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Home* News and Stories → Legal opi­ni­on: law pro­po­sals should be with­drawn

Legal opi­ni­on: law pro­po­sals should be with­drawn

The ongo­ing dis­cus­sion of the high­ly con­tro­ver­si­al legal pro­po­sals by the Nor­we­gi­an government con­cer­ning Sval­bard (the Spits­ber­gen archi­pe­la­go) is fuel­led by a legal opi­ni­on that, in essence, con­clu­des that the pro­po­sals should be with­drawn. The legal opi­ni­on was draf­ted by a law office based in Lon­gye­ar­by­en on behalf of Aeco (Asso­cia­ti­on of Arc­tic Expe­di­ti­on Crui­se Ope­ra­tors, an inter-tra­de orga­ni­sa­ti­on), Visit Sval­bard (tou­rism office and indus­try orga­ni­sa­ti­on in Lon­gye­ar­by­en) and Sval­bard Nærings­fo­re­ning (tra­de and indus­try asso­cia­ti­on in Lon­gye­ar­by­en) erstellt. Sval­bard­pos­ten got a copy of the legal opi­ni­on and made the key points public.

This is what it is all about:

Con­tro­ver­si­al legal pro­po­sals (1): clo­sing lar­ge parts of Sval­bard

In essence, it is about a seri­es of law pro­po­sals made by the pre­vious Nor­we­gi­an government. The­re is a new government in Oslo after par­la­men­tia­ry elec­tions in Sep­tem­ber.

The pro­po­sal which attracts most public atten­ti­on and con­tro­ver­sy also out­side Sval­bard and Nor­way is one that aims at prac­ti­cal­ly clo­sing lar­ge parts of the Sval­bard archi­pe­la­go for the public. The “public” that has at least spo­ra­dic access to the­se rather remo­te are­as is main­ly ship-based tou­rism during the sum­mer sea­son. This kind of traf­fic has for a long time alrea­dy been stron­gly regu­la­ted (inclu­ding, but not limi­ted to, a ban on hea­vy oils on ships, limits on pas­sen­ger num­bers on board and ashore in most are­as etc.). In addi­ti­on to tou­rism, the­re is sci­ence and – on a much lower quan­ti­ta­ti­ve level – the local popu­la­ti­on and indi­vi­du­al tou­rists, main­ly tho­se who come with their own yachts.

The law pro­po­sal is visi­b­ly aimed against ship-based tou­rism, but would hit all of the­se sec­tors. In princip­le, most of Svalbard’s land are­as and coast­li­nes are so far legal­ly acces­si­ble for tou­rists, with the excep­ti­on of a num­ber of smal­ler are­as, islands and loca­ti­ons, that are clo­sed – sea­so­nal­ly or per­ma­nent­ly – to the public becau­se they are con­si­de­red espe­cial­ly vul­nerable. During the sum­mer sea­son, several hund­red loca­ti­ons over most of the archi­pe­la­go are visi­ted by tou­rists; the main part of the traf­fic, howe­ver, takes place at a rela­tively limi­ted num­ber of well-known and reala­tively easi­ly acces­si­ble loca­ti­ons. Many of the lar­ge num­ber of remai­ning loca­ti­ons are more “exo­tic”, much less well known and much less regu­lar­ly or actual­ly only rare­ly visi­ted. They are, nevertheless, important espe­cial­ly in the con­text of lon­ger voya­ges which aim at expe­ri­en­cing the varie­ty of Svalbard’s land­s­capes.

The rele­vant law pro­po­sal would drasti­cal­ly redu­ce the liber­ty of action in most parts of Sval­bard. Accord­ing to the pro­po­sal, lan­dings shall only be per­mit­ted at altog­e­ther 42 loca­ti­ons in the pro­tec­ted are­as, which inclu­de most of the archi­pe­la­go. Due to wind, wea­ther, ice and the pre­sence of polar bears, it is very com­mon that a given loca­ti­on is actual­ly not avail­ab­le at a given point of time: in such cases, it has so far been com­mon to move “around the cor­ner” to ano­t­her loca­ti­on which can be visi­ted without pro­blems or even risk. Fle­xi­bi­li­ty is thus an inte­gral part of the safe­ty and qua­li­ty con­cept of the­se voya­ges. The loss of fle­xi­bi­li­ty would accord­in­gly direct­ly redu­ce the qua­li­ty (and, poten­ti­al­ly, safe­ty) of the who­le ope­ra­ti­on. Con­si­der on top that, during peak sea­son, several dozen ships would com­pe­te for a small num­ber of sites that remains legal­ly acces­si­ble, and you are left with almost next to not­hing at all.

The fol­lowing two maps may illus­tra­te the loss of fle­xi­bi­li­ty which the law pro­po­sal as it cur­r­ent­ly is would invol­ve, loo­king at the examp­le of Nord­aus­t­land. Simi­lar maps could be drawn for almost any other part of Sval­bard.

New law, closing Svalbard

Lan­ding sites on Nord­aus­t­land and neigh­bou­ring islands that have been visi­ted by tou­rists in recent years (not com­ple­te).

New law, closing Svalbard

Lan­ding sites in the same area that would be legal­ly acces­si­ble accord­ing to the cur­rent law pro­po­sal (com­ple­te).

If a legal mea­su­re as drastic as this one would actual­ly be in accordance with the Spits­ber­gen Trea­ty, which in princi­pal gua­ran­tees citi­zens and com­pa­nies of signa­to­ry coun­tries free access to the archi­pe­la­go, is yet ano­t­her ques­ti­on. But in order to get a pro­per ans­wer, this ques­ti­on would pro­bab­ly have to be asked by the government of a trea­ty mem­ber other than Nor­way.

Con­tro­ver­si­al legal pro­po­sals (2): exten­ded regis­tra­ti­on sche­mes for traf­fic

Ano­t­her part of this law pro­po­sal aims at exte­ned regis­tra­ti­on sche­mes and admi­nis­tra­ti­on efforts for traf­fic out­side the sett­le­ments.

Con­tro­ver­si­al legal pro­po­sals (3): distan­ces to polar bears and wal­ru­ses

Also a part of the law pro­po­sal that inclu­des the abo­ve-men­tio­ned points, this part is so cen­tral and important that it needs to be high­ligh­ted on its own, rather than get­ting lost at the end of a long text some­whe­re else: the law inclu­des a legal mini­mum distance of 500 metres to polar bears in any situa­ti­on and 300 metres to wal­ru­ses at sea.

Espe­cial­ly a gene­ral mini­mum distance of 500 metres to polar bears would des­troy the basis of a lar­ge part of the ship-based tou­rism indus­try in Sval­bard: see­ing polar bears is amongst the main rea­sons for many tou­rists who visit Sval­bard, espe­cial­ly in the con­text of several-day-long trips on smal­ler ships (expe­di­ti­on ships). Polar bear obser­va­tions wit­hin much shor­ter distan­ces from ships or smal­ler boats (“ten­der boats”, often Zodiacs or simi­lar boats) are more or less com­mon rou­ti­ne on many of the­se trips and do not invol­ve dan­ger for humans or ani­mals. Car­ri­ed out pro­per­ly and respect­ful­ly, such ope­ra­ti­ons do usual­ly not cau­se dis­tur­ban­ce of wild­life; chan­ges of beha­viour that may occa­sio­nal­ly occur are usual­ly not rele­vant – unless one con­si­ders it princi­pal­ly unac­cep­ta­ble that a polar bear walks a few metres away – and lead to an immedia­te dis­con­ti­nua­tion of the ope­ra­ti­on or at least to a grea­ter distance.

Approa­ching polar bears in a way that may invol­ve dan­ger for humans or ani­mals or dis­tur­ban­ce is alrea­dy for­bid­den (but NOT approa­ching in gene­ral) accord­ing to the Sval­bard envi­ron­men­tal act that has been in for­ce for a long time now. Hence, the­re is no legal defi­cit but pos­si­b­ly an enfor­ce­ment defi­cit, some­thing that would actual­ly be hard to deny but at the same time a pro­blem that will not be sol­ved by stric­ter laws.

The­re is no data that sug­gest that dis­tur­ban­ce cau­sed by tou­rists real­ly is a pro­blem for polar bears in Sval­bard. The­re is no doubt that annoy­ing indi­vi­du­al cases do hap­pen whe­re tou­rists with or without gui­de (or locals) behave in an inac­cep­ta­ble way in the pre­sence of polar bears (or other wild­life, for that sake). But the­se cases are alrea­dy cove­r­ed by exis­ting law; the pro­blem is enfor­cing the law that is in for­ce and not a need for new and stric­ter laws. And, again, the­re is no data sug­ges­ting that the­re is a sys­te­ma­tic pro­blem bey­ond indi­vi­du­al cases.

Regar­ding wal­ru­ses: a cou­p­le of years ago, the Nor­we­gi­an Polar Insti­tu­te car­ri­ed out a pro­ject with auto­ma­tic came­ras pla­ced at a num­ber of wal­rus hau­lout sites to inves­ti­ga­te the pro­blems that traf­fic, espe­cial­ly tou­rist visits, might poten­ti­al­ly cau­se. The con­clu­si­on was that the­re is no indi­ca­ti­on that tou­rist traf­fic poses a rele­vant pro­blem.

The­se are the most important parts of the legal pro­po­sals that con­cern the inte­res­ted public also out­side Sval­bard. But the­re is more:

Con­tro­ver­si­al legal pro­po­sals (4): qua­li­fi­ca­ti­on and cer­ti­fi­ca­ti­on of gui­des

Ano­t­her pro­po­sal aims at the qua­li­fi­ca­ti­on and cer­ti­fi­ca­ti­on of gui­des. This has alrea­dy been a mat­ter of deba­te for a long time and hard­ly anyo­ne will deny that the­re is need for action. A rea­son­ab­le, prac­ti­ca­ble cer­ti­fi­ca­ti­on sche­me would be wel­co­med by com­pa­nies, rele­vant orga­ni­sa­ti­ons (such as AECO or the Sval­bard Gui­de Asso­cia­ti­on) and many gui­des who con­si­der them­sel­ves pro­fes­sio­nals. The cur­rent pro­po­sal, howe­ver, sets the thres­hold from zero up to a level that would be very hard to reach for most. The pro­po­sal deman­ds a num­ber of cour­ses and cer­ti­fi­ca­tes that would cost an indi­vi­du­al, non-local gui­de (who would also have to pay tra­vel and accom­mo­da­tio cos­ts) an esti­ma­ted 10,000-20,000 Euro. The result might be a col­lap­se of the indus­try as almost no gui­des have the­se cer­ti­fi­ca­tes rea­dy or would be able to pro­du­ce them at more or less short noti­ce. This inclu­des expe­ri­en­ced gui­des with many years or even deca­des of expe­ri­ence who would “only” have to for­ma­li­se their know­ledge and expe­ri­ence which they have been using as part of their dai­ly rou­ti­ne for many years, but without having for­ma­li­sed the­se skills. Also many of the­se expe­ri­en­ced pro­fes­sio­nals would – espe­cial­ly con­si­de­ring the who­le legal situa­ti­on and poten­ti­al deve­lo­p­ment – think twice if they actual­ly want to go through the effort of for­ma­li­sing their exis­ting skills and know­ledge. A lot of pre­cious know­ledge might thus get lost.

Con­tro­ver­si­al legal pro­po­sals (5): depri­val of com­mu­nal voting rights from non-Nor­we­gi­an citi­zens in Lon­gye­ar­by­en

And yet ano­t­her fan­tastic idea that you have to bear in mind to have kind of a com­ple­te pic­tu­re of the cur­rent poli­ti­cal deve­lo­p­ment is the stun­ning pro­po­sal to deny “for­eig­ners” the vote to right local­ly in Lon­gye­ar­by­en (this is NOT about the natio­nal par­la­men­ta­ry elec­tions, that is not an issue any­way for tho­se who do not have Nor­we­gi­an citi­zenship).

Legal cri­ti­cism

The abo­ve-men­tio­ned legal opi­ni­on con­si­ders main­ly the part of the law pro­po­sals that is aimed at prac­ti­cal­ly clo­sing lar­ge parts of Sval­bard, but also the part that con­cerns gui­de cer­ti­fi­ca­ti­on. The legal opi­ni­on leads to anni­hi­lating con­clu­si­ons regar­ding both parts.

Gene­ral cri­ti­cism that con­cerns the who­le packa­ge inclu­des the fact the the local popu­la­ti­on and their poli­ti­cal repre­sen­ta­ti­ves, and others con­cer­ned such as indus­try asso­cia­ti­ons and com­pa­nies, have not been invol­ved (com­ment for the sake of com­ple­teness: the­re is an ongo­ing public hea­ring whe­re all asso­cia­ti­ons, com­pa­nies and indi­vi­du­als who want to can give their input, but many doubt that cri­ti­cal opi­ni­ons will actual­ly be con­si­de­red and reflec­ted by the ongo­ing pro­cess. The abo­ve-men­tio­ned par­ties were not inclu­ded at any ear­lier sta­ge).

Key points of the legal opi­ni­ons regar­ding the clo­sure of lar­ge parts of Sval­bard inclu­de:

  • The­re is doubt if the legal foun­da­ti­on is suf­fi­ci­ent for such drastic mea­su­res.
  • Poor data and sci­en­ti­fic basis for such strong restric­tions.
  • Con­se­quen­ces for are­as and loca­ti­ons, inclu­ding tho­se who are to remain acces­si­ble, are not suf­fi­ci­ent­ly con­si­de­red.
  • Important sci­en­ti­fic input given by inst­uti­ons such as NINA (Nor­we­gi­an Insti­tu­te for natu­re rese­arch. It is amongst NINA’s key tasks to sup­port legal pro­ces­ses with sci­en­ti­fic know­ledge) and the Nor­we­gi­an Polar Insti­tu­te (dito) was not suf­fi­ci­en­ty con­si­de­red. This con­cerns amongst others the requi­red mini­mum distan­ces to polar bears and wal­ru­ses.
  • Wrong app­li­ca­ti­on of the pre­cau­tio­na­ry princip­le.
  • Mil­der restric­tions other than the stron­gest ones were appear­ent­ly not con­si­de­red.
  • One-sided, nega­ti­ve pre­sen­ta­ti­on of tou­rism in Sval­bard, espe­cial­ly crui­se tou­rism, without good basis by data or sci­en­ti­fic input.

Also the legal pro­po­sal that con­cerns amongst others cer­ti­fi­ca­ti­on sche­mes for gui­des does get some sub­stan­ti­al cri­ti­cism:

  • Con­se­quen­ces for the indus­try were not suf­fi­ci­ent­ly con­si­de­red, for examp­le cos­ts esti­ma­ted bet­ween 10,000 and 20,000 Euro for non-local gui­des.
  • Limi­ted capa­ci­ties and exis­ting com­pe­tence were not suf­fi­ci­ent­ly con­si­de­red.
  • Admi­nis­tra­ti­ve con­se­quen­ces were not suf­fi­ci­ent­ly con­si­de­red: how much addi­tio­nal effort would an enlar­ge­ned regis­tra­ti­on and admi­ni­nis­tra­ti­on sche­me for traf­fic invol­ve? How many addi­tio­nal admi­nis­tra­ti­ve posi­ti­ons, time and cos­ts have to be expec­ted?
  • Con­se­quen­ces for the local popu­la­ti­on and com­mu­ni­ty were not suf­fi­ci­en­ty con­si­de­red, for examp­le the con­se­quen­ces for the attrac­ti­vi­ty of Lon­gye­ar­by­en as a place to live. Many peop­le in Lon­gye­ar­by­en are pro­fes­sio­nal­ly direct­ly or indi­rect­ly con­nec­ted to tou­rism.

Con­clu­si­on

The con­clu­si­on of the legal opi­ni­on is clear: the law pro­po­sals should be with­drawn and draf­ted again from scratch, with a new defi­ni­ti­on of the aims that are actual­ly to be achie­ved and a new con­si­de­ra­ti­on of the legal basis and sci­en­ti­fic input.

On the other hand, opti­mism amongst tho­se who are con­cer­ned that rele­vant aut­ho­ri­ties are wil­ling to lis­ten to opi­ni­ons other than their own ones is rather limi­ted, to put it mild­ly. With­drawing a pro­po­sal that is public at least indi­rect­ly implies a con­fes­si­on that some­thing was not right from the start, some­thing that aut­ho­ri­ties are usual­ly not real­ly good at.

On the other hand, as it is said in the Nor­we­gi­an moun­tain rules: it is never too late to turn around.

click here to access a page of the Nor­we­gi­an envi­ron­men­tal aut­ho­ri­ty (“Mil­jø­di­rek­to­rat”) with fur­ther docu­ments, inclu­ding (a bit fur­ther down on the page) Eng­lish trans­la­ti­ons of the Eng­lish ori­gi­nals. The­re is also a link to the page with the hea­ring pro­ce­du­re, which is open until 01 May 2022.

By the way, my new book is in print and it can now be orde­red 🙂 it is a pho­to book with the tit­le “Nor­we­gens ark­ti­scher Nor­den (3): Die Bären­in­sel und Jan May­en”, with Ger­man text Click here for fur­ther details!

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last modification: 2021-12-13 · copyright: Rolf Stange
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