On November 18, 2020, the case was won in the UN Committee on the Elimination of Racial Discrimination

Заголовок: On November 18, 2020, the case was won in the UN Committee on the Elimination of Racial Discrimination Сведения: 2024-06-06 03:18:37

The case of Lars-Anders Ogren and Others v. Sweden. Opinions of the Committee on the Elimination of Racial Discrimination dated November 18, 2020. Communication No. 54/2013.

In 2013, the authors of the communication were assisted in preparing a complaint. Subsequently, the complaint was communicated to Sweden.

As seen from the text of the Opinions, the authors argued that, as representatives of the indigenous Sami people, they have their own culture, livelihood and language that differ from the culture of the non-Sami population. In particular, reindeer husbandry is an essential element of their cultural identity and traditional way of life. Together with their reindeer herd, the authors roam along the same routes that their ancestors have traveled since time immemorial. The State party has granted concessions for the operation of a private mining company in the territory of the traditional residence of the community in the form of three open-pit mines located on the isthmus of Rennbecken, an area with pasture lands fundamental to the reindeer herding cycle of the Wapsten community. As a result, a significant part of this territory was seized from the reindeer herding community, while its pasture lands were constantly being reduced, which created a real threat to reindeer husbandry and exerted enormous psychological pressure on community members. The authors argued that because of this, their community would not be able to withstand other mining concessions. They further stressed that the State party, by granting, without the consent of the authors, a concession for three open-pit mines within their traditional land property, where they lead a traditional lifestyle, violated, inter alia, their right to property enshrined in article 5 "d" - "v" of the Convention (paragraph 1.2 of the Opinions).

Legal positions of the Committee: The Committee recalls that in its General recommendation No. 23 (1997) it calls on States parties to recognize and protect the rights of indigenous peoples to own, develop, control and use their lands, territories and resources, and where their lands and territories that they traditionally owned or on which they otherwise lived, selected or used without their voluntary and informed consent, take measures to return such lands and territories (paragraph 5). As indicated in the decision on admissibility, these human rights standards are also contained in the United Nations Declaration on the Rights of Indigenous Peoples, which Sweden voted for. Article 26 of the Declaration provides as follows:

  1. Indigenous peoples have the right to lands, territories and resources that they have traditionally owned, occupied or otherwise used or acquired.
  2. Indigenous peoples have the right to own, use, develop or control lands, territories and resources that they possess by virtue of traditional ownership or other traditional occupation or use, as well as those that they have acquired otherwise.
  3. States shall ensure the legal recognition and protection of such lands, territories and resources. Such recognition shall be carried out with due respect for the customs, traditions and land tenure systems of the indigenous peoples concerned (paragraph 6.5 of the Opinion).

Within the meaning of these principles, it is necessary to recognize and understand the close ties of indigenous peoples with the earth as the fundamental basis of their culture, spiritual life, integrity and economic survival. Their "relationship with the land is not only a matter of ownership and production, but a material and spiritual element that they must fully use, at least in order to preserve their cultural heritage and pass it on to future generations" (Inter-American Court of Human Rights, the case of the Mayagna Community (Sumo) Avas Tingni v. Nicaragua, judgment of 31 August 2001, para. 149.). In this regard, the realization of the land rights of indigenous peoples can also become a prerequisite for the realization of the right to life as such and "preventing their extinction as a people" (paragraph 6.6 of the Opinions) (Inter-American Court of Human Rights, Saramaka People v. Suriname, decision of November 28, 2007, para. 121. See also: The case of the Savoyamaxa Indigenous Community v. Paraguay, judgment of March 29, 2006.).

Ignoring the inalienable right of indigenous peoples to use and exercise land rights and refusing to take appropriate measures to ensure that their right to give free, prior and informed consent is respected in practice in all cases where their rights may be affected by projects carried out in the territories of their traditional residence constitutes a form of discrimination, as it leads to to nullify or impair the recognition, enjoyment or exercise by indigenous peoples on an equal basis of their rights to their traditional territories, natural resources and, as a result, their identity (paragraph 6.7 of the Opinion).

In a number of cases, the Inter-American Court of Human Rights has recognized that the rights of indigenous peoples are indeed protected within the framework of community property. See the additional link to the ongoing judicial practice after the Mayagna (Sumo) Community case Avas Tingni v. Nicaragua" and the concurring opinion of Sergio Garcia-Ramirez in this case, paragraph 13. The same principles have been recognized in the African Human Rights System. See: the case of the Center for the Development of Minority Rights (Kenya) and the Minority Rights Group (on behalf of the Welfare Council "Endorois") v. Kenya, 276/03, 2009, and the African Commission on Human and Peoples' Rights v. the Republic of Kenya, Application No. 006/2012, 2017.

Although the right to property is not absolute, States parties must respect the principle of proportionality when restricting or regulating the land rights of indigenous peoples, taking into account their distinctive status, in order not to endanger the very survival of the community and its members (paragraph 6.10 of the Opinions) (Case "Poma Poma v. Peru", paragraph 7.6.).

The prohibition of racial discrimination, enshrined in the Convention on the Elimination of All Forms of Racial Discrimination, requires States parties to guarantee to everyone under their jurisdiction the enjoyment of equal rights de jure and de facto. In accordance with article 2 (1) (c) of the Convention, each State party must take effective measures to review Government policies at the national and local levels, as well as to correct, repeal or repeal any laws and regulations that lead to the emergence or perpetuation of racial discrimination wherever it exists. States should take positive measures to enable indigenous peoples to exercise their human rights, either by removing remaining obstacles or by taking specific legislative and administrative measures to meet their obligations under the Convention (paragraph 6.13 of the Views).

In its General Recommendation No. 23 (1997) The Committee called on States parties to recognize and respect the distinctive culture, history, language and way of life of indigenous peoples as a factor in enriching the cultural identity of the State, which has been and is in danger of extinction, and to promote its preservation. The Committee recalls that the land rights of indigenous peoples differ from the general understanding of civil property rights, and considers that reindeer husbandry is not "outdoor recreation", as defined in the decision of the Chief Mining Inspector (Wording in the decision of the Chief Mining Inspector on granting a concession for the exploitation of Rennbecken To No. 3, Remarks of the State party on the merits of October 16, 2017, appendix 2.), and represents a central element of the cultural identity and traditional way of life of the authors (paragraph 6.14 of the Opinions).

Recognition of the land rights of Sami communities and their collective right to reindeer husbandry based on traditional use entails an obligation to respect and protect these rights in practice. The need to preserve their culture and livelihoods is among the reasons why States parties should take concrete measures to ensure effective consultation with them and participation in decision-making. The Committee recalls that in its General Recommendation No. 32 (2009), it clarified that the concept of "impermissible" special rights" should be distinguished from rights allowed and recognized by the international community in order to ensure the existence and preservation of the identity of groups such as minorities, indigenous peoples and other categories of persons whose rights are equally They are allowed and recognized within the framework of universal human rights (paragraph 26). Rights to lands traditionally occupied by indigenous peoples are among the permanent rights recognized as such in human rights treaties, including documents adopted in the context of the activities of the United Nations and its specialized agencies (paragraph 6.15 of the Opinions). The Committee recalls that, in accordance with its General Recommendation No. 32 (2009), the distinction between special measures and permanent rights implies that persons with permanent rights can also take advantage of special measures (paragraph 15).

The Committee has repeatedly confirmed that failure to properly consult with indigenous peoples may constitute a form of racial discrimination and fall within the scope of the Convention. The Committee adheres to a human rights-based approach, which provides for prior free and informed consent, when the prohibition of racial discrimination, which is the main cause of most cases of discrimination faced by indigenous peoples, is recognized as the norm (paragraph 6.16 of the Opinions).

States parties are required to provide evidence that they are fulfilling this obligation [to consult] either directly, through organizing and conducting consultations in good faith and with a view to reaching consensus, or indirectly, by providing sufficient guarantees for the effective participation of indigenous communities and ensuring that any third party actually pays due attention the essential arguments put forward by indigenous communities. The obligation to consult (The obligation to consult has been qualified as a general principle of international law: Inter-American Court of Human Rights, Quechua Sarayaku Indigenous People v. Ecuador, judgment of June 27, 2012, paragraph 164.) in this context is a State obligation and cannot be transferred to a private company without supervision, especially the same company that is commercially interested in resources located on the territory of indigenous peoples. As noted by the Special Rapporteur on the rights of indigenous peoples, in addition to the fact that this does not exempt the State from responsibility, the transfer of human rights responsibilities by the State to a private company may be undesirable and even problematic, given that the interests of a private company are primarily related to profit and, therefore, cannot fully meet the best interests of the indigenous peoples concerned (paragraph 6.17 of the Views).

Research on environmental and social impacts should be part of the consultation process with indigenous peoples. These studies should be conducted by independent and technically competent organizations before granting a concession for any construction or investment project affecting the territories of traditional residence. Based on these studies, consultations should be conducted from the early stages to the development of the project, and not only at the moment when approval needs to be obtained. The outcome of such consultations cannot be predetermined: there should be no feeling that this project will necessarily be implemented, while constant interaction between the parties should be ensured (paragraph 6.18 of the Opinions).

Article 6 of the Convention protects alleged victims if their complaints are disputed in accordance with the Convention (paragraph 6.26 of the Opinions) (The case of Durmich v. Serbia and Montenegro (CERD/C/68/D/29/2003), paragraph 9.6.).

In cases where indigenous peoples have been deprived of lands and territories that they traditionally owned or otherwise inhabited or used without their voluntary and informed consent, the State should take measures to return such lands and territories. The right of return should be replaced by the right to fair and prompt compensation only in cases where the return of lands and territories seems impossible for justified reasons, while such compensation should, to the extent possible, be carried out in the form of a transfer of lands and territories (paragraph 6.27 of the Opinions).

The Committee's assessment of the factual circumstances of the case: The Supreme Administrative Court recognized that the traditional use of land by Sami reindeer herding communities led to the emergence of property rights based on rights due to the prescription of ownership and customary law (Decisions of the Supreme Court in the cases "Taxes on mountainous Lapland Territories" and "Nordmaling".). The Committee also noted that, in accordance with the Nordic Sami Convention, agreed by the Governments of the Nordic countries together with the Sami Parliaments of Norway, Finland and Sweden, which builds on existing norms of international law and aims to implement it in the context of the Nordic countries, access to land and water is recognized as the basis of culture, language and social the lives of the Sami, and thus both the individual and collective property rights of the Sami to their lands and resources are protected (paragraph 6.8 of the Opinion).

The Committee took note of the authors' claim that, in addition to the already existing industrial projects, permission for which was granted by the State party in the territory of the traditional residence of the Wapsten community, three mining concessions (they were the reason for the appearance of this communication) may lead to the fact that the authors will not be able to conduct a traditional a way of life.

The Committee concluded: by transferring the consultation process to a mining company without effective guarantees and thereby failing to comply with its obligation to respect the land rights of the Sami reindeer herding community Wapsten, the State party has failed to comply with its international obligations (paragraph 6.17 of the Opinion).

The Committee recalled the following - since the State party has established and recognized the existence of uncertainty regarding the consequences for the Sami reindeer herding community of Wapsten, it is all the more obliged, in the context of the concession process, to provide strict requirements for conducting research and to monitor their implementation in order to limit their impact on reindeer husbandry as much as possible. Although the administrative authorities referred to the need to achieve a balance between mining and reindeer husbandry, however, the relevant procedure did not allow this to be done, since, according to the State party, when a prospector finds a potentially profitable deposit, the first step towards starting production is to apply for a development concession. The decision on the concession determines who has the right to extract metals or minerals, and this right also applies to property owners without their consent, which is the main purpose of the concession system (paragraph 6.18 of the Opinion).

The Committee noted that, in practice, the process of obtaining a concession is separate from the process of obtaining an environmental permit, since the Land and Environmental Court has the authority to consider an application for an environmental permit and determine the conditions or deadlines and restrictions that should be established with respect to activities after the grant of a development concession. In other words, the consultation process takes place at a stage of the procedure when, as the State party acknowledges, "it is too early to judge the extent to which the authors' opportunities to engage in reindeer husbandry will be impaired" (paragraph 6.19 of the Opinions).

The Committee should not decide which public interest should be given priority, namely, mining, on the one hand, or "protecting areas important for reindeer husbandry from measures that may significantly impede its functioning," on the other hand. At the same time, the State party has an obligation in practice, and not only theoretically or abstractly, to find and indicate in the process of consultations with the Sami reindeer herding community Wapsten those places that they could use as alternative pastures, and fulfill the obligation to conduct an effective consultation process. The development and exploitation of natural resources as a legitimate public interest does not release States Parties from their obligation not to discriminate against an indigenous community dependent on the land in question by mechanically applying a consultation procedure without sufficient guarantees or evidence that the free, prior and informed consent of community members can be effectively sought and obtained (paragraph 6.20 of the Opinions).

In the Committee's view, the State party has not demonstrated how, in the process of granting the three mining concessions in accordance with the Minerals Act and the Environmental Code, the previous norms and specific rights of the authors were properly taken into account (paragraph 6.21 of the Opinions).

With regard to the authors' allegations regarding article 6 of the Convention, the Committee considered that the main issue was whether the State party had fulfilled its obligations under the provision to ensure respect for the authors' right to effective protection and remedies against any damage suffered as a result of the granting of three mining concessions in the territory of their traditional residence. The Committee took note of the authors' claim that they did not have access to any national institution that could carry out an assessment of the basic right to traditional property and include an assessment of whether mining activities should be banned due to their negative impact on Sami reindeer husbandry. The Land and Environmental Court and the Supreme Administrative Court, relying on mining legislation, could only consider the application of domestic legislation, which in itself is a source of violation of rights. The authors recalled previous similar refusals. The authors refer to the decision of the Umeå District Court, the Land and Environmental Court of August 28, 2003 in cases N M 112-01 and M 113-01 (Svartlieden, Faboliden and Stortjarnhobben mines). In addition, the authors argued that while Swedish landowners can receive full compensation for their property at market value, monetary compensation cannot adequately cover the needs of the indigenous Sami peoples if they are deprived of reindeer pastures, which are necessary for this type of community activity and which are a fundamental element of their cultural identity. and the traditional way of life (paragraph 6.25 of the Opinion).

The State party has not provided any evidence of the existence of domestic remedies that could provide adequate compensation or satisfaction for the damage caused to the authors as a result of an ineffective consultation process in the context of granting mining concessions. In addition, the Committee noted that judicial supervision by the Supreme Administrative Court did not involve consideration of the issue of the sustainable nature of reindeer husbandry on the remaining lands (paragraph 6.26 of the Opinions).

The State party recognized that the decisions on granting mining concessions did not involve any consideration of the issue of the authors' property rights. The Committee considered that the inability to achieve effective judicial review of a decision in cases where the fundamental right of indigenous peoples to the territory of traditional residence is questioned is a consequence of the State party treating indigenous communities as private landowners engaged in mining activities, without due consideration of the potential irreversible consequences that these activities may have for such communities (paragraph 6.28 of the Opinion).

Since the decisions of the Court on Land and Environmental Issues and the Supreme Administrative Court failed to assess the seizure of land from the point of view of the authors' fundamental right to the territory of their traditional residence, the Committee concluded that the facts presented indicate a violation of the authors' rights under article 6 of the Convention (paragraph 6.29 of the Opinions).

The Committee's conclusions: The facts presented indicated a violation by the State party of articles 5 "d", "v" and 6 of the Convention.



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