CERD/C/102/D/54/2013
notes that the judicial review by the Supreme Administrative Court does not entail a review
of the sustainability of reindeer husbandry on the remaining lands.
6.27 The Committee also recalls that, where indigenous peoples have been deprived of lands
and territories traditionally owned or otherwise inhabited or used without their free and
informed consent, the State should take steps to return those lands and territories. Only when
this is for factual reasons impossible should the right to restitution be substituted by the right to
just, fair and prompt compensation, which should, as far as possible, take the form of lands and
territories.28
6.28 The Committee observes that the State party admits that the decisions to grant mining
concessions did not involve any consideration of the petitioners’ property rights. The
Committee is of the view that the impossibility of obtaining an effective judicial review of a
decision where the fundamental right of indigenous peoples to traditional territory is being
questioned is a consequence of the State party treating indigenous communities as private
landowners affected by the mining operations, without due regard to the potential
irreversibility of the consequences these operations may have on indigenous communities.
6.29 Since the decisions of the Land and Environment Court and the Supreme
Administrative Court could not evaluate the taking of the land from the perspective of the
petitioners’ fundamental right to traditional territory, the Committee concludes that the facts
as submitted reveal a violation of the petitioners’ rights under article 6 of the Convention.
7.
In the circumstances of the case, the Committee, acting under article 14 (7) (a) of the
Convention, considers that the facts before it disclose a violation by the State party of articles
5 (d) (v) and 6 of the Convention.
8.
The Committee recommends that the State party provide an effective remedy to the
Vapsten Sami reindeer herding community by effectively revising the mining concessions
after an adequate process of free, prior and informed consent. The Committee also
recommends that the State party amend its legislation to reflect the status of the Sami as
indigenous people in national legislation regarding land and resources and to enshrine the
international standard of free, prior and informed consent. The State party is also requested
to widely disseminate the present opinion of the Committee and to translate it into the official
language of the State party, as well as into the petitioners’ language.
9.
The Committee requests the State party to provide, within 90 days, information on the
steps taken to give effect to the Committee’s opinion.
28
16
General recommendation 23 (1997), para. 5