TO THE UNITED NATIONS COMMITTEE ON THE ELIMINATION OF RACIAL
DISCRIMINATION
Individual communication submitted under the Optional Protocol to the International
Convention on the Elimination of All Forms of Racial Discrimination.
includes an URGENT request for interim measures of protection.
Submitted to:
Petitions and Inquires Section
Office of the High Commissioner for Human Rights
United Nations Office at Geneva
1211 Geneva 10
SWITZERLAND
Also submitted to: petitions@ohchr.org
Authors:
Mr. Lars-Anders Ågren, Chairman of Vapsten Sami village
Mrs. Ellen Marie Anne Anti
Mr. Henrik Omma
Mr. Ole-Henrik Omma
Ms. Elle Merete Omma
Mr. Jon Mikael Labba
Ms. Inger-Ann Omma
Ms. Marja-Kari Omma
Mrs. Inger Baer-Omma
Mr. Lars-Jonas Omma
Mrs. Liecelotte Omma
Mr. Morgan Omma
Ms. Lisa Omma
Mr. Per-Henning Utsi
The application
Mrs. Gun-Margret Utsi
Ms. Risten-Anne Utsi
All 16 authors are reindeer herding members of Vapsten Sami village. They all belong to the
indigenous Sami people. (The authors and Vapsten Sami village are hereinafter jointly
referred to as “Vapsten”.)
Represented by:
Jur. Dr. Mattias Åhrén, of the Saami Council
Prestenggata 10
9008 Tromsö
NORWAY
Tel.: +47 47 37 91 61
Email: mattias.ahren@saamicouncil.net
Articles violated:
International Convention on the Elimination of All Forms of Racial Discrimination
(hereinafter referred to as the “Convention”) Article 5 (d) (v) (the right to property), as well
as Articles 5 (a) and 6, the latter two in combination (the rights to an effective remedy and
equal treatment before tribunals)
1.
APPLICATION AND SUMMARY OF COMPLAINT
1.1
On behalf of the Vapsten, I respectfully request the United Nations Committee on the
Elimination of Racial Discrimination (hereinafter referred to as the “Committee”) to consider
the following individual communication and urgent request for interim measures.
1.2
Sweden, a State party to the Convention, allows a private entity, Nickelmountain AB,
to establish three open pit mines within a land area where Vapsten pursues reindeer
herding, a traditional livelihood of the indigenous Sami people, and has done so since time
immemorial. Through traditional use, Vapsten has established a property right to the land
area in dispute, both under national1 and international law2. Vapsten has not consented to
Nickelmountain entering its territory. The mining activities destroy pasture areas within
Vapsten’s traditional territory that are indispensable to the community.
1
In addition to
Swedish case law reaffirms that also under Swedish national law, Sami reindeer herding communities’
traditional use of land results in property rights to such areas. See e.g. the Swedish Supreme Court’s rulings in
the so called Taxed Lapp Mountain (Skattefjällsmålet) and Nordmaling Cases. It can be noted that the latter case
concerned reindeer pasture areas partly vesting with Vapsten, albeit not the areas subject to this communication.
2
Regarding Vapsten’s property right under international law, see further Section 5, below.
destroying fundamental pasture areas, Nickelmountain’s mining activities further
completely block migration routes that are essential for Vapsten’s reindeer being able to
migrate between different pasture areas.
Without the pasture areas Nickelmountain’s
mining activities consume, and without the migration routes, Vapsten can no longer pursue
traditional Sami reindeer herding. Vapsten’ members (i.e. the authors) are being forcefully
relocated from their traditional territory and forced out of their traditional livelihood.
Sweden’s failure to prevent the mining activities amounts to a violation of the right to
property, as enshrined in Article 5 (d) (v) of the Convention.
1.3
Nickelmountain’s mining activities do not only impact on Vapsten’s property in
terms of land and natural resources. In addition, Vapsten’s members (i.e. the authors’) right
to pursue traditional Sami reindeer herding is as such protected under the right to property.3
Consequently, as Nickelmountain’s mining activities result in the authors no longer being
able to pursue Sami reindeer herding, Sweden’s failure to prevent the mining activities
amounts to a violation of Article 5 (d) (v) of the Convention, also with regard to Vapsten’s
members’ right to continuously pursue Sami reindeer herding.
1.4
The decision to limit Vapsten’s property rights has been taken by a Swedish
administrative authority and appealed to the Swedish government. Swedish law prevents
Vapsten from further appealing to a court of law. Vapsten is hence denied the right to have
its right to property tried before a court of law. This amounts to a violation of the rights to
an effective remedy and to equal treatment before tribunals, pursuant to Articles 5 (a) and 6
of the Convention.
2.
ON THE SAMI PEOPLE AND SAMI REINDEER HERDING IN GENERAL
2.1
The Sami have inhabited their traditional territory - covering what today constitutes
northern Finland, Norway, Sweden and the Kola Peninsula in the Russian Federation – since
time immemorial, and since well before the present day states drew their borders across
Sápmi – the land of the Sami. The Sami have their own culture, livelihoods and language,
distinct from the cultures of the non-Sami populations. The Sami are hence indigenous to
their traditional territories, including to the parts covered by this communication. Sweden
also recognizes the Sami as an indigenous people.
2.2
The Sami have pursued reindeer herding since time immemorial. Reindeer herding
constitutes the backbone of the Sami culture in Sweden. Here Sápmi is essentially equivalent
with the traditional reindeer herding territory. Without reindeer herding, the Sami culture
3
European Court on Human Rights’ in O.B. and Others v. Norway, Appl. No. 15997/90 (8 January 1993)
and society cannot survive. On the individual level, reindeer herding constitutes the most
central element of a Sami reindeer herder’s cultural identity.
2.3
According to the traditional Sami societal structure, reindeer herding is pursued in
family groups consisting of a couple of families, known as siidas. Following colonization,
Sweden administratively divided the Sami reindeer herders into so called Sami villages
(samebyar). Normally, a Sami village envelopes a couple of the previous siidas. Under the
Swedish Reindeer Herding Act, a Sami village is both a geographical territory and an
economic association, i.e. a legal entity, with individual reindeer herders as members.
2.4
Reindeer herding is a semi-nomadic livelihood where herders migrate with their
reindeer over a yearly cycle. The migration patterns vary between different regions within
the Sami traditional territory. In the region where Vapsten is situated, the reindeer and the
reindeer herders migrate from summer pasture areas situated in northern Norway in an
easterly direction to winter pasture areas located in forested terrains in northeastern Sweden,
close to the coastal border. In the spring, the migration pattern is reversed and the herders
and their reindeer travel back to their summer pasture areas in a westerly direction.
The
reindeer essentially determine the migration routes, but the herders aim to find best possible
pasture for their reindeer every season. Although the yearly cycle follows a similar pattern,
what areas are used for pasture each season may vary from year to year, depending on
weather and grazing conditions. This is particularly true for the pre-winter, winter, and
early spring pasture areas, when reindeer herding is sensitive to weather, snow-depth, ice
condition and other factors impacting on grazing conditions. During spring, summer and
autumn, Sami villages commonly keep all their reindeer together in one big herd. During
winter, when pasture is scarce, Sami villages normally split the herd up into several winter
groups, which often, but not always, have their roots in the traditional siida system.
3.
GENERALLY ON VAPSTEN AND ITS TRADITIONAL TERRITORY
3.1
The 16 authors pursue traditional Sami reindeer herding, migrating with their
reindeer in essentially the same paths their forefathers have used since time immemorial.
According to Swedish administrative regulation, at any given time, Vapsten’s members may
together hold a maximum of 6,500 reindeer.
3.2
A map that outlines Vapsten’s traditional reindeer herding territory, divided up into
spring, summer and autumn pasture areas, on one hand, and winter pasture areas, on the
other, is attached as Appendix 1. On Appendix 1, the Committee further finds Vapsten’s
major migration routes between the pasture areas. As is shown on Appendix 1, the distance
between Vapsten’s summer and winter pastures area is approximately 350 km between the
most eastern and most western point. Few Sami reindeer herding communities travel the
distances with their reindeer Vapsten does. Vapsten’s traditional reindeer herding territory
can, in general terms, be described as follows.
3.3
Vapsten covers roughly 10,000 km2. Of this area, as Appendix 1 demonstrates, about
3,000 km2 is spring, summer and autumn pasture areas (marked with green on Appendix 1),
and about 7,000 km2 winter pasture area (marked with light blue on Appendix 1). All
seasonal pasture areas are of vital importance. Without adequate pasture in all seasons, one
cannot pursue Sami reindeer herding. As the below elaborates, this complaint is mainly
concerned with the spring, summer and autumn (including pre-winter) pasture areas, where
the spring and autumn/pre-winter pasture is of particular importance.
A map over
Vapsten’s spring, summer and autumn/pre-winter pasture areas is attached as Appendix 2.
3.4
The distinction between spring, summer and autumn pasture areas is less
pronounced in Vapsten, compared with most Sami villages. Vapsten’s reindeer herd migrate
around the entire spring-summer-autumn pasture areas throughout all of these seasons.
That said, certain parts tend to be used more during certain parts of those seasons, while
other areas are of cardinal importance during other parts.
3.5
The reason why Vapsten’s spring, summer and autumn pasture areas “blend” to a
much higher degree than is common in Sami reindeer herding is that Vapsten’s traditional
territory has a topography that differs from that of most other Sami villages. A typical Sami
village has winter-lands in low-lands forested areas, spring and autumn pasture areas in
low-altitude lichen rich mountain-areas, and summer pasture in high-altitude mountains
were the reindeer essentially feed on grass. In Vapsten’s spring/summer/autumn pasture
areas, on the other hand, high-altitude mountains dominate. Vapsten has access to very little
low-altitude lichen rich pasture, typically used for spring and autumn/pre-winter pasture.
3.6
Vapsten’s high-altitude grass-rich mountain pasture areas stretch from eastern
Norway in the west to the Rönnbäck Isthmus area in the east. (To see where the Rönnbäck
Isthmus area is situated within Vapsten’s traditional territory, see Appendix 2.) The Rönnbäck
Isthmus is a valley area, rich in water-lands, with high mountains on both sides. Here,
Vapstens is at its narrowest, approximately 20 km broad. The Rönnbäck Isthmus area can thus
be described as a bottle-neck, with pasture areas of critical importance to Vapsten’s reindeer
herding cycle on both sides of the bottle-neck. Immediately east of the Rönnbäck Isthmus area
is Gardfjäll (see Appendix 2 for where Gardfjäll is situated), a mountain that slopes down
towards the east for about 30-40 km towards more forested areas. About 30 km further east,
one reaches Vapsten’s winter pasture land.
3.7
No year is like the other in reindeer herding.
Weather and grazing conditions
determines when Vapsten moves the reindeer from one pasture area to another, and at what
pace. But generally speaking, Vapsten utilizes the areas at Gardfjäll suitable for spring
pasture area from April to June. As the snow-line resides in early July, the reindeer tend to
migrate gradually west towards the grass rich pasture areas suitable for summer pasture.
At the end of August, the herd start to gradually migrate east again towards Gardfjäll again,
with it’s lichen rich autumn pasture. Towards early winter, the reindeer migrate further east
through the bottle-neck to the more forested areas just east of the bottle-neck, below Gardfjäll.
Vapsten tries to keep the reindeer in the Rönnbäck Isthmus and Gardfjäll area for as long as
possible. Vapsten’s barren winter-pasture areas are relatively small and of relatively poor
quality. Vapsten is therefore dependent on keeping the reindeer in this area for as long as
possible during the pre-winter. In mid-December, however, Vapsten rounds up the herd,
divide it up into 3-4 smaller winter groups, and migrate further east with their reindeer to
the winter-pasture areas. In early April, the cycle starts all over again, when the winter
groups move west to the spring land where the winter groups merge to again form one big
herd.
3.9
Gardfjäll, Arefjäll and Södra Storfjäll are mountain-ranges that play an important role in
Vapstens’ land use. Södra Storfjäll and Arefjäll (See further Appendix 2 for the location of
Södra Storfjäll and Arefjäll.) are located west from the Rönnbäcken Isthmus and are used as
pasture lands during spring, summer, autumn and pre-winter time. The mountains contain
good pasture for reindeer with its rich grass-covered mountains and are therefore considered
as very good pasture areas during time when there’s little or no snow covering the
mountains. Gardfjäll , which is situated east of the Rönnbäck Isthmus, has more lichen and is
therefore more suitable as pasture-land during fall and wintertime before the snow-depth is
to deep, or during springtime when the snow is about to thaw away.
3.10
The high region on both sides of Rönnbäcken Isthmus has a particular value during the
mid-summer period, since the reindeer being able to cool off and escape insects during warm
periods. Gardfjäll, east of Rönnbäcken, has a higher altitude the mountains west of the
Rönnbäcken Isthmus, which makes the mountain desirable for the reindeer during warm
summer days.
3.11
Historically, Vapsten migrated with their reindeer the traditional Sami way - on foot
or by skies - between all season pasture areas. Due to previous intrusions into Vapsten’s
traditional territory, mainly damming of water-ways, Vapsten now has to use trucks to
migrate from the pre-winter areas east of the Gardfjäll to the winter pasture areas, as well as
from the winter pasture areas to the spring pasture land at the easterly foot of Gardfjäll or at
Björkvik, which is located close to one of the three open pit mines. From Gardfjäll, the
reindeer migrate gradually west feeding on lichen-rich spring pasture towards the Rönnbäck
Isthmus area, which, as mentioned, is Vapsten’s narrowest point. This migration normally
occurs in April, but sometimes calving occurs on Gardfjäll before the reindeer continue
further towards the Rönnbäck Isthmus area. The reindeer normally grace in the GardfjällRönnbäck Isthmus areas through spring, before following the declining snow-line west into
the more high-altitude grass-rich pasture areas.
3.12
The area around the Rönnbäck Isthmus plays a highly central role for reindeer herding
during approximately 2/3 of the year. The area’s importance is significantly greater than
what the area's size gives the impression of. Without this area, the spring, summer and
autumn lands are very difficult to use and its capacity to feed the reindeer significantly
reduced. In particular, the area west of Rönnbäck Isthmus, is Vapsten’s most essential pasture
area during spring, autumn and summer.
3.13
Reindeer herding is a very complex livelihood.
The above has tried to explain
Vapsten’s reindeer herding cycle in as simple terms as possible. That said, the borders
between the different pasture areas are more complex than may appear from the description
above. Weather, snow conditions etc. heavily impact on what areas are used for pasture
during the various seasons each year.
4.
THE PRESENT ISSUE
About Nickelmountain’s mining project
4.1
Following the Swedish govenrment’s approval, Nickelmountain is about to establish
an open pit mining complex in Vapsten’s traditional territory. The mining complex consists
of three open pit mines. These are situated at three different, albeit adjacent, locations, right
in the Rönnbäcken Isthmus area, described above.
A map outlining Nickelmountain’s
industrial site is attached as Appendix 3 (the map has been attained from Nickelmountain’s
website).
4.2
Appendix 3 marks Open Pit Mine A, Open Pit Mine B, and Open Pit Mine C. Each
mine has an associated industrial area, hosting e.g. water-dams filtering rest-products from
the mining activities, rest product magazines, workshops, loading-places for the ore, offices,
facilities for the employees etc. A road system connects the mining sites, resulting in an
open-pit mining system that consumes a large part of Vapsten’s key pasture areas, and
completely block Vapsten’s migration routes between various season pasture areas. As
Appendix 3 shows, Nickelmountain’s mining complex is situated right on the bottleneck
described above, where Gardfjäll ends in the west at the Rönnbäcken Isthmus area.
The
Rönnbäcken Isthmus area is thus completely destroyed by Nickelmoutain’s mining complex.
This has serious negative effects on Vapsten’s reindeer herding in high-summer, and
absolutely detrimental effects on the reindeer herding in spring and autumn.
4.3
Moreover, Nickelmountain’s open pit mining system’s impact on Vapsten’s pasture
areas is not limited to the actual industrial sites. Scientific research documents that industrial
activities in reindeer herding areas result in the reindeer shying away not only from the
industrial site as such, but also from areas adjacent to the site. Although individual reindeer
may at times be sited close to an industrial site, these are often young reindeer bulls and are
not representative of the behavior of the herd at large. It is well researched and documented
that the majority of the herd avoids grazing areas adjacent to an industrial site. Young
reindeer bulls are, generally speaking, less disturbed by industrial sites, while reindeer cows
with calves are particularly shy of such areas. Research establishes that the “noise bufferzone” may vary from 2 to 10 km, depending on the industrial activity. Mining constitutes
the greatest sort of infringement in reindeer herding land, and generates substantive noise.
The buffer-zone with regard to mining is thus around 10 km, in all directions. As far as
roads are concerned, studies show that reindeer tend to shy away 4 km from such
infrastructure. This research has been accepted by the reindeer herding community, as it
corresponds well with empirical observations made by reindeer herders themselves before
the buffer-zone theory was “scientifically proven”. The buffer-zone areas too are essentially
rendered useless as pasture land. The noise buffer-zone created by Nickelmountain’s open
pit mining system is marked on Appendix 3 as circles around the planned mine-sites.
4.4
As explained above, when the spring approaches, Vapsten’s winter groups transport
the winter herds back to Gardfjäll or Björkvik where the reindeer once again merge to form
one big herd. This normally occurs in the beginning of April, but the precise timing depends
on how snow-rich the winter has been, how warm the spring is, and other weather
conditions. Depending on when the reindeer arrive at Gardfjäll, calving sometimes occur
here. As mentioned above, the reindeer then gradually follow the residing snow-line west,
where the Rönnbäck Isthmus area provides spring pasture of critical importance to Vapsten’s
herd. The importance of access to relevant pasture in the spring to Sami reindeer herding
cannot be overstated. After the long Arctic winter, when pasture is scarce, the reindeer are in
desperate need of bare ground in order to feed. Accessible spring pastures have become
even more crucial as changing climate conditions have made it more and more difficult for
reindeer to survive the winters, as icy snow conditions have made finding winter pasture
sometimes almost impossible. As the spring proceeds, it is critical to the well-being of the
reindeer that it can gradually move up in the mountains as the snow-line recedes, getting
access to the spring flora that is easy to digest.
4.5
Nickelmountain’s mining complex completely destroys the only spring pasture area
available to Vapsten. During springtime, the reindeer are sensitive to disturbances. The
open pit mining system disturbs the reindeer in their natural ways of roaming through the
mountains. The mining complex will prevent the reindeer from straying freely between the
various mountain pasture areas. During the entire barren land period, reindeer roam back
and forth in these areas. This will result in the reindeer not being able to feed sufficiently in
the spring, resulting in starvation and calf-abortion. There is also an apparent risk that
Vapsten’s reindeer spread outside Vapsten’s territory in search of alternative pasture,
resulting in loss of reindeer. The reindeer will then not be around in the fall-time when it’s
time for Vapsten to round up the herds and move to the winter-pasture areas.
4.6
In addition to destroying Vapsten’s spring pasture, the Rönnbäck Isthmus area
constitutes
a
one-of-a-kind
link
between
the
western
and
eastern
parts
of
spring/summer/autumn pasture areas. It constitutes an important – indeed the only passage from the eastern low-altitude mountain/forested pasture areas, and the western
high-altitude areas.
In the spring, Nickelmountain’s mining system completely blocks
Vapsten’s reindeer’s possibility to migrate west as the snow-line resides and up to the highaltitude mountains often suitable for pasture during high-summer.
4.7
After calving and during the mid-summer period, Rönnbäck Isthmus remains an
important pasture area for Vapsten, depending on weather and wind directions. Although
the high-altitude area west of Rönnbäck Isthmus might be the reindeer’s pasture of choice
during this time-period, upon winds from the east and upon disruptions in the mountainous
area due to hunting, the reindeer move eastwards. (Upon winds from the west or disruption
in woodland, they move towards the Norwegian border.)
Thus, the Rönnbäck Isthmus
constitutes an important area also during summer for the reindeer to be able to reach the
important highland mountains on both sides of the Rönnbäck Isthmus.
4.8
Nickelmountain’s open pit mining system further destroys the only area suitable for
autumn pasture available to Vapsten, and which is hence indispensable to the community.
The need for smooth transition to different forms of pasture described above with regard to
spring pasture applies also in the autumn when the reindeer prepare for returning to the
winter pasture areas. Rönnbäck Isthmus is also a good watering area, which is also important
for the reindeer’s preparation for the winter. The autumn and early winter pasture is of
critical importance to the reindeer herding cycle. During this time of year, the reindeer must
have access to excesses of pasture, and must have peace to feed. The reindeer has developed
an anatomy rendering it uniquely fit to survive the harsh winters in the environment where
the reindeer and the Sami live. The reindeer is capable of storing reserves build up during
the autumn in its body, energy which is gradually portioned out in the reindeer’s system
during the winter to compliment the winter pasture. This characteristic of the reindeer
allows it to survive the winter, as pasture during this season is normally so scarce that the
reindeer could not survive on it alone. This is why the autumn pasture is so extremely
important to the reindeer herding cycle. If the reindeer does not have access to rich autumn
pasture, and peace to feed on it, the reindeer is unable to build up reserves allowing it to
survive the winter.
4.9
Nickelmountain’s open pit mining system will result in Vapsten’s reindeer neither
finding adequate autumn pasture, or the peace to feed. When snow comes the reindeer start
to roam eastwards towards more low-land pasture areas, where snow do not cover the
grounds as much as up in the mountains. The reindeer start wandering eastwards and feed
along their natural migration routes. Any disturbance causes the reindeer to move faster,
resulting in it not feeding properly. It may also stray out of Vapsten’s territory in search of
peaceful pasture, resulting in loss of reindeer.
4.10
In addition, Nickelmountain’s open pit mining system completely blocks the
reindeer’s migration path when migrating east again from the high altitude mountains
towards the low altitude mountain and forested areas as the winter approaches. With the
open pit mining system in the way, it is simply not possible for Vapsten’s reindeer to migrate
east towards the pre-winter lands of Gardfjäll.
4.11
Vapsten is hard-pressed in the winter area by different intrusions in the form of
mines (e.g. Svartliden), wind farms (approximately 700 wind mills are planned to be
introduced in Vapsten’s winter pasture land alone) and extensive forestry.
The winter
grazing is therefore a highly-limited resource to Vapsten. As a consequence, Vapsten seeks
to use the land areas described above as much possible, even when the winter approaches.
Due to the outlined intrusions into Vapsten’ regular winter pasture areas, Vapsten has more
recently been forced to use areas less suited for winter pasture due to size and quality also in
winter time. The Rönnbäck Isthmus area hosts a boulder-laden edge with pine forests and
good lichen assets along the northern side. These pine forests are very desirable and well
needed pasture for reindeer during especially springtime when snow can lay deep in these
areas. In crisis years, these pasture areas can be absolutely vital, should Vapsten’s herd
survive the late winter/early spring. But these pasture areas too, are completely destroyed
by Nickelmountain’s open pit mining system.
4.12
The above has described how the Rönnbäck Isthmus area constitutes a bottle-neck
through which Vapsten’s reindeer must pass when migrating east towards the winter and
back west as the summer approaches. But the Rönnbäck Isthmus area is in addition a bottle
neck also during the spring, summer and autumn seasons.
Depending on weather
conditions, disturbances etc. the reindeer migrate between higher and lower altitudes also
within the mentioned seasons. And in doing so, it must necessary pass the Rönnbäck Isthmus
area. In other words, Nickelmountain’s mining complex destroys Vapsten’s only migration
routes between important grazing areas also during the roughly eight months of spring,
summer and autumn.
4.13
All in all, the Rönnbäck Isthmus area and adjacent lands is of critical importance to
Vapsten’s reindeer herding cycle during substantial parts of the year. As seen, for about half
of the year (spring and autumn), the area offers the only suitable pasture to Vapsten. In
addition to in the spring and autumn seasons, the area is also an integral part of a
complicated migratory system of the reindeer during summer. As further seen, due to
increasingly scarcer winter pasture, Vapsten is more and more often forced to use the area
even in winter time. In addition, the area were Nickelmountain’s open pit mining system is
situated is a bottle-neck, implying that the mines completely cuts Vapsten into two. In short,
the Nickelmountain’s open pit mining system completely destroys the Rönnbäck Isthmus and
Norra Gardefjäll area, which in turn results in Vapsten no longer being able to pursue Sami
reindeer herding.
Nickelmountain’s open pit mining system, including associated
infrastructure, have such detrimental effects on and fragment Vapstens’ traditional pasture
land in a manner rendering it impossible for Vapsten and its members (i.e. the authors) to
continuously pursue traditional Sami reindeer herding. It is not possible for Vapsten to
adjust to the presence of Nickelmountain’s open pit mining system in the heart of its
traditional territory. Without spring, summer, autumn and pre-winter pasture, and without
being able to migrate with the reindeer between the various pasture areas, one can simply
not pursue traditional Sami reindeer herding. Nickelmountain’s open pit mining system
forcefully relocate all 16 authors from their traditional territory and force them out of the
traditional livelihood their forefathers have pursued since time immemorial, and which they
wish – and have the right - to pass on to their children.
4.14
In addition to the damage outlined above, it is worth adding that it is well
documented that the type of open pit mining Nickelmountain pursues results in dust
spreading about 15 km from the mining sites in all directions. Such mining dust damages
lichen pasture, causing a change in vegetation where grass overtakes lichen. This is harmful
to reindeer herding, since, as the below elaborates, lichen is a crucial part of the reindeer’s
nutrition.
The administrative process
4.15
On 23 June 2010 the Swedish Mining Authority (Bergmästaren) decided to grant
Nickelmountain concession to mine in Mining Areas A and B. On 23 July 2010 Vapsten
appealed the decision to the Swedish government. On 21 October 2010 the government
upheld the Mining Authorities’ decision, and allowed Nickelmountain to proceed with the
mining. The decision was appealed to the Supreme Administrative Court, which sent the
case back to the government due to formalia errors. (As mentioned, the government’s
decision cannot be appealed on the facts.) On 1 October 2012, the Swedish Mining Authority
decided to grant Nickelmountain a third concession to mine. Vapsten appealed this decision
too to the government on 5 November 2012. On 22 August 2013, the government finally
decided that Nickelmountain should be allowed to pursue open pit mining on all three
mining sites (A, B and C). The government’s decision cannot be appealed, and is thus final.
5.
VIOLATION OF ARTICLE 5 (d) (v) OF THE CONVENTION
Property rights relevant to Article 5 (d) (v) of the Convention
5.1
This communication asserts a violation of the right to property as enshrined in Article
5 (d) (v) of the Convention with regard to two different, albeit associated, forms of property;
property in the form of land and natural resources and property in the form of rights to
continuously pursue traditional Sami reindeer herding.
5.2
Vapsten has pursued traditional Sami reindeer herding on the area in dispute since
time immemorial. Through traditional use, Vapsten has established property rights to the
land area covered by the communication, as well as to natural resources situated on this
land, under both international and national law. Swedish law formally recognizes that
traditional Sami land use through reindeer herding results in such property rights to land
that are protected pursuant to Article 5 (d) (v) of the Convention, as well as under the
Swedish Constitution (Chapter 2, Section 15, Regeringsformen). The problem here is that
Sweden does not acknowledge this right that it recognizes in principle in competition with
industrial interests.
5.3
As the Committee is aware, in its General Recommendation No. 23, the Committee
concurs that depriving indigenous communities of their traditional lands constitutes a
specific form of discrimination directed against them. Consequently, the Committee calls on
states to “recognize and protect the rights of indigenous peoples to own, develop [and] control” their
lands and natural resources. The Committee underlines that the general right to property
enshrined in the Convention Article 5 (d) (v) applies also to indigenous peoples’ collective
land use. The Committee has reaffirmed this understanding of Article 5 (d) (v) in various
country specific observations.4 The conclusion is in keeping with the UN Declaration on the
Rights of Indigenous Peoples Article 26.
5.4
In sum, Vapsten holds a property right relevant to Article 5 (d) (v) of the Convention
to the land where Nickelmountain pursues open pit mining, after having been granted the
right to do so by the Swedish government.
5.5
Under Swedish law, the right to pursue Sami reindeer herding vest in persons that (i)
are of Sami origin, and (ii) are members of a Sami village.5 For members of Sami villages, the
right to continuously pursue reindeer herding is protected as a property right under e.g.
Section 1 of the Additional Protocol to the European Convention on Human Rights,6 and
hence under Swedish law.
Consequently, in addition to lands and natural resources
traditionally used, the authors’ hold property rights relevant to Article 5 (d) (v) of the
Convention also in the form of rights to continuously pursue Sami reindeer herding.
Pre-requisites for legitimate dispossession of property
5.6
There are essentially two ways in which Vapstens’ property can be legitimately taken.
First, an agreement could be reached with Vapsten according to which the community offers
it consent to Nickelmountain entering into Vapsten’s territory for mining purposes. In the
present case, neither the Swedish state nor Nickelmountain have even attempted to reach an
agreement with Vapsten. Consequently, Vapsten has not offered its consent to the mining
project, nor will the community do so.
5.7
Alternatively, and the only option remaining as no agreement has been reached,
Sweden can seek to expropriate Vapsten’s lands and natural resources and the authors’
rights to continuously pursue reindeer herding. In the present case, Sweden has not even
entered into an expropriation process.
It simply takes Vapsten’s land without any
compensation whatsoever being offered. But even if Sweden had attempted to expropriate
the area, the criteria necessary to fulfill for an expropriation to be legal are not met.
See e.g. A/56/18(SUPP) (Sri Lanka), para. 335, CERD/C/64/CO/9 (Suriname), para. 11,
CERD/C/MEX/CO 15 (Mexico) and A/51/18/ (SUPP) (Botswana), in particular paras. 304-305.
5 Chapter 1, Section 1, of the Swedish Reindeer Herding Act
6 Ruling by the European Court on Human Right in O.B. and Others v. Norway, Appl. No. 15997/90,
Judgement of 8 January 1993, and Handölsdalen Sami Village and Others v. Sweden, Appl. No. 39013/04,
Judgement of 30 March 2010
4
The legitimate aim and proportionality criteria
5.8
Vapsten accepts that the right to property is not absolute, but at the same time
underlines that limiting the right to property through expropriation requires that certain
criteria are met. The limitation must (i) fulfill a legitimate societal need7, (ii) be prescribed by
law,8 and (iii) be proportionate, i.e. must not imply a “disproportionate and excessive burden” on
the property right holder.9
In the present case, neither the legitimate aim, nor the
proportionality criterion, are fulfilled.
5.9
When evaluating whether an intrusion into an indigenous community’s traditional
territory fulfils a legitimate aim and constitutes a proportionate limitation in the right to
property, one must recognize how paramountly important lands and natural resources are to
indigenous peoples’ cultures, identities and ways of life.
Evaluations of whether the
legitimate aim and proportionality criteria are met in non-indigenous contexts often boils
down to whether the individual property rights holder has received market value
compensation for the damage caused by the limitation.10 In an indigenous context, this test
essentially does not apply. Monetary compensation can perhaps in some instances mitigate
some damages suffered, in particular if an indigenous community consents to a competing
activity within its traditional territory. But most often, the taking and/or destruction of
lands and natural resources traditionally used by an indigenous community causes such
harm to the core of the community’s, livelihoods, culture and cultural identity, that monetary
compensation is of no use.
When measured against the value of indigenous peoples’
livelihoods, culture and cultural identity, money can rarely render a limitation
proportionate. Moreover, even what to a non-member may appear as a minor damage may
still have devastating effects on an indigenous community, in particular if considering
cumulative effects. For these reasons, the Committee and other UN bodies have inferred that
the threshold before the proportionality test is no longer met is low with regard to
limitations in indigenous communities’ property right to land and natural resources
traditionally used. For instance, in his most recent report to the UN Human Rights Council,
the UN Special Rapporteur on the Rights of Indigenous Peoples underscores that a legitimate
aim “is not found in mere commercial interests or revenue-raising objectives, and certainly not when
benefits from the extractive activities are primarily for private gain”.11
In other words,
Compare Additional Protocol 1 to the ECHR, Article 1.
Compare e.g. the ECHR’s ruling in Carbonara and Ventura v. Italy, Appl. No. 24638/94 (30 May 2000),
para. 64.
9 Compare e.g. ruling by European Court of Human Rights in Hutten-Czpska v. Poland, Appl. No.
35014/97, Judgment of 19 June 2006, and Evaldsson and Others v. Sweden, Appl. No. 75252/01,
Judgment of 13 February 2007.
10 See e.g. the European Court of Human Rights’ ruling in James and Others v. United Kingdom, Appl.
No. 8793/79 (21 February 1986), paras. 54 and 55.
11 A/HRC/24/41, para. 35
7
8
expropriation of indigenous communities’ territories is not allowed simply to meet
commercial interests.
5.10
As the Committee is aware, the conclusion above finds support in previous findings
by the Committee, where it has elaborated on General Comment No. 23. We refer here in
particular to Concluding Observations on (i) Cambodia, where the Committee calls on the
State party to delay industrial concessions until the indigenous community’s consent has
been obtained,12 (ii) Peru, where the Committee calls on the State party to “obtain [indigenous
communities’] consent before plans to extract natural resources are implemented”,13 (iii) Chile,
where the Committee calls on the State party to “obtain [indigenous communities’] consent prior
to implementation of projects for the extraction of natural resources” and further to ”ensure that the
protection of the rights of indigenous peoples prevails over commercial and economic interests”,14 (iv)
Ecuador, where the Committee calls on the State party to “obtain consent [of the indigenous
community concerned] in advance of the implementation of projects for the extraction of natural
resources”,15 (v) Guatemala, where the Committee calls on the State party to “obtain
[indigenous communities’] consent before executing projects involving the extraction of natural
resources”,16 and (vi) Canada, where the Committee calls on the State party to “[i]mplement in
good faith the right to … free prior and informed consent of Aboriginal peoples whenever their rights
may be affected by projects carried out on their lands…”.17 We also draw the Committee’s
attention to the Early Warning and Urgent Action Procedure against the United States in the
Western Shoshone Case, where the Committee – in light of indigenous peoples’ right to control
their ancestral land - expresses concern e.g. with regard to open pit mining within Western
Shoshone land.18 The UN Committee on Economic, Social and Cultural Rights concurs that
indigenous peoples’ right to control lands and natural resources traditionally used embraces
a right to consent or not consent before resource extraction occurs on such territories.19
5.11
In particular, we draw the Committee’s attention to its recent Concluding
Observations with regard to Sweden. Here, the Committee “recommends that the State party
adopt legislation and take other measures to ensure respect for the right of Sami communities to offer
free, prior and informed consent whenever their rights may be affected by projects, including the
extraction of natural resources, carried out in the traditional territories.”20 In the Sami context, the
CERD/C/KHM//CO/8-13, para. 16
CERD/C/PER/CO/14-17, para. 14
14 CERD/C/CHL/CO/15-18, paras. 22 and 23
15
CERD/C/ECU/CO/19, para. 16
16 CERD/C/GTM/CO/12-13, para. 11 (a)
17
CERD/C/CAN/CO/19-20, para 20 (a)
18 Decision 1 (68), CERD/C/USA/DEC/1, para. 7
19 Concluding Observations by the Committee on Economic, Social and Cultural Rights with regard to
Ecuador, (UN Doc. E/C.12/1/add.100, para. 12), and Columbia (UN Doc. E/EC.12/Add.74, para. 12)
20 CERD/C/SWE/CO/19-21, para. 17
12
13
Committee has previously made similar observation with regard to Finland.21 Sweden’s
decision to allow Nickelmountain’s mining project in Vapsten’s traditional territory to
proceed blatantly violates Vapsten’s right to offer or withhold its consent, as reaffirmed by
the Committee. The Swedish government is not even contemplating taking Vapsten’s view
on the project into account.
In the decision where the Swedish government gives
Nickelmountain the right to mine in Vapsten’s traditional territory, the government writes
that “even if it is not possible to pursue reindeer herding in the relevant areas if priority is given to
mining activities, this does not necessarily have to result in the destruction of the reindeer herding
community’s possibility to continuously pursue reindeer herding…”. 22 (Our underlining) In other
words, the Swedish government takes the decision to give priority to mining over reindeer
herding fully aware of that the decision may very well result in the destruction of Vapsten.
Thus informed, the government nonetheless gives Nickelmountain the right to confiscate
Vapsten’s land.
5.12
On the issue of proportionality, it should be underlined that Vapsten has used the
area in dispute since time immemorial for traditional Sami reindeer herding. All the names
in the area, all the history, legends and stories, are of Sami origin. Now, a international
mining company, which has no history in the area whatsoever shall come in and use it for 20
years, and then leave the area completely destroyed, forcing Sami reindeer herders out of the
livelihood that their forefathers have pursued since time immemorial, and which constitutes
the backbone of their cultural identity. It is outright offensive that the Swedish government
has decided that the mining interest should have priority over the Sami culture in such an
instance.
5.13
In sum, absent consent, expropriation of an indigenous community’s lands and
natural resources for extractive industry purposes is, as a general rule, not allowed due to
failing to meet the proportionality and legitimate aim criteria. The exception may be if it can
be established that the infringement causes only minor harm to the livelihoods, culture and
cultural identity of the indigenous community – taking cumulative effects into account – at
the same time as the industrial enterprise is of genuine significant importance e.g. because of
generating great wealth to society and/or because of substantially reducing unemployment
in a region.
5.14
As the Sections above demonstrate, Nickelmountain’s mining activities have much
more than minor negative impacts on Vapsten’s and the authors’ property. As explained,
pursuing traditional Sami reindeer herding presupposes access to suitable pasture areas
CERD/C/FIN/CO/20-22, para. 13 (Advanced unedited version)
Government decision N2012/1637/FIN, N2012/2776/FIN, and N2012/5726/FIN, p. 10 (22 August
2013) (Our translation into English)
21
22
during all seasons of the yearly cycle, as well as migration paths between the various pasture
areas. Nickelmountain’s mining activities are detrimental to Vapsten and the authors, as the
activities (i) leave Vapsten and the authors without autumn and spring pasture areas, with
additional significant negative effects on the mating and calving of the reindeer, (ii) leave
Vapsten and the authors without winter pasture areas in crisis winters, (iii) seriously
negatively impact on the summer pasture as its destroys the reindeer’s natural roaming
patterns depending on weather conditions, and (iv) completely cut Vapsten into two,
rendering it impossible for the reindeer to migrate between the early-spring/pre-winter
pasture areas and the late spring/high summer/autumn pasture areas.
In sum,
Nickelmountain’s mining activities limit the authors’ property rights both with regard to (i)
lands and natural resources, and to (ii) the right to continuously pursue traditional Sami
reindeer herding, to an extent that forcefully relocate the authors from their traditional
territory and force them out of the traditional livelihood, which lays at the very core of their
personal cultural identity. The damage caused to Vapsten is thus far from limited, wherefore
the limitation amounts to a violation of the right to property.
5.15
The legitimate aim criterion is not met either. As mentioned, Nickelmountain is a
international corporation, and the intrusion into Vapsten’s territory is purely motivated by
commercial gain. It will only benefit the share-holders, most of which are foreign.
5.16
Due to (i) the devastating effect Nickelmountain’s mining activities have on the
authors’ property rights, (ii) that there is no legitimate aim that warrants a limitation in
Vapsten’s property right, nor is the intrusion proportionate, and (iii) since Vapsten has not
consented to the limitation, Sweden, as a State party to the Convention, violates the right to
property pursuant to Article 5 (d) (v) when Swedish law and the government allow
Nickelmountain’s mining activities to proceed.
5.17
It can be added that neither Nickelmountain nor the Swedish state has offered or
even contemplated benefit-sharing arrangements with Vapsten. Although, as clear from the
above, Vapsten is not interested in monetary compensation, as livelihood, culture and
cultural identity cannot be measured in monetary terms, the fact that benefit-sharing has not
even been offered underscores the disproportionality of the limitation.23
See Concluding Observations on Suriname, CERD/C/SUR//CO/12, 3 March 2009, where the
Committee underscores that indigenous peoples’ property right to lands and natural resources
pursuant to Article 5 paragraph (d) (v) of the Convention entitles them to participate in the
exploitation of natural resources associated with their traditional land. Regional human rights
institutions concur, see e.g. the Inter-American Court on Human Right’s ruling in Saramaka People v.
Suriname (Inter-Am. Ct. H. R. (Ser. C) No. 172 (2008)) and the African Commission on Human and
People’s Right’s decision in Enderois People v. Kenya (Comm. 276/2003 (2010)).
23
Further on Sweden’s failure to realize and operationalize the right to property
5.18
The present issue is a result of Sweden’s failure to properly address Sami land and
resource rights, despite repeated UN criticism calling on the country to do so.
5.19
As it is aware, in concluding observations in 2008, the Committee noted that Sweden
had informed the Committee of its intention to address various aspects of Sami land and
resource rights in a bill to be presented to the Swedish Parliament in March 2010. Contrary
to what had been reported, however, when presented, the bill did not address Sami land
rights. (For mainly this reason, the bill was heavily criticized and subsequently shelved.) In
the same Concluding Observations, the Committee recommended Sweden to take concrete
action to solve Sami land rights issues.24 The Concluding Observations of 2008 repeated
concerns expressed by the Committee in Concluding Observations of 2004, where the
Committee, with reference to General Recommendation No. 23, also expressed concern over
Sami land rights issues remaining unresolved.25 Indeed, already in 2001, the Committee
recommended the State party to introduce legislation reflecting the centrality of reindeer
herding to the way of life of the Sami.26
5.20
In this context, we again draw the Committee’s attention to its Concluding
Observations on Cambodia, where it recommends the State party to halt industrial
concessions until indigenous communities’ right to control their traditional lands have been
assessed.27
5.21
The Committee’s concerns have been matched by other parts of the UN system. The
UN Special Rapporteur on the Rights of Indigenous Peoples notes that although Sweden
recognizes the Sami’s right to pursue reindeer herding on lands traditionally used, in
practice, these rights must often yield to competing interests. The Special Rapporteur further
observes that the Sami way of life, in particular reindeer herding, is threatened significantly
by competing land uses such as natural resource extraction, activities which are often
promoted by the government. He points to that e.g. mining has resulted in loss of pasture
land, with detrimental effects on reindeer movement and their reproductive levels and
survival. The Special Rapporteur emphasizes that laws and policies in the Nordic States
with respect to natural resource extraction do not provide sufficient protection for Sami
rights and livelihoods. He underscores that in Sweden the Sami face increasing pressure
from mining and wind-power development projects, and points to that the Swedish Mining
24
25
26
27
CERD/C/SWE/CO/18, para. 19
CERD/C/64/CO/8, para. 12
CERD/C/304/Add.103, para. 13
CERD/C/KHM//CO/8-13, para. 16
Act does not contain provisions accommodating for rights relevant to the Sami, and that
existing mining policies do not appear to be sufficient to protect Sami interest and rights over
lands affected by mining. In his recommendations, the Special Rapporteur calls on Sweden
to increase its efforts to develop legislation to address Sami land and resource rights.28
5.22
In its 2008 Concluding Observations on Sweden, the UN Human Rights Committee
(HRC) calls on Sweden to resolve Sami claims to land and resources by introducing
appropriate legislation.29 Already in 2002, the HRC had expressed concern over the limited
extent to which the Sami can influence decisions on industrial activities such as mining in
their traditional territories.30
5.23
Sweden has ignored all UN recommendations outlined above, including those by the
Committee. Sweden has failed to enact legislation compelling mining companies to respect
Sami reindeer herding communities’ property rights over lands and natural resources,
despite repeated calls from the UN system to do so. This is an aggravating factor that
underscores Sweden’s violation of Article 5 (d) (v) of the Convention.
6.
VIOLATION OF ARTICLES 5 (a) AND 6 OF THE CONVENTION
Section 4.16 describes how the decision to limit the authors’ property rights was taken by the
Swedish government. Swedish law prevents Vapsten from appealing the government’s
decision to a court of law. The fact that Sweden denies Vapsten the right to appeal the
decision to limit its property rights to a court of law amounts to a violation of their right to
an effective remedy pursuant to Article 6 of the Convention. It also violates the authors’
right to equal treatment before tribunals pursuant to Article 5 (a), as it is only Sami reindeer
herders that are denied the right to an effective remedy with regard to decisions on
limitations in property rights in Sweden.
7.
DOMESTIC REMEDIES
7.1
As Section 4.16 describes, the decision by the Swedish government to allow
Nickelmountain’s mining activities cannot be appealed. Consequently, there is no available
effective domestic remedy through which the authors would have any prospect of having
the violation of the Convention terminated or suspended.
Report on the situation of the Sami people in the Sápmi region of Norway, Sweden and Finland,
A/HRC/18/35/Add.2, paras. 47, 55, 56, 58 and 83
29 CCPR/C/SWE/CO/6, para. 20
30 CCPR/CO/74/SWE, para. 15
28
7.2
It is requested that the Committee urgently registers the current communication, and
calls on the State party, as an interim measure of protection, to immediately halt
Nickelmountain’s industrial activities. This should happen until a date when the State party
has had reasonable time to respond to this communication, and the Committee has had the
chance to consider whether the requested interim measures of protection should be retained
or lifted.
Tromsö 18 September 2013
Mattias Åhrén
Head of the Saami Council’s Human Rights Unit