The case "Zh. T., Zh. P. V., P-M. V., P-A. L., P-T. Zh., O. A. V., M-L. V., N-M. V., L-T. V., Zh-O. Zh., N-A. L., A-M. L., M. L., M. L., J.T. L., V. T. and N. M. V. v. v. Finland". Views of the UN Committee on Economic, Social and Cultural Rights dated September 27, 2024. Message N 251/2022, 289/2022.
In 2018, the author was assisted in preparing complaints. Subsequently, the complaints were consolidated and communicated to Finland.
The authors of the reports argued that the granting of permits for the implementation of a mineral exploration project and for reserving territory for further use on their traditional lands without obtaining their free, prior and informed consent against the background of ongoing climate change and the cumulative effect of other influencing factors such as wind farms, military activities and organized group tourism is detrimental the initial conditions for community reindeer husbandry and prevent the transmission of this tradition from generation to generation. The UN Committee on Economic, Social and Cultural Rights has found a violation of certain provisions of the International Covenant on Economic, Social and Cultural Rights of December 16, 1966 (hereinafter - the International Covenant on Economic, Social and Cultural Rights, the Covenant).
The Committee's legal position: article 15, paragraph 1 (a), of the International Covenant on Economic, Social and Cultural Rights recognizes the right of all people to follow their cultural traditions and choose their own cultural identity, as well as the need to take into account the values of cultural life that are purely communal in the case of indigenous peoples. The Committee on Economic, Social and Cultural Rights also recalls that the right to participate in the cultural life of a community includes traditional economic activities such as reindeer husbandry and fishing, considered as a source of livelihood, which is relevant to the right to an adequate standard of living. The Committee on Economic, Social and Cultural Rights further recalls that the communal aspect of indigenous peoples' cultural life, including traditional activities, is closely linked to their ancestral lands, territories and resources and is a prerequisite for their existence, well-being and comprehensive development. The Committee on Economic, Social and Cultural Rights refers to its general comments No. 21 (2009) and No. 26 (2022), in which it notes that subparagraph "a" of paragraph 1 of article 15 of the said Covenant enshrines the inalienable right of indigenous peoples to lands, territories and resources that they traditionally owned, which they have traditionally occupied or otherwise used or acquired. In this regard, the cultural values and rights of indigenous peoples related to their ancestral lands and their relationship to nature should be respected and protected in order to prevent the degradation of the special way of life of these peoples, including their livelihoods, and the loss of their natural resources and, ultimately, their cultural identity. The UN Committee on Economic, Social and Cultural Rights notes that the protection of ancestral lands, territories and resources is a prerequisite for the realization of the right to an adequate standard of living for indigenous peoples, since their ancestral lands, territories and resources are an important basis for their livelihood (paragraph 14.2 of the Considerations).
The Committee on Economic, Social and Cultural Rights notes that the recognition of indigenous peoples' right to land as an integral part of their right to participate in cultural life is consistent with international human rights practice in this area. The UN Committee on the Elimination of Racial Discrimination has confirmed that the close connection that indigenous peoples maintain with the land must be recognized and understood as the fundamental basis of their culture, spiritual life, integrity and economic survival, and that their connection to the land is a material and spiritual resource that they must fully enjoy, including to preserve their cultural heritage and pass it on to future generations, and therefore such a connection is a prerequisite for preventing their disappearance as a people. The UN Human Rights Committee has recognized that ownership and control of ancestral territories are of great importance for the survival of indigenous peoples as peoples and the preservation of their distinctive culture, and that any denial of their territorial rights damages values that are highly symbolic for indigenous peoples at risk of losing their cultural identity and heritage. which should be passed on to future generations. The Inter-American Court of Human Rights ruled that the culture of indigenous peoples "reflects a special way of life, being, vision and action in the world, formed on the basis of their close connection with their traditional lands and natural resources, not only because they are their main means of existence, but also because they are an integral part of their cosmology, spirituality and, consequently, cultural identity." Cultural rights have an intergenerational dimension that is fundamental to the cultural identity, survival and viability of indigenous peoples (paragraph 14.3 of the Considerations).
The Committee on Economic, Social and Cultural Rights considers that, in the context of the rights of indigenous peoples, subparagraph (a) of paragraph 1 of article 15 of the International Covenant on Economic, Social and Cultural Rights, read in conjunction with articles 1 and 11 of the said Covenant, enshrines the right of indigenous peoples to the lands, territories and resources they traditionally use. the land they have traditionally occupied or otherwise used or acquired, as well as the requirement for States parties to take measures to recognize and protect the rights of indigenous peoples to own their communal lands, territories and resources, their development and use, as well as control over them. It follows that participating States should ensure the effective participation of indigenous peoples in decision-making processes that may affect their way of life, in particular their right to land, based on the principle of obtaining their free, prior and informed consent, so as not to jeopardize the very survival of the community and its members, such as This is enshrined in article 32, paragraph 2, of the United Nations Declaration on the Rights of Indigenous Peoples and confirmed in the general comments of the Committee on Economic, Social and Cultural Rights (paragraph 14.5 of the Views).
The Committee on Economic, Social and Cultural Rights considers that when the rights of indigenous peoples may be violated by projects carried out in their traditional territories, an appropriate and effective process for obtaining free, prior and informed consent involves not only exchanging information with indigenous communities whose rights may be violated, but also obtaining comments from her, but also conducting an interactive and continuous dialogue with the representative institutions of indigenous peoples themselves from the very beginning of the process and using procedures appropriate to their cultural traditions, while respecting the right of indigenous peoples to influence the results of decision-making processes affecting them. The Committee on Economic, Social and Cultural Rights considers that studies of environmental, social and cultural impacts conducted by independent and technically competent organizations should serve as the basis for the consultation process aimed at obtaining free, prior and informed consent (paragraph 14.6 of the Considerations).
The Committee recalls its general comment No. 20 (2009), in which it decided that in order to eliminate discrimination, it is necessary not only to compare formal treatment with persons in similar situations (art. 8), but to pay sufficient attention to groups of persons who suffer from historical or persistent prejudice. The Committee on Economic, Social and Cultural Rights also recalls that, as noted by the UN Committee on the Elimination of Racial Discrimination, equal treatment of persons and groups in objectively different situations constitutes discrimination in practice, as well as unequal treatment of persons in objectively the same position. Positive measures must be taken to prevent and eliminate conditions that contribute to the persistence of discrimination and to ensure the equal enjoyment of the rights enshrined in the Covenant on Economic, Social and Cultural Rights. In the context of the rights of indigenous peoples, this requires measures to legally recognize their rights to their traditional lands, including through the use of forms of collective ownership, and to ensure the protection of these rights as an essential element of the right to participate in the cultural life of the community, as well as to provide effective remedies in case of violations of these rights (para. 14.10 Considerations).
The Committee's assessment of the factual circumstances of the case: the State party has failed to demonstrate that the process of issuing permits for exploration and reservation of the Territory adequately took into account the right of indigenous peoples to land as part of the right to participate in cultural life, considered separately and in conjunction with the rights to self-determination and an adequate standard of living, and that The obligation stipulated in international human rights law to ensure their effective participation in this process has been fulfilled (paragraph 14.8 of the Considerations).
The Committee's conclusions: the facts and information presented revealed a violation of subparagraph (a) of paragraph 1 of article 15 of the International Covenant on Economic, Social and Cultural Rights, considered separately and in conjunction with articles 1, paragraph 2 of article 2 and article 11 of the said Covenant.