Supreme Court of Denmark, Decision of November 28, 2003, in cases 489/1999 and 490/1999, Hingitaq 53 v. The Danish Prime Minister’s Office

(This is an excerpt taken from the Danish Supreme Court decision reproduced in the ECHR decision in Hingitaq 53 v.  Denmark)

In a judgment of 28 November 2003 the Supreme Court unanimously upheld the High Court’s judgment and held as follows:

“The ILO Convention In order to address the Prime Minister’s Office’s request for their claims to be dismissed, and in support of their own claims, [the applicants] have as their main argument referred to the provisions of the International Labour Organisation’s Convention no.  169 of 28 June 1989 concerning Indigenous and Tribal Peoples in Independent Countries (the ILO Convention), particularly Articles 1, 12, 14 and 16.  Thus, [the applicants] have argued that pursuant to Article 1.1 (b), the tribe is considered a distinct indigenous people separate from the rest of the Greenlandic population.

The Convention became operative for Denmark on 22 February 1997.  At the time of ratification, the Greenlandic people as a whole were considered an indigenous people within the meaning of the Convention.

In support of its allegation that it is an indigenous people, the Thule Tribe has pointed out that its members descend from the people that lived in the Thule District at the time of the colonisation in 1921, and that its members retain some of their own social, economic, cultural and political institutions.  According to its own definition, the Thule Tribe encompasses all descendants of this indigenous population and the descendants’ spouses, irrespective of where they were born and where they live.  The members of the tribe see themselves as belonging to one distinct indigenous people.

[The Supreme Court finds that] the assessment of whether or not the Thule Tribe is a distinct indigenous people within the meaning of the ILO Convention should be based on current circumstances.  In Greenland, there are still regional variations in terms of language, business conditions and judicial systems, caused by the size of the country, communication and traffic conditions, and local natural conditions, among other things.  After an overall assessment of the evidence before it, the Supreme Court finds that in all essential respects the population of the Thule District [live under] the same conditions as the rest of the Greenlandic people, and that they do not differ from the latter in any other relevant way.  The particulars produced on the difference between the languages spoken in Qaanaaq and in West Greenland and the Thule Tribe’s perception of itself as a distinct indigenous people cannot lead to any other conclusion.  The Supreme Court therefore finds that the Thule Tribe does not ‘retain some or all of its own social, economic, cultural and political institutions’, and that accordingly the Thule Tribe is not a distinct indigenous people for the purposes of Article 1.1 (b) of the ILO Convention.

Article 1.1 (a) of the ILO Convention also includes ‘tribal peoples in independent countries whose social, cultural and economic conditions distinguish them from other sections of the national community and whose status is regulated wholly or partially by their own customs or traditions or by special laws or regulations’.  As reasoned above, the Supreme Court finds that the Thule Tribe does not fall within this provision of the Convention either.

This interpretation is consistent with the declaration made by the Danish Government, endorsed by the Greenland Home Rule Government, in connection with the ratification of the ILO Convention.  According to this declaration, Denmark has ‘only one indigenous people’ within the meaning of the Convention, namely the original inhabitants of Greenland, the Inuit.

In its decision of March 2001 the ILO’s Governing Body reached the same conclusion.  It thus endorsed the report of 23 March 2001 by the ILO committee that had considered a complaint submitted by the Greenland trade union Sulinermik Inuussutissarsiuteqartut Kattuffiat (SIK) concerning Denmark’s alleged breach of the Convention.  The report states that ‘there is no basis for regarding the inhabitants of the Uummannaq community as a ‘people’ separate from and different from other Greenlanders’ and that ‘the territory traditionally inhabited by the Inuit has been identified and consists of the entire territory of Greenland’.

It must be considered established that within the meaning of Article 1.1 of the ILO Convention the Thule Tribe does not constitute a tribal people or a distinct indigenous people within or coexisting with the Greenlandic people as a whole.  Consequently, the Thule Tribe does not have separate rights under the said Convention.

The Prime Minister’s Office’s request for the claims to be dismissed The fact that the Thule Tribe cannot be considered a tribal people or a distinct indigenous people within the meaning of the ILO Convention does not preclude the Thule Tribe from being entitled to take legal action in accordance with the general rules on the matter.

The Prime Minister’s Office has not disputed that the organisation Hingitaq 53 may represent the Thule Tribe.  As was stated by the High Court, the Thule Tribe must be considered a sufficiently clearly defined group of people.  These matters are not altered by the fact that only 422 of the original approximately 600 individual plaintiffs have lodged individual appeals with the Supreme Court.  The objection raised by the Prime Minister’s Office that the Thule Tribe is not entitled to the claims, and that consequently [the tribe] is not the rightful plaintiff cannot result in their dismissal.  In view of their substance, Claims 1 and 2 are not so ambiguous that they cannot form the basis of an examination of the case.

For this reason, the Supreme Court [agrees with the High Court] that the [Prime Minister’s Office’s] request to dismiss the Thule Tribe’s Claims 1 and 2 should be rejected.  For the same reason, the Supreme Court rejects the request to dismiss Claim 3.

The Supreme Court further agrees that the request to dismiss Claims 1 and 2 in respect of the individual appellants should also be rejected.

Access to habitation, travelling, hunting and fishing (Claims 1 and 2)

In support of Claims 1 and 2, [the applicants] have – in addition to the reference to the ILO Convention – argued in particular that the Thule Air Base was established illegally because the 1951 US-Denmark Defence Agreement is invalid under constitutional and international law.  [The applicants] have also argued that no legal decision to move the settlement was taken.

As was stated by the High Court in section 7.3 of its judgment, the Thule Air Base was established under the 1951 US-Denmark Defence Agreement.  The agreement was adopted by the Rigsdagen [name of the Danish parliament until 1953] pursuant to Article 18 of the Danish Constitution, as applicable at the relevant time, and accordingly the Supreme Court accepts that a constitutionally valid approval of the establishment of the base existed, although the technical appendix to the agreement was not submitted to the Rigsdagen.  For this very reason, the agreement is also valid under international law.

The substantial restriction of access to hunting and fishing caused by the establishment of the Thule Air Base in 1951 cannot, for the reasons stated by the High Court in section 7.4, be considered a non-indemnifiable regulation, but an act of expropriation.  This expropriation could, as stated by the High Court in section 7.3, be carried out without statutory authority.  The Supreme Court therefore finds, for the reasons stated by the High Court, that the substantive law provisions of the Danish Constitution applicable at that time, including Article 80 on the inviolability of property, did not extend to Greenland, that the Greenland Administration Act did not include any claim to statutory authority, and that the question of establishing the base did not fall within the competence of the Hunters’ Council.

As was stated by the High Court in section 7.4, the intervention in the Uummannaq settlement and the Thule colony that took place in connection with the decision in 1953 to move the population is also to be considered an act of expropriation.  This intervention may also be considered to have been carried out under the 1951 US-Denmark Defence Agreement and the expropriation it entailed could take place without statutory authority.

[The Supreme Court] notes that any inadequate information provided to the Hunters’ Council in 1951 and 1953 cannot constitute grounds for invalidity.

The Supreme Court therefore finds that both the intervention in 1951 regarding access to hunting and fishing and the intervention in 1953 on relocation of the settlement were legal and valid.  In this context, it is not necessary to decide whether or not the population of the Thule District at that time constituted a tribal people or a distinct indigenous people in the sense in which these terms are now defined in Article 1 § 1 of the ILO Convention.

The purport of the Thule Tribe’s Claims 1 and 2 is that tribe members are entitled to live in and utilise the abandoned settlement and to travel, stay, hunt and fish in the entire Thule District.  For the very reason that, owing to the acts of expropriation, the exercise of this right of enjoyment has been prevented or curtailed in the areas affected by such acts, the appellants’ Claims 1 and 2 cannot be complied with.

This finding applies to Claim 1, although in February 2003 the US and Denmark, including the Greenland Home Rule Government, in continuation of the 1951 US-Denmark Defence Agreement, signed a memorandum of understanding about isolating Dundas – the area in which the settlement and colony were placed – from the defence area at Thule.  In this connection, it should be noted that the Thule Tribe, which as stated is not considered a tribal people or a distinct indigenous people within the meaning of the ILO Convention, cannot claim privileges regarding Dundas with reference to Article 16 § 3 of the Convention.  Nor does Greenland customary law give cause for such privileges.

The Supreme Court therefore finds for the Prime Minister’s Office as concerns the appellants’ Claims 1 and 2.

The Thule Tribe’s claim for damages (Claim 3)

The primary claim for damages in the amount of around DKK 235 million relates in the first place to the Thule Tribe’s loss owing to the lost and reduced hunting and fishing opportunities as a result of the establishment of the base and the relocation of the population from the Uummannaq settlement.

For the reasons stated by the High Court in section 7.4, the Supreme Court finds that compensation for this loss should be granted according to the principles of Article 80 of the Danish Constitution as applicable at that time, although this provision was not directly applicable to Greenland.

After making an overall assessment and weighing up the pros and cons, the High Court set the compensation at an estimated DKK 500,000, and the Prime Minister’s Office has requested that this decision be upheld.

For the reasons stated by the High Court, the Supreme Court finds that there has to be a certain adjustment of the standard of proof as to the loss incurred.

The calculations on which the Thule Tribe’s claims are based cannot be accorded any weight.  These calculations use factors that, to a large extent, may be deemed arbitrary, while discounting various matters that ought to have been included in the assessment.  The calculations are not based on developments in the species being hunted.  The primary claim in the amount of around DKK 235 million is based on the size of the confiscated land without clarifying the correlation between surface area and hunting potential.  The calculation comprises a period of 45 years without taking into account the substantial reduction in the area of the base in 1986 and the general limitation of the indemnification period.  These calculation factors relate to an annual compensation figure of DKK 200, the sum which was granted when the weather station in Thule was established in 1946 and whose basis remains unknown.  The alternative claim in the amount of around DKK 136 million is mainly based on a presumed increase in costs owing to the longer distances required for hunting, without taking into account the fact that, according to the experts’ report, it was not a general rule that the distances to the most significant hunting grounds increased.  The adaptation of the species in question to the changed conditions has not been taken into consideration.  The number of hunters included in the calculation – approximately half of the original plaintiffs – is not consistent with the number of hunters affected by the interventions.

The Supreme Court agrees, on the whole, with the High Court’s assessment of the facts to be considered when determining the amount of compensation, such as the character of the confiscated hunting grounds, the distances to the most significant hunting grounds, general developments in the patterns of the species concerned – especially the decrease in the fox population and the increase in the narwhal population – and the limitation of the period to be included in the assessment.

From an overall assessment the Supreme Court finds no grounds for increasing the compensation of DKK 500,000 set by the High Court.

For the reasons stated by the High Court, no separate compensation for the church should be granted.

The Supreme Court therefore accepts the request by the Prime Minister’s Office to uphold the Thule Tribe’s Claim 3.

Individual claims (Claim 4)

The appellants concerned by this claim are members of the Thule Tribe who were affected by the relocation in 1953 or their heirs.  They have repeated their claim for compensation of DKK 250,000 each.

As was stated by the High Court in section 7.4, the inhabitants of Uummannaq are deemed to have received full compensation for giving up their houses in Uummannaq when they were granted substitute housing.  Having been supplied with free goods and equipment from the store, they are further deemed to have received full compensation for special expenses incurred as a result of the relocation.

Thus, the claims under Claim 4 relate solely to compensation for the injury that the persons in question suffered owing to the circumstances of their relocation.

Before the Supreme Court, the Prime Minister’s Office has admitted that the relocation of the population of Uummannaq, as described by the High Court in section 7.1, was decided and carried out in a way and under circumstances that constituted a serious interference and unlawful conduct towards the population of Uummannaq.  Against this background, the Prime Minister’s Office has accepted the amounts of compensation determined by the High Court.

In assessing the awards of compensation to be granted, the Supreme Court endorses the High Court’s statements in section 7.5 concerning the matters that have to be taken into consideration.  The Supreme Court also agrees that weight should be attached to the population’s age at the time of the relocation as outlined by the High Court, so that persons aged 18 or more at the time of relocation are granted a larger amount of compensation than those who were younger, and persons who were under 4 years of age receive no compensation.

The Supreme Court finds no grounds for increasing the compensation awarded by the High Court.  The request by the Prime Minister’s Office to uphold Claim 4 is therefore to be complied with.

...  Thus, the Supreme Court upholds entirely the High Court’s judgment.

None of the parties are to pay costs for the proceedings before the Supreme Court to the other party or to the Treasury.  ”

Fecha del Recurso: 
2003
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