “can also be considered to affect
the Sámi people’s views on conditions for practicing traditional economic activities and the
perceived fairness in general of the claim procedure under the Mining Act”.31 The Committee
notes that the area reservation concerns the traditional territory of the authors as members of
an Indigenous People. The Committee considers, however, that the procedure for the granting
of a reservation takes no account of the rights of Sami living in the affected area to control
and use their land and transmit their traditional livelihoods from generation to generation.
14.8
In the light of the above, the Committee considers that the State party has not
demonstrated that, in the process of granting the exploration permit (communication
No. 251/2022) and the reservation (communication No. 289/2022), adequate account was
taken of the right of Indigenous Peoples to land, as part of the right to take part in cultural
life, read alone and in conjunction with the rights to self-determination and to an adequate
standard of living, and the obligation to ensure their effective participation, as established in
international human rights law.
14.9
In addition, the Committee observes that the State party did not refute that
Kova-Labba Siida is part of the authors’ traditional territory. The Committee notes the
submission by the State party that exploration work can be carried out with the consent of
the landowner, that the exploration permit holder is obliged to pay compensation to the
landowner in accordance with the Mining Act and that, in both communications, the owner
of the area concerned is the State. The Committee notes the State party’s observation that the
legislation in question applies to both Sami and non-Sami, regardless of origin.
14.10 The Committee recalls its general comment No. 20 (2009), in which it stated that
eliminating discrimination in practice requires paying sufficient attention to groups of
individuals that suffer historical or persistent prejudice instead of merely comparing the
formal treatment of individuals in similar situations (para. 8). The Committee also recalls
that, as noted by the Committee on the Elimination of Racial Discrimination, to treat in an
equal manner persons or groups whose situations are objectively different will constitute
discrimination in effect, as will the unequal treatment of persons whose situations are
objectively the same.32 Positive measures are required to prevent and eliminate conditions
that perpetuate discrimination and to ensure the equal enjoyment of the rights enshrined in
the Covenant.33 In the context of Indigenous Peoples, this necessitates measures to give legal
recognition to their rights to their traditional lands, including through forms of collective
ownership, and to ensure protection of those rights, as an essential element of the right to
take part in the cultural life of the community, and to provide effective remedies when these
rights are infringed.34
14.11 The Committee observes that the State party’s failure to give legal recognition to the
rights of Indigenous Peoples in respect of their traditional lands, which are the basis for their
livelihood and income, has led to a situation in which the Sami are not entitled to
compensation when their traditional lands are made the site of mineral exploration
31 Finland, Ministry of Economic Affairs and Employment, Report on the Functioning of the Reservation
Mechanism under the Mining Act (Helsinki, 2022), p. 29.
32 Committee on the Elimination of Racial Discrimination, general recommendation No. 32 (2009),
para. 8. See also European Court of Human Rights, Thlimmenos v. Greece, Application No. 34369/97,
Judgment, 6 April 2000.
33 General comment No. 20 (2009), paras. 8 and 9.
34 General comment No. 21 (2009), para. 36; and United Nations Declaration on the Rights of
Indigenous Peoples, art. 26.
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(communication No. 251/2022) and in which they are not recognized as an interested party
in the granting of a reservation (communication No. 289/2022), which has the effect of
nullifying the recognition of the rights of Indigenous Peoples to their traditional territories
and natural resources and their enjoyment or exercise of those rights.35 The Committee,
therefore, considers that the State party has not demonstrated how, in the processes of
granting the permit and the reservation under the Mining Act, the authors’ rights under
article 15 (1) (a), read in conjunction with article 2 (2), of the Covenant were adequately
taken into account.
E.
Conclusion and recommendations
15.
The Committee, acting under article 9 (1) of the Optional Protocol, is of the view that
the facts and information before it disclose a violation of article 15 (1) (a), read alone and in
conjunction with articles 1, 2 (2) and 11, of the Covenant.
Recommendations in respect of the authors
16.
The State party should provide the authors with effective reparation for the violations
suffered, including through an effective review of the decisions concerning the mineral
exploration project and the area reservation, based on an adequate process for free, prior and
informed consent, accompanied by an independent assessment of the impact on their rights.
General recommendations
17.
The State party is under an obligation to take all steps necessary to prevent similar
violations from occurring in the future. In this regard, the State party is requested to pursue
its efforts to amend its legislation and administrative procedures to enshrine therein the
international standard of free, prior and informed consent and to include therein provision for
environmental, social and cultural impact assessments.36 The State party is also requested to
initiate the process of legal recognition of the rights of Indigenous Peoples to their traditional
lands, including through collective ownership.
18.
In accordance with article 9 (2) of the Optional Protocol and rule 21 (1) of the rules
of procedure under the Optional Protocol, the State party is requested to submit to the
Committee, within a period of six months, a written response, including information on
measures taken in follow-up to the Views and recommendations of the Committee. The State
party is also requested to publish the present Views, to have them translated into the official
languages of the State party and into Northern Sami and to distribute them widely, in an
accessible format, so that they reach all sectors of the population.
35 Committee on the Elimination of Racial Discrimination, Ågren et al. v. Sweden, para. 6.7.
36 E/C.12/FIN/CO/7, paras. 50 and 51.
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GE.24-18518
Annex
[English only]
Individual opinion of Committee member Ludovic Hennebel
(concurring)
1.
I fully concur with the conclusions reached by the Committee in its determination of
the case, finding significant violations of the Sami people’s rights under the International
Covenant on Economic, Social and Cultural Rights, in particular their rights to
self-determination, cultural participation and an adequate standard of living, as set out in
articles 1, 11 and 15 of the Covenant. However, I wish to emphasize that the exclusion of
self-determination from justiciable rights, as seen in the jurisprudence of the Human Rights
Committee, must be reconsidered. Self-determination is an autonomous and enforceable right,
crucial for Indigenous Peoples, and its full justiciability must be affirmed.
2.
As recently recalled by both the Human Rights Committee – whose recent
jurisprudence ushers in a paradigm shift1 – and the African Commission on Human and
Peoples’ Rights,2 the right to self-determination is a cornerstone of modern international
human rights law, enshrined in common article 1 of the International Covenant on Civil and
Political Rights and the International Covenant on Economic, Social and Cultural Rights.
This right guarantees that the Sami, as an Indigenous People, can freely pursue their
economic, social and cultural development, which inherently includes the right to manage
and control their traditional lands and resources. The link between self-determination and
land is crucial: without access to their lands, Indigenous Peoples cannot exercise their right
to self-determination effectively. States must protect Indigenous Peoples’ rights to their lands,
territories and resources to prevent the erosion of their way of life and identity.3
3.
In the present case, the violation of the right of the Sami to self-determination stems
directly from the State party’s failure to implement a meaningful process for free, prior and
informed consent. Free, prior and informed consent is not a mere procedural formality; it is
a substantive right essential for allowing Indigenous Peoples to participate in decisions
affecting their lands, which are fundamental to their cultural and economic survival.4 The
control over land is not only an economic matter but also a core component of
self-determination, as it allows Indigenous Peoples such as the Sami to maintain their cultural
heritage, livelihoods and identity.
4.
For the Sami, reindeer herding is intimately connected to their land and is central to
their cultural identity.5 The Committee on Economic, Social and Cultural Rights, like other
human rights bodies, has previously acknowledged that the cultural rights of Indigenous
Peoples are inextricably tied to their access to and control over their traditional lands and
resources. Without sustainable access to these lands, the ability of the Sami to exercise
1 Roy et al. v. Australia (CCPR/C/137/D/3585/2019), paras. 7.2 and 7.3. Even though the Human
Rights Committee does not take the step of affirming the justiciability of article 1 of the International
Covenant on Civil and Political Rights, its jurisprudence is remarkable and signals real progress
towards a direct protection of self-determination.
2 Minority Rights Group International and Environnement Ressources Naturelles et Développement
(on behalf of the Batwa of Kahuzi-Biega National Park, DRC) v. Democratic Republic of Congo
(DRC), Communication No. 588/15, Decision, 2022, paras. 188 ff.
3 Committee on the Elimination of Racial Discrimination, Ågren et al. v. Sweden
(CERD/C/102/D/54/2013), para. 6.6; and Human Rights Committee, general comment No. 23 (1994),
para. 9. See also Human Rights Committee, Oliveira Pereira et al. v. Paraguay
(CCPR/C/132/D/2552/2015), para. 8.6; Poma Poma v. Peru (CCPR/C/95/D/1457/2006), para. 7.2;
and Roy et al. v. Australia, para. 8.3.
4 See Inter-American Court of Human Rights, Mayagna (Sumo) Awas Tingni Community v. Nicaragua,
Judgment, 31 August 2001; Saramaka People v. Suriname, Judgment, 28 November 2007; Kichwa
Indigenous People of Sarayaku v. Ecuador, Judgment, 27 June 2012; and Kaliña and Lokono Peoples
v. Suriname, Judgment, 25 November 2015.
5 Human Rights Committee, Sara v. Norway (CCPR/C/141/D/3588/2019), para. 10.3.
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self-determination is compromised, and the transmission of their culture from one generation
to the next is jeopardized. Therefore, the violation of the land rights of the Sami is, in effect,
a violation of their right to self-determination.
5.
The justiciability of article 1 of the International Covenant on Economic, Social and
Cultural Rights, which enshrines the right of peoples to self-determination, has historically
been contested, with some States arguing that it is a political principle rather than a legally
enforceable right. However, recent developments in international law, along with the
evolving jurisprudence of the treaty bodies and regional human rights mechanisms, invite us
to reconsider this obsolete approach and affirm that the right to self-determination is indeed
fully justiciable within the framework of human rights law.
6.
The Optional Protocol to the Covenant itself does not preclude the justiciability of
article 1 of the Covenant. On the contrary, article 2 of the Optional Protocol explicitly allows
for the submission of complaints alleging any violation of the rights set forth in the Covenant,
which includes the right to self-determination. The Committee has further recognized that
the right to self-determination is intrinsically linked to the rights enshrined in the Covenant,
in particular the rights to freely dispose of natural wealth and resources (art. 1 (2)) and to
pursue economic, social and cultural development without outside interference. Therefore, it
can be considered that self-determination is a right enforceable and justiciable at the
international level, including through article 1 of the Covenant, and its violation affects not
only the peoples concerned but also the international order as a whole.
7.
In the present case, the right of the Sami to self-determination is not abstract or
political in nature; it is an actionable right that has a direct impact on their ability to maintain
their cultural identity, economic sustainability and social structure. In my opinion, the State
party’s failure to respect this right, due to a lack of meaningful consultation and the absence
of mechanisms to ensure Sami participation in decisions affecting their traditional lands,
constitutes a direct and autonomous violation of article 1 of the Covenant. This breach is all
the more significant in the light of the cultural and economic dimensions of the right to
self-determination, as emphasized in the Covenant and in the Committee’s work.
8.
While the Committee stops short of affirming an autonomous violation of article 1 in
the present case concerning the Sami people, its decision is particularly promising. It reflects
a broader, progressive trend in the jurisprudence of the treaty bodies towards stronger
protection of self-determination. It opens the door to even more ambitious, bold and
protective case law, highlighting the growing need to fully recognize self-determination as a
justiciable and enforceable right.