E/C.12/76/D/251/2022 E/C.12/76/D/289/2022 of the Covenant that they invoke have been violated. The core of the communication appears to be the authors’ dissatisfaction with the outcome of the domestic proceedings, but it is not the role of the Committee to act as a fourth instance. Communication No. 289/2022 4.8 The State party notes that the Mining Act is being reformed, with a new, tax-like charge for reservation areas and a shorter reservation period. A reservation gives the reserving party priority to submit an exploration permit application for the reservation area but does not entitle the reserving party to commence exploration. Thus, a reservation does not affect the practice of reindeer herding or the right to pursue this livelihood. Exploration with the consent of the landowner is permissible, unless the use of the land is unlawful or subject to a permit. 4.9 The State party claims that the authors have not exhausted domestic remedies, as they did not appeal against the decision of the Safety and Chemicals Agency of 20 April 2022. The Mining Act provides for the right of the Sami Parliament to appeal against a decision to grant an exploration permit or a mining permit but not against reservation decisions. The right of appeal against reservation decisions is determined in accordance with the Administrative Judicial Procedure Act, and a person concerned by an administrative decision, or whose right, obligation or interest is directly affected by the decision, may seek review of the decision by means of an appeal. The party making the reservation, a holder of a permit for the same area or an applicant who has filed an application for the same area may be considered to have a right of appeal. According to the Supreme Administrative Court, a reservation decision has no impact on the practice of reindeer herding, as it does not grant a right to explore for ore; it merely grants priority to submit an exploration permit application in respect of the reservation area. The purpose of the reservation procedure, according to the Court, is to ensure that a potential applicant for an exploration permit has sufficient opportunity to prepare the application carefully. 6 The State party therefore claims that, according to its domestic law, the Sami do not have an automatic right to appeal against reservation decisions but may have the right to appeal, depending on the case. 4.10 Lastly, the State party claims that the communication is manifestly ill-founded, citing the finding of the Supreme Administrative Court that a reservation decision does not affect the practice of reindeer herding or restrict the right of the Sami as an Indigenous People to maintain and develop their culture. Authors’ comments on the State party’s observations on admissibility 5.1 In their comments of 5 May and 26 September 2022 regarding communication No. 251/2022, the authors observe that some of the State party’s observations on admissibility pertain to the merits of the case and demonstrate ignorance of Indigenous Peoples’ rights. The State party misunderstands their claim in respect of article 2 (2) of the Covenant. They clarify that the issue of compensation was mentioned in their complaint as a factual matter in order to demonstrate the discrimination faced by the Sami when they are not in control of their own lands. As the Committee on the Elimination of Racial Discrimination has explained, international human rights law, including article 2 (2) of the Covenant, requires that Sami be treated differently from non-Sami who use so-called government-owned lands. Discrimination occurs when groups or individuals in different situations are treated identically, with the State failing to address their particular situation. 7 The Sami are discriminated against under mining legislation, not because they are treated differently from the rest of the population thereunder, but because, as they are not treated differently, the particularities of Sami cultural identity, traditional livelihoods and dependence on reindeer herding for survival are ignored. 5.2 According to the authors, another matter pertaining to the merits of the case and demonstrating ignorance of reindeer behaviour is the State party’s assertion that, taken as a 6 7 GE.24-18518 See Supreme Administrative Court, KHO 2013:179 and KHO 2021:145. Ågren et al. v. Sweden (CERD/C/102/D/54/2013), para. 6.23. See also European Court of Human Rights, Thlimmenos v. Greece, Application No. 34369/97, Judgment, 6 April 2000. 7