Legal opinion: law proposals should be withdrawn

Posted on 13. December 2021 by Rolf Stange

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(the Spitsbergen archipelago) is fuelled by a legal opinion that, in essence, concludes that the proposals should be withdrawn.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.

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

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.

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