(b)
The two roads form "open wounds" in
the forests with, on the immediate site, all the
negative effects of logging;
respect, but Finnish courts have been reluctant to
accept standing of any others than the landowners;
the authors cite several judgements in support of
their contention.
(c)
The roads have changed the pattern of
reindeer movements by dividing the wilderness,
thereby making it far more difficult to keep the herd
together;
7.2 Inasmuch as the alleged direct applicability of
article 27 of the Covenant is concerned, the authors
claim that while this possibility should not
theoretically be excluded, there is no legal precedent
for the direct application of article 27. The State
party therefore wrongly presents a hypothetical
possibility as a judicial interpretation. The authors
reaffirm that no available and effective remedies
exist in relation to road construction and other
measures in the "residual area", which consists
exclusively of state-owned lands. The Government's
reference to the fact that the Covenant is
incorporated into the domestic legal system cannot
be deemed to prove that the domestic court practice
includes even elementary forms of the approach now
put forth by the State party, for the first time, to a
United Nations human rights treaty body.
(d)
Any roads built into the wilderness
bring tourists and other traffic, which disturb the
animals;
(e)
As the Government has failed to
provide reasonable justifications for the construction
of the roads, their construction violates the authors'
rights under article 27, as a mere preparatory stage
for logging within their area.
7.6 Concerning the State party's assessment of
logging operations in the areas designated by the
communication, the authors observe that although the
area in question is a small part of the Sami areas as a
whole, logging within that area would re-start a
process that lasted for centuries and brought about a
gradual disintegration of the traditional Sami way of
life. In this context, it is noted that the area in question
remains one of the most productive wilderness areas
used for reindeer herding in Finnish Lapland.
7.3 The authors challenge the State party's
assessment of the impact of road construction into
the area designated in their communication on the
enjoyment of their rights under article 27. Firstly,
they object to the State party's interpretation of the
scope of the provision and argue that if the
applicability of article 27 depended solely on
whether the minority practices its "livelihood in the
traditional manner", the relevance of the rights
enshrined in the provision would be rendered
nugatory to a large extent. It is submitted that many
indigenous peoples in the world have, over time and
owing to governmental policies, lost the possibility
to enjoy their culture and carry out economic
activities in accordance with their traditions. Far
from diminishing the obligations of States parties
under article 27, such trends should give more
impetus to their observance.
7.7 Still in the context of planned logging
operations, the authors submit the reports of two
experts, according to which: (a) under certain
conditions, reindeer are highly dependent on lichens
growing on trees; (b) lichen growing on the ground
are a primary winter forage for reindeer; (c) old
forests are superior to young ones as herding areas;
and (d) logging negatively affects nature-based
methods of reindeer herding.
7.8 The authors insist that the area designated in
their communication has remained untouched for
centuries, and that it is only in the context of the
coming into force of the Wilderness Act that the
Central Forestry Board began its plans for logging in
the area. They further contend that if it is true, as
claimed by the State party, that highlands (above
300 metres) are in practice free of Board activity,
then their herding area should remain untouched.
However, the two roads built into their area partly
run above the 300 metre mark, which shows that
such areas are well within the reach of Board
activities. In this context, they recall that all of the
area delineated in their complaint is either above the
300 metre mark or very close to it; accordingly, they
dismiss
the
State
party's
claim
that
only 1,400 hectares of the area are highlands.
Furthermore, while the authors have no access to the
internal plans for logging in the area drawn up by the
Central Forestry Board, they submit that logging
of 18 per cent of the total area would indeed affect a
major part of its forests.
7.4 While Finnish Sami have not been able to
maintain all traditional methods of reindeer herding,
their practice still is a distinct Sami form of reindeer
herding, carried out in community with other
members of the group and under circumstances
prescribed by the natural habitat. Snow scooters have
not destroyed this form of nomadic reindeer herding.
Unlike Sweden and Norway, Finland allows reindeer
herding for others than Samis; thus, the southern
parts of the country are used by herdsmen's
committees, which now largely resort to fencing and
to artificial feeding.
7.5 As to the impact of road construction into
their herding area, the authors reiterate that it
violates article 27 because:
(a)
Construction work already causes noise
and traffic that has disturbed the reindeer;
9
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