KKO:2022:26 – Fishing restriction imposed on the Sámi indigenous people and its relationship to their fundamental rights (game offence)

Diary number: R2019/425
Issued on: 13.4.2022
ECLI:FI:KKO:2022:26

Background of the case and the issue before the Supreme Court

The public prosecutor brought charges against A, B, and C for a game offence and against D for a game offence as a young person. According to the charges, on 29 July 2017 the defendants had fished with rods, reels, and lures on the west bank of the Vetsijoki river between Bajitrochi and Vuolitluovosvárjohsuolu, that is, on state waters under the management of the Metsähallitus [State land and water management agency], without the requisite permit issued by the Metsähallitus. The defendants admitted that they had acted in the manner described in the charge, but denied that they had committed a game offence. The District Court dismissed the charges.

The issue before the Supreme Court was whether A, B, C, and D had committed a game offence, considering their rights as local Sámi under the Constitution of Finland and in international human rights treaties.

Applicable law

According to chapter 28, section 10, of the Criminal Code, a person who fishes or otherwise seeks catch in the fishing waters of another or exceeds the fishing rights that he or she has on the basis of law, permit, agreement, or decision shall be convicted of a game offence and sentenced to a fine. This penal provision does not contain a definition of fishing permits, which means that reference must be made to the provisions on fishing permits in the Fishing Act. In the present case, the issue of fishing permits was approached in the light of section 10 of the Fishing Act, governing fishing permits in Upper Lapland.

According to the wording of section 10 of the Fishing Act (379/2015) in force at the material time, a person whose home municipality referred to in section 2 of the Act on the Municipality of Domicile is Enontekiö, Inari, or Utsjoki had the right to obtain a permit from the Metsähallitus concerning fishing in State-owned water areas in the above municipalities free of charge. According to paragraph (2) of that section, the permit did not apply to the salmon and trout migration areas e.g. in the Tenojoki river system, where separate permits issued by the Metsähallitus are required for fishing in State-owned water areas. The Supreme Court noted that section 10 of the Fishing Act had been amended by Act 427/2019 which had entered into force on 1 May 2019. However, the Supreme Court held that in accordance with chapter 3, section 2(4), of the Criminal Code, the law in force at the material time was to be applied.

Grounds for assessment

Under section 106 of the Constitution of Finland, if, in a matter before a court, the application of an Act would be in evident conflict with the Constitution, the court must give primacy to the provision in the Constitution. The Supreme Court noted that section 106 of the Constitution does not become operative merely by declaring that a conflict exists, but the conflict between the application of an Act and the Constitution must be evident. In the preparatory works of the Constitution (Bill 1/1998 and Opinion of the Constitutional Law Committee 10/1998) it is stated that the threshold of evident conflict is a high one. The constitutional conflict arising from the application of an Act must be clear and undisputable and thereby easily discernible, and not e.g. a legal issue open to different interpretations. The opinion that the Constitutional Law Committee may have issued when the Act was being enacted is relevant in the assessment of evident conflict in so far as the Committee has taken a position on an interpretation situation similar to that in the specific matter before the court. Exceptionally, the threshold of evident conflict may be crossed also in regard an Act that has been subject to an opinion by the Constitutional Law Committee, if the Committee has taken no position regarding the interpretation situation in question. (Constitutional Law Committee Report 10/1998).

The Supreme Court noted that the section 17(3) of the Constitution protects indigenous culture; according to that provision, 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 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 according to the preparatory works relating to the Fishing Act (Bill 192/2014) fishing restrictions, including section 10(2) of the Act are closely connected to 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

According to section 10(2) of the Fishing Act, separate permits issued by the Metsähallitus are required for fishing in salmon and trout migration areas. A decision by the Metsähallitus dated 20 April 2017 indicates that no fishing permit quotas were reserved to locals at the material time. Accordingly, local Sámi were in the same position with all other fishermen/women, such as tourists, when it came to the issue of permits. The limited number of permits and the high demand has resulted in the permits being sold out soon after their selling began. The price of a permit was determined in accordance with commercial considerations, being EUR 30 per day.

According to section 10(2) of the Fishing Act, fishing in the salmon and trout migration areas had required the purchase of a permit separate from the free permit referred to in section 10(1). The Supreme Court noted that the provision in section 10(2) of the Fishing Act was clear. Its wording did not allow for any rights-oriented interpretation that would mean that local Sámi would be entitled to fish in salmon and trout migration areas without a separate fishing permit issued by the Metsähallitus.

The Supreme Court noted that in the section dealing with enactment procedure in Fishing Act Bill 192/2014, there was no mention of the permit issuance procedures under section 10(2) nor of the question how the permit requirement would in practice affect the Sámi cultural right to fishing. These questions were also not addressed in the relevant Constitutional Law Committee Opinion 58/2014. The Supreme Court held that the Constitutional Law Committee had also not by any reference to earlier opinions taken a position on the amendment of section 10(2) relating to fishing permits in Upper Lapland nor on the precise contents of that provision. Accordingly there was no position of the Constitutional Law Committee that would need to be taken into account when assessing the application of section 106 of the Constitution to the present case.

The Supreme Court held that in the assessment of the alleged conflict between section 17(3) of the Constitution and section 10(2) of the Fishing Act and of whether this conflict was evident or not, the correct basis for assessment was the traditional right of the local Sámi to fish on State waters for free, a right that they also had exercised in practice. Due note was to be taken of the practical consequences arising from the requirement of a separate permit owing to the cost and manner of selling of the permits.

The Supreme Court noted that the constitutionally protected fishing rights of local Sámi was not absolute, but that also these rights could be restricted under section 20 of the Constitution in order to protect migratory fish stock.

By virtue of section 10(2) of the Fishing Act, the Metsähallitus had set the price of a permit at EUR 30 per day, this price had been set in accordance with commercial considerations. The Supreme Court held that this price, which clearly exceeded the cost price, had been conducive to restricting the cultural fishing rights of the Sámi people. In addition to the cost, it was to be noted that there was no fishing permit quota for local Sámi at the material time. Accordingly, they had been placed in the same position regarding permits with those fishermen/women who did not have any fishing rights protected by section 17(3) of the Constitution. The limited number of permits, the high demand and the manner of selling had led to the permits having been sold out soon after the beginning of the selling. The provision in section 10(2) of the Fishing Act and the permit procedure relating to it had essentially restricted fishing as an element of the indigenous culture of the Sámi people.

The Supreme Court concluded that, in view of the requirement of a separate fishing permit under section 10(2) of the Fishing Act and the relevant conditions, and of the practical restrictions arising from the application of that provision on the cultural fundamental rights of the Sámi, the application of the provision would be in evident conflict with a fundamental right protected by section 17(3) of the Constitution, in the sense referred to in section 106 of the Constitution. Accordingly, the Supreme Court declined to apply the fishing permit provision in force at the material time. The Supreme Court upheld the decision of the District Court to dismiss the charges.