Apostolos Tsiouvalas[1]
University
of Akureyri (UNAK), Iceland.
K.G. Jebsen Centre for the Law of the Sea
(UIT), Tromsø, Norway.
Abstract: One of the largest remaining unexploited iron
ore deposits in Europe is the Kallak Iron Deposit in the province of Norrbotten
in northern Sweden, where a significant Sámi population is located. Since 2011,
the UK-based company, Beowulf Mining, has begun a large campaign for extraction
in northern and southern Kallak. However, the Sámi of the region, together with
environmentalists and non-Sámi individuals have drastically expressed their
opposition blocking with various ways the processes. The Sámi being aware of
the environmental risk have concerns about their ability to drive reindeer
across the land, and the impact Beowulf’s operations are likely to have on the reindeer
migratory patterns. Nowadays, seven years after the initial application for
licensing, the approval of the application is still pending and Beowulf is
pressing more and more the Swedish authorities for a final response in order to
start extracting. Only the County Administrative Board of Norrbotten, despite
its initial consent, still advocates for Sámi and their reindeer refusing to
issue licensing for the British company. Accordingly, this article was designed
as a descriptive study of the legal framework of the implementation of this
endeavour addressing the legal arguments of both sides as they derive from a
qualitative study of official documents, environmental reports, and relative
articles of scholars. Concluding, the article illustrates the gaps of legal
protection of indigenous land-rights in Sweden presenting their vulnerability
to such kind of challenges.
Keywords: Sámi people. Kallak. Reindeer herding. Indigenous land-rights. Mining.
Resumo: Um dos maiores depósitos de minério de ferro ainda não explorados na Europa é o Kallak Iron Deposit, na província de Norrbotten, no norte da Suécia, onde está localizada uma população significativa de Sámi. Desde 2011, a empresa britânica Beowulf Mining iniciou uma grande campanha de extração no norte e no sul de Kallak. No entanto, os Sámi da região, junto com ambientalistas e não-Sámi expressaram drasticamente seu bloqueio de oposição de várias maneiras pelos processos. Os Sámi que estão conscientes do risco ambiental têm preocupações sobre sua capacidade de conduzir renas pela terra e o impacto que as operações de Beowulf provavelmente terão nos padrões migratórios de renas. Hoje, sete anos após o pedido inicial de licenciamento, a aprovação do pedido ainda está pendente e a Beowulf está pressionando cada vez mais as autoridades suecas para uma resposta final a fim de iniciar a extração. Apenas o Conselho Administrativo do Condado de Norrbotten, apesar de seu consentimento inicial, ainda defende os Sámi e suas renas, recusando-se a emitir licenças para a empresa britânica. Nesse sentido, este artigo foi delineado como um estudo descritivo do arcabouço jurídico da implementação desse esforço, abordando os argumentos jurídicos de ambos os lados, uma vez que derivam de um estudo qualitativo de documentos oficiais, relatórios ambientais e artigos relativos de estudiosos. Concluindo, o artigo ilustra as lacunas da proteção legal dos direitos territoriais indígenas na Suécia, apresentando sua vulnerabilidade a esse tipo de desafio.
Palavras-chave: Povo Sámi. Kallak. Pastoreio de renas.
Direitos indígenas à terra. Mineração.
1 INTRODUCTION
The present contribution will shed some light on the
challenges that the indigenous peoples in Northern Sweden - known as Sámi people
- have been facing in the Arctic and in particular in Kallak, in the Northern
part of Sweden. The narration of the indigenous struggles to defend land and
traditions will serve as a synecdoche of the challenges that Nordic indigenous
peoples have been facing, and that are connected to stories of long lasting
marginalization and discrimination, economic exploitation and environmental
degradation.
In particular, three escalating and almost concomitant
factors have caused a deep fracture between the peoples and the natural
environment: the aftermath of assimilation policies; the effects of the
globalized economy; the risks and damages to the environment caused by climate
change. First, the side and prolonged
effects marginalization and colonization process, undermined the Sámi language
and culture with the idea to assimilate the Sámi people into the rest of the
population. According to the scholars, the effects of the disruptive
assimilation policies are of such a magnitude, that requires at least one more
century to be completely eradicated[3].
Second, the
effects of globalization and natural resources exploitation, that started in
the early 1980s[4],
when the Scandinavian economy changed into an oil-based economy and have been
escalating since then, to the detriment of self-sufficiency, owner farming and
subsistence economy, at the base of the Sámi culture. As a side effect[5],
the economic changes turned into a tragic loss of identity as well[6].
Third, the climate change effects, with the rising
temperatures and exposure to polluted water[7],
to name but a few[8].
As said, these three factors caused severe disruptions
in the connection between the indigenous peoples and the environment[9]
.
Yet, this trend can be reversed by returning power to
the knowledgeable peoples that live in the threatened areas.
The involvement of the Sámi in the safeguard of the
Arctic environment and in the protection of their traditions and cultures, is
likely to have multiple positive effects: it can function as a moral and
substantial restoration after the distortion of the assimilation and of the
economic exploitation of their areas, and it is beneficial for the nature as
well.
2
A
FOCUS ON THE SÁMI IN NORTHERN SWEDEN
As
mentioned in the previous section, the Sámi have historically suffered various
types of discrimination and repression as regards to their ancestral
land-rights and their traditional activities. Nowadays, these violations have
been significantly diminished, but in the era of climate change, indigenous
rights seem to be in many cases in collision with mining interests, especially
in the Arctic where both land and ocean tend to become more and more accessible
for exploration and extraction than ever before in the past. One of these cases
illustrates the recent example of Kallak.
The Kallak
Iron Deposit (originally Gállok in Swedish) is located between the villages of
Björkholmen and Randijaur in the municipality of Jokkmokk in the province of
Norrbotten in northern Sweden. The British company Beowulf Mining through its
subsidiary, Jokkmokk Iron Mines AB, acquired the Kallak north licence in 2006
and the south in 2010[10] and since then has invested 77
million SEK in the region[11]. An exploratory drilling program
conducted in 2010 has found at least 600 million tonnes of iron ore at an
average grade of 30% in both sides of Kallak[12]. As expected, in May 2013, the
company announced it would not renew its exploration permit for the site near
Kvikkjokk in Jokkmokk municipality because of inadequate infrastructure, but
would continue at another of its 18 exploratory sites, at Kallak in the same
municipality recognising the upcoming environmental risks but making clear that
is willing to follow all the demanded legal procedures with the outmost
diligence[13]. Simultaneously, as it was obvious,
the local community reacted drastically to this new decision and tried to
prevent its implementation. In particular, the indigenous Sámi people of the
region, members of the local municipality of Jokkmokk and many activists and
environmentalists, despite the initial consent of the local county Norrbotten,
resisted the mining policy and successfully blocked it[14]. In the summer of 2013 a large
number of road blockades and demonstrations were conducted and the mining
process was temporary paused[15]. Main arguments of the resistance
were the danger of environmental degradation of the region, the ecological
protection of flora and fauna in Lapland and the possible obstruction in the
traditional Sámi activities mostly related to reindeer herding[16].
Indeed,
the land of Kallak where the minerals have been identified is considered to be
a crucial part for the indigenous subsistence playing a significant role in the
survival of the reindeer herding and being closely connected to their migration
paths[17]. Finally, in 2014 the county of
Norrbotten changed its previous policy about the case and asked Beowulf to
cancel the mining process until the Swedish governmental geology
decision-making body Bergsstaten gives its consent[18]. However, Bergsstaten’s statement
dissented from the county’s refusal and it is now up to the government of
Sweden to give a final answer to the question since the county of Norrbotten
continues to ignore Beowulf’s application[19].
Up to the
present, the Swedish government has not yet submitted a final decision to the
company, and the case is still pending. Still, Beowulf has increased its
pressure to the governmental authorities and nowadays the completion of the
mining project looks more possible than ever before, posing a possible danger
for the indigenous Sámi people of the region whose land rights look to be
exposed to the upcoming challenges[20].
Consequently,
this study was designated as a descriptive study of the legal framework of the
specific conflict addressing the potential environmental risk and highlighting
the need for further protection of the indigenous and minority rights in Sweden
in general.
3 A POTENTIAL ENVIRONMENTAL RISK
Before
analysing the framework under which Beowulf is planning to start exploitation
soon, it would be beneficial to address firstly the importance of reindeer
herding and husbandry for Sámi, the environmental risk of this project and the
sensitivity of reindeer to changing environmental conditions Bellow, are
illustrated the grazing and migration patterns of reindeer and the possible
dangers that the iron ore extraction in Kallak can pose.
Traditionally,
Sámi people rely on subsistence reindeer herding[21]. Today, only a minor share of the
Sámi people have reindeer herding and husbandry as their main occupation,
although it remains an important part of the culture organized in family-based
small businesses[22]. Reindeer herding has since time
immemorial been the main employment of Sámi deriving from their ancestral land
rights and their deep connection to the nature which compose their special ‘sui
generis’ legal status as an indigenous people. Since 1971, the Swedish Reindeer
Herding Act has been regulating all reindeer herding activity in Sweden
securing reindeer herding as an exclusive right for the Sámi people of Sweden[23]. In addition, as of
January 1, 2011, as a result of its latest amendment, the Constitution of
Sweden explicitly recognizes the Sámi as a people, as distinguished from a
minority group reassuring their right to practice reindeer husbandry[24].
Reindeer
herding actually involves eight seasons of migration to higher or lower
pasture, depending on temperatures and vegetation available.[25] In particular, reindeer remain on
hills and mountains during the summer season, but during the winter season the
sensitive mammal has to go down to the forest and seek food and, therefore, it
needs a big area to graze[26]. Consequently, reindeer in
Fennoscandia migrate twice per year in order to access their pastures. The
little peninsula that Kallak mine has been established is located one hour
distance from the closest reindeer herds[27]. Sámi herders insist that the new
infrastructure and mining activities would block two routes used by reindeer to
migrate from summer pastures in the mountains north of Kallak to winter grazing
land in the forested valley south of Jokkmokk[28]. This suggested infrastructure
development includes the construction of a tailings facility, new roads and,
potentially, a railroad spur connecting the site to an existing rail line that
would carry the ore to ports on the Baltic Sea and Norwegian coast where it
would be shipped to steel plants in northern Europe and used in the production
of everything from cars and ships to electronics and paper clips[29]. Indeed, as the former county
governor Sven-Erik Österberg stated, the haulage roads will affect the area
much more than the mine itself[30].
The
disturbance of grazing patterns can bring dramatic consequences to the fore
such as increased energy consumption from the reindeer and loss of grazing time[31]. Scientists predict that an
increasing disturbance can gradually lead to a permanent loss of pastures[32]. In addition, obstruction in the
access to pasture area can lead to a decrease of the average slaughtering
weight for a reindeer giving a long-term negative impact on the husbandry in
general[33].
Furthermore,
it should be taken into consideration that a hindrance to reindeer migration
roots has been noticed in more cases in Sweden, a fact that justifies the
general fear and tensions that have risen as response to the recent process in
Kallak. Sámi reindeer herders and mining companies have coexisted uneasily in
the forests of northern Sweden since 1890[34]. For example, since the previous century,
locals from the region around Kiruna have already faced the prospect of new
open-pit mines with low ore content and they feared a high risk of pollution
and disturbance to the reindeer migration[35]. Encroachments into reindeer
pastures grazing conditions are seen among both reindeer herders and
researchers to be the largest threat to the future of Sámi reindeer husbandry
and therefore, the establishment of a mine Kallak explicates the huge
opposition of Sámi.
4 REGULATORY COMPLIANCE AS THE KEY FOR EXTRACTION
Acknowledging
the risks stated above Beowulf has come with a strong folder of arguments to
appease the constant concerns against the extraction project, while seems to
comply with almost all the demanded requirements to start an extraction process
in Sweden[36]. The Swedish Minerals Act (No. 45
of 1991) is the principal law regulating the mining industry and it governs the
procedure for acquiring exploration permits and exploitation commissions on
land, irrespective of who owns the land to be explored or exploited.[37]In particular, the mining process in
Sweden demands the following licences: an exploration license issued by the
County Administrative Board which requires an Environmental Impact Assessment
(EIA) including a formal stakeholder consultation process, a permit for test
mining issued by the Swedish Mining Inspectorate (Bergsstaten), which requires
a further EIA focusing on land use and finally an Exploitation Concession
issued by the Land- and Environmental court requiring a final approved EIA.[38]
There is
no doubt about the compliance of Beowulf with the legal procedure stated above,[39] but it is worth noting that the
local county of Norrbotten, despite its initial consent has consistently failed
to follow the prescribed process for assessing an Exploitation Concession
application arguing that mining and reindeer herding cannot coexist. Therefore,
the licensing process is still pending and now the government of Sweden has
been called to give its acquiescence to Beowulf to start exploiting.[40] However, the issued EIAs and the
suggested sustainability of the mining process based on studies conducted by
the Economics Unit of Luleå University of Technology[41] together with the compensations
that the company offers in cases of disturbance of reindeer grazing seem to be
sufficient enough to urge the Swedish government to give an affirmative
response.[42]
Furthermore,
the UNESCO World Heritage Site Laponia, governed since 2010 by Laponi
atjuottjudus, an association controlled in majority by Sámi, is 34 km at its
closest point away from Kallak, and cannot be connected to a direct impact, as
the Swedish National Heritage Board confirms.[43] Indeed, Kurt Budge, the chief
executive of Beowulf Mining plc has claimed that existing mines operate in
closer proximity and have not yet threatened Laponia’s World Heritage Status.[44]
Moreover,
what has to be examined as well is the European network Natura 2000 of nature
protection. Designated respectively under the Habitats Directive and Birds
Directive, Natura 2000 has established more than 4000 Special Areas of
Conservation (SACs) and Special Protection Areas (SPAs) in Sweden, many of whom
belong to the county of Norrbotten.[45] However, the region where Kallak
Iron Ore mine has been established does not overlap any protected place by Natura
2000, while there is not clear evidence that the mining itself could in future
pose a danger to the closest protected areas.[46] In response to the concerns of the
County Administrative Board of Norrbotten about a specific transport corridor
under consideration, Beowulf eliminated from its future planning the transport
corridor that passes in a north/north-easterly direction through the
Jelka-Rimakåbbå Natura 2000 area.[47]
Finally, worth
mentioning is the procedure of an EIA that Beowulf has followed. Based on the
section three of the 6th Chapter of the Swedish Environmental Code private
entities that constitute an EIA shall also consult private individuals who are
likely to be affected by their activities.[48] In the specific case Beowulf has
several times cooperated with private individuals and has achieved the consent
of a majority of the population of Jokkmokk, but there is no clear evidence
whether in these procedures has participated the limited number of Sámi herders
that reside in the nearby regions and constantly oppose this endeavour.
5 ‘TRICK OR TREATY’?
It is well
known that during the 20th century, Sámi people faced various challenges and
difficulties until they obtained their present status, experienced violations
of their rights and discriminating State policies.[49] Despite their common culture, Sámi
people received a different treatment around the Scandinavian North and there
are many cases that states and private sectors conducted activities in
violation of their fundamental rights. In Sweden, the situation began to
ameliorate after 1977 when the Swedish government first recognized the Sámi as
an indigenous minority within the State.[50]
The
reindeer herders whose land-rights are violated by a mining process could first
of all seek protection under the Swedish constitution. Particularly, Article 2
of the latest amended Swedish constitution provides that the opportunities of
the Sámi people and ethnic, linguistic and religious minorities should be
preserved and the development of the cultural and social life of their own
shall be promoted, while Article 17 protects the right of Sámi people to
reindeer herding as a fundamental freedom.[51] For Sámi as an indigenous people
reindeer herding is an indivisible part of their ancestral culture and should
not be hindered by any private or public sector. However, it has to become
clear that the Sámi do not own the land according to the law, but they have the
right to use it in order to exercise their traditional activities. Therefore,
the placement of a mine in Kallak practically bans their right to use this
land. The responsible instrument for representing the Sámi interests against
land rights violations is the Swedish Sámi Parliament.
The Sametingslag
was established as the Swedish Sámi Parliament on the 1st of January 1993
succeeding a closer dialogue with the rest governmental bodies in order to
build openness and agreement.[52] Since this time an order of acts
and legal instruments has been followed and the situation has started to
improve towards an optimistic future. However, is the Sámi parliament empowered
by the present legal framework sufficient enough for the legal protection of
the Sámi herders in Kallak against the almighty company which has already
invested 77 million SEK in the region?[53]
The answer
is rather controversial. The Swedish Sámi Parliament itself, despite the fact
that has been granted a greater degree of autonomy and influence during the
last years,[54] remains an entity charged with
implementing government policy, a fact that can be already identified in the
text of Sámi Parliament Act.[55] This means that opportunities for
Sámi to decide for themselves through this forum as regards to decisions
affecting them are still limited.[56]
A further
framework in controversy is the 2007 adoption of the United Nations Declaration
of Rights of Indigenous People. Indeed, the Declaration is the most
comprehensive international instrument on the rights of indigenous peoples
defining that indigenous people should be given a strong position particularly
in issues concerning land, since they reserve customary rights to these areas.[57] However, it should not be ignored
that UNDRIP remains a declaration lacking per se legal enforceability and
binding status, while does not either give right for taking action against
violating parties.[58] So in practice, the Sámi cannot
seek protection neither under this soft law document.
In
response to this legal uncertainty regarding to the protection of indigenous
land-rights in Scandinavia the United Nations Special Rapporteur on the Rights
of Indigenous Peoples has several times interfered giving recommendations to
the Swedish authorities. In 2005 the Sámi Parliament prepared an extended
report for the United Nations Special Rapporteur on the Rights of Indigenous
Peoples, ms. Victoria Tauli-Corpuz, calling the Swedish Sámi policy in respect
to the case as an illegal act and violation of Indigenous rights under
international law.[59] During the last decade the
government pressed by constant interventions of the United Nation Special
Rapporteur on the Rights of Indigenous Peoples has adopted an order of measures
such as the Act on National Minorities and Minority Languages (2009:724)
reinforcing the position of Sámi. However it is still clear that the existed
framework is not yet sufficient and the reality has shown that the more the
Sámi seek for protection under these instruments, the more Beowulf fortifies
its legal arguments providing finally even compensation for each individual
case of disturbance of reindeer activities close to Kallak.[60]
Nevertheless,
only a strong international law framework could reassure the Sámi the
appropriate legal protection as regards to their rights as an indigenous
people. Thus, Sweden in contrast to Norway has not yet ratified the ILO
Convention 169 as regards to indigenous and tribal peoples, which is the most
important international agreement with legal force specialized to indigenous
people.[61] For example regarding to the
uncertainty of Sámi participation in the procedure of Beowulf’s EIA Article 7§3
of the 169 Convention defines:
Governments
shall ensure that, whenever appropriate, studies are carried out, in
co-operation with the peoples concerned, to assess the social, spiritual,
cultural and environmental impact on them of planned development activities.
The results of these studies shall be considered as fundamental criteria for
the implementation of these activities.
If Sweden
had ratified the ILO Convention C169 the above stated article would commit the
government to carry out studies related to Kallak mine including participation
of the affected Sámi herders as well, while their herding rights would be
further secured.
6 CONCLUSIONS
Concluding,
what is the most likely, is that the Swedish government will give soon a final
solution to the open case, the licensing application will be approved in the
fullness of time and the company will start extracting the large iron ore
deposit. Weighing the advantages and disadvantages of this endeavour it is
apparent from an economic perspective that the completion of mining progress in
Kallak would provide around many direct jobs and millions of SEK in additional
tax revenues to the Municipality of Jokkmokk over 14 years, as the company
guarantees, while on the other hand it will possibly disturb the herding
activity of only a limited number of Sámi herders. However, the matter of this
opposition is not monetary at all. Although the conflict concerns access to
natural resources, it also illustrates the everyday struggle of the Sámi
population claiming justice through their historical rights and culture. This
struggle is about much more than Kallak. It’s about what is generally happening
all over the Nordic region and has been happening for decades in the entire
Arctic. Modernization and commercialization of each last pristine place of the
North driven by climate change and the trend of globalization have whether
marginalized or affiliated indigenous peoples. Amongst them have always been
Sámi. The resistance to a mine in Kallak will undoubtedly continue based on the
belief that the right to decide about this land historically falls on the Sámi
population. For indigenous peoples being entitled to make decisions that
concern land-use is detrimental for the survival of their culture illustrating
the historical context of Sámi struggles for recognition against the Swedish
state. For them has always been a distinct relationship with the land extending
to environmental stewardship. Land is not merely a supplier for resources for
the current generation, but an environment to be looked after for the next
generations. Therefore, this specific case of Kallak is an example of a global
matter which has to be drastically changed.
A change
of course in Sweden’s Sámi policy can only be achieved if it is based on
international law concerning indigenous peoples. In this connection, Sweden
must undoubtedly ratify ILO Convention 169. Measures need to be taken without
delay to remedy the present unsatisfactory situation concerning Sámi rights,
participation in governance and influence on decisions affecting them. The
reinforcement of their legal remedies and framework will lead to joining Sámi
in establishing long-term, sustainable structures for participation at local,
regional and national level, where it is the Sámi and not the majority society
that defines both the indigenous matters in hand and what measures are required
to deal with them. Under these preconditions not only the reindeer herders in
Kallak but each indigenous individual in Sweden will be honing in on a
hospitable future.
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Data de Submissão: 27/09/2018, Data de Aprovação: 16/10/2018
COMO CITAR ESTE ARTIGO
TSIOUVALAS, Apostolos; POTO, Margherita Paola.
Indigenous rights to defend land and traditional activities: a case study of
the Sami in the northern Sweden. Revista de Direito da
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Ano. doi: https://doi.org/10.29293/rdfg.v5i1.211.
[1] LL.M Candidate of Polar Law in the
University of Akureyri, Iceland (UNAK).
[2] Postdoctoral fellow at the K.G.
Jebsen Centre for the law of the Sea (UIT), Tromsø, Norway.
[3] H Minde (2005).
[4] D H Claes (2001).
[5] S U
Søreng (2008).
[6] For
a deeper understanding of the matter around fishing rights, please refer to S U
Søreng (2007), cit. The author describes the struggles to regain fishing rights
that took place in North Norway, involving a group of north Norwegian coastal
fishers and the Sámi Parliament.
[7] H
V Kuhnlein, B Erasmus, D Spigelski and B Burlingame (2013).
[8]See Arctic
environment: European perspectives Why should Europe care?, Environmental
issue report, cit., p. 7.
[9]A
Giddens (1994).
[10]Beowulf Mining plc (2010).
[11] Beowulf Mining plc (2018).
[12] Beowulf Mining plc (2011).
[13] SVT Nyheter (2013).
[14]S Hughes (2014).
[15]J A Schertow (2013).
[16]D Bush (2013).
[17]Ibid.
[18] P4 Norrbotten and Perdahl (2014).
[19] P4 Norrbotten (2015).
[20]Supra note
12.
[21]N Labba andL Jernsletten (2014).
[22] Swedish Institute (2017).
[23]Näringsdepartementet RS L (1971,
June 18). Rennäringslag (1971:437). Rennäringslag (1971:437) t.o.m. SFS
2018:364.
[24] Riksdag (2009).
[25]M Agresta (2014).
[26]L Jernsletten andK Klokov (2002).
[27]Supra note
17.
[28]Ibid.
[29]Ibid.
[30]A Gerasimova (2014).
[31]Supra note
28.
[32]Ibid.
[33]Ibid.
[34]Supra note
27.
[35]Ibid.
[36] Beowulf Mining plc (2011b).
[37] Sveriges Geologiska
Undersökning (2007).
[38]Ibid.
[39]Supra note 38.
[40]Supra note 12.
[41] Beowulf Mining plc (2017).
[42]Supra note
12.
[43] Riksantikvarieämbetet (2013).
[44]Supra note
12.
[45]Sveriges nationalparker (2018).
[46]Ibid.
[47] Beowulf Mining plc (2016).
[48] Miljöbalk (1998:808) Svensk
författningssamling 1998:1998:808 t.o.m. SFS 2018:1427).
[49]N H Sikku, M Teilus and K Kvarfordt
(2005).
[50]Ibid.
[51] Sveriges Riksdag (2009).
[52]Supra note 51.
[53]Supra note 12.
[54] The Government of Sweden (2005).
[55] Sveriges Riksdag (1992).
[56] Diskrimineringsombudsmannen (2010).
[57] UN General Assembly, United Nations Declaration on the Rights of
Indigenous Peoples : resolution / adopted by the General Assembly, 2
October 2007, A/RES/61/295.
[58]M Barelli (2009).
[59] Sametinget (2015).
[60]Supra note 12.
[61]International Labour Organization
(ILO), Indigenous and Tribal Peoples
Convention, C169, 27 June 1989, C169.