Details of the Decision Article 5(d)(v) of the ICERD The CERD
found that granting mining concessions without the consent of the Sami
people was a contravention of Sami property rights under article 5(d)(v)
of the ICERD. And declared that international human rights law
provides that Indigenous peoples' traditional use of land, in accordance
with their own cultural practices, establishes property rights. reference was made to the CERD's general recommendation No.23 (1997) and Article 26 of the United Nations Declaration on the Rights of Indigenous Peoples (UNIDRIP).
The CERD rejected Sweden's argument that Sami people's
right to practice reindeer husbandry under Swedish legislation is not a
right of ownership of land and does not provide formal title to ownership
of land. The CERD stated that, the fact domestic legislation does not prescribe rights is
irrelevant to Sweden's argument under international law. A key finding by the CERD was that consent, as defined under article 19 of UNDRIP, requires the free, prior and
informed consent of the Sami community. It necessitates serious
engagement with the community, with a genuine attempt to reach consensus
as equal parties. The Swedish state party had delegated the process of consultation
to the private mining company, which merely asked for input by Sami
people to minimise harms to reindeer husbandry from the
mining projects. The CERD stated that the provision of a planned application, environmental
impact statement and capacity to make recommendations/objections cannot
be characterised as anything close to consultation in any international
legal understanding of the term. The duty to consent in such a context
is the responsibility of the State and cannot be delegated without
supervision to a private company. The CERD also agreed with the Vapsten petitioners that it is only in exceptional cases that a state can limit Indigenous property rights and then, only provided it meets specific criteria. These
exceptional cases are measured by a proportionality test. In this case, Sweden would be required to demonstrate that the granting of the mining
concessions were motivated by a legitimate aim and were proportionate in effect, so
as to not endanger the survival of the Sami people and their practices as required under article 26 of the UNIDRIP. The CERD rejected the State's view that the extraction of nickel is an important national
interest, and that deposits are located in a certain area and cannot to be extracted from elsewhere, whereas it is possible for reindeer to
use alternative grazing grounds.
Article 5(a) of the ICERD The Sami people claimed that the mining legislation and concessions discriminate against Sami people, not by treating them differently from the majority of the Swedish population, but by not doing so. They claimed that the discrimination occurs through blindness to Indigenous Sami culture, which is dependent on reindeer herding for survival. Mining activities have a devastating impact on Sami people in a way that does not occur for the majority Swedish population. In contrast, Sweden argued that no act of racial discrimination based on their ethnic origin has occurred because the petitioners were treated on an equal footing with other landowners who were concerned by the mining project.
The CERD considered that, in the present case, the Sami petitioners did not sufficiently
substantiate their claim under article 5 (a) of the ICERD. As a consequence, the CERD was not in a position to consider whether the State party violated article 5 (a)
of the ICERD. Article 6 of the ICERD The CERD
re-affirmed that where Indigenous peoples have been deprived of lands
and territories traditionally owned without their free and informed
consent, the State should take steps to return those lands and
territories. Monetary compensation should only be provided when it is impossible to return ownership to the Indigenous people.
The CERD
found that it was impossible for Sami people to obtain judicial
review by the Supreme Administrative Court because the legislation treats Indigenous communities as private landowners affected by mining
operations and ignores the fundamental rights of Indigenous peoples to their traditional territory.
The CERD found that Sweden did not submit any evidence on the ways that the Sami could be adequately compensated. Further, since the decisions of Sweden's courts could not
evaluate the taking of land from the perspective of the Sami people's
fundamental rights to traditional lands based on their customary laws, the CERD concluded that Sweden violated article 6 of the ICERD. CERD's requests to Sweden As a result of these
violations of the ICERD, the CERD requested that Sweden: - provide effective remedy to the Vapsten Sami community by revising the
mining concessions after an adequate process of free, prior and informed
consent;
- amend its legislation, in order to reflect the
status of the Sami as an indigenous people in national legislation
regarding land and resource rights, and to adopt the international
standard of free, prior and informed consent;
- give wide publicity to the CERD's views; and
- translate the decision into the official language of the Swedish State as well as the language of the Sami people.
Responses
Sweden is currently reviewing the CERD decision and has said that the country was committed to stopping all forms of discrimination (ArcticToday News).
The Sami People have said that the CERD decision was "truly historic" and that it "re-iterated that Swedish authorities were required to address the impact of projects on herders before it could issue a permit" (ArcticToday News).
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