Introduction

Reindeer husbandry is essential to Sami culture in Finland, having been practiced in the region since time immemorial, the culture having been passed down from generation to generation. It is through reindeer husbandry that many other components of Sami culture are learned, such as the Northern Sami language, traditional Sami singing, and the production of traditional Sami Handcrafts. Sami culture and their way of life is already under threat due to, inter alia, environmental factors, tourism, and mining. During the winter, reindeers follow tracks in the snow, including unknown tracks such as those caused by machinery, which would cause trouble for traditional reindeer herding. The reindeer could wander off to areas which are less favourable to find food and lose weight, or the bulls could be lost, leading to less calves. The effects of this could be felt for years and pose a threat to the traditional Sami way of life. This communication to the UN Committee on the Rights of the Child (Committee), concerning the award of mineral exploration permits on traditional Sami reindeer herding territory, is the first case to be heard by the Committee concerning indigenous children’s rights under the Convention on the Rights of the Child (CRC).

Facts

The authors (aged 13, 15 and 16 at the date of submission) are three sisters who are part of a multigeneration Sami reindeer herding family from the Kova-Labba Siida. The Kova-Labba Siida is one of three traditional reindeer herding villages which are part of the Käsivarsi Reindeer Herders’ Cooperative (‘the Cooperative’). A mineral exploration permit, which would allow mining exploration activities in the authors’ traditional reindeer herding territory, was applied for. The Mining Act 621/2011 requires the State party to identify the impacts of mining and exploration of the rights of the Sami to maintain their culture. Thus, written comments were sought from the community by the Sami parliament and the Cooperative, and they were invited to participate in meetings. The Cooperative, on behalf of its members – including the authors – and the Sami parliament opposed the granting of the permit. They argued, inter alia, that preconditions for obtaining their free, prior and informed consent had not been met as no impact assessment had been conducted (para 2.6). The exploration permit was nevertheless granted, renewable for a period of 15 years. This allowed mineral exploration to occur in the authors’ traditional winter herding territory, every winter, the most critical time for reindeer husbandry (para 2.8).

The decision to grant the permit was appealed to the Administrative Court of Northern Finland. The appeal was dismissed, with the Court pointing to the involvement of the Cooperative and Sami parliament in the permit procedure. A further request for leave to appeal was sought and an appeal was filed before the Supreme administrative court. This appeal was also rejected.

Complaint

The authors alleged that by permitting the mineral exploration without a proper impact assessment and without obtaining the free, prior and informed consent of their community, the State had violated their right to enjoy their own culture in community with Sami members (article 30 CRC); the right to identity as Sami (article 8 CRC); their right to an adequate standard of living as reindeer herders (article 27 CRC); all interpreted in light of the right to health (article 24 CRC); and all read alone and in conjunction with the right to non-discrimination (article 2.1 CRC).

Procedural issues

The State party unsuccessfully argued that the complaint was inadmissible due to the failure to exhaust domestic remedies, and that the communication was manifestly ill-founded as the authors were asking the Committee to sit as a court of fourth instance. In relation to the State’s argument that the authors had failed to substantiate the claims for the purpose of admissibility, the Committee held that the authors had not substantiated their claims concerning the right to heath and that complaint was therefore inadmissible on that ground. However, the rest of the authors’ claims were found to be substantiated and admissible (para 8.5 – 8.7).

The State party further alleged that the complaint was inadmissible as the complainants did not have victim status; they submitted that the authors had not been personally affected by the granting of the exploration permit as the agency that received the permit had not yet taken any practical measures to commence exploration, that the complaint was premature, and the alleged violations were mainly hypothetical. The Committee disagreed, finding that if the granting of permits on the authors’ traditional territory had occurred without the free, prior and informed consent of their community, this represented a breach of the authors Convention rights, irrespective of whether future developments occurred (para 8.3).

At the time this communication was submitted to the CRC Committee, a separate communication had been submitted to the Committee on Social, Economic and Cultural Rights (‘CESCR’) by other members of the author’s Siida concerning the same mineral exploration project (J.T. et al v Finland). In terms of article 7(d) of the 3^rd Optional Protocol to the CRC, a communication is inadmissible where ‘[t]he same matter has already been examined by the Committee or has been or is being examined under another procedure of international investigation or settlement’. The Committee found that as the complaint before it and that pending before the CESCR had been submitted by different authors, they did not constitute the ‘same matter’ for the purposes of article 7(d) of the Optional Protocol (para 8.2). The Committee found, citing its previous decisions on its matter (M. F. v. Switzerland), that the ‘same matter’ for purposes of article 7(d) means ‘one and the same claim relating to the same individual, the same facts and the same substantive rights.’ (para 8.2; see Clara Paul’s case note on Communication No. 94/2019 for a discussion on the Committee’s interpretation of article 7(d)).

Committee’s Views

The Committee found that granting the permits without the free, prior and informed consent of the community and without an impact assessment violated the authors article 8, 30, and 27 rights read in conjunction with article 2.1 (para 9.25). They noted that the Convention is a living instrument and has to be interpreted in light of the ‘evolutionary interpretation of indigenous people’s rights’. Specifically, the Declaration on the Rights of Indigenous Peoples (DRIP) has to be used as an authoritative framework for assessing State obligations under the CRC (para 9.12). Citing various international sources, the Committee reiterated that indigenous persons’ culture is often intrinsically linked to their traditional lands. To deny indigenous persons the exercise of their territorial rights is to threaten the very existence of their cultural identity. That is why it is imperative that any measures which compromise the viability of indigenous land are only taken if the communities affected have effectively participated and given their free, prior and informed consent.

Further, the Committee – noting the intergenerational aspect of indigenous cultural rights, the close link between article 30 CRC and article 27 of the ICCPR, the importance of language to cultural identity and that the right of indigenous children to exercise their culture may be closely linked to land – confirmed that article 30 ‘enshrines the right of indigenous children to enjoy their traditional territories and that any decision affecting them should be taken with their effective participation’ (para 9.14 – 9.17). Thus, in terms of article 12 of the CRC, ‘[i]ndigenous children must be particularly at the heart of the processes, from their consideration in impact assessments to their effective participation in processes of consultations aimed at obtaining their free, prior and informed consent’ (para 9.22).

Additionally, the Committee found that because the State is aware that transferring culture and identity to subsequent Sámi generations is ‘becoming increasingly difficult’, ¹ the State has to exercise greater caution ‘when regulating activities that may endanger the continuity of their culture’ (para 9.16).

Lastly, the Committee confirmed that any discrimination suffered by indigenous persons also impacts their children ‘whose preservation of cultural identity is crucial as they represent the continuity of their distinct people.’ (para 9.24) Thus, discrimination suffered by the community at large may result in a violation of their children’s right to preservation of cultural identity.

Commentary

State obligations in relation to ensuring the effective child participation

M. E. V. v Finland is the first case to come before the Committee dealing with the rights of indigenous children in terms of the 3rd Optional Protocol on a Communications Procedure. The Committee has previously attempted to delineate state obligations in relation to the rights of indigenous children, for instance, in General Comment 11 on Indigenous Children and their rights under the Convention (‘GC 11’). However, without a specific matrix of factors on which to anchor it, a general comment is necessarily generic and can thus be somewhat vague. This case provided an opportunity for the Committee to add flesh to the bones, so to speak.

The majority relied heavily on the international standard of free, prior and informed consent, and not article 12 CRC (article 12 was not relied upon in the authors submissions to the CRC, but was raised by the majority itself).² The international standard of free, prior and informed consent relates to the consent of the community (See DRIP article 32(2)). ³ Thus, where a decision has been made without the free, prior and informed consent of the community, the members of the community’s rights (and rights of the children) are violated because they are members of that community, and not because they have not personally provided their free, prior and informed consent. Focusing on the international standard of free, prior and informed consent recognises the child as a member of the community.

In the individual opinion of the chairperson of the Committee, Ann Skelton (partially concurring), she stated that there should have been more emphasis on the children’s article 12 right to be heard. Child participation rights have always been a contentious issue. By focusing on the children’s right to he heard and their right to participate in matters affecting them, instead of the international standard of free, prior and informed consent, this decision may have become applicable beyond cases pertaining to indigenous children’s land rights and DRIP article 32(2). For example, it could have been applicable in cases where children have not been given the opportunity to be heard in matters relating to the environment and its preservation (on children’s rights to be heard in environmental matters, see General Comment 26 on Children’s Rights and the Environment para 26-28; para 58). However, in this case it is important to situate article 12 within the standard of free, prior and informed consent, which concerns the community. Solely focusing on article 12, which is an individual right of the child, may have the unintended consequence of divorcing the child from the community and identity from which their rights as indigenous children derive.

Ensuring the effective and meaningful participation of children in line with their evolving capacities often requires different standards and modes of participation compared to those required of adults. However, looking at this decision and that of the CESCR in the parallel case of J.T. v Finland (the submission before the CESCR was brought by both adults and children), it is difficult to identify if and how the State obligation to facilitate effective participation in view of the obtaining free, prior and informed consent differs for adults and for children, except that the Committee notes that children should be at the heart of the process. This seems to suggest that children will be heard separately from adults, and not merely as ‘members of the community’, which would amount to an additional obligation to the one set out in article 32(2) of DRIP. It is further uncertain how the children’s right to be heard should be facilitated by the community, so that their views are taken into account when the community gives free, prior and informed consent. One could argue that the decision of the Committee is thus not as child- centred as it could have been as it does not provide concrete recommendations as to the mode or format of child participation.

However, another argument is that these are necessarily adversarial proceedings. If the authors had not raised this issue (article 12) specifically, then it would be unfair to expect the State to provide a response. In light of this, the Committee is not empowered to provide more concrete recommendations on how it foresees child participation practically playing out. While this second argument may be preferable from a litigators perspective, from a children’s rights perspective most scholars would agree that the more specificity the Committee can provide, the better.

Reliance on regional jurisprudence regarding indigenous persons rights

In relation to mapping out the contours of indigenous children’s rights, as well as State obligations in terms of obtaining the free, prior and informed consent of indigenous persons, the Committee relies (albeit sometimes indirectly) on the Inter-American Court of Human Rights (IACtHR) jurisprudence and on the African Human Rights System’s jurisprudence on indigenous persons rights, and specifically their rights in relation to traditional lands. While this is not the first time the Committee has referenced a decision of a regional human rights court, it is noteworthy that the State party in this case is not a signatory to the regional conventions cited (in contrast, see in ML and other v Georgia, where ECtHR jurisprudence was relied upon, but the State party was signatory to the ECHR, and Conor O’Mahoney’s commentary in this regard).

Here, the case law out of the Inter-American Court of Human Rights’ and the African Human Rights System is only referenced to the extent that their jurisprudence has been relied on by other treaty bodies. It has thus already been filtered into the UN treaty body system. It could thus be said that the Committee is not directly relying on the regional jurisprudence. This usage of regional jurisprudence can be compared to the extensive references to the jurisprudence of the Inter-American Court in the parallel case of J.T. v Finland before the CESCR case, or the more explicit reference to ECHR case law in ML and other v Georgia. However, the Committee is not trying to hide that the jurisprudence of either the Inter-American or African regional human rights system provides its source material for substantiating its views, even if it is cited generically through an ‘intermediary’ UN treaty body.

However, there may be potential conceptual issues with using the jurisprudence of a regional human rights court to substantiate a right or obligation under the CRC, especially in a case where the State party involved is not a signatory to the regional treaty in question. These are different systems, with different rights and obligations, and State parties have not consented to be bound to the terms of the regional treaties or the jurisdiction of the specific regional courts. However, as long as the decisions of different courts seen as persuasive and not authoritative, and where it is important to have converging standards in relation to specific rights, international and regional courts should share ideas and experiences and look to each other’s decisions. This becomes even more important when dealing with rights relating to specific minority groups, such as indigenous persons rights, since issues (e.g. preservation of cultural identity, land, and language) are common to many if not most indigenous groups across the globe, irrespective of the continent involved.

The reliance on jurisprudence out of the IACtHR in this case is appropriate and perhaps necessary. The IACtHR has dealt with a plethora of cases concerning indigenous persons rights, including in relation to their land. This has allowed them to provide substance to the rights of indigenous persons through applying them to specific facts (a similar conclusion was reached by Conor O’Mahoney in his case note on ML v Georgia, in relation to the ECtHR and child protection cases). In terms of the rights of indigenous persons, whether we are talking about indigenous persons and their rights to their traditional lands in Finland or the Americas, the issue is the same. Thus, it is important to have converging standards in relation to their rights because such rights and principles applying differently to indigenous persons in different regions is nonsensical. There must be a level of harmonisation between the systems in cases such as these.

Cultural identity under the CRC

The Committee found that there had been a violation of the authors’ right to preservation of cultural identity in terms of article 8 of the CRC. The Committee has treated the right to cultural identity rather inconsistently in its outputs to date (it is at times referred to under article 8, at other times under article 30, and occasionally elsewhere). While the decision confirms that article 8 does protect the cultural identity of the child, its scope and applicability, including when article 8 can be relied upon, and by whom, remains unclear.

Article 8 is not explicitly discussed in the Committee’s decision on the merits. It seems that the violation of article 8 is inferred from the violation of article 30. The Committee notes that Sami identity (article 8) is dependent on the continuance of their traditional way of life (article 30). Preservation of cultural identity is further dependent on the ability of a particular group to transmit their culture to future generations (para 9.14). This intergenerational aspect is protected by article 30. While the link between article 30 and article 8 was noted briefly in GC 11, this was only relation to indigenous children receiving traditional names, and not cultural identity generally (it should be noted that ‘name’ is included as an element of identity in the text of article 8, whereas culture is not). The Committee has thus provided greater clarity on the link between article 30 and article 8 as protecting cultural identity, even if the contours of article 8 itself are still somewhat unclear.