KKO:2022:25 – Fishing restriction imposed on the Sámi indigenous people and its relationship to their fundamental rights (fishing offence)

Diary number: R2019/424
Issued on: 13.4.2022
ECLI:FI:KKO:2022:25

Background of the case and the issue before the Supreme Court

The public prosecutor brought a charge for a fishing offence against A, a local Sámi. According to the charge, A had fished for salmon with a stationary net in the Utsjoki river (south end of Guhkeluoppali, below Bákhtebohki) between 8 August and 10 August 2017 and again between 14 August and 17 August 2017, that is, outside of the permitted fishing period and thereby in contravention of the Government Decree on Fishing in the Tenojoki Tributaries (297/2017; the Tenojoki Tributary Decree), issued on the basis of the Fishing Act. A admitted that he had acted in the manner described in the charge, but denied that he had committed a fishing offence. The District Court dismissed the charge.

The issue before the Supreme Court was whether A had committed a fishing offence, considering his rights under the Constitution of Finland and in international human rights treaties. In particular, the issue was whether the provision in section 9 of the Tenojoki Tributary Decree restricting fishing with a stationary net was incompatible with the Constitution.

Legal provisions concerning fishing offences

According to section 118(1)(2) of the Fishing Act, a person who fishes in an area where fishing is prohibited or restricted in sections 7, 52–54, 59, 65–68, 70 or 71 or under them or in the fishing rule shall be convicted of a fishing offence and sentenced to a fine. According to section 118(1)(3) of the Act, also a person who fishes during a time prohibited under sections 52 and 53 or during a closed season laid down under section 55 or in the fishing rule or keeps fishing gear suitable for catching fish in the water during that time.

Section 52 of the Fishing Act conveys the authority to issue Decrees on the restriction of fishing. Under that provision, in a water area with a fish species or stock whose vitality or return has degraded or is in danger of degrading and in a water area important for the reproduction of a fish species or stock, a Government Decree may be issued in order to prohibit fishing during a certain time or to restrict it.

At the material time, fishing in the Tenojoki tributaries had been restricted by means of the Tenojoki Tributary Decree, issued on the basis of the Fishing Act; section 9 of the Decree concerns the legal fishing season for stationary nets. According to that section, fishing for salmon and trout with stationary nets was allowed between 1 June and 31 July from 7 p.m. each Monday until 7 p.m. each Thursday. The Supreme Court noted that after the material time, according to Decree no. 359/2021 that was in force between 1 May and 31 December 2021, fishing for salmon in the spawning areas of the Tenojoki river system had been fully prohibited. That said, the Supreme Court held that the applicable provision was the Tenojoki Tributary Decree as it had been in force at the material time.

In addition to the applicable domestic legislation, the Supreme Court referred also to the Treaty between Finland and Norway on Fishing in the Tenojoki River System (the Tenojoki Fishing Treaty), whose Article 3(1) concerns the responsibility of Finland and Norway to issue domestic legislation and regulations for the spawning areas of the Tenojoki tributaries so as to protect fish stock and to promote sustainable fishing.

Grounds for assessment

The Supreme Court noted that this was a case where it must be assessed whether the provision on the legal fishing season using stationary nets, as provided in the Tenojoki Tributary Decree, was compatible with the Constitution. The assessment turned especially on the issue of whether the restriction of the legal fishing season, resulting in it being some 1½ months shorter than it had been and in fishing being fully prohibited for the month of August, was proportionate to the cultural fishing rights of the indigenous Sámi people, as enshrined in section 17(3) of the Constitution of Finland.

According to section 107 of the Constitution, if a provision in a Decree or another statutory instrument is in conflict with the Constitution or an Act of Parliament, that provision shall not be applied by a court of law or by any other public authority.

The Supreme Court noted that under section 17(3) of the Constitution, the Sámi, as an indigenous people, have the right to maintain and develop their own language and culture. Before the enactment of the current Constitution, this fundamental right to cultural protection was laid down in section 14(3) of the Constitution Act of 1919, as introduced in the fundamental rights reform of 1995. According to the relevant preparatory works (Bill 309/1993), the provision is not limited to the protection of the language rights of minority groups, but is rather meant to cover a broader range of cultural matters important to minority groups. Accordingly, the protected Sámi culture includes e.g. reindeer herding, fishing, and hunting (see the Opinions of the Constitutional Law Committee of the Parliament of Finland 3/1990 and 8/1993). Also, after the fundamental rights reform, the Constitutional Law Committee has issued several opinions to the effect that, besides reindeer herding and hunting, also commercial fishing is an integral element of the Sámi culture (e.g., Opinions 27/1997, 29/2004, and 1/2016). According to the Constitutional Law Committee, fishing for salmon in the Tenojoki river is an integral part of the Sámi culture (Opinion of the Committee on the ratification of the Tenojoki Fishing Treaty, 5/2017).

The Supreme Court noted that this cultural fundamental right has been described also as a right within the sphere of property rights, and made reference to opinions issued by the Constitutional Law Committee. The Committee had stated in its opinion 5/2017 that fishing in the Tenojoki river was to be allowed for the Sámi, regardless of domicile, to a greater extent than that proposed, and that more strict fishing restrictions were to be directed at such fishing that was not protected by section 17(3) of the Constitution or Article 27 of the International Covenant on Civil and Political Rights (ICCPR).

The Supreme Court noted that the provisions in the Fishing Act concerning the authority to issue Decrees, which form the basis for the Tenojoki Tributary Decree, as well as the other restrictions in the Act, have as their objective the realisation of the responsibility for the environment, as enshrined in section 20 of the Constitution. Under that provision, nature and its biodiversity, the environment and the national heritage are the responsibility of everyone. According to section 20(2), the public authorities shall endeavour to guarantee for everyone the right to a healthy environment and for everyone the possibility to influence the decisions that concern their own living environment.

Reasoning of the Supreme Court

The Supreme Court held that the restrictions in the Tenojoki Tributary Decree were relevant to the protection of fish stock and that they therefore were in themselves acceptable under the empowerment criteria laid down in section 52 of the Fishing Act. The Supreme Court noted that the fishing restrictions in the Tenojoki tributaries affected everyone’s fishing, including that of the Sámi people. In the assessment of the fishing restrictions on the Tenojoki tributaries as they affect the Sámi, due note was to be taken also of section 17(3) of the Constitution in addition to the empowerment provision in the Fishing Act. Accordingly, a fishing restriction under the Tenojoki Tributary Decree may be held incompatible to the Constitution even if it has been issued within the bounds of the empowerment provision in the Fishing Act.

The fishing restriction under section 9 of the Tenojoki Tributary Decree had shortened the legal season for fishing for salmon with stationary nets by some 1½ months compared to the earlier regulation. The Supreme Court held that this shortening of the legal fishing period had affected a time and manner of fishing that were relevant to the fishing culture of the Sámi people.

The Supreme Court noted that the constitutionally protected fishing rights of the Sámi people was not absolute, but that also these rights could be restricted in order to protect migratory fish stock. The sustainable and ecologically sound use of natural resources and the protection of fish stock serve also the interests of the Sámi people. In other words, the pursuit of traditional cultural fishing rights required in the first place that the fish stock of the Tenojoki river was at a sustainable level. Hence, the fishing rights could be restricted as a matter of principle, but it remained to be assessed whether the restrictions were proportionate to the benefits sought.

The Supreme Court noted that evidence had been given to the effect that of the estimated 15 instances of fish stock, eight had been at a deficient state. The state of the instances of fish stock had varied in the Tenojoki river system by region so that the best situation had been on the Utsjoki river. The salmon fish stock had been at its worst state in the main stem of the Tenojoki river and at its headwaters; even there, however, the spawning stock target of the entire Tenojoki river system had been reached to a level of 84 per cent. According to a statement by the Natural Resources Institute Finland dated 2 May 2017, the monitoring and research data on Tenojoki salmon stock indicated that the Tenojoki tributaries on the Finnish side of the border had by and large reached their spawning stock targets and that e.g., the Utsjoki river was not in immediate need for measures intended to prevent fish loss and fishing. As regards the state of the salmon stock, therefore, fishing in these major tributaries could have continued more or less at the earlier level.

The Supreme Court noted that the data on salmon stock and the statements of the National Resources Institute indicated that the stock of migratory fish in the Tenojoki river system had been at risk for a long time. Accordingly, it was in itself appropriate to impose stricter season restrictions on the fishing for salmon with stationary nets, so as to achieve an ecologically sustainable state of fish stock. In the case at hand, however, it was to be assessed whether the shortening of the net fishing season, as described in the charge, to the Sámi people’s cultural fundamental right to fishing was proportionate in view of its effect on the safeguarding of the salmon stock.

The Supreme Court noted that the evidence presented in the case showed that, according to the available data, the spawning stock and salmon protection targets on the Utsjoki river had been reached at the time when the Tenojoki Tributary Decree was issued. Evidence had been presented especially regarding the salmon stock in the Upper Utsjoki area, where A had been fishing. It was true that fishing restrictions could be imposed already at a time when a fish species or stock was at risk of deteriorating. That being said, the evidence indicated that an extension of the fishing restriction to the 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.

The Supreme Court noted that in the assessment of the proportionality of the fishing restriction in question, due note was to be taken of the statement of the Constitutional Law Committee on the co-ordination of the cultural rights of the Sámi and the responsibility to protect the environment, as issued in the Committee opinion on the Tenojoki Fishing Treaty. The Committee has noted that the perception of strict restriction given in the relevant Bill becomes tangible in many ways especially as regards the Sámi as a group. It is clear that the proposed regulation is detrimental to the pursuit of traditional fishing as a form of the Sámi cultural heritage. Even though the responsibility for the environment is everyone’s responsibility, the Committee has noted that regulation can be used to give effect to the responsibility by addressing different restrictions and obligations to different legal subjects, where such differentiation is permissible especially on grounds relating to the protection of fundamental rights. In addition, the Constitutional Law Committee has noted that the maintenance of salmon stock at a sustainable level is conducive to promoting the continuity of the Sámi culture also in the future. That said, the Committee has emphasised that also in the context of responsibility for the environment, legislation should promote the right of the Sámi indigenous people to maintain and development their language and culture. The Constitutional Law Committee has been of the opinion that the fishing restrictions should have been directed more strictly on such fishing that is not protected under section 17(3) of the Constitution and Article 27 ICCPR.

The Supreme Court held that a stricter than before restriction of fishing as a Sámi cultural fundamental right would require that fish stock cannot be adequately protected by less intrusive means. The additional restriction covering the whole of the month of August in section 9 of the Tenojoki Tributary Decree, when applicable also to the Sámi cultural fishing referred to in the charge, was not proportionate to the objective of fish stock protection. In this assessment, the Supreme Court took note of the evidence of the salmon stock in the Utsjoki river at the time when the Decree was issued and of the fact that the restriction could have been directed more strictly on such fishing that is not protected under section 17(3) of the Constitution and Article 27 ICCPR. The Supreme Court noted further that the total prohibition of fishing in the Tenojoki river system in force between 1 May and 31 December 2021 was irrelevant to this conclusion. This case related to A’s conduct in 2017, and the later new information on the deterioration of the fish stock was not to be taken into account when assessing the proportionality of the restrictions at the material time.

The Supreme Court concluded that the restriction concerning the month of August, which was important for the pursuit of the traditional Sámi fishing culture, was so strict that it could not be deemed proportionate to the objectives nor essential in view of the protection of migratory fish stock at the material time. Even though the Tenojoki Tributary Decree was based on valid grounds relating to the responsibility to protect the environment, the Supreme Court held, on this basis, that it was incompatible with a cultural fundamental right of the Sámi people under section 17(3) of the Constitution. For this reason, section 9 of the Decree, restricting the fishing season with stationary nets, was to be left without effect in accordance with section 107 of the Constitution. Accordingly, the District Court’s decision to dismiss the charge was upheld.