Meld. St. 32 (2015–2016)

Svalbard — Meld. St. 32 (2015–2016) Report to the Storting (white paper)

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5 Legislation

Legislation and its enforcement constitute a key element of any society based on the rule of law. Svalbard is no different from the rest of the country in this respect, and our exercise of authority over the archipelago is based on Norwegian legislation. Legislation is a key policy instrument for implementing the objectives of the Svalbard policy, and is necessary for achieving rational social development within the scope of these objectives. Important laws and regulations related to the implementation of the Svalbard policy are discussed in more detail in: Chapter 4, ‘Objectives, policy instruments, administration’; Chapter 7, ‘Environmental protection’; Chapter 9, ‘Economic activity’; and Chapter 10, ‘Civil protection, rescue and emergency preparedness’.

This chapter presents a review of the principles governing the application of legislation in Svalbard and of the status of implementation of laws and regulations not previously applied. This chapter also deals with areas of law that are especially important for social development and with other legislative work going on in specific areas.

5.1 Legislative principles

The previous white paper on Svalbard (Report No. 22 (2008–2009) to the Storting Svalbard) gave a thorough review of the principles governing the application of legislation in Svalbard. This discussion was based on the Office of the Auditor General’s management audit of Svalbard (Document No. 3:8 (2006–2007), which noted that in certain areas Svalbard seemed under-regulated. The Office of the Auditor General raised the question of whether Longyearbyen’s development, with a complex business community and a growing number of foreign nationals, suggested a need to make additional legislation applicable there. The Office of the Auditor General also called for an assessment of whether changes ought to be made to the principles governing how laws are made applicable to Svalbard. Furthermore, in processing the Office of the Auditor General’s report (see Recommendation No. 46 (2007–2008) to the Storting) the Storting pointed out that a review of these principles would require thorough assessment.

The review of the 2008–2009 white paper stipulated that the legal framework for Svalbard should be as similar as possible to that of the mainland, and that new legislation as a rule should be made applicable in Svalbard unless special circumstances dictated otherwise or unless exemptions or adaptations were needed. It was further stipulated that legislation should apply and be enforced equally throughout the archipelago unless there was a need for transitional arrangements or other ways of phasing in legislation. The Storting endorsed these guidelines through consideration of the white paper by the Standing Committee on Foreign Affairs.

Nonetheless, not all legislation will automatically be made applicable to Svalbard. The white paper stipulated that the principles laid out in section 2 of the Svalbard Act should continue to apply. That is to say that legislation dealing with private law, criminal law and the administration of justice should apply unless otherwise decided. Other legislation, in practice referred to as public law rules, must be introduced separately. In its consideration of the white paper, the Standing Committee on Foreign Affairs agreed that this was an appropriate solution because conditions for the local community differed from those on the mainland.

Accordingly, separate assessments are made of the relationship to Svalbard for rules of a public law nature. This is necessary both when considering whether laws and regulations already adopted should apply to Svalbard and when adopting new legislation. Such a consideration must determine whether an act of law is suited to conditions in Svalbard and whether there is a need for local adjustments. These may be warranted by administrative, climatic, geographical or other local conditions.

In some areas, separate laws or regulations have been passed that are specially adapted to conditions in Svalbard. One such area is environmental protection, where the Svalbard Environmental Protection Act implements the ambitious environmental objectives for the archipelago. This act is discussed in more detail in section 7.3.2. A separate taxation act has also been adopted for Svalbard; see section 5.3.2. Another example is the regulations concerning tourism, field trips and other travel activity, which are discussed in Box 4.1.

Although the objective, as already mentioned, is for legislation to be applied and enforced equally throughout Svalbard, not all laws are suited to conditions in the entire archipelago, and in some cases there will still be a need for transitional arrangements. Other ways of phasing in may also be necessary, in order, for example, to give particular organisations the ability to restructure. In special cases, exemption provisions may be considered for certain types of activity. Administrative factors may also necessitate adjustments in cases where Svalbard, for example, lacks local agencies or administrative levels corresponding to those on the mainland. It may be appropriate to introduce legislation which, for practical and administrative reasons, is made applicable only in the Longyearbyen land-use planning area.

The Government will carry forward the principles of applying legislation described above, and will continually assess whether legislation applied to the mainland should also be applied to Svalbard. The following section elaborates on certain matters with respect to legislation for Svalbard.

5.2 Status of instituting legislation

In keeping with the guidelines set out in the previous white paper (Report No. 22 (2008–2009) to the Storting Svalbard), several laws have since been instituted which previously did not apply to Svalbard. In its audit, the Office of the Auditor General pointed to the Competition Act, the Property Unit Ownership Act, the Harbours and Fairways Act and the Food Act as examples of under-regulation. The Competition Act was made applicable to Svalbard in 2009, while the Harbours and Fairways Act and the Pilotage Act were made applicable in 2010 and 2012 respectively. Introduction of both the Pilotage Act and the Harbours and Fairways Act required a number of local adjustments to be made in laws and regulations. The provisions governing municipal emergency preparedness duties in the Civil Protection Act were introduced for the Longyearbyen Community Council (LCC) in 2012. Other legal provisions now in application are the National Security Act (2013) and the instructions for the County Governor and Governor of Svalbard’s work relating to civil protection, emergency preparedness and crisis management (2015). A comprehensive body of laws and regulations in the area of health legislation was also recently made to apply to Svalbard (see section 5.3.1 for further discussion). The Food Act was also made applicable in Svalbard, and work is under way to assess which parts of the regulations pertaining to the act should also apply. Thus, many of the laws mentioned in the Office of the Auditor General’s performance audit have now been introduced, as well as other legislation. Furthermore, the new Property Unit Ownership Act due to be put forward in 2016 will also apply to Svalbard. Therefore, although some areas of legislation still need to be reviewed and considered for application to Svalbard, the need for regulation raised in the performance audit by the Office of the Auditor General must to all intents and purposes now be considered met.

In recent years the general approach to implementing legislation for Svalbard has been that legal authority in the archipelago is assigned to the body that possesses the responsibility for that issue on the mainland. As a result, a growing number of bodies, such as the Norwegian Maritime Authority and the Norwegian Coastal Administration, have assumed tasks and direct authority in Svalbard. For example, the County Governor of Troms has supervisory responsibility for schools, assisted by expertise in Svalbard affairs from the Governor of Svalbard. This arrangement allows the respective authorities to cultivate their roles as experts and at the same time relieves the Governor of Svalbard and the Longyearbyen Community Council of having to develop expertise unnecessarily. Prior to this arrangement, the absence of local competent authorities and the long distance to the mainland meant that the Governor of Svalbard was assigned these tasks and responsibilities. Today it is both natural and appropriate that the relevant competent authorities perform these tasks and assume these responsibilities.

The previous white paper on Svalbard (Report No. 22 (2008–2009) to the Storting Svalbard) presented an overview of business and company legislation that applies to Svalbard. With reference to a Supreme Court ruling published in Rt. 2007 p. 801, it was shown that the public law parts of business and company legislation did not apply to Svalbard unless specifically provided. Furthermore, it was pointed out that the Ministry of Finance was in the process of considering the extent to which the Accounting Act and Bookkeeping Act should be made applicable to self-employed persons and others engaged in economic activity in Svalbard. It was also recommended that other legislation in this area of law be more closely evaluated.

A recently appointed committee on auditing and accounting has been tasked with examining the application of auditing legislation to Svalbard. The Ministry of Finance is still considering the application of the Accounting Act and the Bookkeeping Act to Svalbard, in consultation with other relevant ministries. The committee that will review the Foundation Act will also consider whether it should apply to Svalbard. It will also consider to what extent the other public law elements of business and company legislation should be made applicable to Svalbard. This will also be relevant in light of the development of new businesses in Longyearbyen for which it may be necessary to consider whether the legal framework for developing different types of local products suits the need.

5.3 Specific legislative issues

5.3.1 Welfare legislation

General situation

As discussed above, not all laws are suited to Svalbard’s conditions. For one thing, central parts of Norwegian welfare legislation are not applicable to Svalbard. The reasons are related to taxes and the fact that immigration legislation does not apply to Svalbard.

Norway has several obligations under international law that apply to Svalbard as in other parts of Norway. Through the Svalbard Treaty, Norway also has certain obligations under international law that apply only to Svalbard.

Immigration legislation is not made applicable to Svalbard. The reason for this originates in the access provision in Article 3 of the Svalbard Treaty. No requirements for visas, residence permits or work permits are imposed on foreign nationals when entering Svalbard (see section 5.3.3 for a more detailed discussion).

In accordance with the overriding objective of the Svalbard policy to maintain Norwegian communities in the archipelago, the tax system in Svalbard must ensure competitive conditions and stimulate local business activity. Consequently, tax rates in Svalbard are significantly lower than on the mainland. See section 5.3.2 for a more detailed discussion.

The Norwegian authorities make allowance for a certain level of welfare benefits in Longyearbyen. The low tax rate and the fact that immigration legislation does not apply are reflected in the range of local services available (see section 6.3.3 for a more detailed discussion). No social or welfare services are provided for individuals who cannot finance their stay in Svalbard through labour market participation. Therefore, central laws conferring statutory rights, such as the Social Services Act, do not apply to Svalbard. There are also special provisions for Svalbard that give the Governor of Svalbard the authority to refuse entry to people unable to take care of themselves. The Introduction Act of 4 July 2003 does not apply to Svalbard, either, so the Longyearbyen Community Council is not obliged to offer an introduction programme or Norwegian language training.

In its performance audit, the Office of the Auditor General pointed to the increased proportion of foreign nationals in Longyearbyen with no ties to Norwegian municipalities on the mainland, and wondered both whether more acts of law should be made applicable and whether it will be possible over time, given the background, to maintain the objective of not allowing Longyearbyen to become a cradle-to-grave community.

In the previous white paper on Svalbard, however, it was emphasised that Longyearbyen would not become a cradle-to-grave community. The Government considers it important to continue to pursue this objective, and does not intend to expand the range of welfare services currently provided. Norwegian nationals or families who need services beyond those available in Svalbard must contact their home municipalities. Foreign nationals with no ties to the Norwegian mainland will not have this option, and must therefore contact their home countries if their needs cannot be met locally.

General health legislation

Until recently, health matters in the broad sense were mainly governed by the Regulations of 15 June 1928 No. 3357 relating to medical and health matters in Svalbard (Health Regulations), and application of general health legislation for Mainland-Norway has been highly restricted. The Health Regulations provided the legal basis for a range of measures, such as water quality. The Longyearbyen Community Council had authority pursuant to the regulations within the Longyearbyen land-use planning area, and the Governor of Svalbard for the rest of the archipelago.

In step with the development of social conditions in Svalbard, particularly in the local community in Longyearbyen, there has been a need for more regulation in the area of healthcare, including the professional practices of healthcare personnel, and for modernising the legal basis for the supervision of food hygiene and water quality. As a result, the Ministry of Health and Care Services issued regulations on 22 June 2015 to the effect that several health laws and regulations must be made fully or partly applicable to Svalbard. The regulations were drawn up in cooperation with the ministries involved, and entered into force on 1 October 2015. Simultaneously, the health regulations of 1928 were repealed.

The main purpose of the legislative work has been to modernise health legislation for Svalbard and bring it more in line with mainland legislation. However, to a large extent the regulations only establish by law practices already in place. Svalbard is not intended to be a cradle-to-grave community. Consequently, no care services are provided, and the health service in Svalbard is not organised in the same way as on the mainland. The purpose of the regulations has not been to introduce new types of services or new entitlement legislation. Accordingly, neither the Act relating to health and care services nor the Act relating to patients’ rights has been made applicable.

Under the regulations, however, the laws governing healthcare personnel, health supervision, the specialist health service, communicable diseases, public health and emergency health preparedness have now been made fully or partly applicable. The same applies to the acts relating to pharmacies, medicines and foods and to several other acts of law. The following acts of law had already been made fully or partly applicable: the acts relating to nuclear energy activity, radiation protection and use of radiation, patient injury compensation, and the health authorities and health trusts.

Because the health service in Svalbard is not organised in the same way as on the mainland, some adaptations were also made to provisions in mainland regulations that have been made applicable to Svalbard. That is the case, for example, with regard to the Act relating to the control of communicable diseases and to Chapter 3 of the public health act concerning environmental health. In principle, Longyearbyen Hospital functions as the municipal medical officer in this area, but the regulations also assign certain tasks to the Longyearbyen Community Council.

In accordance with the practice now generally followed whereby the competent mainland authorities are also responsible for supervising activities in Svalbard, the County Governor in Troms supervises healthcare personnel and the health service in Svalbard. The Norwegian Food Safety Authority supervises compliance with the acts relating to food and to cosmetic products and body care products.

The organisation of the health service in Svalbard is discussed in more detail in section 6.3.3.

The production and sale of alcoholic beverages are regulated by the Regulations of 11 December 1998 relating to the alcohol scheme for Svalbard. The production of alcohol in Svalbard used to be prohibited under an act of law from 1928, but the ban was lifted in 2014 after action taken by actors in Svalbard wishing to produce beer locally. Since the amendments of 2014, the regulations governing the production of alcohol in Svalbard are now largely the same as on the mainland. A licence has been granted to produce beer in Longyearbyen, and Trust Arktikugol has applied for a licence to do likewise in Barentsburg.

5.3.2 Tax legislation

Svalbard has its own taxation regulations. The Svalbard Taxation Act (Act of 29 November 1996 No. 68 relating to tax payable to Svalbard) makes Svalbard a separate area for tax purposes. Two forms of taxation apply: a special withholding tax scheme and tax assessment. Under the withholding tax scheme, the employer withholds a percentage of gross salary and pension, and this constitutes the final tax assessment. Income other than salary and pension is taxed after assessment according to the same rules that apply on the mainland, though at lower rates. In Svalbard, salary and pension are taxed at a rate of 8 per cent up to 12 G (G = National Insurance basic amount) and at a rate of 22 per cent for income exceeding 12 G. In addition are national insurance contributions for employees who are members of the Norwegian National Insurance Scheme. Other income such as investment income and income from self-employment are taxed at a rate of 16 per cent. It is important that the taxation system in Svalbard is tailored to conditions in the archipelago and that its basic workings ensure competitive conditions. At the same time, it is important to prevent the favourable tax level from being exploited to save tax on investment returns that are made outside Svalbard and do not create activity or employment in the archipelago. Companies with profits not earned from returns on activity or investment in Svalbard will now be taxed for such profits at the same tax rates that apply on the mainland.

5.3.3 Immigration legislation, nationality etc.

As mentioned in section 3.2.5, Article 3 of the Svalbard Treaty imposes on Norway an international obligation to treat equally nationals and companies from parties to the Treaty in certain areas. This applies to access to the archipelago, among other things. In practice, Norway has in this area not discriminated between nationals from the parties to the Treaty and nationals from other countries. Therefore, given its purpose, the legislation regulating foreign nationals’ access and entry to the realm is not suitable to conditions in Svalbard. For this reason the Immigration Act of 15 May 2008 No. 35 and pertinent regulations have not been made applicable to Svalbard.

No work permit, residence permit or visa is required to travel to Svalbard. Furthermore, Svalbard is not included in the Schengen cooperation. The rules on entry and exit control across the external Schengen border therefore apply to travel between the Norwegian mainland and Svalbard. Pursuant to section 6 of the Immigration Act and subsection 1–15 of the Immigration Regulations, identity checks have been implemented on departure from and arrival at the airports in Tromsø and Oslo. Therefore, foreign nationals who reside Svalbard must, like other foreign nationals, comply with the provisions in the Immigration Act when travelling between Mainland-Norway and Svalbard, and foreign nationals subject to visa requirements must have a visa when travelling to the mainland. Today, the Governor of Svalbard issues such visas upon application, in accordance with section 13 of the Immigration Act.

The purpose of the rules in the Immigration Regulations is to meet Norway’s obligation to control the external borders of the Schengen Area. However, the need may also arise for control systems affecting travellers to and from the archipelago itself, for reasons of national security. In addition to its own domestic needs, Norway has international obligations to monitor activities on Norwegian territory. The need for control is not fully met by the legislation for Mainland-Norway. This is because the mainland controls will not identify individuals travelling to Svalbard via other countries. Moreover, in some cases there may be a wish to carry out controls in Svalbard. One reason for this is that Svalbard may have to deal with other types of challenges than those faced by Mainland-Norway. The provision concerning access in Article 3 of the Svalbard Treaty does not preclude establishment of control regimes, including entry and exit controls, in order to monitor travellers and individuals entering the archipelago. The Government will consider the need to introduce such regimes.

The previous white paper on Svalbard (Report No. 22 (2008–2009) to the Storting Svalbard) described how the increasing number of foreign nationals in Longyearbyen created a need to consider legal problems associated with foreign nationals. This included certain issues concerning foreign spouses/cohabitants and children of Norwegian nationals and the possible need to introduce special rules in this area. In pursuance of this, a provision was incorporated into the Immigration Regulations (subsection 11–4 (b)) in 2010 stipulating that a long period of residence in Svalbard may be taken into consideration when calculating the required period of residence for qualifying for a permanent residence permit in Norway. The other conditions for granting a permanent residence permit must also be met. There are currently no plans to make further amendments to these regulations in favour of foreign nationals. The Government will monitor the situation to determine whether the provision works as intended, and in light of that will continuously assess the possible need to tighten the rules.

The Act of 10 June 2005 No. 51 relating to Norwegian nationality (Norwegian Nationality Act) generally applies to Norwegian nationality and also covers Svalbard. This act requires legal residence on the mainland in accordance with immigration legislation before applications for acquiring Norwegian nationality may be granted. The Norwegian Nationality Act prescribes no special rules for persons with foreign nationality who reside in Svalbard. Persons wishing to apply for Norwegian nationality must meet the terms of the act, including those governing residence permits, in the same manner as other applicants. Entitlement to Norwegian nationality may therefore not be based solely on residence in Svalbard. Foreign nationals born in Svalbard or who reside in the archipelago for a long period will not be granted Norwegian nationality on this basis alone. There are no plans to change these rules.

5.3.4 Legislation on rejection and expulsion

As mentioned above, the Immigration Act does not apply to Svalbard, and therefore no visa or other requirements are needed to travel there. Nonetheless, this does not mean that everyone has an unconditional right to reside in Svalbard. The Governor of Svalbard may, inter alia, refuse entry to or expel persons who lack sufficient means to remain there or who are unable to take adequate care of themselves. Persons suspected or convicted of violating laws that apply to Svalbard may also be refused entry or expelled under certain conditions. This follows from the Regulations of 3 February 1995 laid down with legal basis in the Svalbard Act. The regulations also contain provisions regarding expulsion.

Regulations were laid down by Royal Decree on 7 August 2015 relating to the rejection from Svalbard of persons who were subject to travel restrictions. These regulations were issued to make it possible to prevent persons designated as ‘listed persons’ from residing in Svalbard. The regulations apply to persons subject to travel restrictions adopted by the UN Security Council or who are covered by international restrictive measures thet Norway has aligned itself with. Such persons will be refused entry by the Governor of Svalbard on arrival or at a subsequent point in time.

The background for the adoption of specific regulations governing travel restrictions relating to Svalbard is that – unlike Mainland-Norway – Svalbard is not part of the Schengen Area; see section 3.3.1. This means that the Schengen entry control system has no relevance for persons who travel directly to Svalbard from areas outside the Schengen Area. The need to implement travel restrictions for Svalbard has been limited because most people travelling to the archipelago have done so via Mainland-Norway. In such instances, listed persons would be identified through the Schengen reulations before they reach Svalbard. All scheduled air traffic to Svalbard goes via Mainland-Norway. However, it is possible to arrive at the archipelago by charter plane or boat without travelling via the Schengen Area. The Government attaches importance to ensuring that sanctions and restrictive measures with which Norway has aligned itself must be enforceable throughout the country, including Svalbard.

The regulations are temporary, and will be repealed on 31 August 2016. The Government is considering the issue of control regimes for Svalbard, including the introduction of permanent legislation to prevent listed persons from residing on Svalbard.

5.3.5 Education Act and Kindergarten Act

In the Regulations of 18 January 2007 No. 76 relating to primary and secondary education and upper secondary education in Svalbard, the Ministry of Education and Research stipulated that the Act of 17 July 1998 No. 61 relating to primary and secondary education and training (the Education Act) and pertinent regulations were applicable to primary and secondary education and upper secondary education in Svalbard in so far as they are suited to local conditions. Under these regulations, children of Norwegian nationals have the same right and obligation to attend primary and lower secondary school while residing in Svalbard as they would have on the mainland. Children of foreign nationals have a right, but not an obligation, to attend primary and lower secondary school while residing in the archipelago. The Longyearbyen Community Council (LCC) has responsibility for providing education in Longyearbyen. It follows from the regulations that the LCC must fulfil the right to primary and lower secondary education and that it may also provide upper secondary education. In Barentsburg, the mining company Trust Arktikugol provides education for the children of its employees.

The Act of 17 June 2005 No. 64 relating to kindergartens does not apply to Svalbard. Nonetheless, two conditions for the LCC’s receiving appropriations from the national budget are that the intentions in the act determine how the kindergartens in Longyearbyen are run and that no significant distinction be permitted between the operation of kindergartens in Longyearbyen and on the mainland. This is discussed in the Government’s budget proposal for Svalbard for 2016 (Prop. 1 S (2015–2016), p. 28. See also section 6.3.

Guidelines are needed on what the Longyearbyen Community Council should provide in these areas. The objective is for Longyearbyen to be a viable local community, and today it is a community that provides a good range of services. Nonetheless, the special community frameworks discussed in section 6.3 determine the scale of the services to be provided and, consequently, what the inhabitants should expect. Moreover, the Government has no objective to expand the range of services beyond that currently offered.

The issue of which provisions in the Education Act and pertinent regulations are suited to those frameworks is decided by the Ministry of Education and Research. The Ministry of Education and Research has permitted certain organisational deviations from the Education Act with regard to teacher hours, subjects and levels.

With regard to children and young people with special needs, the Education Act currently provides for special education assistance for children in kindergartens and for special tuition for pupils in primary, lower secondary and upper secondary schools. Given that the LCC is not obliged to provide upper secondary education, however, it has been decided that Chapter 5 of the Education Act, concerning special education, should not be applied to upper secondary education. The ministry has nevertheless urged the council to do as much as possible to adapt its upper secondary instruction, to the degree local conditions permit, for the benefit of pupils with special needs.

Regarding the physical environment, the Anti-Discrimination and Accessibility Act provides for individual accommodation for people with disabilities, but these provisions are not made to apply to Svalbard. However, the Education Act also provides for individual accommodation for pupils with disabilities, and these apply to Svalbard in so far as they are suited to local conditions.

The development of Longyearbyen as a family community, albeit with special conditions, means that there is now a need to clarify the Longyearbyen Community Council’s obligations under the Education Act and the Kindergarten Act in respect of children of both Norwegian nationals and foreign nationals. This has gained particular salience since several amendments have been proposed to both of those acts of law. It has been proposed to transfer the duty to provide special education assistance to children under school age from the Education Act to the Kindergarten Act. In addition, it is proposed that rules ensuring suitable, individually adapted kindergarten availability for children with disabilities be incorporated into the Kindergarten Act. This duty corresponds to the municipalities’ duty under the Anti-Discrimination and Accessibility Act to provide individual accommodation in municipal kindergartens. The rules in this act providing for universal design and individual accommodation currently do not apply to Svalbard. It is proposed to incorporate today’s four acts of law dealing with equality and anti-discrimination, including the Anti-Discrimination and Accessibility Act, into one single act covering equality and anti-discrimination. It is proposed that the exemptions that already apply to Svalbard will continue to apply in the new act of law, but a separate assessment is needed as to whether the rules for individual accommodation in schools and kindergartens should apply to Svalbard.

The Child Welfare Act applies to Svalbard, though with special rules laid down in the Regulations of 1 September 1995 No. 772 relating to application of the Child Welfare Act to the archipelago. Norway’s local government reform includes plans to change the quality and structure of the child welfare services in a way that entails a redistribution of responsibilities between central and local government. Here, too, a special assessment will be needed to determine the effect of such changes on Svalbard.

In dialogue with the Longyearbyen Community Council and others, the Government will continue its work clarifying the council’s obligations in these areas. See also section 6.3.4 for further discussion.

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