CERD/C/102/D/54/2013 3.5 Regarding the State party’s international obligation to consult the Sami community affected by a project on its territory, the petitioners claim that, even though the State party continues to argue that the community has been consulted, the Committee has already correctly concluded that this was not the case. The Vapsten community has only been allowed to provide input into the process, to polish the project somewhat from a reindeer herding perspective, but, according to the petitioners, that process cannot be characterized as anything close to consultation, in any international legal understanding of the term. Consultations must involve a serious engagement with the community, with a genuine and sincere ambition to reach consensus. 3.6 Regarding the State party’s higher international obligation to obtain the free, prior and informed consent of the Sami community affected by a mining project, the petitioners recall that one of the consequences of the fundamental right to traditional property, or traditional territory, is the right to control access to the land, according to article 26 of the United Nations Declaration on the Rights of Indigenous Peoples, endorsed by United Nations treaty bodies,6 which reaffirms that indigenous peoples’ property rights over land embrace the right to offer or withhold their consent to enterprises that seek access to the land in cases of such negative impacts of mining on indigenous peoples’ traditional livelihoods. The petitioners also refer to a report by the Special Rapporteur on the rights of indigenous peoples, according to which expropriation of land used by indigenous peoples constitutes a limitation of indigenous property rights and a valid public purpose is not found in mere commercial interests or revenue-raising objectives, and certainly not when benefits from the extractive activities are primarily for private gain.7 According to the petitioners, the State party is rather selective when referring to this report by the Special Rapporteur, omitting to note that “extractive activities should not take place within the territories of indigenous peoples without their free, prior and informed consent”,8 or the narrow scope of permissible exceptions to the general rule. Only in “exceptional cases” may the State legally impose infringements on this right to property, and only provided that certain criteria are met. The petitioners claim that the proportionality test – essential to all expropriation assessments – was not even undertaken. There was no attempt made during the process of granting the concessions to establish whether the narrow scope for exception from the right to consent applied to the case. Indeed, having acted without the petitioners’ consent, the State party must demonstrate that the granting of the concessions was motivated by a legitimate aim and was proportionate. However, the legislative framework does not require that the State party determine whether the granting of the permit complies with the reindeer herding community’s property right; rather, the State party only discussed the relevance of reindeer herding to the culture in Sweden in general. The State party’s assertion that, although the community cannot practise reindeer herding in Rönnbäcken isthmus, it can do so elsewhere, did not take into account the cumulative effects, the fact that the Vapsten community is already hosting other mines and that, in previous cases related to exploitation concessions, Rönnbäcken isthmus was defined as the area “elsewhere” in which reindeer herding could be practised. The petitioners are left with an unreasonable burden as a result of the infringement. The mining system will have fundamental and multiple negative impacts on its reindeer herding. Indeed, even though the mining system does not consume a major part of the total traditional territory, the concessions will destroy an area of pasture land that is absolutely vital to the reindeer herding community in the spring and autumn seasons, and, due to the topography, will cut off the only migration route between the mountainous pasture areas in the west and the forested areas in the east. The petitioners illustrate the situation with an analogy with a house: a few steps in the stairs between the first and second floors make up only a few square metres of a house; nevertheless, if those steps are taken away, it is impossible to use the entire second floor. The petitioners also claim that the fact that no attempt has been made to reach an agreement on compensation is an aggravating factor in a proportionality test, even though they affirm the 6 7 8 The petitioners refer to E/C.12/COL/CO/5, CERD/C/KHM/CO/8-13, para. 16, and CERD/C/SWE/CO/19-21, para. 17, according to which prior consent of indigenous peoples should be required before industrial concessions are granted when the projects in question may affect the rights of those peoples. The petitioners also refer to the Views of the Human Rights Committee in Poma Poma v. Peru (CCPR/C/95/D/1457/2006). A/HRC/24/41, para. 35. Ibid., para. 27. 7