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Meld. St. 22 (2008-2009)

Svalbard

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5 Legislation

5.1 Introduction

Legislation is necessary for societal development in line with the overriding objectives of Svalbard policy. Since the previous Report to the Storting on Svalbard, the community services in the archipelago, particularly in Longyearbyen, have become more like corresponding local communities on the mainland. This, combined with Norway’s increasingly extensive obligations under international law in general, has led to a greater need to make new laws and regulations applicable to Svalbard. In its performance audit of Svalbard, the Office of the Auditor General pointed out that in some areas, Svalbard appears to be underregulated, cf. Document No. 3:8 (2006 – 2007). Furthermore, in its deliberation of this report (Recommendation No. 46 (2007 – 2008) to the Storting), the Storting maintained that any review of the principle for the application of laws to Svalbard requires thorough assessments. Against the backdrop of these observations and other important trends, this chapter will provide an account and assessment of the overarching legislative principles applying to Svalbard. The chapter will conclude with a review of the main features of a number of important areas of law and areas where the Government is assessing the need for changes.

5.2 Principles governing the application of legislation in Svalbard

5.2.1 Introduction

It is important to emphasise that in virtue of its sovereignty Norway may make all legislation that applies to the mainland applicable to Svalbard as well. The only limitation under international law is that the legislation must not conflict with the provisions of the Svalbard Treaty. The basis for the application of legislation to Svalbard is laid down in Act No. 11 of 17 July 1925 relating to Svalbard (the Svalbard Act). The Act provides the methodological legal basis for determining the application of legislation to the archipelago. Section 2 of the Svalbard Act reads as follows:

“Norwegian private and penal law and the Norwegian legislation relating to the administration of justice apply to Svalbard, where nothing to the contrary has been provided. Other statutory provisions do not apply to Svalbard unless specifically provided.”

In addition, Section 3 of the Svalbard Act stipulates that the mainland legislation shall automatically apply for rules relating:

“[to] public officials, to payment for public acts, to coins, measures and weight, to time, to the provision of universal postal services, to electronic communications, to labour protection and to labour disputes”.

Furthermore, Section 4 of the Svalbard Act grants the King authority to issue regulations concerning:

“the church, school and poor relief services, concerning public order, concerning deportation, concerning the medical and health services, concerning the building and fire services, concerning combustible articles, concerning shipping, aviation and other communications, considering tourism, concerning patents etc., concerning mining, concerning salt-water fishing, concerning the catching of non-native marine mammals and other economic activities and concerning submission of data to the official statistics. The King may also issue regulations concerning restrictions on activities that may be harmful to research activities in certain areas of particular value to research.”

Other provisions of the Svalbard Act also provide rules on the application of other legislation to Svalbard. For example, the fifth chapter “Longyearbyen Community Council” governs the application of provisions of the Local Government Act (Act No. 107 of 25 September 1992 relating to municipal and county authorities). A number of laws have also been given application through separate provisions in the particular act, e.g. Section 14 the Product Control Act (Act No. 79 of 11 June 1976) relating to control of products and consumer services) and Section 1 – 2 of the Child Welfare Act (Act No. 100 of 17 July 1992 relating to child welfare services).

5.2.2 Section 2 of the Svalbard Act

Pursuant to Section 2 of the Svalbard Act, all private law legislation applies automatically to Svalbard, where nothing to the contrary is provided. The same applies to criminal law rules and rules concerning the administration of justice. While private law legislation is not defined in Section 2, the terms is generally understood to be an umbrella terms for any regulation of the relationship between private parties. Furthermore, the second paragraph states that other statutory provisions do not apply to Svalbard unless specifically provided. Read in the context of the first paragraph, this implies that legislation characterised as “public law” (except for criminal or procedural law) applies only when specifically provided. What is “specifically provided” depends on a case-by-case assessment. In a ruling (Rt. 2007 p. 81), the “Nordpol Telecom case” the Supreme Court of Norway interpreted it to mean that some clear basis in the act, or in its preliminary studies, is required for public law rules to apply. The Supreme Court also emphasises hat in the area of the principle of legality there are even stricter requirements for this to be specifically provided. Nor is it sufficient for a statute to assume that other statutes will apply, unless these statutes are expressly made to apply. This was clear in the aforementioned case, where the public law portions of the Accounting Act were not deemed to apply, even though the Limited Liability Companies Act’s private law portions implicitly assume the application of these provisions. For more on this ruling, see section 5.3 below.

5.2.3 Should the principle in Section 2 of the Svalbard be inverted?

In the aforementioned discussion of the Office of the Auditor General’s report on the management of Svalbard, the Storting Standing Committee on Scrutiny and Constitutional Affairs stated that:

“[t]he Committee is aware that in its deliberation of the previous Report to the Storting on Svalbard, the Storting Standing Committee on Foreign Affairs, cf. Recommendation No. 196 (1999 – 2000) to the Storting, requested that the Government consider whether it might be appropriate to amend Section 2 of the Svalbard Act, so that Norwegian statutory provisions are to apply to Svalbard unless otherwise expressly provided. According to the investigation by the Office of the Auditor General, a study of this matter has so far not been done. The Committee assumes that whether any such change should be made and whether more laws are to be made to apply in Svalbard is something that in the event needs to be considered and discussed carefully, so that all consequences are brought out in the open.”

The question concerning the principle governing the application of laws to Svalbard has been taken up on several previous occasions, as the quotation makes clear. The Government has made a note of the Committee’s statement and has studied the issues, including a discussion and assessment of a possible change in the principle concerning the application of laws in Section 2 of the Svalbard Act. The gist of this study appears below.

Historically, legislation concerning Svalbard has been based on assessments of suitability and practical considerations, especially on account of its geographic location, climate and other local conditions. This is the background for choosing at the time the principle appearing in Section 2 of the Svalbard Act. Especially in the period between 1925 and 1975, the archipelago was physically isolated for large portions of the year owing to ice conditions. Local conditions have also been traditionally determined by the resources, transactions and services of private companies. More recent Norwegian legislation has had the aim of better compliance with Norway’s international obligations, at the same time as it addresses new needs and challenges. These two factors, the historical basis and more recent legislation, need to be taken into account in an evaluation of the principle regarding the application of legislation in Svalbard.

There are several arguments in favour of inverting the principle in Section 2. Firstly, there are a number of facts in its favour. The local community in Longyearbyen has grown in recent years along with a booming economy. The Office of the Auditor General points out these circumstances in the aforementioned report: “The development towards a more normal society in Longyearbyen has meant that it is increasingly desirable to make Norwegian legislation applicable to Svalbard.” It must be assumed that amending Section 2 may contribute to more regulation. This normalisation of societal functions in Svalbard implies, in the Government’s view, that one should in any case seek to make mainland legislation applicable to the extent it is possible. However, this can be done without having to invert the principle in Section 2.

Another weakness of the current system is the distinction between private and public law. This distinction is, as was noted, not defined in the Act and can create errors in interpretation. While it was once easier to categorise public law and private law legislation, today entire sectors or areas of life are regulated, and such legislation contains both public law and private law elements. By inverting the principle in Section 2 of the Svalbard Act, this distinction will lose its significance. All legislation will then apply, unless the contrary is expressly provided.

It has also been claimed that the term “særskilt fastsatt” (“specifically provided”) has an imprecise semantic content which creates doubts as to how it should be interpreted. However, in its aforementioned ruling in the “Nordpol Telecom case” (Rt. 2007 p. 801) the Supreme Court has helped to clarify this concept.

New laws are often passed with a separate authorisation to issue regulations for the King to determine the extent to which the act is to apply to Svalbard. However, the extent varies to which this authorisation is actually used. Even if the overriding principle in Section 2 of the Svalbard Act applies in these cases, and any private law rules in the law already apply to Svalbard, this legal technique can provide the basis for assuming that no part of the law applies if such a regulation is not issued. If the principle in Section 2 is inverted, doubts in these cases will no longer arise.

However, the Government would emphasise that there are still a number of special circumstances connected with Svalbard that argue in favour of retaining the principle in Section 2.

A weighty consideration is that legislation in the archipelago must not be at variance with the obligations Norway has under the Svalbard Treaty. If the main principle is for all laws to apply automatically to Svalbard, it may more easily have the unfortunate result of regulating matters in Svalbard in a manner that infringes the Treaty. This was also pointed out in Report No. 9 (1999 – 2000) to the Storting, Svalbard, page 28:

“[If] public law legislation were to be made applicable to Svalbard without the requirement of specific provision, any lack of vigilance could result in a Norwegian provision being unintentionally made applicable, possibly resulting in a violation of international law and/or detrimental effects on foreign policy. These flaws could arise in relation to formal statutes, but especially in connection with delegated legislation in the form of regulations.”

The principle for the application of laws also has an important aspect regarding the welfare system in Svalbard and how it is set up. For residents in Longyearbyen there is currently access to public health services in the area of general and emergency medicine, and access is provided to the most essential services that a working-age population needs, including schools, day care, dentistry services and midwife and public health nurse services. Even so, key entitlement legislation, such as the Social Welfare Act, does not apply to the archipelago. During residency in Svalbard, Norwegian nationals keep their previous addresses on the mainland entered in the national population register, which means that in the event of a need for services beyond what is available in Svalbard, they need to contact their respective local municipalities on the mainland and avail themselves of the services there. In the settlements outside of Longyearbyen, in Barentsburg, Hornsund and Ny-Ålesund, respectively, no provision of public services is made by the Norwegian authorities. Here the local services offered to inhabitants vary, but what they have in common is that the respective employer(s) arrange for the services, either providing them themselves or purchasing them.

This system has been regarded as an appropriate way to organise Svalbard communities, and the Government will continue to resist allowing Longyearbyen or other local communities to become “cradle-to-grave” societies. In this connection it is important to emphasise that the low tax rates in the archipelago precisely reflect the services that are available. An employed person in Svalbard pays an 8 per cent “flat” tax to the state (15.8 per cent including National Insurance contributions). Residents of Longyearbyen pay no local tax to the Longyearbyen Community Council.

By way of introduction it was pointed out that societal developments in Longyearbyen have meant that it is increasingly desirable to make Norwegian legislation applicable to Svalbard. But as mentioned above, conditions in Svalbard are nevertheless special. For that reason, developments toward normalised community functions do not necessarily require that all legislation be identicalto that on the mainland. There will often be a need to consider case-by-case whether laws and regulations should be applied. Such assessments can be complicated and time-consuming. Moreover, if the principle in Section 2 of the Svalbard Act is inverted, situations may more easily arise in which a lack of vigilance can result in laws nevertheless being made to apply to the archipelago that provide entitlements that are not part of what is currently offered and that are contrary to current policy for what is desirable. The consequences of this may be ambiguity regarding what services are and should be available.

There are also certain characteristics of the society in Svalbard that argue in favour of maintaining the principle in Section 2 of the Svalbard Act. As mentioned above, Article 3 of the Svalbard Treaty contains a provision whereby nationals of all signatory states have “equal liberty of access and entry” to the archipelago. Consequently, the Immigration Act (Act No. 64 of 24 June 1988 relating to the entry of foreign nationals into the Kingdom of Norway and their presence in the realm) does not apply. However, prospective migrants are required to have a place to live and be able to support themselves, cf. Regulations No. 96 of 3 February 1995 concerning exclusion and deportation of persons from Svalbard. The lack of restrictions on entry to Svalbard pursuant to the Immigration Act is difficult to reconcile with a general application of modern entitlement legislation.

The entitlements available to foreign nationals in Svalbard depend inter aliaon whether their employer may be said to be Norwegian in the sense of the National Insurance Act, cf. below. In the event they need health services, various social welfare services and schooling beyond what is provided for today, foreign nationals will have to avail themselves of the services available in their respective native countries. Nor can a foreign national acquire the right to citizenship merely by entering and residing in Svalbard. These rules also imply that foreigners do not automatically have access to mainland services. The reason this is being emphasised here is to illustrate further that Svalbard society diverges in some fundamental areas from society on the mainland, which underscores the need to be able to make case-by-case assessments of whether public law legislation should be made to apply to Svalbard and, if so, in what way.

Since the previous Report the local community in Longyearbyen has undergone changes in the direction of a more multicultural society. These changes have resulted in a need to clarify the legal situation in some areas, so that foreign nationals who come to Svalbard are made aware of the rights and obligations that ensue from residence in Svalbard. In view of developments in recent years, a need has arisen to be even clearer about the rights and obligations a person has as a foreigner in Svalbard. The local government bodies in Longyearbyen have taken this need seriously and have worked together to produce informational material to be distributed to newly arrived foreigners to Longyearbyen. The information covers everything from the system for the applications of laws to Svalbard to more practical information.

The Government firmly believes that in light of the discussion above, the current principle in Section 2 of the Svalbard Act should be retained. In the view of the Government, the best thing would be for the issue of the application of laws to Svalbard to be considered through separate processes, independent of the law’s entry into force for the mainland. On a general basis there is reason to expect the application of laws to Svalbard to continue to increase. Moreover, the Government sees that there may be a need to examine more closely some practical matters concerning the application of laws to Svalbard and the principle in Section 2 of the Svalbard Act.

5.2.4 Section 4 of the Svalbard Act – the authorisation provision

Because of the special conditions in Svalbard, there has often been a need for certain modifications to an act of law before it can be made applicable to the archipelago. As mentioned by way of introduction, Section 4 of the Svalbard Act authorises the King to issue general regulations in a number of legal areas deemed to be important for the administration of Svalbard, among other reasons because conditions in these areas have diverged substantially from the situation on the mainland.

Thus Svalbard is administered in accordance with regulations that are laid down on the basis of powers granted by the Storting, and where the King’s authority to lay down regulations in many cases is delegated to the competent ministry and, in some instances, further to a lower level of the public administration. This is a phenomenon that also makes itself felt on the mainland, but which – for practical reasons – may have developed more in Svalbard than on the mainland.

The Government attaches great importance to the administration of Svalbard having the broad support of the Storting. The regulations laid down for Svalbard are therefore often based on statutory provisions that already apply to the mainland, but are adapted as necessary to take account of local conditions and comply with the Svalbard Treaty. Furthermore, all bills and draft regulations concerning Svalbard are submitted to the Interministerial Committee on Polar Affairs to ensure that legislation concerning Svalbard is in accordance with the Government’s policy towards the archipelago, including the objectives set out in previous documents submitted to the Storting. A good example of this practice is the new Regulations No. 153 of 15 February 2008 concerning cemeteries in Longyearbyen and the spreading of ashes in Svalbard. These regulations are authorised by Section 4 of the Svalbard Act and are composed of provisions of the acts that govern these matters on the mainland (Act No. 31 of 7 June 1996 relating to the Church of Norway and Act No. 32 of 7 June 1996 relating to cemeteries, cremation and burials) and contain special rules adapted to conditions in Svalbard, e.g. concerning the creation of new graves on account of the permafrost in the archipelago. In keeping with established legislative practice, the Government intends to submit legislative propositions to the Storting in the form of statutes insofar as this is appropriate.

5.2.5 Scope of application

An important principle connected with the introduction of new laws in Svalbard is for them to apply to and be enforced equally in the entire archipelago. The previous Report to the Storting on Svalbard stated: “However, since the Act relating to Svalbard was enacted, and particularly during the years since Report No. 40 (1985 – 86) to the Storting was written, there have been changes in areas that may have significance for this legislative practice.” It was pointed out that developments in Longyearbyen indicated that “it has proved desirable in an increasing number of cases to make statutes applicable” there, whereas the situation in other local communities may be different. It was further pointed out that “[t]he extensive regulation that is taking place in Norway in connection with adaptation to the EEA, […] is not automatically [being] pursued in the case of Svalbard.” In view of these factors, the Report to the Storting concluded that the principle of equal application and enforcement should continue to apply, at the same time as the practice regarding issuing new rules with geographically restricted scope of application will be continued out of consideration for local needs.

As a rule, new legislation is to be made to apply to Svalbard, unless special circumstances argue against this. Norway’s increasingly extensive international obligations also argue for this principle. The provisions are to be adapted to local conditions as needed.

In the past decade, Longyearbyen has come to resemble a mainland community. The establishment of a local-democracy government model in Longyearbyen may make it appropriate to put in place legislation that for practical and administrative reasons is made only to apply in the Longyearbyen land-use planning area.

Out of other considerations as well, in particular instances, legislative and enforcement practices may be necessary with a somewhat more differentiated approach to the various settlements or types of activities. For example, in some cases when introducing mainland regulations, the numerous foreign players in the archipelago may be emphasised. In exceptional cases taking these into consideration may argue in favour of transitional provisions or other forms of phasing-in, so as not to create unreasonable or unnecessary burdens and in this way provide opportunities for restructuring. However, a stipulation must be, cf. Report No. 9 (1999 – 2000) to the Storting, Svalbard, that when the regulations are implemented in practice the minimum requirements imposed by Norwegian legislation have been complied with.

The Government’s basic principle is that the legislation applicable to Svalbard shall apply to and be enforced equally in the entire archipelago. For that reason the objective must be a uniform legal regime, where any needs for nuance in a particular case should be captured through time-limited transitional schemes or, in some instances, through exemption provisions. However, it is important that new legislation be made applicable in an order and at a pace that has been considered carefully with regard to the need for the legislation, the foreign players in the archipelago and the ability to enforce the legislation.

5.3 Commercial and company legislation

The previous Report to the Storting on Svalbard pointed out the need for clarification of the extent to which commercial and company legislation applies in Svalbard. These statutes are related in that they refer to and are dependent on one another. This close connection also pertains to the private law and public law rules. It was also pointed out in the report that “the same rules ought to apply to commercial activities as elsewhere in Norway as regards the establishment, dissolution and operation of commercial companies”.

As mentioned above, in Rt. 2007 p. 801, the Supreme Court ruled on the application of key provisions of the Accounting Act (Act No. 56 of 17 July 1998 regarding annual accounts etc.). The case concerned the dissolution of a limited company with a registered office in Svalbard for its failure to submit annual accounts, cf. Section 16 – 15 of the Limited Liability Companies Act (Act No. 44 of 13 June 1997 relating to limited liability companies), cf. Section 8 – 2 of the Accounting Act. In its ruling the Court concluded that Section 8 – 2 of the Accounting Act does not apply to Svalbard because the provision must be regarded as neither private law, as a part of the administration of justice nor as “specifically provided”, cf. the terms of Section 2 of the Svalbard Act. In connection with the latter assessment it was pointed out in particular that the rules cannot be regarded as applying merely because the “rules in the Limited Liability Companies Act imply that the accounting rules shall apply” (Paragraph 42 of the ruling).

Consequently it must be assumed that unless otherwise provided, the public law portions of commercial and company legislation will not apply to Svalbard. This is a rather unfavourable situation. In addition to the uncertainty that otherwise manifests itself concerning the operating environment for business, the clarification by the Supreme Court has also resulted in the reversal of already implemented forced liquidations. In view of these circumstances, the Ministry of Finance is in the process of considering the extent to which the Accounting Act and Bookkeeping Act (Act No. 73 of 19 November 2004 relating to bookkeeping) should be made to apply to self-employed persons and others engaging in business activity in Svalbard. Following this work, other legislation in this area of law should be more closely evaluated. There should be a study of the extent to which public law rules in the following laws (and others) should be made applicable to Svalbard: the Limited Liability Companies Act, the Partnerships Act (Act No. 83 of 21 June 1985 relating to unlimited liability companies and limited partnerships), the Audit and Auditors Act (Act No. 2 of 15 January 1999 relating to audits and auditors) and the Foundations Act (Act No. 59 of 15 June 2001 relating to foundations). The Government will give this effort high priority.

With effect as of the 2008 income year, the Government has implemented certain amendments to Act No. 68 of 29 November 1996 relating to tax payable to Svalbard (Svalbard Tax Act). In addition to changes in taxation of wages and salaries, changes were made to the rules on taxation of sole proprietors and in the rules on company and capital taxation. The changes for sole proprietors were motivated by the desire to eliminate unfortunate discrimination between this group and partners in partnerships. After the change sole proprietors are to pay tax on the net profit of their business at the same rate as for wage and salary income (i.e. 8 and 25 per cent). In addition, the National Insurance contribution rate for sole proprietors has been reduced to the middle rate of 7.8 per cent, cf. Section 23 – 3 of the National Insurance Act.

Changes in company and capital taxation involve the introduction of a new and updated rate structure for company taxation. This tax rate has been disproportionately low over time and was no longer compatible with living and social conditions in Svalbard. In a modern era of greater openness and facilitation of cross-border transactions it is also important for these rates not to be set independently of corresponding rates in other countries. To avoid giving rise to future tax avoidance, this rate was raised from 10 to 16 per cent. In parallel with this, the tax-free allowance for ordinary income for personal tax payers was raised from NOK 10,000 to NOK 20,000.

An important instrument for business and industry is access to and use of statistics and registers. The Statistics Act (Act No. 54 of 16 July 1989 relating to official statistics and Statistics Norway) was made applicable to Svalbard in 2007, and Statistics Norway (SSB) has been allocated earmarked funds in the national budget to improve statistics regarding Svalbard. This is the result of years of work to strengthen the rules for statistics and registers in Svalbard. The population register for Svalbard has received new technology and has become more user-friendly. Two working groups that have evaluated this have also recommended that the Act relating to the Central Coordinating Register for Legal Entities (Act No. 15 of 3 June 1994) and the Norwegian Business Enterprise Registration Act (Act No. 78 of 21 June 1985 relating to registration of business enterprises) should be implemented for Svalbard. The question of the application to Svalbard of the register acts is being considered by the Ministry of Trade and Industry. This is an area that must be seen in conjunction with other efforts to consider whether commercial and company legislation is to be made to apply in Svalbard.

5.4 Working environment legislation

Pursuant to Section 3 of the Svalbard Act, statutes relating to labour protection (and others) apply to Svalbard “with such amendments as the King may lay down out of regard for the local conditions”. Since the previous Report to the Storting concerning Svalbard, a new Working Environment Act (Act No. 62 of 17 June 2005 relating to working environment, working hours and employment protection etc.) has been passed. The Act applies to Svalbard in virtue of Section 3 of the Svalbard Act. Regulations in pursuance of the Act also apply to Svalbard unless the contrary expressly appears in the regulations themselves. Only in certain cases are special exemptions made, so that for instance Regulations No. 794 of 30 June 2005 concerning safety, health and working environment connected with mining work do not apply to Svalbard. For mining operations in Svalbard, separate Regulations No. 33 of 18 January 1993 have been laid down for the coal mines in Svalbard.

In Regulations No. 9453 of 24 June 1997 concerning worker protection and working environment for Svalbard, several modifications were made to the Working Environment Act for Svalbard. Most of these special rules were repealed with effect from 1 January 2003. However, some modifications continued to be maintained through these regulations, such as the exemption from requirements for signage, labelling etc. in Norwegian.

The EEA Agreement directs Norway to implement minimum rules in the area of working environment and labour law in Norwegian legislation. The EEA Agreement does not apply to Svalbard, so that in principle Norway is not obligated to implement these minimum standards in the archipelago. Even so, not much need has been found for special exemptions for Svalbard.

5.4.1 Enforcing the Working Environment Act in Svalbard

No special provisions have been issued for enforcement of the Working Environment Act in Svalbard. For that reason the principle for enforcement is the Act’s general rules in this regard. Pursuant to Section 18 – 1 of the Working Environment Act, the Norwegian Labour Inspection Authority is to monitor compliance with provisions of, or pursuant to, the Working Environment Act.

Pursuant to Section 18 – 6 of the Working Environment Act, the Norwegian Labour Inspection Authority may issue the administrative orders and make the administrative decisions in individual cases that are necessary for the implementation of these provisions. If an order is not complied with, and it is necessary, the Labour Inspection Authority may impose coercive fines or in extreme cases halt operations, cf. Sections 18 – 7 and 18 – 8 of the Working Environment Act. Violation of the Working Environment Act may also be subject to criminal sanctions, cf. Chapter 19 of the Working Environment Act.

It is the Northern Norway division of the Labour Inspection Authority that has the practical supervisory responsibility for Svalbard. The Labour Inspection Authority pays Svalbard two regular visits a year, giving priority to the most at-risk activities. In view of the risks inherent in mining operations, the Labour Inspection Authority devotes a substantial portion of its administrative resources in Svalbard to supervising these activities. These priorities cover the mines operated by Norwegian as well as Russian companies. In some cases there has been a need to issue reactions for violating working environment legislation, so that several of the workplace accidents at both the Norwegian and Russian mining operations were followed up by criminal sanctions from the public prosecution authority.

5.5 Social welfare legislation

Employment has traditionally been the actual basis for residence in Svalbard. For that reason, the legal rights to which a person is entitled as a resident of Svalbard can largely be linked to the needs of a working population. In step with the developments that have taken place in the archipelago, in Longyearbyen in particular, the array of services has grown. Since Norwegian citizens retain their affiliation with their home municipality, whenever they need services beyond those offered in the archipelago, they have to contact their respective local authorities.

Residents of Longyearbyen currently have access to a number of public services and social welfare benefits that are divided among various sectors: selected health services, services in the school and day care sector and family-related services. The various services are described in detail in section 10.1.5 Range of services including health and welfare services offered. The right to these benefits is governed by various kinds of legislation. Furthermore, the National Insurance Act entitles individual members – when certain conditions are met – to benefits to cover the loss of income in certain situations or to receive compensation for particular expenses in the event of various health or social welfare needs.

5.5.1 General health legislation

General health legislation has to a very limited extent been made to apply to Svalbard. Health matters in a broad sense are primarily governed by separate regulations for Svalbard: Regulations No. 3357 of 15 June 1928 concerning medical and health matters in Svalbard (hereinafter abbreviated the Health Regulations). The regulations are used to authorise the measures etc. that are carried out, e.g. supervision of food hygiene and water quality. The Longyearbyen Community Council has authority pursuant to the regulations within the Longyearbyen land-use planning area, and the Governor of Svalbard for the rest of the archipelago. In principle the measures correspond to those on the mainland, unless special reasons should indicate otherwise.

The most important health legislation that does not apply to the archipelago is the Patients’ Rights Act (Act No. 63 of 2 July 1999 relating to patients’ rights), the Health Personnel Act (Act No. 64 of 2 July 1999 relating to health personnel etc.), the Mental Health Care Act (Act No. 62 of 2 July 1999 relating to the establishment and provision of mental health care), the Specialised Health Services Act (Act No. 61 of 2 July 1999 relating to specialised health services etc.), the Dental Health Services Act (Act No. 54 of 3 June 1983 relating to dental health services), the Municipal Health Services Act (Act No. 66 of 19 November 1982 relating to municipal health services), the Communicable Diseases Control Act (Act No. 55 of 5 August 1994 relating to the control of communicable diseases), the Food Act (Act No. 124 of 19 December 2003 relating to food production and food safety) and the Health and Social Emergency Preparedness Act (Act No. 56 of 23 June 2000 relating to health and social emergency preparedness). The fact that these statutes do not apply means for example that no provisions have been made by the public authorities in Svalbard for mental health care for serious conditions or care for the elderly. If these services are needed the person in question needs to move back to his or her home municipality. The Ministry of Health and Care Services has begun an effort to consider whether all or portions of health legislation should be made to apply to Svalbard.

5.5.2 The National Insurance Act

Introductory sections of Act No. 19 of 28 February 1997 relating to National Insurance (National Insurance Act) contain provisions concerning membership for persons residing in Svalbard. Persons who aremembers before settling or beginning residence in Svalbard retain their membership, cf. Section 2 – 3 first paragraph of the Act. These persons will continue to be members regardless of whether they are working, non-working, self-employed or employed. Employed persons retain their membership regardless of whether they work for a Norwegian or foreign employer.

Persons who are not members become members if they become employed by a Norwegian employer in Svalbard, cf. Section 2 – 3 second paragraph. In this connection a “Norwegian employer” is any employer who pursuant to Norwegian law is obligated to report wages and other remuneration, for work and engagement inside and outside of employment, regardless of the employer’s nationality. Contrariwise, work in Svalbard for an employer not subject to a reporting requirement will not result in membership of National Insurance for this category of employee.

On the basis of the rules above, persons covered by Section 2 – 3 are deemed to be members of National Insurance. However, it is the remaining provisions of the National Insurance Act that determine the benefits the individual is entitled to. Furthermore, the Act provides entitlement only to cash benefits and other similar allowances. Entitlements to specific medical assistance or other actual services from the public sector are governed by other legislation, e.g. the Patients’ Rights Act. As was mentioned above, these relevant health statutes do not apply to Svalbard.

Because conditions in Svalbard are special and because a full array of services is not offered there, in a number of cases it will not be possible to satisfy the terms of the law by living in Svalbard only. For instance, a requirement for receiving rehabilitation benefits is for the member to be receiving active treatment aimed at improving his or her capacity for work (Section 10 – 8 second paragraph of the National Insurance Act) and a rehabilitation allowance is paid in the period the person in question is in a programme for the occupationally disabled (Section 11 – 9 first paragraph of the National Insurance Act). If the person in question cannot obtain such treatment or necessary and appropriate occupational rehabilitation measures do not exist in Svalbard, he or she will not be able to receive these benefits in the archipelago. In these situations, Norwegian nationals will be able to travel to the mainland to demand benefits and other services there. Foreign nationals with a right of entry to the mainland (such as persons with a work or residence permit, or who are nationals of other Nordic countries) may also travel to the mainland on a par with Norwegian citizens. For foreign nationals who do not have a right to enter or reside in mainland Norway, this arrangement means that in a number of instances they will not satisfy the conditions for the benefit in question. In this area the Act is the same for foreigners residing in Svalbard and other groups who do not meet the conditions, e.g. persons residing abroad or foreign nationals who reside in mainland Norway who lose their work or residence permit. For more about foreign nationals’ access to mainland Norway, see section 5.6.

5.5.3 The Child Benefit Act and the Cash Benefit Act

Child benefit is paid pursuant to Section 3 of the Child Benefit Act (Act No. 4 of 8 March 2002 relating to child benefit) for children residing in Svalbard who are members of National Insurance pursuant to Section 2 – 3 of the National Insurance Act. The same applies to the right to cash benefit pursuant to Section 2 third paragraph of the Cash Benefit Act (Act No. 41 of 26 June 1998 relating to cash benefits for the parents of small children). Cash benefit can be paid for children residing in Svalbard for more than three months. Pursuant to Section 2 – 3 of the National Insurance Act, children born in Svalbard are not members of National Insurance because they were not covered prior to their residency in Svalbard. The purpose of the provisions of the Child Benefit Act and the Cash Benefit Act is give those who are residents in Svalbard and are members of Norwegian National Insurance an entitlement to child benefit and cash benefit. Child benefit and cash benefit may therefore be paid for children who are born in Svalbard and live with their parents who are members of National Insurance pursuant to Section 2 – 3. If only one parent is a member of National Insurance pursuant to Section 2 – 3 of the National Insurance Act, the benefit is to be paid to the member parent.

5.5.4 The Education Act

The Education Act (Act No. 61 of 17 July 1998 relating to primary and secondary education) with regulations apply to primary and secondary schools in Svalbard insofar as these provisions are suited to local conditions, cf. Section 3 of Regulations No. 76 of 18 January 2007 concerning primary and secondary schools in Svalbard. The Ministry of Education and Research determines which provisions are so suited. Pursuant to Section 1, the children of Norwegian nationals have the same right and obligation to attend primary school while residing in Svalbard that they would have on the mainland. Children of foreign nationals have the right, but not the obligation, to attend primary schools while residing in the archipelago. Act No. 64 of 17 June 2005 relating to day care institutions (Day Care Institutions Act) has not been made directly applicable to Svalbard. However, it is a condition of the transfer of state grants to day care institutions that the guidelines in the Act be followed insofar as they are suitable, cf. Proposition No. 1 (2008 – 2009), the Svalbard Budget, p. 21, cf. also section 10.1.9 Formative conditions for children and adolescents.

5.6 Immigration and other aliens legislation

Pursuant to Article 3 of the Svalbard Treaty, all nationals of signatory states have “equal liberty of access and entry” to Svalbard, regardless of the purpose of their stay. Even though this right is enjoyed only by nationals of Treaty states, in practice all persons are granted access and entry to the archipelago, regardless of whether their native countries have acceded to the Treaty. No work or residence permit is required to travel to Svalbard. Nor is a visa required. A prospective migrant is required to have a place to live and be able to support himself, cf. Regulations No. 96 of 3 February 1995 concerning exclusion and deportation of persons from Svalbard.

As a consequence of this “equal liberty of access and entry” to Svalbard regardless of its purpose, immigration and other aliens legislation – which otherwise governs foreign nationals’ entry into the Kingdom of Norway and their presence in the realm – will not be suited to Svalbard. In view of this, Act No. 64 of 24 June 1988 relating to the entry of foreign nationals into the Kingdom of Norway and their presence in the realm (Immigration Act) has not been made to apply to Svalbard. However, pursuant to Section 49 fourth paragraph of the Immigration Act, regulations may be issued concerning the control of foreign nationals coming from Svalbard, see more about this below. These rules were retained in the new Immigration Act (Act No. 35 of 15 May 2008), which is planned to enter into force on 1 January 2010.

Just like other foreign nationals, foreign nationals residing in Svalbard must comply with the rules of the Immigration Act when travelling to mainland Norway. This means that foreign nationals requiring a visa to enter Norway must obtain such a visa to travel to the mainland, cf. Section 25 of the Immigration Act. Certain foreign nationals are exempt from the visa requirement, including nationals of states with which Norway has concluded a visa-waiver agreement, cf. Section 105 of the Immigration Regulations (Regulations No. 1028 of 21 December 1990) concerning the entry of foreign nationals into the Kingdom of Norway and their presence in the realm). These nationals may freely enter Norway and as a rule reside there for up to three months without a visa or other permit. If the stay in Norway is of a nature requiring a work or residence permit, it is generally required that the foreign national has been granted such a permit prior to entry, cf. Section 6 of the Immigration Act.

The Governor of Svalbard currently does not decide on applications for visas to mainland Norway. The task of the Governor is to issue visas granted by the Directorate of Immigration. Most cases are routine, and to expedite matters it would make sense for visa applications to be decided by the Governor. For that reason, Section 13 of the 2008 Immigration Act authorises empowering the Governor of Svalbard to decide on such cases.

Norway’s participation in the Schengen system includes cooperation on the removal of the control of persons at internal Schengen borders and a joint border control at the external border of the Schengen area. That is, each member state is obligated to control its external Schengen border on behalf of all Schengen countries. The agreement concerning Norwegian membership in the Schengen system does not apply to Svalbard. This means that in principle the rules on entry and exit control across the external Schengen border will apply to travel to and from Svalbard. In the current Section 170 of the Immigration Regulations, the Act’s and Regulations’ rules concerning entry and exit have been made to apply to foreign nationals coming from Svalbard toanother part of the realm, cf. Section 49 of the current Immigration Act. Section 6 of the new Immigration Act of 2008 authorises the issuance of regulations concerning the control of persons coming fromor travelling to Svalbard.

Act No. 51 of 10 June 2005 relating to Norwegian nationality (Norwegian Nationality Act) applies in general to Norwegian nationality and also covers Svalbard, cf. Section 1. The Act does not contain any special rules for persons with foreign nationality who reside in Svalbard. This means that persons wishing to apply for Norwegian citizenship need to meet the conditions of the Act in the same manner as other applicants. Among the conditions of particular relevance to persons residing in Svalbard is that they need to have lived a certain length of time in the realm holding a residence or work permit and that applicants must meet the conditions for a settlement permit pursuant to the Immigration Act. As mentioned above, such permits are issued in pursuance of the Immigration Act, which means that the person in question must also meet the conditions set forth there. For a detailed account of the rules concerning citizenship etc., reference is made to the Directorate of Immigration website: www.udi.no.

Due to the increase in activity in Svalbard and the growth of the foreign presence in Longyearbyen and Ny-Ålesund, more immigration law issues have arisen, concerning foreign students, foreign spouses/cohabitants and children of Norwegian nationals, etc. In consultation with the Ministry of Justice and the Police, the Ministry of Labour and Social Inclusion will examine individual questions more closely in this regard and consider the need for special rules.

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