The case of Lars-Anders Ogren and Others v. Sweden. The opinion of the Committee dated November 18, 2020. Communication No. 54/2013.
In 2013, the authors of the communication were assisted in preparing complaints. Subsequently, the complaint was communicated to Sweden.
The Committee concluded that the State party to the Convention on the Elimination of All Forms of Racial Discrimination had not fulfilled its international obligations to protect the Sami reindeer herding community from racial discrimination due to the lack of appropriate and effective consultations with the community when granting concessions. The Land and Environmental Court and the Supreme Administrative Court of the Kingdom of Sweden 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 facts presented indicated a violation of articles 5 and 6 of the Convention.
As seen from the text of the Opinion, 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, in their opinion, 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 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 R. - an area with pasture lands of fundamental importance for the reindeer herding cycle of community B. As a result, a significant part of this territory was seized from the reindeer herding community, while its pasture lands were constantly reduced, this created a real threat to reindeer husbandry and exerted enormous psychological pressure on members of the community. The authors noted 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 led a traditional lifestyle, violated, inter alia, their right to property enshrined in article 5 of the Convention (paragraph 1.2 of the Opinions).
Legal positions of the Committee: In its General recommendation No. 23 (1997), the Committee 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, which they traditionally owned or otherwise inhabited, are selected or used without their voluntary and informed consent, take measures to return such lands and territories (paragraph 5). These human rights standards are also contained in the United Nations Declaration on the Rights of Indigenous Peoples, which was voted for by the Kingdom of Sweden. Article 26 of the Declaration provides as follows:
- Indigenous peoples have the right to lands, territories and resources that they have traditionally owned, occupied or otherwise used or acquired.
- 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.
- 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." 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 Opinion).
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).
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 Opinion).
The prohibition of racial discrimination, enshrined in the International 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 Opinion).
In its General recommendation No. 23 (1997), the Committee called upon 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 indigenous peoples' land rights 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, but represents a central element of the cultural identity and traditional way of life of the authors (paragraph 6.14 of the Opinion).
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 "unacceptable" special rights" should be distinguished from the 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 tolerated and are 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 in documents adopted in the context of the activities of the United Nations and its specialized agencies (paragraph 6.15 of the Opinion).
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 Opinion).
States parties are required to provide evidence that they are fulfilling the obligation to consult, either directly, by 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 really pays due attention to the substantive arguments, nominated by indigenous communities. The obligation to consult in such a context is the responsibility of the State and cannot be transferred without supervision to a private company, especially the same company that is commercially interested in resources located in 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 absolve the State of 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 to meet the best interests of the indigenous peoples concerned (paragraph 6.17 of the Opinion).
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 not be a feeling that this project will necessarily be implemented, while constant interaction between the parties should be ensured (paragraph 6.18 of the Opinion).
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 Opinion).
Article 6 of the Convention protects alleged victims if their complaints are disputed under the Convention (paragraph 6.26 of the Opinion).
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 Opinion).
The Committee's assessment of the factual circumstances of the case: The Supreme Administrative Court of the Kingdom of Sweden 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. 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 considered that it needed to consider the authors' allegations regarding the assumption that the State party had not consulted with the Sami reindeer herding community of V. and obtained its free, prior and informed consent when granting mining concessions in the territory of its traditional residence. He noted that the concessions are valid for 25 years and assume the rights to extract and use nickel, iron, chromium, cobalt, gold, silver, platinum and palladium (paragraph 6.10 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 community of B., three mining concessions (they became the reason for the appearance of this communication) may lead to the fact that the authors will not be able to conduct traditional a way of life. This meant that they would have to be forcibly relocated from the territory of their traditional residence. The affected Sami community was only allowed to provide certain information regarding the implementation of this threefold project, which, according to the authors, cannot even be called consultations, since consultations involve serious interaction with the community if there is a genuine and sincere desire to reach consensus. Indeed, the authors argue that the State party should obtain their free, prior and informed consent in the presence of such negative consequences (paragraph 6.11 of the Opinion).
The Committee also took note of the State party's argument that the granting of mining concessions did not violate article 5 of the Convention, since there was nothing to indicate that the decision to consider these areas as being of national interest from the point of view of mining rather than from the point of view of reindeer husbandry was erroneous. In the State party's view, if the Committee considers that there has been a restriction on the authors' rights, it should be noted that this restriction was necessary and proportionate to the significant purpose of the State. Indeed, nickel mining is of great importance, and since the deposits are located in a certain area, mining cannot be carried out elsewhere, while alternative pasture lands can be used for grazing deer. In addition, consultations with the Sami reindeer herding community have not been conducted, but legislation allows the Government to issue a mining permit regardless of who owns the land, and without the prior consent of the owner of the property. Thus, in the State party's view, the fact of racial discrimination has not been proven in this case, given that the authors, who are treated on an equal basis as landowners affected by this project, were consulted, as well as with any interested party, to the extent required by law national legislation in matters relating to mining concessions (paragraph 6.11 of the Opinion).
The Committee considered: The State party's argument was erroneous, it had not fulfilled its international obligations to protect the Sami reindeer herding community of V. from racial discrimination by conducting appropriate or effective consultations with the community when granting concessions (paragraph 6.12 of the Opinion).
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 in, the State party has not fulfilled 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 V., 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 Court of Land and Environmental Affairs of the Kingdom of Sweden has the authority to consider an application for an environmental permit and determine the conditions or deadlines and restrictions that should be imposed on 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 acknowledged, "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 Opinion).
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. However, the State party was obliged in practice, and not only theoretically or abstractly, to find and indicate in the process of consultations with the Sami reindeer herding community V. those places that they could use as alternative pastures, and fulfill the obligation to conduct an effective consultation process (paragraph 6.20 of the Opinion).
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 of the communication were properly taken into account (paragraph 6.21 of the Opinion).
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 of the Kingdom of Sweden, relying on mining legislation, could only consider the application of domestic legislation, which in itself is a source of violation of rights. 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 in case they are deprived of reindeer pastures, which are necessary for this type of community activity and 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. The Committee noted that judicial supervision by the Supreme Administrative Court of the Kingdom of Sweden did not involve consideration of the sustainable nature of reindeer husbandry on the remaining lands (paragraph 6.26 of the Opinion).
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 was due to the fact that the State party treated indigenous communities as private landowners affected by 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 Land and Environmental Court and the Supreme Administrative Court of the Kingdom of Sweden 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 Convention had been violated (paragraph 6.29 of the Opinion).
The Committee's conclusions: The facts presented indicated a violation by the State party of articles 5 and 6 of the Convention.