THE LEGAL STATUS OF THE INDIVIDUAL IN NORDIC ENVIRONMENTAL LAW
ROVANIEMI 26 - 29 AUGUST 1993
There is over four hundred farms situated under the detrimental influence of the reservoir. At least ten families would be forced to leave their homes. The reservoir would lead to immediate losses in agriculture, forestry, reindeer farming, fishing and to berry crop.
In a biological ecosystem everything is adapted to its purpose. Nature areas that are considered as being waste land from the human perspective form in fact an integral part of an entire adapted ecosystem. Pure flowing water is a symbol of the continuation of life.
Kemijoki Oy (a company having several hydro-electric power plants alongside the Kemijoki river) has now kept the construction of the Vuotos reservoir under discussion for decades. In 1982 Finland's Council of State decided not to build the reservoir. It was said in a statement by the Ministry of the Interior on which the government decision was based that the realization of the reservoir plan would be unprofitable to national economy, disadvantageous to the population policy and to the infrastructure of the society in the area, compete temporarily with more advantageous employment projects, destroy valuable environment and nature, be harmful to primary production and to carrying out natural business activities. Thus the reservoir should not be build. The decision was decreed as binding to all future Finnish Governments. This was a negative administrative decision to the Kemijoki Oy. Decisions by which certain rights were established to the population of the area were based to the Government decision. Therefore people of the area made plans and solutions for their future lifes relying upon the Government decision. This included that funds for the development of the area were granted by the state. However the legal force of the negative Government decision has not yet been thoroughly established.
In 1991 the present Council of State decided to start a preliminary survey in order to reconsider the 1982 decision. In June 1992 Council of State withdrew the former decision concerning the Vuotos reservoir. Following this the municipality of Pelkosenniemi which had persistently opposed the reservoir plans over three decades turned out to have a majority of pro reservoir municipal councilmen. After the new decision by the Council of State there was not much confidence left towards the decisionmakers and even to the judicial system among the common public. The separation of powers is an idea unfamiliar among the people. They have a fatalistic attitude to the reservoir project and they feel that the reservoir is built anyway because the high decision-makers have so decided. All the negative decisions on the construction of the reservoir are considered to be unreliable and uncertainty about the future will end only after the reservoir has been built. The public notices given by the Kemijoki Oy and even by the authorities have been misleading and supported this fatalistic view.
The government has ownership over 90 % of the shares of the Kemijoki Oy. It is a company were the government authority is based on the direct ownership of shares. The company is a powerful actor in economy. Especially in the Northern Finland its influence is spread all over the society. The whole administrative organization is under the government supervision. Despite the negative government decision Kemijoki Oy continued to promote the Vuotos reservoir project and in 1987 it submitted new plans for the building of the reservoir.
The Council of State, which has a stipulative voice in the Kemijoki Oy as a direct majority shareholder, decided in the summer of 1992 to give a permission to Kemijoki Oy to apply for a license from the Water Rights Court to build the Vuotos reservoir. The decision included also a statement allowing Kemijoki Oy to start other necessary measures for the building of the Vuotos reservoir.
The Council of State gave to Kemijoki Oy the following directive:
Kemijoki Oy has taken other necessary measures already in 1991. It started a terrain research work on the farms of private land-owners and opened lines in the woods. Later in the same year the company applied from the County Administrative Board of Lappland for a license under the Redemption Act to the exploration of the whole Vuotos area. The County Administrative Board granted the license without hearing all the interested parties. Neither was the decision on the license properly served to the parties. The exploration license was applied under the Redemption Act although the subject matter concerns water rights. Under the broad wording of the exploration license trees have been cut, exploration of the soil has been carried out by explosions and drilling, routes have been cleared to the woods and a line for the planned ground dam has been cut.
In January 1992 Kemijoki Oy applied to the Vuotos area 32 claims for mining activities under the Mining Act. The claims covered the whole planned reservoir area. In March 1993 the company applied from the Ministry of Trade and Commerce S additional claims for mining activities. They are situated in the same places where the planned land and ground dams are. The Mining Act offers wide powers to intervene to the enjoyment of protected private property for the purpose of finding, exploring and making use of minerals. However the Kemijoki Oy has not made the claims for mining activities -the lawyer of the company stated this expressly in a newspaper interview- but in order to ensure that it can continue the preliminary construction work in the area without any interruptions. The Ministry of Trade and Commerce granted the claims despite the fact that the mineral and ore resources of the Vuotos area had already been surveyed in 1991 by the Ministry of Trade and Commerce expressly in consideration of the possible building of the Vuotos reservoir. Any possibilities for some profitable mining activities were not found. Thus it seems that the decision by the Ministry of Trade and Commerce has been made in contravention to the purpose of the Mining Act and the decision by the County Administrative Board by applying wrong Act of Parliament. In addition there are procedural errors in both decicions.
Kemijoki Oy has made final logging operations in the area of the planned reservoir against the directions of the Forestry Center Tapio. Employment reasons are used for the justification of the logging operations and the clearing of the bottom of the planned reservoir. However all researches show that the F building of the hydro-electric power plant will inevitably lead to a distortion of the line of business in the area and to a loss in the amount of permanent jobs.
The Ministry of Agriculture and Forestry has prohibited in 1991 any planning of new forest improvement projects or to admit any funds for these projects in the Vuotos area. The Ministry ordered even a cancellation of the funds that had already been admitted for forest improvement projects in the Vuotos area. The granted forest improvement funds can be cancelled only if it is obvious that the area is going to be used in a way precluding its use for forestry purposes. The Ministry of Agriculture and Forestry gave its orders on the forest improvement funds first by phone and after the reprimand on the faults in the procedure by the Parliamentary Ombudsman the orders were given in writing. The parties were not heard and the order was not properly served to them. The procedure by the Ministry of Agriculture and Forestry has been contrary to the Administrative Procedure Act and contradictory with the statament by Parliamentary Ombudsman. According to the decision by the Parliamentary Ombudsman the usage of the land changes only after the Water Rights Court has granted the license. The Ministry order included also the cancellation of funds admitted to forest improvement under the Act on the underproductive forests in Lappland even though this so called Lappland Act has been enacted as to be in force for a fixed term and the funds admitted under it can not be withdrawn. The order by the Ministry of Agriculture and Forestry was applied to 41 farms.
The Council of State has assigned 3800 hectares of government land to Kemijoki Oy. There is no suspensive condition included in case the Water Rights Court will not grant any license for the reservoir. The assignment was done under the Act on the assignment and exchange of rapid property in the Kemijoki River which was enacted in 1952. In the Act it is provided that the assignment of the rapid property is done for the production of electric power. Even the Chancellor of Justice, who is the supreme prosecuting official and thus has the task of supervising the legality of the decision making of the authorities, has taken the view that the above mentioned Act can be applied to the assignment of the government land. He states that as a majority shareholder the government has also a possibility to supervise that the land to be assigned is going to be used for the purpose mentioned in the 1 ¤ of the Kemijoki Act. By applying this Act the Council of State thus assigned land for the bottom of a reservoir and the Chancellor of Juctice stated that as a majority shareholder the government can supervise that the assigned land is going to be used for the purpose provided in the Act. However, it is not Kemijoki Oy that is going to decide for what purpose the assigned government land is to be used but the Water Rights Court The parliamentary Act was enacted originally for the creation of the share capital of Kemijoki Oy.
Without the application of the Act on the assignment and exchange of rapid property in the Kemijoki River to the assignment of government land in Vuotos the decision on the assignment would have been drawn by the Parliament.
Also some areas from three reindeer-grazing associations belongs to the Vuotos area. One of the associations is included to a special reindeer management area, where reindeer farming is a primary means of living. According to the Reindeer Management Act government has a duty to negotiate with the representatives of the concerned reindeer-grazing association when plans concerning government land with essential effects to the reindeer management are drafted. However the government assigned its land for a bottom of a reservoir without hearing any of the chairmen representing the reindeer-owners' associations.
In the municipalities around the planned reservoir area the decision-makers seem to build the future of their municipalities on the compensations over the damages caused by the reservoir. Apparently the majority of the decisionmakers have forgotten the independent development of the already existing line of business and the conservation of the possibilities offered by nature in the municipalities.
After the decision by the Council of State the municipal council of Pelkosenniemi turned in favour of the construction of the reservoir by votes ten to seven. The municipal council does not seem anymore to take into consideration in its decision-making any possibility that the reservoir would not be constructed. It has decided to stop the drafting of the partial master plan which was initiated by the previous council. This plan was supposed to clear up the natural values of the area and the natural resources exploitable in economy. The municipal council in favour of the reservoir is not willing to allow that the natural values of the area are surveyed and made public.
The municipality and the congregation of Pelkosenniemi sold unconditionally land areas situated under the possible reservoir or in its hazardous zone to Kemijoki Oy . This sales of land has taken place without any competitive bidding and without any consideration of the notably higher offers made on some sectors of the area. To both contracts of sale also land from the Keminsaari Islands was included. These islands are considered to be a valuable traditional land area in a survey by the Ministry of Environment.
Head of the real estate department of the Kemijoki Oy Mr. Raimo Kaikkonen told in a recent interview (Koillis-Lappi, 4.8.19933 that Kemijoki Oy had bought after 1991 with voluntary contracts of sale over 80 % of the land that would be left under the water or in the hazardous zone of the possible reservoir. According to this statement 50 % of the contracts have been made with private land-owners.
A delusion of the real situation is created among lay people and the municipal decision-makers with these "agreements" (the Vuotos-package and the price F fixing agreement) where the other contracting party is Kemijoki Oy and the other a group of people without due competence and who have no legal authorization to represent anyone. There is a possibility that local residents will refrain from making any remainders or claims in the Water Rights Court if they have an image that their representatives have already made a settlement on these matters.
Democracy is not fulfilled in a situation where a huge influential economic actor and the biggest employer in the area is negotiating on the consideration of the interests of the inhabitants with the support of the officials and the Cabinet directive. The company is managed according to the principles of market economy and a government company is obliged even by the law to produce economic profit.
The Council of State gave orders to Kemijoki Oy to estimate the environmental effects of the Vuotos plan and to take the necessary measures for the diminishing of the environmental damages caused by it. The Minister for Trade and Industry stated 30.7.1993 that Kemijoki Oy has made a decision that the Environmental Assesment Act will be applied to the Vuotos project even if the law would not oblige to do so. The National Board of Waters and Environment has refused to simulate the Environmental assesment procedure because the law is not yet in force. Some expert opinions on the significance of the Environmental Assesment Act and the statements by Kemijoki Oy on its willingness to follow the principles of the Environmental Assesment Act have created positive misconceptions on the intention of Kemijoki Oy.
The withdrawal of the 1982 decision not to build the reservoir has violated at least the rights of those people for whom development funds were granted under the 1982 Cabinet decision.
Kemijoki Oy violated the basic rights of the inhabitants in the reservoir area with the approval of the County Administrative Board of Lappland and the Ministry of Trade and Industry by conducting soil exploration work on their land. This work is obviously more like a preliminary construction of the reservoir. According to the European Convention on Human Rights citizens have the right of peaceful enjoyment of their possessions and the right not to s be discriminated in the enjoyment of their rights.
The Council of State and the Ministry of Agriculture and Forestry have been making decisions which have an indirect effect to the decision to be given by the Water Rights Court. By the order of the Ministry of Agriculture and Forestry the forest owners have been denied the development of their trade without giving them anything instead. The order can be considered to be a means to put pressure for the selling of the land and the order has created a situation where the forest owners of the Vuotos area are discriminated with other forest owners.
If the Water Rights Court is going to base its decision to the comparison of benefits and damages of the building of the reservoir, the decisions by the Government, the municipality, the congregation and the collective forest concerning the selling of the land will have an effect to the decision of the Water Rights Court by reducing the weight of the damages.
The consultative organization planned by Kemijoki Oy has been a clever means to disregard the possible willingness of the representatives of the municipality to negotiate on the Vuotos project with the representatives of Kemijoki Oy.
The Environmental Impact Assesment Act will come in to force after the Parliament has so enacted. The decision of the Kemijoki Oy on the application of the principles of the Environmental Impact Assesment Act has no legal force, but in fact it creates a positive misleading delusion of the situation. The purpose of the Environmental Impact Assesment Act will not be fulfilled if only the initiator of the environmental impacts has decided to follow the principles of the Act. When the Environmental Impact Assesment Act is in force it will create obligations to the planner and offers for the concerned parties a possibility for making an application and the authorities to supervise the observation of the Act.
In the decision-making of the authorities concerning the Vuotos project there has been a plenty of procedural errors having an effect to the legal protection of the rights of the inhabitants. The municipality of Pelkosenniemi has even demanded compensation over legal costs from the appellants. The governmental funds for the legal costs of the inhabitants of the area remain behind political decisions. There is even an effort to limit the citizens right of action with "agreements".
The silent majority of the population in the reservoir area communities and the persistent Vuotos activists, the Vuotos Commission, Free Vuotos movement, all the nature conservation organizations and a group of high level experts are all opposing the Vuotos reservoir project.
Some 0,5 million FIM would be needed annually for the legal aid of the inhabitants in the area, but government has not granted any legal aid for the inhabitants. Despite of this an application on the decision to withdraw the drafting of the partial master plan of Pelkosenniemi has been made, an application for the reversal of a decision by the County Administrative Board of Lappland to grant an exploration permit and a report on criminal offence has been made, an application on the cancellation of the forest improvement funds by the Ministry of Agriculture and Forestry has been made, an application on the assignment of the land of the municipality, the congregation and the government has been made as also on the selling of the collective forest area. An application on the possible permit to sell by the Ministry of Agriculture and Forestry will be made as also similarly on the prohibition by the Ministry of Agriculture and Forestry to plan any forest improvement projects and on the cancellation of the forest improvement funds. An application concerning the Vuotos reservoir has been made to the European Commission of Human Rights and an appeal to the European Parliamentary Assembly.
The Parliamentary Ombudsman has given a statement against the deforestation in the Vuotos area. The City Council of Kemijärvi decided by votes 22 to 13 to withdraw from the consultative organization of Kemijoki Oy. In the Parliament both an oral and written questions have been initiated on the consultative organization of Kemijoki Oy and on the environmental impact assesment.
In a report by the Government Institute of Economic Research dated 9.6.1992 it is stated that:
" The Vuotos project is narrowly profitable in energy production but it is not profitable in social economy."In the report by the Ministry of the Interior in 1982 it is considered:
"A major defect regarding the planning in connection with the reservoir project has come out. Again and again it is possible to take up a project that has been already neglected. Therefore the decision made in the highest possible level of governmental administration, the Council of State, should be binding to the plarming authorities."
A list on the applicable international treaties