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Article Finland: Supreme Court Rules on Sámi Indigenous Rights to Fish

On April 13, 2022, the Finnish Supreme Court ruled in two cases that members of the Sámi indigenous people were not legally responsible for having violated joint Finnish-Norwegian rules on fishing, dismissing the cases on the basis of provisions in the Finnish Constitution and the United Nations International Convention on Cultural and Political Rights (ICCPR). (Finnish Supreme Court Cases KKO:2022:25 and KKO:2022:26.)

One of the two cases involved the violation of fishing outside the seasonally accepted period, while the other concerned fishing without a legally required permit.

Finnish Law on Fishing Rights

The Ministry of Agriculture and Forestry has set limits on the right to fish in designated areas to protect the sustainability and biodiversity of fish species. (52 § Act on Fishing Kalastuslaki (FFS 379/2015).) Border areas, such as the Tenjoki River in northern Finland, are subject to fishing agreements between the Finnish and Norwegian governments. Section 2 of the Fishing Act provides that the Finnish Ministry of Agriculture and Forestry and the Norwegian government may stipulate exemptions and exceptions for the Sámi to the Fishing Act and other fishing rules.

At the time of the fishing rule violations, Finland and Norway jointly regulated fishing in the Utsjoki River by the Decree on Fishing in Tenojen (297/2017) (the Tenjoki Tributary Decree) (Valtioneuvoston asetus kalastuksesta Tenojoen vesistön sivuvesistöissä (297/2017)). The decree has since been repealed and replaced by the Tenjoki Tributary Decree of 2021 (Valtioneuvoston asetus kalastuksesta Tenojoen vesistön sivuvesistöissä vuonna (360/2021)).

Specifically, article 9 of Decree 297/2017 stipulated that fishing using nets be seasonally prohibited after July 31 each year. It specified no exemptions for the Sámi people.

Unauthorized fishing (luvaton pyynti) — for example, without a license or during the wrong season — is subject to punishment under chapter 28, section 10 of the Finnish Criminal Code.

Sámi Constitutional Rights

The Finnish Constitution (2 ch. 17 §) stipulates that the Sámi people have a right to their language and culture. As acknowledged by the Supreme Court, fishing in general is recognized as an exercise of the Sámi, and the Constitution Law Committee of the Finnish Parliament has deemed fishing for salmon in the Tenjoki River in particular a constitutional Sámi right.

In addition, article 107 of the Finnish Constitution provides that when a legal provision is incompatible with the Finnish Constitution, courts may not enforce it and may deem it inoperable.

Issues Before the Court

In KKO 2022:25, the issue before the Supreme Court was “whether the provision in section 9 of the Tenojoki Tributary Decree restricting fishing using a stationary net was incompatible with the Constitution” when the fishing was performed by a local member of the Sámi people. Similarly, the court in KKO 2022:26 had to determine whether fishing without a permit constituted an offense when the perpetrator was Sámi and had a right to fish protected under the Constitution of Finland and international human rights treaties.

In both cases, the Sámi fishers argued that their rights to cultural expression under the ICCPR and the Finnish Constitution guaranteed them a right to fish that the applicable prohibitory provisions infringed.

Supreme Court Findings

In both cases, the Supreme Court determined that the pursuit of traditional fishing is a form of the Sámi cultural heritage. However, the court found that the right to fish in the relevant waters was not absolute and could be restricted, provided that the “restrictions were proportionate to the benefit sought.” (KKO 2022:25 case summary in English.)

In KKO 2022:25, the provisions in the Tenojoki Tributary Decree had shortened the period during which salmon could legally be caught using traditional nets  by one and a half months compared to the prior decree. The court found that the “extension of the fishing restriction to Sámi fishing with stationary nets in a season especially important to them was not proportionate in view of the state of the salmon stock at that time.” Because sustaining the salmon stock levels is beneficial also to the Sámi — as a complete depletion of the species would prevent fishing in the future — restrictions on the Sámi rights were acceptable, in principle, when proportionate. The relevant test to determine proportionality is whether less intrusive measures can achieve the same result. The court found that, at the time, the measures chosen were not proportionate. The Supreme Court also referred to previous communication from the Finnish Constitutional Law Committee, which found that the fishing restrictions placed on persons who do not have fishing rights that are protected under the Constitution and article 27 of the ICCPR should be increased before limiting the rights of the Sámi. Referring to article 107 of the Constitution, the court dismissed the case as incompatible with the Constitution, finding the provisions inoperable. (KKO 2022:25 case summary in English.)

KKO 2022:26 concerned fishing without a permit. In that case, the court found that the provisions infringed the Sámi rights because the number of fishing permits available was limited, and the local Sámi people, despite their constitutionally protected right to fish, were not given preference when the permits were awarded. The claims of unauthorized fishing against the Sámi individuals were therefore dismissed as incompatible with the Constitution.

Future Restrictions on Sámi Fishing in Tenjoki

On April 21, 2022, the Finnish government, following negotiations with Norway concerning the Tenojoki River, proposed that fishing for salmon in the Tenojoki River should be completely banned in 2022, while allowing for an increase of fishing quotas for other species. The government proposal (56/2022) cites diminishing salmon stock, as described in the report Status of the Tana/Teno River Salmon Populations in 2021, as the reason for the ban.

If passed by the parliament, the new rules would apply as of June 1, 2022, and ban all fishing of salmon through the end of 2022.

The Sámi Parliament in Finland has demanded that the 2022 proposal reflect the Finnish Supreme Court decisions, arguing that a total ban on fishing salmon would be inconsistent with those decisions.

On April 26, 2022, the Finnish Parliament referred the proposal to the Agriculture and Forestry Committee for further review. The Constitutional Law Committee will also provide the parliament with a statement on the constitutionality of the bill.

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Chicago citation style:

Hofverberg, Elin. Finland: Supreme Court Rules on Sámi Indigenous Rights to Fish. 2022. Web Page. https://www.loc.gov/item/global-legal-monitor/2022-05-09/finland-supreme-court-rules-on-sami-indigenous-rights-to-fish/.

APA citation style:

Hofverberg, E. (2022) Finland: Supreme Court Rules on Sámi Indigenous Rights to Fish. [Web Page] Retrieved from the Library of Congress, https://www.loc.gov/item/global-legal-monitor/2022-05-09/finland-supreme-court-rules-on-sami-indigenous-rights-to-fish/.

MLA citation style:

Hofverberg, Elin. Finland: Supreme Court Rules on Sámi Indigenous Rights to Fish. 2022. Web Page. Retrieved from the Library of Congress, <www.loc.gov/item/global-legal-monitor/2022-05-09/finland-supreme-court-rules-on-sami-indigenous-rights-to-fish/>.