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LANSMAN et al v
FINLAND10/26/94(full
decision)
The
authors, reindeer breeders of Sami ethnic origin, were members of a herdsmen's
committee occupying an area traditionally owned by them and officially
administered by a forestry board. After consulting the authors, the board had
authorised a company to quarry stone within part of this area but had imposed
conditions as to when and how it was to be carried out so as to protect the
reindeer herding. Nevertheless the authors claimed that the quarrying and
transport of the stone would disturb their reindeer herding activities and
encroach on a sacred place of the old Sami religion. Greater use for reindeer
pasture was now being made of the area covered by the permit but so far only
limited test-quarrying had been carried out and herding had not been adversely
affected. Some of the authors had appealed unsuccessfully to the highest
administrative court against the quarrying permit and all of them complained
about the interference with the right to enjoy their own culture. The Committee,
having concluded there was no need for all the authors to have appealed since
the jurisprudence of the highest domestic tribunal had already decided the
matter at issue, found the communication admissible insofar as it raised issues
under Art 27 but regarded the request for interim measures of protection as
premature.
The Committee held: (1) that the impact of the quarrying which
had already taken place was not so substantial as to constitute a denial of the
authors' right to enjoy their own culture; and (2) that, as future quarrying
under the permit was authorised so as to minimise the impact on any reindeer
herding activity and on the environment and as there was no indication that the
change in herding methods could not be accommodated by the board and the
company, there was no violation of Art 27; but (3) that the authors' right to
enjoy their own culture might be violated if mining activities were approved on
a large scale and significantly expanded by the companies to which permits had
been issued.
Comment: The Committee, while agreeing that husbandry
was an essential part of culture, refused to accept that the Art 27 guarantee
was restricted to traditional practices. It considered that it also extended to
the adaptations made over the years, even where this is with the help of modern
technology. The husbandry was not, however, the only aspect of culture
potentially at risk; a mountain in the region also had spiritual significance.
The Committee ruled out the application of any `margin of appreciation' doctrine
to Art 27 and considered that the issue was whether a member of a minority was
denied the right to enjoy his culture. However, it did acknowledge that this did
not preclude measures which had only a limited impact on the way of life of
those belonging to a minority. Its conclusion that Art 27 was not violated in
this case rested on the limited scale of quarrying so far undertaken, the
consultation with the authors during the decision-making process and the account
taken of their interests in the authorisation of future activities. In
emphasising that this was not a once and for all decision, the Committee was
making it clear that due account must continue to be taken of the authors'
interests.
LANSMAN et al v FINLAND,
Communication No 671/1995,
Views of the UNHRC, 30 October 1996 (full
decision)
The authors were reindeer breeders of
Sami ethnic origin but had also developed other economic activities (including
logging) in order to survive. They belonged to a herdsmen's committee in part of
whose area the forestry service planned to undertake logging and build roads.
This service generally sought to reconcile the interests of both forestry and
reindeer management and it had amended the proposed activities in the course of
a meeting with the herdsmen's committee in 1993, at which one opinion in support
of and one against the authors had been presented. The committee itself did not
make statements directed against the forestry service but the authors maintained
that the process was one of being informed rather than being consulted. Other
activities in, or proposed for, the area were quarrying and mining which were
also claimed to have an adverse effect on reindeer herding. The logging
activities had been temporarily stopped by the supreme court but, after lower
courts had concluded that their adverse effects for reindeer herding would be
minor and for a limited time, it had itself concluded that they did not amount
to a denial of the authors' right to enjoy their culture within ICCPR, Art 27
and had withdrawn the injunction. At that hearing the authors had expressed
themselves satisfied with the facts established in the court below and sought
only a ruling on the Art 27 issue. The authors claimed that the areas where
logging had been completed had become inaccessible for the reindeer and that
this had caused them much extra work and additional expenses. However, their
main concern was the long-term effects of the logging, particularly the loss of
lichen for reindeer to feed on when ice prevented them digging it through the
snow. The authors complained about the logging and road construction. Logging
had since been resumed and the Committee requested Finland under ROP r86 to
refrain from adopting measures which would cause irreparable harm to the
environment which the authors claim is vital to their culture and likelihood.
Finland objected to the request as inappropriate in the case but undertook not
to elaborate further logging plans in the area and to decrease the current
amount by twenty-five per cent. The Committee considered the communication
admissible and set aside the request for interim measures of protection. Finland
acknowledged that the Sami were an ethnic community within the meaning of Art 27
and that the concept of 'culture' covered reindeer husbandry.
The Committee
held: (1) that the authors were members of a minority within the meaning of Art
27 and reindeer husbandry was an essential element of their culture; (2) that
the latter conclusion was unaffected by the fact that some of them practised
other economic activities in order to gain supplementary income; (3) that, as
(a) the authorities did go through the process of weighing the authors'
interests and the general economic interests in the area when deciding on the
most appropriate measures of forestry management (i e logging methods, choice of
logging areas and construction of roads) even though the consultation process
was unsatisfactory to them and was capable of greater interaction, (b) the
committee did not react negatively to the logging plans, (c) the parties did not
agree on the long-term impact of the logging carried out and planned and (d) the
domestic courts had considered specifically whether a denial of Art 27 rights
would ensue, it could not be concluded from the evidence that the impact of
logging plans would result in a denial of the rights under that provision or
that the domestic courts had misinterpreted and/or misapplied it in the light of
the facts before them; and (4) that the future logging activities, although
resulting in additional work and extra expenses for the authors and other
herdsmen, did not appear to threaten the survival of reindeer husbandry; but (5)
that Finland must bear in mind that activities which do not in themselves
constitute a violation of Art 27 could, when taken together, erode the rights of
Sami people to enjoy their own culture.
Comment: The conclusion that
there was no violation of Art 27 in this case turned on the Committee's
acceptance of the domestic courts' view of the evidence and the way in which
both they and the administration approached the decision to authorise the
logging. To an extent the authors' case was undermined by the apparent
disagreement within their community, as well as by their acceptance of the
factual findings of the domestic courts and the wish simply to disagree with the
conclusions to be drawn from them. There is undoubtedly always going to be some
difficulty in trying to prove what the consequences of development will be and
the evidence must point to a fairly devastating outcome since the Committee has
already concluded that Art 27 cannot be used to prevent measures that have a
limited impact on a minority's way of life (Lansman et al v Finland, (1995) 9
Interights Bulletin 19). The Committee reiterated the important point that
economic activities can be part of culture but it is in such a sphere that
problems of evidence can be particularly difficult; does a way of life fail
because of a development in a traditional minority area or are other external
economic factors the cause? There may be a case for relying on independent
expertise in such cases rather than just the competing submissions of the
parties; the margin of appreciation granted to the State here certainly makes
the assertions of the authors insufficiently convincing. Nevertheless the
Committee rightly emphasised the need to look at the total picture and not just
an individual activity and Finland was reminded of the need to have regard to
other large scale exploitations being planned and implemented in the area where
the Sami people live. However, the concern must be about the practicality of
judging the right point to halt further development and thereby prevent the
annihilation of a traditional way of life. The grant of interim measures here is
an important indication that they are appropriate to prevent more than just
irreparable harm to an individual's life and integrity. There is also an
appropriate flexibility in being prepared to reconsider whether an indication is
warranted once further information becomes available.
Culture:
'TO ENJOY THEIR OWN CULTURE'
Gen.
Comment 23 (50): 'culture manifests itself in many forms, including a particular
way of life associated with the use of land resources, especially in the case of
indigenous peoples. The right may include such traditional activities as fishing
or hunting and the right to live in reserves protected by law.' (para.
7)
Lubicon Lake Band v. Canada. 'The right protected by art. 27 includes the right of persons, in community with others, to engage in economic and social activities which are part of the culture of the community to which they belong . . . Historical inequalities . . and certain more recent developments threaten the way of life and culture of the of the Lubicon Lake Band, and constitute a violation of art. 27 so long as they continue'. Remedy by Canadian govt = compensation, substantial land reserve for the band and the establishment of community services.
Kitok v. Sweden Kitok a member of the Sami family engaged in traditional reindeer husbandry in a Sami village. He lost his right to engage in reindeer husbandry as a consequence of being away from the village for over 3 years. HRC = culture under art. 27 includes traditional reindeer husbandry of the Sami. However, no violation found.
Lovelace v. Canada: The claimant, a Maliseet Indian, lost her Indian status under Canadian law as a result of marriage. After divorce she wished to return to the reserve but could not do so as she was no longer regarded as an Indian. HRC found a violation of art. 27, read with art. 12 (freedom of movement), art. 17 (non-interference with privacy and family) and arts. 2 and 3 (non-discrimination and non-discrimination on grounds of gender).
Religious Rights:
'TO PROFESS AND PRACTICE RELIGION'
Rodley argues that this
provision adds little to article 18 of the ICCPR (Freedom of Religion), read
with art. 2 (1) non-discrimination. Rodley, furthermore argues that religious
rights are also justiciable under art. 26 of the ICCPR - Equality before the
law. No case law on religious rights under art. 27.
Language:
'TO USE THEIR OWN
LANGUAGE'
McIntyre v. Canada: English speaking minority in Quebec bought a
suit against the province whose legislation aimed at protecting the French
language restricted the complainants from certain uses of the English language
in commercial advertising. HRC - not prepared to consider the complaint as a
violation of art. 27 on the grounds that art. 27 did not apply to a language
group that was the majority group in the country as a whole despite its being
minority language in the jurisdictional unit in question. They agreed, however,
that the measures violated ICCPR art. 19 (2) (freedom of expression).
Nb. UN Declaration on Minorities: 'States should take appropriate measures so that, wherever possible, persons belonging to minorities have adequate opportunities to learn their mother tongue or to have instruction in their mother tongue' (art 4 (3))
Belgian Linguistic Case, (ECHR, under art. 14) read with art.2 of the First Protocol to the ECHR (parental right to ensure. . .education and teaching in conformity with their own religions and philosophical convictions) led the court to find a violation in respect of the fact that there was an absence of French language schools in a Dutch unilingual region of Belgium = discrimination on grounds of language.
G.B. v. France, Communication No.
348/1989, U.N. Doc. CCPR/C/43/D/348/1989 (1991).
Case Law