State party's observations on the merits

2.1 The State party submitted observations on the merits on 4 May 2016. It reiterates its previous submissions that the Act on the Sami Parliament provides a definition of a Sami. In 2012, the Ministry of Justice established a working group to prepare a proposal for the revision of the Act. The memorandum of the working group stated that the overall objective of the revision was to improve the operational preconditions of Sami cultural autonomy and of the Sami Parliament. Based on the proposal of the working group, a bill was submitted to the national Parliament in September 2014, which contained, inter alia, provisions for the revision of the definition. The proposed definition was supported by the Sami Parliament. During the discussion of the bill at the parliamentary committee level, it became clear that the Parliament of Finland would not approve the definition proposed. Since the question of the definition was the most important part of the bill, the Government decided, on 12 March 2015, to withdraw the bill. The Ministry of Justice intends to present a new bill to the Parliament of Finland.

2.2 The State party indicates that, in 2009, in its concluding observations on the seventeenth to nineteenth periodic reports of the State party, the Committee on the Elimination of Racial Discrimination reiterated that the State party's approach to the definition of who may be considered a Sami under the Act on the Sami Parliament and the interpretation provided thereon by the Supreme Administrative Court was too restrictive.Footnote ² In 2012, in its concluding observations regarding the twentieth to twenty-second periodic reports of Finland, the same Committee noted that although the Supreme Administrative Court had relied on that Committee's prior concluding observations in its 2011 decision defining who was a Sami entitled to vote for Members of the Sami Parliament, that decision gave insufficient weight to the Sami people's rights, recognized in the United Nations Declaration on the Rights of Indigenous Peoples, to self-determination (art. 3), in particular their right to determine their own identity or membership in accordance with their customs and traditions (art. 33), as well as their right not to be subjected to forced assimilation or destruction of their culture (art. 8). Accordingly, that Committee recommended that, in defining who was eligible to vote for Members of the Sami Parliament, the State party should accord due weight to the rights of the Sami people to self-determination concerning their status within Finland, to determine their own membership, and not to be subjected to forced assimilation.Footnote ³

2.3 As regards the definition of the Sami, the Government respects self-identification as a key criterion for the determination of a group of persons or an individual as indigenous, as stipulated, inter alia, by article 1 (2) of the Indigenous and Tribal Peoples Convention, 1989 (No. 169) of the International Labour Organization (ILO). The Government also respects the Sami Parliament's right to determine its membership in accordance with Sami customs and traditions. Accordingly, measures have been taken to protect the identity of the Sami people and the rights of its members to enjoy and develop their culture and language in community with the other members of the indigenous community. These measures respect articles 2 (1) and 26 of the Covenant.

2.4 The State party recalls general comment No. 25 (1996) on participation in public affairs and the right to vote (para. 2), in which the Human Rights Committee states that the rights under article 25 of the Covenant are related to, but distinct from, the right of peoples to self-determination. By virtue of the rights covered by article 1 (1) of the Covenant, peoples have the right to freely determine their political status and to enjoy the right to choose the form of their constitution or government. Article 25 deals with the right of individuals to participate in those processes that constitute the conduct of public affairs. Those rights, as individual rights, can give rise to claims under the Optional Protocol.

2.5 As article 25 deals with the right of individuals to participate in those processes which constitute the conduct of public affairs, the State party emphasizes that the right to vote at the elections of the Sami Parliament is established by law. In this regard, the Government has taken measures to ensure that all persons entitled to vote are able to exercise that right.

2.6 In principle, voting in the elections is based on a certified electoral roll. However, the Act on the Sami Parliament provides for a procedure by which a person may, through a demand for rectification, request to be entered on the electoral roll if he or she considers that he or she has been unlawfully omitted from it. Ultimately the matter may be referred to the Supreme Administrative Court on appeal. Therefore, section 26d of the Act stipulates that a person can vote if before the counting of the ballots they produce to the Election Committee, or on election day to the polling committee, an order of the Court confirming their right to vote. The person is also obliged to hand over the court order or a certified copy of it to the Election Committee or the polling committee for an entry to this effect to be made in the electoral roll.

2.7 The State party reiterates its arguments regarding admissibility. It concludes that no violations of the Covenant have taken place in the present case.

Author's comments on the State party's observations on the merits

3.1 The author submitted comments on the State party's observations on 28 November 2016. The author reiterates that the Supreme Administrative Court decisions of 30 September 2015 violated the rights of the author and her fellow members of the Sami indigenous people under article 26, both on its own and in conjunction with article 1, of the Covenant. A close analysis of the 182 Court rulings of 30 September 2015, in which 93 persons were added to the electoral roll and the remaining applications rejected, shows that the Court ignored the explicit statutory criteria spelled out in section 3 of the Act on the Sami Parliament and applied its own indeterminate construction of “overall consideration”, resulting in lawlessness, unforeseeability, arbitrariness and, ultimately, discrimination, as identical cases were treated differently and different cases identically. The rulings did not only adversely affect persons whose applications were rejected as a result of being treated differently from others who were admitted. The author and all Sami were affected by this arbitrariness, which hinders the capacity of the Sami Parliament to represent the Sami indigenous people and its individual members, and violates article 26, read in conjunction with article 1, of the Covenant.

3.2 The main principles enshrined in the Act on the Sami Parliament show that the Parliament's effective functioning and capacity to adequately represent the views of the Sami indigenous people are essential for the State party's implementation of articles 25 and 27 of the Covenant. The Parliament is an important instrument for the Sami, individually and collectively, to enjoy and exercise their rights under articles 25 and 27 of the Covenant. Section 9 of the Act, in particular, imposes upon all authorities an obligation to negotiate with the Sami Parliament in a long list of matters that concern the Sami as an indigenous people or developments within the Sami Homeland. Therefore, the recent court rulings violate those provisions. Through the violations of articles 25, 26 and 27, the State party also violates the right of the Sami indigenous people to enjoy their right of self-determination, as protected under article 1 of the Covenant.

3.3 Under the current composition, the Sami Parliament continues to defend the rights and interests of the Sami indigenous people, but often this is delayed or compromised because of the time and effort that is consumed in resolving internal disagreements that very often relate to the question of how the Parliament should relate to the State of Finland and its continuing interventions on Sami lands and the impact thereof on livelihoods. As a result, the Parliament was unable to stop the Government and Parliament of Finland from enacting a new act on the government forestry agency,Footnote ⁴ thus ignoring the concerns of the Sami people and denying their future participation.

3.4 A similar ongoing development relates to a new draft treaty between Finland and Norway concerning the common border along the River Teno. The Sami have largely been excluded from effective participation in the negotiations between the two Governments, despite the fact that, since time immemorial, this river has been used by the Sami for salmon fishing. This activity has always constituted the main source of livelihood for the local Sami population and is part of their way of life and culture. It determines their social organization, weekly and annual cycle of work, cross-border cooperation, handicrafts and arts, and folklore. The aim of the project is publicly presented as seeking to protect the sustainability of the salmon stock, while in fact it would constitute large-scale expropriation of the immemorial fishing rights of the Sami indigenous people. It would permanently exclude large parts of the Sami currently allowed to practice traditional forms of fishing, while at the same time disproportionally allowing holidaymakers to practice this activity. This is another practical example of the impact of the Court rulings of 30 September 2015, not only on the lives of the author and her fellow members of the elected Sami Parliament but also on the lives of all Sami in Finland.

3.5 The Supreme Administrative Court's consultation with the Board of the Sami Parliament before issuing its rulings of 30 September 2015 was a mere formality. In September 2015, the Sami Parliament was confronted with almost 200 simultaneous appeals by persons who sought to be enrolled on the electoral list. The Court gave it only between three and five working days to respond. The Board did its best to provide individualized assessments by determining whether the conditions prescribed in section 3 of the Parliament Act had been met. However, the views and arguments of the Sami Parliament did not affect the conclusions of the Court, which were based not on a proper factual assessment and legal interpretation of the Act on the Sami Parliament but, in most cases, on what the Court characterized as an “overall consideration” and “human rights-friendly interpretation of the law”, without a basis in factual circumstances or proper legal assessment, and without reference to the Covenant, the rights of indigenous peoples or any other specific individual human right.

3.6 The present case originates from the expansive application, especially by the Supreme Administrative Court, of section 3 of the Act on the Sami Parliament. With respect to the 2011 elections to the Sami Parliament, the Court deviated from the wording of the Act to include in the electoral roll individuals who did not meet any of the objective criteria of section 3 in addition to the subjective criterion of individual self-identification. Those rulings triggered a recommendation by the Committee on the Elimination of Racial Discrimination, in 2012, calling on Finland to give more weight to Sami self-determination in decisions concerning inclusion on the electoral roll.Footnote ⁵ The rulings also resulted in a negotiation process between the Government and the Sami Parliament. A solution that satisfied the Sami was reached in 2013 and the related bill was presented to the national Parliament in September 2014. The bill did not get enough support, largely because of pressure from the non-Sami majority population in northernmost Finland. This allowed the Court to continue its expansive application of section 3 beyond its wording.

3.7 The author does not object to the Court being entitled in principle to review the application of section 3 of the Act by the pertinent bodies of the Sami Parliament. However, in order to be compatible with the Covenant, the standard for external judicial review of the decisions of those bodies should be arbitrariness or discrimination. The Court, however, did not conclude in any of the 93 cases that the decisions by the pertinent organs of the Parliament not to accept the individuals in question as eligible voters amounted to arbitrariness or discrimination.

3.8 The author adds that the Court's ruling of 13 January 2016 constitutes a new violation of the rights of the author and her fellow members of the Sami indigenous people under articles 25 and 27, read alone and in conjunction with article 1, of the Covenant. The ruling weakened the capacity of the Sami Parliament to defend the rights and interests of the Sami indigenous people, including the rights of the author and other Sami individuals to enjoy their culture in community with other members of the group. As a result of the ruling the Sami Parliament had to pay the legal costs of the 27 people who contested the decision to hold new elections, amounting to €11,645. This has put an important financial burden on the Parliament's already very limited budget.

State party's further explanations

4.1 By notes verbales dated 27 July 2017, 29 November 2017 and 12 July 2018, the State party responded to the Committee's request for further explanations. It reiterates that the author failed to substantiate in what way she has been directly affected by the Supreme Administrative Court rulings. A person entitled to vote should be free to vote for any candidate and the State party will always respect the results of genuine, democratic elections of the Sami Parliament. The State party also will not take a stand on any possible internal disagreements within the Sami Parliament.

4.2 Currently, three different communications regarding the same subject matter are pending before treaty bodies, two before the Human Rights Committee and one before the Committee on the Elimination of Racial Discrimination. The other communication submitted to the Human Rights Committee was submitted on behalf of 25 persons, two of whom are members of the Sami Parliament. The communication submitted to the Committee on the Elimination of Racial Discrimination was submitted on behalf of the members of the Sami Council and 23 persons, two of whom are members of the Sami Parliament.

4.3 Section 14 of the Act on the Sami Parliament provides that the Sami Parliament is to appoint an Election Committee. Section 26 (as amended in 2002) stipulates that individuals who believe they have been unlawfully omitted from the electoral roll can request the Election Committee to rectify the matter urgently. This decision can be appealed to the Board of the Sami Parliament. Pursuant to section 26b (as amended in 2002), Board decisions can be appealed to the Supreme Administrative Court within 14 days of the date when the person concerned received notice of the decision. The Court supervises the lawfulness and uniformity of the decisions taken.

4.4 A recent report of the Prime Minister's OfficeFootnote ⁶ indicates that the Supreme Administrative Court decisions of 2011 and 2015 applied the recommendations issued by the Committee on the Elimination of Racial Discrimination in its concluding observations regarding the ninth, tenth and seventeenth to nineteenth periodic reports of Finland to better take into account an individual's self-identification within the Sami definition.Footnote ⁷

4.5 The Act on the Sami Parliament addresses the obligation of public authorities to negotiate with the Sami Parliament in its section 9, which states:

1. (1) The authorities shall negotiate with the Sámi Parliament in all far-reaching and important measures which may directly and in a specific way affect the status of the Sámi as an indigenous people and which concern the following matters in the Sámi homeland:

   1. (1) community planning;

   2. (2) the management, use, leasing and assignment of state lands, conservation areas and wilderness areas;

   3. (3) applications for licences to stake mineral mine claims or file mining patents;

   4. (4) legislative or administrative changes to the occupations belonging to the Sámi form of culture;

   5. (5) the development of the teaching of and in the Sámi language in schools, as well as the social and health services; or

   6. (6) any other matters affecting the Sámi language and culture or the status of the Sámi as an indigenous people.

2. (2) In order to fulfil its obligation to negotiate, the relevant authority shall provide the Sámi Parliament with the opportunity to be heard and discuss matters. Failure to use this opportunity in no way prevents the authority from proceeding in the matter.

4.6 On 8 November 2017, the Ministry of Justice appointed a committee to draft a number of amendments to the Act on the Sami Parliament. The mandate of its work was derived from the fundamental rights and other obligations imposed by the Constitution of Finland, international human rights treaties binding on Finland and the United Nations Declaration on the Rights of Indigenous Peoples. The committee also took into account the initialled Nordic Sami Convention and the ILO Indigenous and Tribal Peoples Convention. The proposed amendments include modifications to the right to vote in elections to the Sami Parliament. The relevant provision as modified would, like the criteria currently in force, require both subjective consent and the fulfilment of certain objective criteria: that the person, or at least one of his or her parents, grandparents or great-grandparents, has learned Sami as his or her first language or that at least one of the parents has been included in the electoral roll. The proposed text is largely similar to the corresponding provision of the initialled Nordic Sami Convention. Another proposed modification provides for an obligation for State authorities to cooperate and negotiate with the Sami Parliament on certain matters that may affect the status of the Sami; however, this would not imply that the Sami Parliament has a right to veto decisions by other bodies.

4.7 Modifications to the procedures for inclusion on the electoral role are also being proposed. These include a proposal for an extension of the time limits for seeking inclusion in the electoral roll, to allow sufficient time for considering applications and possible requests for review by the Election Committee. An independent and autonomous review committee, comprising a chair who is legally trained and three members, would be created to review the decisions of the Election Committee in case of appeal. The review committee's decisions could be appealed to the Supreme Administrative Court. The goal is to have the amendments to the Act on the Sami Parliament enter into force in sufficient time before the next Sami Parliament elections, to be held in 2019. The Sami Parliament has not yet considered the current draft, and the Government will not proceed without the Sami Parliament's consent.

Author's further explanations

5.1 By letters dated 23 February 2017, 28 July 2017, 13 April 2018 and 3 August 2018, the author responded to the Committee's request for further clarifications.

5.2 The author first emphasizes that she submitted the communication on her own behalf and on behalf of the members of the Sami indigenous people in Finland, as authorized by the Board of the Sami Parliament. This authorization follows the criteria established by the jurisprudence of the Committee in Lubicon Lake Band v. Canada. Footnote ⁸ She therefore requests the Committee to take into account the individual and collective dimensions of the case, as well as her right to represent all members of her group.

5.3 Any communications submitted by another individual concerning the same conduct by the State party does not affect the author's right to present a communication or her right to represent other members of her group.

5.4 In view of the Committee's admissibility decision, the author modifies her request for an effective remedy and requests that such remedies include: (a) a public apology for the violations of the rights of the author and the Sami indigenous people to non- discrimination, to political participation and to enjoy their own culture interpreted in the light of their right to self-determination; (b) immediate discontinuation of ongoing legislative, treaty-making or administrative processes that would significantly affect the rights and interests of the Sami indigenous people where the free, prior and informed consent of the Sami has not been obtained; (c) immediate initiation of an amendment to section 3 of the Act on the Sami Parliament, towards defining the criteria for eligibility to vote in Sami Parliament elections in a manner that respects the right of the Sami people to exercise self-determination and that limits the external judicial review by State courts of decisions taken by the organs of the Sami Parliament to situations where a decision has been arbitrary or discriminatory; (d) compensation of the Sami Parliament for the legal fees it paid as a result of the ruling of 13 January 2016; (e) compensation of the Sami Parliament for its own legal expenses involved in litigation in matters pertaining to the 2015 elections.

5.5 The author argues that the State party does not refer to the two most recent concluding observations issued by the Committee on the Elimination of Racial Discrimination, in which that Committee considered that the rulings of the Supreme Administrative Court gave insufficient weight to the self-determination of the Sami people.Footnote ⁹

5.6 With respect to the process for drafting amendments to the Act on the Sami Parliament, the current proposal satisfies the Sami. This process would partially remedy the author's claims for Covenant violations, but would not end the ongoing effects of these violations. In fact, by submitting information on the proposed changes to the Act, the State party is implicitly admitting that the interpretation by the Supreme Administrative Court of current section 3 violated the Covenant. In addition, half the members of the drafting committee are not Sami and belong to political parties predominantly voted for by non- Sami Finns, when the matter discussed should be decided by the Sami alone. Additionally, a transition clause has been included in the current draft, delaying the entry into force of the amendments to at least 2020. The current draft thus does not ensure free, prior and informed consent of the Sami people, a requisite reflected in the United Nations Declaration on the Rights of Indigenous Peoples and referred to in the Human Rights Committee's jurisprudence.Footnote ¹⁰ The Sami people therefore confront a dilemma: section 3 of the Act will be amended only if they consent to the current proposal, but the proposal does not adhere to international standards regarding free, prior and informed consent. Moreover, an attempt to reform the Act failed in the past,Footnote ¹¹ and there is no assurance that the proposal will be accepted this time.

5.7 The author refers to some Supreme Administrative Court decisions in response to the Committee's question regarding the Court's assessment in the 93 rulings and its interpretation of the definition of Sami contained in the Act on the Sami Parliament. In the first example,Footnote ¹² the Sami Parliament had rejected the appellant's request because she did not meet the objective criteria contained in section 3 of the Act. The Court agreed that the appellant did not meet those criteria, but then found that she had demonstrated a strong devotion to Sami language and culture. It concluded that, in an overall consideration, the appellant should be regarded as a Sami. The author also presents the examples of two siblings with the same family history.Footnote ¹³ The appeal of one was accepted under the Court's “overall consideration” rationale, while the sibling's appeal was rejected. The only difference between those two appeals was the appellants' description of their self- identification as a Sami. The Court's assessment thus relies on self-identification of each individual as a Sami, which interferes with the Sami people's right to self-determination and their aspiration to apply the law in a foreseeable and coherent manner. The author wishes to highlight that two of these rulings have been published in FINLEX, the Ministry of Justice database for Finnish legal documents, which implies that they are considered authoritative legal precedents. The author also refers to a report from a research project commissioned by the Government of Finland,Footnote ¹⁴ in which the authors consider that some of the Court rulings provide different outcomes to identical claims and that it cannot be the task of the Supreme Administrative Court to determine who is a Sami in Finland, as its main task is to control the lawfulness of decisions.

5.8 Regarding the Committee's question on the impact the Supreme Administrative Court decisions have had on the functioning of the Sami Parliament, the author reiterates her previous arguments.Footnote ¹⁵ It is speculative to assess the consequences of the inclusion of new voters, because of the secrecy of ballots, but as a conservative estimate at least two Members of the Sami Parliament were elected due to modification of the electoral roll. The current composition of the Sami Parliament is also more divided, resulting in some members prioritizing Sami self-determination and indigenous people's rights and other members seeking compromises with the State of Finland and the mainstream Finnish population. This trend is also undermining the increasing leadership demonstrated by young Sami women such as the author.

5.9 In response to the Committee's question relating to forestry and other commercial activity, the obligation of consultation with the Sami Parliament established in section 9 of the Act on the Sami Parliament falls short of the current international standard reflected in the United Nations Declaration on the Rights of Indigenous Peoples and the Committee's jurisprudence.Footnote ¹⁶ Adequate guarantees were deleted from the new act on the government forestry agency. The rulings by the Supreme Administrative Court contribute towards this atmosphere of disregard towards the Sami Parliament, and the obligation of consultation is being increasingly ignored by government authorities. This tendency is further illustrated by the Ministry of Transport's announcement, in March 2018, of its plans to build a railway to the Arctic Ocean, cutting through the reindeer herding lands of the Sami and destroying their way of life, after the Sami “were heard” but not genuinely consulted.

5.10 Regarding the Committee's question on the negotiations with Norway concerning salmon fishing in the River Teno, the new bilateral treaty has been signed between the two countries, but the Sami Parliament was excluded from the negotiations. The decisive phase of the negotiations coincided with the time when the Sami Parliament was weakened by the Court rulings. The uncertainty that followed the election directly affected the Sami Parliament's capacity to successfully intervene. The new treaty will adversely affect the fishing activities and culture of the Sami people in Finland. Both the Constitutional Law Committee of the Finnish Parliament Footnote ¹⁷ and the Government's internal legality oversight officeFootnote ¹⁸ concluded that the Sami Parliament had not been duly consulted. The Parliament of Finland approved the treaty by a majority of 111 votes out of 200 Members, of which none are Sami. This lack of full consultation constitutes a separate violation of the rights of the author and her colleagues at the Sami Parliament under articles 25 and 27 of the Covenant, as informed by article 1.

5.11 Regarding the Committee's question on the impact of the Court decisions on the author's cultural and linguistic rights, the author recalls her initial claims. Footnote ¹⁹ She further notes that she is a reindeer herder and fisherwoman; the nature-based activities in which she engages have remained constitutive of her Sami identity and culture at an individual level. She sees it as an important part of her identity to transmit to the following generations her knowledge of the Sami methods of reindeer herding and fishing.

Issues and proceedings before the Committee

The facts as presented by the authors

2.1 The Sami are an indigenous people living in the northern parts of Finland, Norway and Sweden and the north-western part of the Russian Federation. At the end of the seventeenth century, hunters, fishermen and officials of the Crown began to settle in the northern parts of Finland and to exploit and tax the natural resources there. Although the Sami culture has considerably evolved, the Sami maintain a unique cultural identity. The authors submit that the Sami culture has been under pressure, that many members of the Sami indigenous people have adopted Finnish culture and that many have faced discrimination and racism when they have supported the rights of the Sami indigenous people in public. The authors are active members of the Sami community and participate in its traditions and culture.

2.2 The Constitution of Finland contains two provisions regarding the Sami. Section 17 stipulates that “the Sami, as an indigenous people, as well as the Roma and other groups, have the right to maintain and develop their own language and culture.” Section 121 states that “in their native region, the Sami have linguistic and cultural self-government, as provided by an Act”.

2.3 The Act on the Sami Parliament (No. 974/1995) defines the functioning and powers of the Parliament. Pursuant to section 5 (1) of the Act, the task of the Sami Parliament is to “look after the Sami language and culture as well as to take care of matters relating to their status as an indigenous people”. In matters pertaining to its tasks, the Sami Parliament may take initiatives and bring proposals to the authorities, as well as issue statements (sect. 5 (2)). Section 9 stipulates that:

1. (1) The authorities shall negotiate with the Sámi Parliament in all far-reaching and important measures which may directly and in a specific way affect the status of the Sami as an indigenous people and which concern the following matters in the Sámi homeland:

   1. (1) community planning;

   2. (2) the management, use, leasing and assignment of state lands, conservation areas and wilderness areas;

   3. (3) applications for licences to stake mineral mine claims or file mining patents;

   4. (4) legislative or administrative changes to the occupations belonging to the Sámi form of culture;

   5. (5) the development of the teaching of and in the Sámi language in schools, as well as the social and health services; or

   6. (6) any other matters affecting the Sami language and culture or the status of the Sámi as an indigenous people.

2. (2) In order to fulfil its obligation to negotiate, the relevant authority shall provide the Sámi Parliament with the opportunity to be heard and discuss matters. Failure to use this opportunity in no way prevents the authority from proceeding in the matter.

2.4 The Sami Parliament is composed of 25 individuals. Elections to the Sami Parliament take place every four years and, under the Act on the Sami Parliament, every Sami has the right to vote from the age of 18. The Election Committee of the Parliament is to draw up an electoral roll of the persons with the right to vote, on the basis of the previous electoral roll and the Population Information System. The Act stipulates that “a person who before the counting of the ballots produces to the Election Committee, or on the election day produces to the polling committee, an order of the Supreme Administrative Court to the effect that he or she has the right to vote shall be reserved the opportunity to obtain the election documents and to vote”. The Act provides for a right of judicial appeal against decisions of the Election Committee and the Board of the Parliament on issues concerning inclusion on the electoral roll, so that the highest court in administrative matters, the Supreme Administrative Court, becomes the ultimate arbiter.

2.5 Section 3 of the Act states that, for the purposes of being allowed to vote in the elections for the Parliament: “A Sami means a person who considers himself a Sami provided: (1) that he himself or at least one of his parents or grandparents has learned Sami as his first language; (2) that he is a descendant of a person who has been entered in a land, taxation or population register as a mountain, forest or fishing Lapp; or (3) that at least one of his parents has or could have been registered as an elector for an election to the Sami Delegation or the Sami Parliament”.

2.6 Section 3 has been a subject of controversy. It is clear from the wording, and has been subsequently confirmed through rulings of the Supreme Administrative Court issued before 2011, that the subjective element covered by the chapeau and the objective elements mentioned in subsections 1 to 3 are cumulative in the sense that a person can be registered as a voter only if he or she both considers himself or herself as a Sami and meets at least one of the three numbered objective criteria. Furthermore, the Sami people have never accepted section 3 (2) of the Sami Parliament Act. They argue that tax records are not accurate and are not ethnic records; anyone who practiced fishing or reindeer herding in the region was registered as a taxpayer. Until 2011, the interpretation of the Court and the Sami Parliament was that section 3 (2) could not, by itself, be considered sufficient proof of a person's status as a member of the Sami indigenous people.

2.7 Several campaigns have been organized by non-Sami persons to register non-Sami persons as voters, with the aim of influencing the composition and positions of the Sami Parliament. The Election Committee of the Sami Parliament has addressed all individual registrations so that both the self-determination of the Sami as a people and the individual rights of the applicants can be respected.

2.8 On 26 September 2011, the Supreme Administrative Court adopted four controversial decisions against the decisions of the Election Committee of the Sami Parliament. The Court gave priority to an individual's wish to be registered as a voter over the objective criteria provided by the Act. Up until 2011, the Court's interpretation of section 3 of the Sami Parliament Act had been compatible to that of the Election Committee. In response to the controversy, the Government set up a drafting commission to revise the Act, so that the uncertainty created could be removed. In 2013, the commission, with the participation of the Sami, agreed to a reform, which was presented to the Parliament of Finland in 2014. However, the prospects of the bill being adopted became slim and in March 2015 the Government decided to withdraw it.

2.9 In the months prior to the 2015 elections for the Sami Parliament, hundreds of people sought registration as new voters. In many cases, the Election Committee and the Board of the Sami Parliament, as the first instances of appeal, decided that those applicants did not meet the criteria of the definition of Sami. In that regard, 182 persons appealed before the Supreme Administrative Court the decision of the Board. On 30 September 2015, the Court decided to accept the applications of 93 persons.

2.10 In a majority of those decisions, the Court stated explicitly that the person did not meet any of the objective criteria spelled out in section 3. The Court resorted to the overall consideration of the person's own “strong” opinion in considering himself or herself a Sami and ignored the explicit requirement of meeting at least one of the objective criteria. The Court justified this position as being a “constitutional rights and human rights friendly” interpretation of the law. The Court also argued that not including the appellants in the electoral roll would constitute discrimination against them.

2.11 The rulings demonstrate a lack of understanding of Sami identity, culture and way of life on the part of the Court, as many of the decisions were based on the idea that a person's strong self-identification as Sami can be proven by factors that in fact tell very little about whether the person has any connection with the Sami culture and way of life. The Court has understood membership as an individual perception, whereas the Sami way of life is embodied by its communal structure and common heritage. A Sami is not alone, but is a part of a generational and communal chain of Sami across borders.

2.12 The Court also based its findings on the concluding observations of the Committee on the Elimination of Racial Discrimination regarding the seventeenth to nineteenth periodic reports of Finland under the International Convention on the Elimination of All Forms of Racial Discrimination, in which the Committee stated that the State party's approach to the definition of who might be considered a Sami under the Act on the Sami Parliament and as interpreted by the Court was too restrictive.Footnote ¹ However, in its concluding observations regarding the twentieth to twenty-second periodic reports of Finland, the same Committee noted that although the Court had relied on that Committee's prior concluding observations in the 2011 decision defining who was entitled to vote for Members of the Sami Parliament, that decision gave insufficient weight to the Sami people's rights, recognized in the United Nations Declaration on the Rights of Indigenous Peoples, to self-determination (art. 3), in particular their right to determine their own identity or membership in accordance with their customs and traditions (art. 33), as well as their right not to be subjected to forced assimilation or destruction of their culture (art. 8). Accordingly, the Committee recommended that, in defining who was eligible to vote for Members of the Sami Parliament, the State party should accord due weight to the rights of the Sami people to self-determination concerning their status within Finland, to determine their own membership, and not to be subjected to forced assimilation.Footnote ²

2.13 The Court took full discretionary powers upon itself and nullified the capacity of the Sami Parliament to exercise a key dimension of Sami autonomy and self-determination, namely, the right to participate in a meaningful way, but under a framework based on the rule of law, in determining who was a Sami. By departing from the wording of the statute the Court created a situation of lawlessness, discrimination and arbitrariness.

2.14 Once a person is included in the electoral roll, all descendants can be included in it. This can lead to a snowball effect where persons who do not lead a Sami way of life and do not share the Sami identity can take part in the elections. The number of persons included in the electoral roll by the Court or by the snowball effect of its findings amounts currently to 1.5 per cent of the electoral roll. There are around 10,000 Sami individuals, including minor children. According to the authors, a study by a mathematician has found that there are around 512,000 living descendants of Lapp taxpayers. According to the new interpretation applied by the Court they could potentially apply to be included in the electoral roll.

2.15 Owing to the 2011 decisions by the Court, many members of the Sami people did not vote in the 2015 elections. This includes one of the authors, who requested removal from the electoral roll on 1 October 2015.

2.16 The election results were announced by the Election Committee on 6 October 2015. One of the elected candidates was a person who had been placed on the electoral roll as a result of one of the decisions by the Court against the decisions of the Election Committee and the Board of the Sami Parliament. Furthermore, one of the persons elected to the Sami Parliament won having received a total of 81 votes, demonstrating that with such a small electoral roll, the 4 rulings of 2011 and the 93 rulings of 2015 have a direct impact.

2.17 On 18 November 2015, the Board of the Sami Parliament accepted demands to rectify the election results on the basis that the Court had erroneously accepted the 93 persons as entitled to vote. As a result, the Board decided to hold a new election in 2016 on the basis of the electoral roll certified on 20 August 2015 (prior to the Supreme Court decisions of 30 September 2015). Appeals against that decision were filed with the Supreme Administrative Court. On 13 January 2016, the Court quashed and set aside the Board's decision. The Court held that the Board had no competence to take up a matter and legal issues already adjudicated by the Court, and that the decisions of the Court were binding upon the Board. Therefore, the decision of the Board to hold new elections was unlawful.

The complaint

3.1 The authors claim that the decisions of the Supreme Administrative Court granting the right to vote to individuals who had not been considered eligible by the competent organs of the Sami Parliament amount to a direct intervention of the State party into a core area of the enjoyment and exercise of the Sami indigenous people's right to self-determination protected under article 1 of the Covenant. The Court decisions also constitute an intervention in the Sami people's right to define their own identity. In paragraph 2 of its general comment No. 12 (1984) on the right to self-determination, the Committee considers that the right of self-determination is an essential condition for the effective guarantee and observance of individual human rights and for the promotion and strengthening of those rights. Additionally, in Mahuika et al. v. New Zealand, as read by the authors, the Committee held that the right to self-determination is inherently connected to article 27 and that States parties are required to provide indigenous peoples greater influence in the decision-making processes in matters that affect their natural environment, their means of subsistence and their culture.Footnote ³

3.2 By including non-Sami persons in the electoral roll of the Sami Parliament, the Court has corrupted the representative value of the Parliament, affecting the right of Sami persons to effective participation in public affairs. For this reason, one of the authors decided to request removal from the electoral roll.

3.3 The Court decisions reveal a clear lack of understanding of the Sami culture and identity. However, in order for the Sami to be considered equal before the law and for courts to take informed decisions, the courts need to be able to understand the Sami identity. In the absence of this expertise in the Supreme Administrative Court, the Sami people cannot be equal before the law as mandated by article 26 of the Covenant.

3.4 On the basis of section 3, subparagraph 3, of the Act on the Sami Parliament, hundreds of the new voters' relatives may seek registration as voters in future elections, which will be an additional step in the forced assimilation of the Sami into the mainstream population through the gradual takeover of the Sami Parliament by members of the ethnically Finnish population resident in the northernmost municipalities of Finland, where members of the Sami people constitute a minority. If non-Sami people are integrated into the Sami Parliament, the institution will become a regional representative organ and will no longer represent the Sami indigenous people. This would constitute irreparable damage for the rights of the Sami under the Covenant, as it would undermine their autonomy in matters pertaining to their internationally protected rights to enjoy their culture, to political participation and to self-determination.

3.5 The intervention of the Supreme Administrative Court impedes the enjoyment by the Sami people of their right to use their language and enjoy their culture in community with other members of the group. The traditional Sami livelihoods, language and identity are endangered by discrimination and forced assimilation. In this context, the Sami Parliament is an essential institution to ensure the survival and continued development of the Sami culture. Pursuant to section 6 of the Act on the Sami Parliament, the Sami Parliament represents the Sami people in national and international matters. Section 9 imposes upon all authorities an obligation to negotiate with the Sami Parliament in a long list of matters that concern the Sami as an indigenous people or developments within the Sami homeland. This demonstrates how the Sami Parliament's effective functioning and capacity to adequately represent the views of the Sami people are essential for the implementation by Finland of article 27 of the Covenant. Therefore, including non-Sami persons in the electoral roll corrupts the Sami Parliament's role as a representative of Sami interests and hinders its capacity to protect the rights enshrined under article 27 of the Covenant.

3.6 In Diergaardt et al. v. Namibia, the Committee considered that the link of the Rehoboth community to the lands covered by its claims, although dating back 125 years, was not a relationship that would have formed a distinctive culture.Footnote ⁴ The persons who were included in the electoral roll by the Supreme Administrative Court had similar arguments to those of the authors in Diergaardt et al. v. Namibia: they should be considered Sami because they lived, and their ancestors had lived, in the same area as the Sami people.

3.7 There are no effective domestic remedies for the authors to exhaust. Pursuant to section 26 of the Act on the Sami Parliament, only a person who considers that he or she has been unlawfully omitted from the electoral roll or that the entry on him or her in the roll is incorrect can appeal to the Supreme Administrative Court. The Court's decisions are final and the Sami Parliament is obliged to enforce them. The Sami Parliament decided that the 2015 elections were not valid. That decision was appealed to the Supreme Administrative Court, which ruled to nullify the Sami Parliament's decision. There is no appeal possible against the Court's ruling. There are no additional effective remedies to exhaust.

State party's observations on admissibility

4.1 On 8 February and 28 July 2017, the State party submitted observations on admissibility. It notes that section 121 of the Constitution guarantees the Sami linguistic and cultural self-government within the Sami homeland area. The Act on the Sami Parliament regulates the implementation of the self-government. For the tasks relating to their self-government, the Sami elect from among themselves the members of the Sami Parliament. There are about 6,000 voters on the electoral roll; there are about 10,000 Sami in Finland. The Sami Parliament is not an authority but an independent institution, a legal person under public law. It does not safeguard a public interest as such but promotes the general interests of the Sami people.

4.2 On 28 March 2017, the Human Rights Committee declared inadmissible a claim made by Tiina Sanila-Aikio with regard to article 1 of the Covenant.Footnote ⁵ The same conclusion should be reached in the present case. In paragraph 3.1 of its general comment No. 23 (1994) on the rights of minorities, the Committee states that self-determination is not a right cognizable under the Optional Protocol to the International Covenant on Civil and Political Rights. This interpretation is reflected in the Committee's Views in Lubicon Lake Band v. Canada.Footnote ⁶ According to that criterion, the complaint under article 1 on its own cannot be considered in the present case.

4.3 The communication has been submitted on behalf of 25 authors. Of those, 23 are citizens of Finland and 2 are citizens of Norway. Of the 23 Finnish authors, 22 are listed in the current electoral roll, while the main author requested removal from the roll. Two of the authors are currently members of the Sami Parliament. The current President of the Sami Parliament, Ms. Sanila-Aikio, has submitted, with the authorization of the Board of the Sami Parliament, a communication (No. 2668/2015) with the same substance matter as the present case on behalf of the members of the indigenous Sami people of Finland. The State party submits that, should the Committee consider that Ms. Sanila-Aikio is authorized to represent the indigenous people of Finland, the 23 Finnish authors of the present communication would also be represented in that communication and it would follow that the communication would be inadmissible with regard to those authors as they could not submit the same facts to the same mechanism twice.

4.4 Another communication has been submitted on the same matter by two other members of the Sami Parliament, among other authors, to the Committee on the Elimination of Racial Discrimination. The State party recalls that under rule 86 (g) of the Human Rights Committee's rules of procedure, the communication should therefore be considered inadmissible for being examined under another procedure of international investigation or settlement.

4.5 The authors have not specified any domestic remedy that has been exhausted. It also indicates that the authors were not party as such to the proceedings decided by the Supreme Administrative Court on 26 September 2011, 30 September 2015 and 13 January 2016. In their communication the authors appear to be representing the Sami people collectively; their claim before the Committee constitutes an actio popularis. Furthermore, they have not exhausted domestic remedies, as required under article 5 (2) (b) of the Optional Protocol. As the highest domestic appellate court for administrative matters, the decisions of the Supreme Administrative Court cannot be appealed. However, as a mode of extraordinary appeal, the annulment of a decision may be requested from the Court itself.

4.6 The authors' claims before the Committee are indirect and even hypothetical violations of the rights of Sami people in general. They do not allege violations of their individual rights, do not demonstrate having been directly affected by the alleged violations of the Covenant and do not provide documentary evidence in support of their allegations. Hence, the State party considers that the authors have failed to substantiate their claims for the purposes of admissibility.

4.7 The Supreme Administrative Court thoroughly assessed the special status and rights of the Sami people, also taking into account the obligations of Finland under the Covenant. It is not for the Committee to re-evaluate the facts that have led a national court to adopt one decision rather than another, or to question the findings and conclusions of national courts.

Author's comments on the State party's observations on admissibility

5.1 On 19 September 2017, the authors submitted their comments on the State party's observations. They state that Ms. Sanila-Aikio cannot act in the name of the Sami Parliament or in the name of the Sami people without their signed consent. The authors further disagree that third parties could limit their individual rights to present a communication before the Committee. The authors clarify that they have no knowledge or access to the content of the other communications submitted to the Human Rights Committee or to the Committee on the Elimination of Racial Discrimination and that none of the authors of the communication currently being considered are part of the other two communications.

5.2 Although two of the authors are Norwegian citizens, they fulfil the requirements to be included in the electoral roll, as they are foreign citizens domiciled in Finland.

5.3 On the matter of the exhaustion of domestic remedies, it is not possible for Sami individuals to enter into a process concerning other persons' applications to be entered on the electoral roll, which is a confidential procedure. Furthermore, the extraordinary appeal against the Supreme Administrative Court's decisions is reserved for the parties involved in the process itself and is not a regular remedy. This appeal has little prospect of success since the Court would have to admit to having made an error, and such admissions are made only in very exceptional cases. The Sami Parliament appealed the 2011 decisions, but the appeal was rejected because there was no procedural error that could have materially affected the decision.

5.4 Regarding the State party's observation that the claim is unsubstantiated, the Sami people, of which the authors are members, have rights that are collective in nature. The survival and continued viability of the Sami people are already endangered; 60 per cent of the Sami population live outside the Sami homeland and only 26 per cent of the Sami people speak Sami as a native language. In such a context, and given the power that the Sami Parliament has to influence the enjoyment of the rights of members of the Sami people to maintain and practice their culture, the negative effects that the inclusion of non-Sami persons on the electoral roll has on the authors' rights under article 27 of the Covenant are more than hypothetical.

State party's observations on merits

6.1 The State party submitted observations on the merits on 28 July and 20 November 2017.

6.2 On 6 October 2015, the Election Committee of the Sami Parliament confirmed the results of the election held between 7 September and 4 October 2015. On 18 November 2015, the Board of the Sami Parliament ordered that the elections take place again using the electoral roll certified on 20 August 2015, arguing that the Supreme Administrative Court decisions of 20 September 2015 had influenced the election results and that the elections that had been held could not be considered to meet the statutory requirement of the principle of cultural autonomy protected by the Act on the Sami Parliament. However, the Board of the Sami Parliament did not have the competence to take up a matter that had already been finally adjudicated by the Supreme Administrative Court. On 13 January 2016, the Court quashed the decision of the Board, and on 23 February 2016 the newly elected members of the Sami Parliament convened their first organizational meeting.

6.3 The Supreme Administrative Court has, in its case law, paid attention to the safeguarding of the rights of the Sami indigenous people and its obligations under the Covenant. On 30 September 2015, the Court allowed 93 persons to be entered into the electoral roll of the Sami Parliament, exerting exceptional diligence and consulting both the Board of the Sami Parliament and the appellants. In reaching the decisions set out in its rulings, the Court invoked, inter alia, articles 1, 2 (1), 25, 26 and 27 of the Covenant, and the United Nations Declaration on the Rights of Indigenous Peoples. The State party reiterates that, as recently noted in a report of the Prime Minister's Office,Footnote ⁷ the Supreme Administrative Court decisions of 2011 and 2015 applied the recommendations issued by the Committee on the Elimination of Racial Discrimination in its concluding observations on the ninth, tenth, and seventeenth to nineteenth periodic reports of Finland to better take into account the individual's self-identification within Sami definition.Footnote ⁸

6.4 On 8 November 2017, the Ministry of Justice appointed a committee to draft a number of amendments to the Act on the Sami Parliament. The committee was to carry out its work in accordance with the Constitution of Finland, international human rights treaties binding on Finland, the United Nations Declaration on the Rights of Indigenous Peoples, the initialled Nordic Sami Convention and the Indigenous and Tribal Peoples Convention, 1989 (No. 169) of the International Labour Organization.

6.5 The State party is not in a position to assess to what extent the outcome of the Supreme Administrative Court rulings have, as the authors claim, influenced the Sami Parliament's integrity and legitimacy and the right to fair elections.

6.6 As regards the definition of Sami, the Government respects self-identification as a key criterion for the determination of a group of persons or an individual as indigenous, as stipulated, inter alia, by article 1 (2) of the Indigenous and Tribal Peoples Convention of the International Labour Organization. The Government also respects the Sami Parliament's right to determine its membership in accordance with Sami customs and traditions. Accordingly, measures have been taken to protect the identity of the Sami people and the rights of its members to enjoy and develop their culture and language in community with the other members of the indigenous community.

6.7 The Committee, in paragraph 2 of its general comment No. 25 (1996) on participation in public affairs and the right to vote, has indicated that the rights under article 25 of the Covenant are related to, but distinct from, the right of peoples to self-determination.

6.8 Article 25 deals with the right of individuals to participate in those processes which constitute the conduct of public affairs. The State party emphasizes that the right to vote in the elections of the Sami Parliament is established by law. In this regard, the Government has taken measures to ensure that all persons entitled to vote are able to exercise that right.

6.9 The authors have failed to substantiate direct violations of their rights under the Covenant. In general, a complaint must establish how the author has been a personal victim of the violation; it is not sufficient to establish that a law or policy amounts to a violation if the authors have not been affected by it. The authors have not been personally involved in the Supreme Administrative Court rulings and cannot be affected by them.

6.10 Accordingly, the State party asserts that no violations of the Covenant have occurred in the present case.

Author's comments on the State party's observations on merits

7.1 On 16 April 2018, the authors submitted their comments on the State party's observation on the merits.

7.2 The authors assert that the Court decisions of 26 September 2011 and 30 September 2015 have had a substantial impact on the Sami Parliament and its legitimacy. The Court's interpretation of the definition of Sami has entailed that Sami and ethnic Finns are no longer considered different in their specific culture, ethnicity and livelihoods.

7.3 The Supreme Administrative Court did not apply the Committee's interpretation of article 27 reflected in Kitok v. Sweden, where the Committee considered that a restriction upon the right of an individual member of a minority must be shown to have a reasonable and objective justification and to be necessary for the continued viability and welfare of the minority as a whole.Footnote ⁹ The inclusion of non-Sami individuals in the electoral roll of the Sami Parliament could set a precedent that could, at least theoretically, lead to 512,000 non-Sami persons being included in that electoral roll. The Sami Parliament would thus gradually represent the interests of non-Sami persons and would no longer ensure the preservation of Sami linguistic and cultural heritage, amounting to a gradual forced assimilation of the Sami people in Finland. There are already applications for inclusion in the Sami electoral roll for the next elections, which will take place in 2019. Many anti-Sami organizations are offering to assist ethnic Finns with applying and eventually appealing to the Supreme Administrative Court. There could be an economic interest in including a high number of non-Sami individuals on the electoral roll to ensure the Sami Parliament's acceptance of large-scale projects in the areas of mining, mass tourism and infrastructure.

7.4 There is already an internal dispute in the Sami Parliament, since most of its members do not recognize one of the members as a Sami person. The person was included in the electoral roll by the Supreme Administrative Court in 2011, and was elected in 2015. This has blurred the role of the Sami Parliament and affected its public image and legitimacy.

7.5 The authors disagree with the State party's statement that the Supreme Administrative Court took into account the international obligations of Finland, especially those under the Covenant. Although the Court based its findings on the recommendations of the Committee on the Elimination of Racial Discrimination contained in the concluding observations on the tenth and seventeenth to nineteenth reports of the State, it ignored those contained in the concluding observations on the twentieth to twenty-second periodic reports, in which the Committee criticized the Court's interpretation of section 3 of the Act on the Sami Parliament.

7.6 The authors submit that the Court accepted evidence that relied entirely on the State party's public administration records, such as those of church registry offices and the provincial archives of the State, and that those documents are unreliable.

7.7 Furthermore, the Supreme Administrative Court can overrule decisions by the Sami Parliament regarding the inclusion of non-Sami persons in the electoral roll. This amounts to a violation of article 1 of the Covenant, since it constitutes interference with the right of the Sami people, as represented by the Sami Parliament, to self-determine its membership.

7.8 Since the electoral roll has been compromised, the authors have proposed that a new definition of Sami be adopted and that the electoral roll be rebuilt on the basis of the new definition. However, it is not likely that the process can be finalized before the next elections. The authors note that since 1996 there have been nine different committees established to study the rights of the Sami people, with very little result. They also consider that, by proposing changes to the Act on the Sami Parliament, the State party is implicitly admitting that the interpretation by the Supreme Administrative Court of section 3 of the Act violated the Covenant.

7.9 Minorities today face a new set of challenges that endanger their rights protected by the Covenant, and these challenges are different from those faced in the 1960s, when the Covenant was being drafted. Nevertheless, the Covenant today still has a role in protecting the cultural diversity and heritage of minorities from structural assimilation.

Issues and proceedings before the Committee