JOHTTI SAPMELACCAT RY AND OTHERS v. FINLAND
Inadmissible
Nicolas Bratza
There are five applicants in the present case. The first applicant, Johtti Sapmelaccat r.y., is an association promoting Sámi culture. The other applicants, Juhan Taneli Magga, Ristenrauna Magga, Nils-Henrik Valkeapää and Anni Näkkäläjärvi, are Finnish nationals of Sámi origin and living in Nunnanen, Vuotisjärvi and Enontekiö, respectively. They are all members of the first applicant association. They are represented before the Court by Mr Heikki J. Hyvärinen, Legal Secretary, Sámi Parliament, and Mrs Kaisa Korpijaakko-Labba, Docent at the Universities of Helsinki and Rovaniemi. The respondent Government are represented by their Agent, Mr Arto Kosonen, Director, Ministry for Foreign Affairs. The facts of the case, as submitted by the parties, may be summarised as follows. According to the Finnish Constitution, the Sámi, as an indigenous people, have the right to maintain and develop their own language and culture. The definition of culture includes their traditional sources of livelihood, that is to say reindeer herding, fishing and hunting. In Finland a fishing right can be a so-called “private fishing right”, connected to the ownership of land. The properties in any one village have fishing rights in the common water-areas of that village. There are also “specific private fishing rights”, which some properties have within the water-areas of other villages or within the State-owned water-areas. All these rights, as rights connected to the ownership of land, enjoy the constitutional protection of property. In addition to private fishing rights, there are public fishing rights which are usually based on membership of a public community, for example a municipality, on the basis of public law. Such a fishing right does not enjoy the constitutional protection of property. In the municipalities of Enontekiö, Inari and Utsjoki, that is to say in the Sámi Home District, there were no public fishing rights before 1998. As mentioned above, Sámi landowners have fishing rights in connection with their land ownership and the State owns the fishing rights in the State-owned water-areas. The fishing rights of Sámi people who do not own any land has been based on custom from time immemorial (ylimuistoinen nautinta, urminnes hävd). It entitles them to fish within the State-owned water-areas in the municipalities of Enontekiö, Inari and Utsjoki. The right is based on civil law and enjoys, as such, the constitutional protection of property. The Fishing Act (kalastuslaki, lagen om fiske; 1212/1997), as amended on 19 December 1997, entered into force on 1 January 1998. According to the Act, public fishing rights were extended to apply also in the municipalities of Enontekiö, Inari and Utsjoki. It was guaranteed by the amendment that the people living permanently in the municipality were entitled to enjoy public fishing rights within the State-owned water-areas. Prior to the 1997 amendment, the 1951 Fishing Act (503/1951) had been applied in the above-mentioned municipalities regardless of the fact that the 1982 Fishing Act (286/1982) applied to all other parts of Finland. The 1982 amendment did not affect the position in the municipalities of Enontekiö, Inari and Utsjoki as, according to the Committee for Constitutional Law (perustuslakivaliokunta, grundlagsutskottet) of the Finnish Parliament (eduskunta, riksdagen), questions concerning special fishing rights which enjoyed the constitutional protection of property and which mainly belonged to the Sámi people had to be settled before the law could be amended. Therefore the 1982 Fishing Act did not apply in the above-mentioned municipalities. As from 1 January 1998, the public fishing right was extended to the area of the above-mentioned municipalities, maintaining “the ancient right of the local people to fish within the State-owned water-areas without consideration”. According to the applicants, the 1951 Fishing Act did not, however, guarantee such a right to the “local people”, including also non-Sámi residents, as it was only granted to them by the 1997 amendment. The 1997 amendment also includes provisions concerning restrictions on hooks allowed in the area. Those restrictions entered into force at the beginning of 2001. Section 5, subsections 1 and 2 (969/1995) “Everyone is equal before the law. No one shall, without an acceptable reason, be treated differently from other persons on the ground of sex, age, origin, language, religion, conviction, opinion, health, disability or other reason that concerns his or her person. Children shall be treated equally and as individuals and they shall be allowed to influence matters pertaining to themselves to a degree corresponding to their level of development.” Section 12 (969/1995) reads as follows: “The property of everyone is protected. Provisions on the expropriation of property, for public needs and against full compensation, are laid down by an Act.” Section 14, subsection 3 (969/1995) reads as follows: “The Sámi, as an indigenous people, as well as the Roma and other groups, have the right to maintain and develop their own language and culture. Provisions on the right of the Sámi to use the Sámi language before the authorities are laid down by an Act. The rights of persons using sign language and of persons in need of interpretation or translation aid owing to disability shall be guaranteed by an Act.” The provisions above are equivalent, respectively, to Sections 6 and 15 and Section 17, subsection 3, of the present Constitution of 2000 (perustuslaki, grundlagen; 731/1999). Section 6 reads as follows: “A private right to use a fishing site or a right to fish within the boundaries of another village or outside the boundaries of the village, based on custom from time immemorial, shall remain valid. The right to use a fishing site on the basis of custom from time immemorial shall, however, only be valid if the boundaries of the site have been clearly established. If a right to use a fishing site or a right to fish in waters located in another village has not been recognised in proceedings for the establishment of the boundaries of those waters, any claim thereto must be brought to the competent district court within three years from the date on which the decision on the boundaries has become final.” Section 54 reads as follows: “Further provisions on the use of the state's fishing rights and on fishing in state-owned waters, as well as on the management of such waters, shall be given by Decree, and in this respect the interests of the local population shall be a primary concern. The fishing arrangements referred to in subsection 1 above must nevertheless not endanger fish or prawn stock.” Section 3 reads as follows: “A local inhabitant, especially where he or she has otherwise no fishing right, has the right to obtain a licence for fishing for personal or recreational purposes in waters administered by the National Park and Forestry Service. Such a licence may also be issued to other persons where this is possible without weakening the possibilities of the local inhabitants to fish. Where found appropriate by the National Park and Forestry Service, a licence may also be issued for purposes other than those referred to in subsection 1 above. The fishing licences referred to in subsections 1 and 2 above shall not be so extensive in scope and number that the fish or prawn stock is endangered.” Section 1 reads as follows: “The provisions of this Decree shall apply in the municipalities of Enontekiö, Inari and Utsjoki. For the purposes of this Decree, "the Fishing Act" means the Fishing Act of 28 September 1951 (503/1951), as amended.” Section 10 reads as follows: “The state provincial office shall set up an advisory board for each of the three municipalities for a period of one year at a time, to discuss fishery matters relating to the water areas referred to in section 9, subsection 1 above. The advisory boards shall have as their duties, within the limits of their competence, to give opinions, make proposals and take initiatives, as well as to perform other duties assigned to it in this Chapter. Each year, the National Park and Forestry Service and the Finnish Forest Research Institute shall request an opinion from each advisory board on the principles to be applied to fishing arrangements and to the issue of fishing licences. The opinion may only be derogated from by the authorities for special reasons. Each advisory board shall also be requested to provide an annual report on plans concerning the management of fishing sites.” Section 11 reads as follows: “An advisory board shall consist of five members and their personal deputies. The National Park and Forestry Service, the Sámi Delegation (saamelaiskäräjät, sametinget), the fishing districts, the municipality and the local associations of professional fishermen shall each appoint one member and his or her personal deputy. Where the professional fishermen have not created any association, or the associations are not able to agree on the member representing them jointly, the municipality shall appoint one of the candidates. The advisory board shall elect one of its members as president and one as vice-president. The advisory board shall be convened by the president or, in his absence, by the vice-president, and its quorum is constituted by the president or vice-president and at least two other members. The work of the advisory boards shall otherwise be governed by the provisions on government committees.” Section 12 reads as follows: “Permanent residents of the municipality carrying out professional fishing, fishing for personal purposes or other traditional means of livelihood have the right to obtain a fishing licence free of charge for fishing in state-owned waters referred to in section 9, subsection 1 above, located in their municipality of residence. Such a licence may also be issued, subject to a charge, to other persons where it is possible without weakening the fishing possibilities of the local inhabitants referred to above. A licence may be withdrawn or fishing carried out under a licence may be prohibited for a given period of time where it is necessary for the purposes of planting of fish, fish culture, scientific research or other use or management of fishing sites.” Section 12 (1212/1997) reads as follows: “The state's fishing sites (valtion yksityiset kalastukset, statens enskilda fisken) shall remain in the possession of the state in those areas where they have customarily been and still are in the state's possession. Further provisions on the use of those sites and on the use of the fishing rights belonging to the state in state-owned waters shall be given by decree, and in this respect the interests of professional fishermen and the local population shall be a primary concern. Permanent residents of the municipalities of Enontekiö, Inari and Utsjoki, carrying out professional fishing, fishing for personal purposes or other traditional means of livelihood, have nevertheless a right to obtain a fishing licence free of charge for fishing in state-owned waters located in the said municipalities. The provisions of section 8, subsection 1 above are, however, also applied to state-owned waters.” Section 13 (286/1982) reads as follows: “A special right to a fishing place or to fish within the boundaries of another village or outside the boundaries of the village, which has been legally acquired on the basis of undisturbed possession since time immemorial or some other reason, will remain in force as of old. Undisturbed possession of a fishing place since time immemorial, however, is valid only if the boundaries of the place may be reliably shown. If a right to a fishing place or to fishing in the waters of another village has not been accepted when demarcating the district boundary, any action concerning the matter shall be instituted in the general court of first instance within three years of the date when the demarcation has gained legal force. Where fishing rights have been accorded by a court decision or in some legal manner other than as provided above in this Act, such a decision shall continue to be observed.” Section 129 (286/1982), subsections 1 and 4, read as follows: “This Act repeals: 1. the Fishing Act (503/51) issued on 28 September 1951; 2. the Decree of 28 December 1951 on the enforcement and the application of the Fishing Act (695/51); and 3. the Decree of 9 July 1953 on the use of the private fishing grounds of the State and on fishing in fishing waters belonging to the State (322/53), as amended; as well as 4. the Land Partition Act of 14 December 1951 (604/51) § 112 paragraph 2. What has been enacted in paragraph 1 subparagraph 1 shall not apply to the area of the municipalities of Inari, Enontekiö and Utsjoki for which areas the Fishing Act (503/51) as amended remains in force.” Section 34 (1356/1993) reads as follows: “A person belonging to the local population who does not have fishing rights based on a proprietary right or other particular legal relationship shall be entitled to receive a licence for fishing in a water area referred to § 33 paragraph 1 belonging to the State. When the State is a joint owner of common fishing waters, it may grant the licence referred to above concerning the fishing rights corresponding to its share. The fishing corporation concerned shall be informed by an authority of the granting of the licence. A fee fixed according to the basis confirmed by the fishing corporation shall be paid for the licence. When the licences referred to above in this section cannot be granted to all who want them, priority shall be given to persons engaging in fishing professionally or for domestic needs.” Section 34a (1364/1997) reads as follows: “A licence entitling permanent residents of the municipalities of Enontekiö, Inari and Utsjoki to carry out fishing referred to in section 12, subsection 1 of the Fishing Act, shall be issued by the authority referred to in section 33, subsection 1 of the Act or, in accordance with instructions issued by it, by its subordinate regional office or other entity recognised by the said authority. The licence may not be given for more than three years at a time. A right based on a licence is not transferable. Licences referred to in subsection 1 of section 34 above may be issued in the municipalities of Enontekiö, Inari and Utsjoki where this does not weaken the fishing possibilities of those carrying out fishing under a licence referred to in section 12, subsection 1 of the Fishing Act.” Section 53 (1/97) reads as follows: “The obligation to pay the fishery fee laid down in § 88 paragraph 1 of the Fishing Act shall concern all persons between the ages 18-64 who take directly part in the catch. The fishery fee shall not be collected from those persons who participate in catch only as assistants without taking part in the handling of the fishing gear in connection with the catch. Those under 18 or over 65 years of age who under § 88 paragraph 1 of the Fishing Act shall be allowed to engage in catching fish and crayfish without paying the statutory fishery fee or under § 88 paragraph 2 of the Fishing Act without paying the fee, shall prove their age in a reliable way, when necessary.” “...the provisions of the 1951 Act and the 1982 Act, concerning fishing rights based on land-ownership, are similar in substance. At the time of enactment of the 1982 Fishing Act, no final court decisions had been given on the water district boundaries in the municipalities of Enontekiö, Inari and Utsjoki. Therefore, the existing specific rights to a fishing site, attached to real estates, were also unclear. For these reasons, the provisions of the 1951 Fishing Act remained in force for the three northernmost municipalities. Thereafter, the decisions on the water district boundaries have become final and any specific fishing rights attached to real estates have been established. There are no longer any unsolved questions of ownership of water areas in respect of individual real estates, and therefore it is no longer necessary to apply the 1951 Fishing Act in the area in question. The state-owned fishing sites are of great importance for the local population in the municipalities of Enontekiö, Inari and Utsjoki. In the absence of decisions on the establishment of water district boundaries, there were unsolved questions in respect of the ownership of the water areas. Therefore, the inhabitants of the said municipalities had a possibility to fishing free of charge in the waters located in their municipalities of residence. In the proceedings for the establishment of water district boundaries, most of the waters were established as belonging to the state. Thus, the state also held the fishing rights attached to the waters, except for certain specific fishing rights. In order to provide for the possibilities of the local inhabitants to fish, it was provided in the decree implementing the 1951 Fishing Act, which entered into force in 1983, that the local inhabitants of the three northernmost municipalities, who were carrying out professional fishing, fishing for personal purposes or other natural means of livelihood, had the right to obtain a fishing licence free of charge for fishing in the state-owned waters located in their municipalities of residence. The local inhabitants were also provided with a possibility to participate in decision-making concerning fishing and management of fish stock in respect of those waters, by means of setting up advisory boards for each of the three municipalities. These advisory boards had, inter alia, the responsibility of reviewing fishing arrangements and principles concerning the issue of fishing licences. The National Board of Forestry, the Sámi Parliament, the fishing districts, the municipality and the local associations of professional fishermen appointed members to the Advisory Board. ... It is proposed that the possibility for the local inhabitants of Enontekiö, Inari and Utsjoki municipalities to fish in the state-owned waters be maintained. Therefore, the present proposal contains provisions which are currently included in a decree, concerning the right of the local inhabitants carrying out professional fishing, fishing for personal purposes or other traditional means of livelihood to fish free of charge in the state-owned waters (Section 12). ... The application of the 1982 Fishing Act in the municipalities of Enontekiö, Inari and Utsjoki does not remove or change the fishing rights that their inhabitants have in the state-owned waters which have an established legal basis, such as the basis of custom "from time immemorial". Most of the local inhabitants carrying out traditional means of livelihood in the said municipalities represent the Sámi population. In order to secure the fishing rights of the local inhabitants carrying out professional fishing, fishing for personal purposes or other traditional means of livelihood, it is proposed that the Act contain those provisions on the right to fish free of charge in the state-owned waters which are now included in a decree. Thus, the existing provisions would be included in an Act of Parliament instead of a decree, but the proposal does not intend to change the substance of the provisions. “On different occasions (opinions 7/1978, 5/1981 and 30/1993) the Constitutional Law Committee has found that local inhabitants of the three northernmost municipalities, who have no titles to land, have such fishing rights as enjoy the protection of possessions guaranteed by the Constitution. In the opinion given in 1978, the Constitutional Law Committee observed that "the bill subject to debate, concerning fishing in the three northernmost municipalities, entailed weakening of the traditional fishing rights of their residents who had no titles to land but who earned a significant part of their living from traditional means of livelihood, of whom most represented the Sámi population, as a licence would thereby be necessary for fishing and it would be subject to a charge." In the Committee's view, the bill had to be considered in accordance with the procedure for the enactment of the Constitution. The opinion given by the Constitutional Law Committee in 1981 concerned the Government Bill for the enactment of the 1982 Fishing Act. The Committee drew attention to the fact that it was necessary to separately solve the unresolved questions concerning fishing in the northernmost municipalities without delay. Thereafter, the Law and Finance Committee proposed that the fishing legislation - the 1951 Fishing Act - in force at the material time should remain in force for the said municipalities (Report of the Law and Finance Committee 18/1981). Thus, a provision based on that proposal, subsection 4 of section 129, was included in the new Fishing Act. In 1993, the opinion of the Constitutional Law Committee concerned a Government Bill in which it was proposed, inter alia, that section subsection 4 of section 129 of the 1982 Fishing Act be repealed. On that occasion, the Committee was of the view that the bill entailing repealing of the said provision had to be discussed in accordance with the procedure provided for in section 67 of the Parliament Act. The Committee further noted, referring to the ILO Convention No 169 concerning Indigenous and Tribal Peoples in Independent Countries, adopted in 1989, that such an amendment should not be made even if it was made in accordance with the procedure applied to the enactment of the Constitution. ... Extending the scope of application of the 1982 Act to concern the three northernmost municipalities entails harmonisation of legislation which can be said to be in conformity with the principles enshrined in section 5 of the Constitution Act of Finland and with the requirements of foreseeability. A general constitutional issue relating to the extension of the scope of application is the question of public fishing rights as a restriction on the enjoyment of possessions. Referring to earlier opinions, the Committee finds that in this regard the bill may be discussed in accordance with the procedure applied to the enactment of ordinary acts of Parliament (Opinions of the Constitutional Law Committee 8/1996 and 5/1981). ... Subsection 1 of section 12 means that the local inhabitants in the three northernmost municipalities maintain their possibility to fish free of charge in the state-owned waters, based on custom. In the Committee's view, this kind of a legislative measure conforms to the requirements attached to the protection of possessions based on custom "from time immemorial" and on an extensive right of enjoyment, which have been observed in earlier opinions of the Committee, concerning the traditional rights of inhabitants who do not have titles to land. For this reason, the Committee is of the view that the bill is also acceptable in the light of the provisions in section 5 of the Constitution Act. As regards the status of the Sámi people, particularly in view of the provisions in subsection 3 of section 14 of the Constitution Act, the Committee has paid attention to the fact that fishing has been part of the traditional way of life of the Sámi without any restrictions as to their place of residence. Therefore, the Committee finds it important to clarify the last part of the provision in subsection 1 of section 12 so that the fishing right is not only dependent on the place of residence but is valid in the areas of all three northernmost municipalities where the person is resident in one of them. ... Article 27 of the International Covenant on Civil and Political Rights provides for the rights of minorities. For example in the light of the practice of the Human Rights Committee monitoring the implementation of the Covenant, it may be observed that the exercise of fishing rights of the Sámi is part of their minority culture. The proposed amendment may not be considered to entail prevention of fishing as part of the Sámi culture in the sense of constituting a violation of Article 27 of the Covenant. In this respect, reference may be made to section 12 of the Bill, which is based on the premise that the permanent residents of the said municipalities have the right to obtain a fishing licence free of charge. ... The Government Bill does not interfere with questions of ownership. The purpose of the proposed provisions is, inter alia, to establish the right of permanent residents of the municipalities of Enontekiö, Inari and Utsjoki to obtain a fishing licence free of charge for fishing in the state-owned waters, on certain conditions. The Bill is not restricted to the Sámi as a population group but concerns all residents of the said municipalities. Apart from permanent residence, it is further required for the existence of such a right that the residents in question carry out professional fishing, fishing for personal purposes or other traditional means of livelihood. In the Committee's view, these conditions are, however, of such a nature that they have relevance in particular for the Sámi. Therefore, it may be observed that the Bill partly contributes to the protection of the right of the Sámi to use the water areas in question.”