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61Journal of Siberian Federal University. Humanities & Social Sciences 11 (2013 6) 1575-1591
УДК 343.211.3=511.12
The Legal Protection of the Rights and Culture of Indigenous Sami People in Norway
0yvind Ravna*
Faculty of Law, UiT The Arctic University of Norway,
N0-9037 Tromso, Norway
Received 12.08.2013, received in revised form 27.09.2013, accepted 17.10.2013
The topic for this article is the rules concerning the legal protection of the Sami culture and the Sami as an indigenous people and minority in Norway. The review will be undertaken with reference to the three legal systems; national legislation, international law and Sami customary law and legal culture, concluding on the current legal status. The struggle by the Sami for the recognition of their rights to their lands and waters has been central in the development of the Sami legal position. This part of the Sami law, will naturally be given a central place in the review.
Keywords: indigenous people, sami, Nordic Countries, Norway, law, legislation, International law, reindeer husbandry, ILO Convention № 169.
1. Introduction1
1.1. A short introduction of the Indigenous Sami
The Sami People is currently recognised as Indigenous People in Norway and as one of the two nations the Norwegian State is founded on. The homeland of the Sami is presently the northern and central parts of Norway, Sweden and Finland, and the Kola Peninsula in the Russian Federation, which in Sami language in named Sapmi (Sami land). They number in total around 50 000-80 000 people who earn their income from both marine and terrestrial livelihoods such as reindeer husbandry, agriculture industries and coastal fishing. The Sami can trace their roots in Scandinavia back more than two thousand years.
© Siberian Federal University. All rights reserved
* Corresponding author E-mail address: oyvind.ravna@uit.no
Recognizing that Norway is founded on the lands of to two peoples, the country has acknowledged that it is obliged to protect the Sami language, culture and way of life by in adopting an amendment to the Norwegian Constitution in 1988. Norway is also obliged to identify and recognise the traditional Sami lands, which the country has acknowledged by ratifying ILO No. 169 Convention concerning Indigenous and Tribal Peoples in Independent Countries (ILO-169).
In Finland, Sweden and Russia, the Sami have, to varying degrees, achieved the legal protection of their language, culture and livelihoods, but as an ethnic minority rather than as an indigenous People, since none of these countries have ratified ILO-169. This chapter is limited, however, to the situation in Norway and
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explores the concept of Sami law and Sami legal status in that country.
There are three sets of norm structures or legal systems that form the framework of the Sami Law (Skogvang 2009: 45). Firstly, it is national legislation, which in turn can be divided into constitutional law, other areas of statutory law and case law. Secondly, it is international law, where the International (UN) Covenant on Civil and Political Rights of 1966 (ICCPR) and ILO-169 are the key instruments. Thirdly, it is the Sami's law and legal culture. In the wake of international law, Sami legal practices were afforded increased legal status in Norway as a source of law to be used in courts.
1.2. Background, legal Developments
and aim of the presentation
The protection of Sami culture and legal rights has undergone significant change over the past three decades. If we go back to the 1970s, the matter of Sami rights and legal protection, were centred on questions as to whether the so called Sami-speaking Norwegian population should have the right to be educated in their own language. Even in the 1980s few people assumed that the Sami were entitled to legal protection as an indigenous people while even the importance of their protected status as a minority in Norway was highly controversial (Gauslaa 2007: 152).
A significant change in the legal situation was triggered by the controversy over the construction of the Alta-Kautokeino hydro power plant around 1980. The controversies and political focus on the Sami situation, led to the appointment of the Sami Law Committee, and undoubtedly to the emergence of a new perspective on the Sami's legal status and position, including changes in the State Sami Policy the following years.
To better understand the current legal position and protection of the Sami, including the legal developments and changes in the
State Sami Policy that have occurred in recent decades, it might be desirable with a review of legal history. However, the frame of this article does not allow it, so I will just give a very brief introduction: The Sami culture has long been under pressure in different ways. In the 1600s the Sami shamans and leaders were persecuted, where several was burned at the stake. In the following century, when a large part of the Sami had been Christianized, their culture and way of life were gradually accepted and achieved a protected through legislation, which can clearly be seen when the national border between Norway and Sweden was settled in 1751. In late 1800 it developed, however, an assimilation policy which contributed to the disregard and neglect of both language and culture, including. The Sami rights to lands and waters.
In the 1950s, in the wake of human development after World War II, began the rise of a New Norwegian policy with a willingness to recognize the Sami language and culture.
Despite the fact that little focus was placed on the question of the Sami as an indigenous people before the 1980s, it is clear that the political will to recognise Sami language and culture back in the 1950s, had significance for a positive development between the Sami and the Norwegian Governments through the 1960s and 70s.
However, in 1978 the Norwegian parliament decided to construct the Alta-Kautokeino hydro power plant by damming one of the main rivers in the Sami areas. This placed the ongoing debate over Sami rights to lands and waters squarely at the centre of the national agenda and showed that post-war policy was, despite the rhetoric, worth little when it came to practical governance and the exploitation of valuable natural resources. After the famous hunger strike in front of the Norwegian Parliament, and large-scale police actions to remove the Sami and environmental activists, construction finally began in 1981.2
Although the protesters did not manage to stop the power plant construction, it was a turning point in Norway's acknowledgement of its legal commitments to the Sami people. It was also a key point in the Sami struggle for their rights to enjoy their culture and language, including rights to lands and waters. In the autumn of 1980, as a consequence of the political tumult arising during the Alta Case, the Nordli Government had to establish the Sami Rights Committee. The Committee was law committee given a mandate in four points where the first two were to examine: 1) the question of the Sami people's legal position as regards the right to land and water; and 2) to ensure the Sami people's ability to develop natural resources in their areas of habitation, while also recognising the non-Sami population's interests. I should also draft new legislation (NOU 1984: 18 pp. 42-43).
The appointment of the Sami Rights Committee was a starting point for a legislative process that resulted in the legal protection of the Sami language, culture and way of life through a constitutional amendment (1988) and the establishment of the Sami Parliament (1989).3 The legal advances has also resulted in the fact that Norway was the first country to ratify ILO-169, including a legal development abolishing the old "State lands doctrine", saying that the Norwegian State was the owner of all unsold land in Finnmark without consideration for private usage or commonage rights of any kind.4
The second investigation report of the Sami Rights Committee (NOU 1997:4) was the first major step in the process of identifying and recognizing the ownership and use rights of the Sami traditional lands. By adopting the 2005 Finnmark Act (17 June 2005 no. 85), the state ownership of the outlying fields and mountainous areas in Finnmark County was transferred to a regional ownership body,
named Finnmarkseiendommen (The Finnmark Estate), where the Sami Parliament is entitled to appoint three of six members of the board. This is considered as an important element of the upholding of the ILO-169 recognition process. However, the most challenging part of the recognition process is still pending, waiting for the investigation of the Finnmark Commission, which is described in section 2.2 below.
The Sami's legal position has also been advanced by developments in case law. It has, for instance, led to the recognition of reindeer herders' grazing rights; rights that are rooted in the immemorial usage of lands by the Sami (and not just based on legislation alone). Although it has its basis in law, the courts have also held that landowners have the burden of proof if they want to claim that there are no reindeer husbandry rights on their properties within the Sami reindeer husbandry areas. This has had an impact on the legal protection of such rights as in the renowned Selbu Supreme Court Case (2001) to which I will return in section 2.3.
Norway's minority policy and legal developments with respect to the Sami in general, and in particular in relation to the Finnmark Act, are considered to be pioneering by the UN special rapporteur on indigenous rights S. James Anaya report on the situation of the Sami in the Nordic Countries (2011), stating that:
The Finnmark Act provides important protection for the development of Sami rights to self-determination and control over natural resources at the local level, and thus forms an important example for the other Nordic countries" (para. 44).
Even if problems remain in respect of relations between the Sami and the Norwegian State, e.g., over the right to fisheries in coastal areas (NOU 2008:5), or the legislation on the extractive industry, the Norwegian Sami Policy thus is of interest for an international are of
interest to an international audience as kind of applicable practice.
The aim of this presentation is to review the rules concerning the legal protection of the Sami culture and the Sami as an indigenous people and minority in Norway.5 The review will be undertaken with reference to the three legal systems mentioned above, including Sami customary law and legal culture. The struggle by the Sami for the recognition of their rights to their lands and waters has been central in the development of the Sami legal position. This part of the Sami law will naturally be given a central place in the review.
2. National Legislation
2.1. Constitutional Law and Sami Rights
Article 110a of the Norwegian Constitution protects Sami language, culture and livelihood, and reads as follows:
It is the responsibility of the authorities of the State to create conditions enabling the Sami people to preserve and develop its language, culture and way of life. 6
This article was adopted by the Norwegian Parliament on April 21, 1988 and followed by a constitutional amendment in May of the same year. The article is based on a 1984 proposal from the Sami Rights Committee with one of its main objectives being to overturn past assimilation and "Norwegianisation" policies. According to the Sami Rights Committee, it put in place a legal obligation saying that Sami language, culture and way of life must be safeguarded and given further development:
State authorities will therefore have no legal right to pursue a policy in conflict with this principle. The provision sets the requirements for both legislation and other government actions (NOU 1984: 18, p. 433).
It should also be mentioned that the ParliamentaryStandingForeignandConstitutional
Committee stated that with the adoption of the provision, the Norwegian Parliament:
In the most solemn and binding form our legal system knows, recognised and drawn the consequences of the fact that throughout the history of Norway, there has been a particular Sami ethnic group in our country (Innst. S. nr. 147 (1997-88), 2).
The Constitutional provision is modelled on Article 27 of the ICCPR. This means that the provision must be interpreted in accordance with the "requirements of international law to the Norwegian authorities" (Sami Rights Committee II in NOU 2007:13, p. 191). Thus, the provision creates a legal obligation for the Norwegian authorities in the formulation and implementation of the country's Sami policy and other issues of importance to the Sami.
There is little case law relating to Article 110a. However, Norwegian Sami policy shows that the article has had repercussions beyond its political and moral significance. For instance, it contributed substantially to the 2004 establishment of the Sis-Finnmarkku Diggigoddi / Inner Finnmark District Court, which a district court for the Central Sami areas with Sami-speaking judges skilled in Sami Culture and Sami Customary law, and with a special responsibility to safeguard Sami customary law (NOU 1999: 22, p. 72).
However, this commitment has not been adhered to in all instances (Ravna 2009). Admission of this reality did however contribute to the establishment, by the Courts Administration in 2010, of a working group to study "The Sami dimension of the judiciary." The report produced by this group suggested that, based on the obligation contained in Article110a, "the Courts of law have a responsibility to safeguard the interests of the Sami legal traditions and Sami customary laws" (Domstoladministrasjonen 2010:21).
2.2. Other National Legislation
on Sami Issues
This section analyses some of the most important laws that specify and apply the notion of constitutional protection while highlighting Norway's international obligations to protect the Sami culture, language and rights to lands and waters.
The Sami Act (June 12, 1987 no. 56) aims "to facilitate that the Sami people in Norway can maintain and develop their language, culture and way of life" (s. 1-1). It is thus complementary to Article 110a of the Constitution. Section 1-2 provides for the establishment of the Sami Parliament, which is further regulated in Ch. 2. Chapter 3 deals with the Sami languages. Among other things, it determines that "acts and regulations with particular interest for the Sami population shall be translated into Sami language" (s. 3-2). The chapter also contains rules on the extended right to use Sami language in the courts (s. 3-4) and in the health and social services (s. 3-5). There are also rules on the right to have a paid leave of absence for education and training in the Sami language.
The Finnmark Act (17 June 2005 no. 80) is already briefly mentioned in the introduction. The act is a direct result of Norway's obligation to comply with ILO Convention No. 169 and thus an important instrument in the protection of Sami rights to lands and nature resources. Interestingly, although the law group under the Sami Rights Committee concluded that the state was the owner of the outlying fields and mountainous areas of Finnmark, the Government proposed to discontinue that ownership in the bill of the Finnmark Act (Ot. Prop. nr. 53 (2002-2003)). This was done on the basis of international legal obligations, recognition of the historical rights of the Sami, including opinions that state ownership was based on historical misunderstandings that were currently difficult to defend.
The Finnmark Act implied that the Norwegian Parliament transferred the ownership of about 95% of the area in Finnmark (45 000 square kilometres) from the state to the new ownership body named Finnmarkseiendommen (The Finnmark Estate). This represents a cardinal change in the management of large lands and nature resources in the Sámi areas, ending the state ownership regime which has existed for over 200 years.
The purpose of the Finnmark Act (s.1) is to facilitate the management of land and natural resources in the county of Finnmark in a balanced and ecologically sustainable manner for the benefit of the residents of the county and particularly as a basis for Sami culture, reindeer husbandry, use of non-cultivated areas, commercial activity and social life.
In s. 3 the Finnmark Act incorporates ILO Convention No. 169 within the scope of the Act. Of fundamental interest is s. 5, where para 1 states that "through prolonged use of land and water areas, the Sámi have collectively and individually acquired rights to land in Finnmark." The second paragraph states that this also applies to other residents in the county, which shows that the act does distinguish between rights-holders on the basis of ethnicity.
To determine the scope and content of the rights held by Sámi and other people on the basis of prescription and immemorial usage,
a commission shall be established to investigate rights to land and water in Finnmark and a special court to settle disputes concerning such rights, cf. chapter 5.
The ownership body, the Finnmark Estate, "is an independent legal entity with its seat in Finnmark, which shall administer the land and natural resources etc., that it owns in compliance with the purpose and other provisions of this Act" (s. 6).
The Finnmark Act in s. 29 (in ch. 5) authorises the establishment of the Finnmark Commission, which "on the basis of current national law, shall investigate rights of use and ownership to the land to be taken over by Finnmarkseiendommen pursuant to section 49." The majority of the Parliamentary Standing Committee of Justice chose the wording "current national law" to reveal that Sami customs and legal opinions shall be emphasised in the clarification process. Such sources of law should thus have a significant place in the process.
As for the Finnmark Act itself, the founding of the Finnmark Commission and the Uncultivated Land Tribunal (s. 36), is explained under the same obligations as posted to Norway in ILO Convention No. 169 Article14 (Innst. no. 80 2004 - 2005:17, Ravna 2011)
The Finnmark Commission was established in March 2008, beginning its work on the two first investigation fields in fall the same year. In March 2012 the Commission submitted its report on field 1 "Seiland and Stjern0ya" (Finnmark Commission 2012). For those who expected recognition of Sami rights to land and water as property rights or exclusive use rights, as the Finnmark Act indicates, the report is not promising. For fields 1, the Commission concluded that The Finnmark Estate owns all the land covered by the report (the previously state-owned land) with the exception of a parcel of 0.02 square kilometres (Finnmark Commission 2012: 128). The Commission has thus not recognized any kind of collective property rights related to the Sami reindeer herders, other groups of Sami, or other local residents (Ravna 2013). The conclusions for field 2, delivered in February 2013, goes a long way coincides with those for field 1. Also here the Finnmark Commission concludes that neither the reindeer herders nor the locals have acquired any property rights except for a private parcel of land of 0.007 km2
with two cottages and outbuildings acquired by prescription (Finnmark Commission 2013).
The Reindeer Husbandry Act (15 June 15 2007 no. 40) aims to facilitate ecological, economic and culturally sustainable reindeer husbandry (s. 1, para 1). The Act places greater emphasis on Sami culture, tradition and customs than the previous act of 1978, which among other things appears in s. 1 where it is stated that "reindeer husbandry is to be preserved as an important basis for Sami culture and society." This is also reflected in the fact that the reindeer husbandry siida (the Sami herding community) is recognised in law, with grazing rules prepared on the basis of "principles of good reindeer husbandry based on Sami traditions and customs" (s. 59). Section 3 states that the Act should be applied according to the international law of indigenous peoples and minorities.
Chapter 3 deals with the content of reindeer husbandry rights. The most important of these rights are the grazing privileges for the reindeer in the mountainous areas and the other outlying fields, not depending on who is the owner of the land (s. 19). The grazing rights cover the right to suitable seasonal pastures, i.e., spring, summer, autumn and winter pastures, including migration routes, calving and mating areas (ss. 20 and 22). In addition, the reindeer husbandry rights include accessory rights to housing, use of motor vehicles, fences and other facilities, wood and timber, and hunting, trapping and fishing (ss. 21 and 23-26).
Of importance here is also the codification of laws that have grown out of case law. Interesting in that regard is s. 4, para 1which states that reindeer husbandry has its legal basis in immemorial usage, while para 3 notes that Sami reindeer husbandry enjoys legal protection under the expropriation regulations. In addition, para 2 codifies the burden of proof.
The Consultation Agreement between the Norwegian Government and the Sami Parliament
signed May 11, 2005 is also worthy of note here. The agreement aims to contribute to the practical implementation of the state's international legal obligation to consult the Sámi
a) to achieve agreement between state authorities and the Sámi Parliament when it considers introducing laws or measures that may affect Sámi interests
b) to facilitate the development of a partnership perspective between the state authorities and the Sámi Parliament, working to strengthen the Sámi culture and society, and
c) through the development of a common understanding of the situation and development needs of the Sámi community.
In addition, the SRU II drafted a consultation Act in 2007, which is expected to be heard by the Parliament in the near future (NOU 2007:13).
The draft of the Finnmark Fishing Act, proposed by the Coastal Fishing Committee (NOU 2008: 5) was subject to extensive political debate and negotiation, although it was not adopted and probably never will be. The draft, or more correct, the discussion on the Coastal Sámi rights to maritime resources, particularly coastal fishing, has it modern starting point in the draft of the Sámi Rights Committee (NOU 1997:4) where it was acknowledged that Sámi culture and traditions must be emphasised in the management of coastal and fjord fishing in Sámi areas. In the Sámi Rights Committee draft it was also proposed free fishing available for boats under 30 feet, which is a common size for the Sámi fishermen. The proposals were not passed by the government in its draft of the Finnmark Act (Ot. Prop. nr. 53 (2002-2003)). This, in turn, led the Parliamentary Standing Committee of Justice to suggest a legal study on the Sámi peoples' and others' right to fish in the sea offshore the County of Finnmark (Innst. O. nr. 80 (2004-2005), 30-31).
That study was undertaken by a particular law committee, the Coastal Fishing Committee, which in their recommendations concluded that people living along the fjords and by the coast of Finnmark, "on the basis of historical use and the international law of indigenous peoples and minorities, have the right to fish in the sea off the Finnmark" (NOU 2008:5, p. 14). A proposal was thus made to settle this question in terms of a "fjord right" to fish. The study of the Coastal Fishing Committee shows that the Norwegian Government position is, in this context, not as free as the Marine Resources Act (June 6, 2008 No. 37) states in regulating access to fisheries in its northern seawaters (Ravna 2012: 276 - 278).
The Stoltenberg Government has refused to follow up on the Coastal Fishing Committee's unanimous recommendation but has instead adopted a rather dismissive position on the bill. An Agreement between the Norwegian Government and the Sami Parliament was concluded in 2011 in which the latter gained recognition for the right to land 3 000 tons of cod, but did not received any recognition in respect of its claim over historical fishing rights.
2.3. Case Law Concerning
the Rights to Lands and Waters
The Norwegian Courts during a long period considered Sami use of land and water as a so-called "innocent beneficial right of use." A fundamental change in the case law however came about through two important Supreme Court judgments during a 14 day period in the spring of 1968.
In the Brekken Case (Norsk Retstidende (NRt.) 1968: 394), the Supreme Court found that the Sami use of lands and waters "for a long time had been attached to the place and that it in its core is so fastened that it cannot simply be equated with the exercise of an innocent beneficial right of use or a public access to land" (401). This led to
the Sami gaining legal recognition for their rights to use their traditional hunting and fishing sites on private land in the Southern Sami areas.
In the Altevann Case (NRt. 1968: 429) the Supreme Court confirmed the lower courts' decision and stated that the flooding of Lake Altevann was "an interference with such a firm and concentrated use of pastures and fishing sites at Altevann that the acquiring authority must pay compensation" (438). The Sami from the Swedish Sami Communities of Talma and Saarivuoma use of these pastures and fishing sites in Norway were thus awarded compensation for expropriation in line with the prior recognition of immemorial usage.
Although the Supreme Court recognised that Sami use could lead to the recognition of rights, it should still take several decades before Sami reindeer husbandry use will lead to the confirmation of pastoral rights in disputes with landowners. The main reason for that was no longer that the use was not considered to establish rights, but rather that it was not considered to be sufficiently regular and intensive to meet the condition for the acquisition of rights of use. In three separate Supreme Court judgements on the Southern Sami areas (NRt. 1981: 1215, NRt. 1988: 1217 and NRt. 1997: 1608), the Court evaluated the requirements of regularity and intensity in respect of the use of lands from a norm established by the farmers' use of lands. Rules that under other circumstances could have led to the confirmation of the rights of the Sami reindeer herder thus emerged as obstacles to the recognition of such rights.
In the landmark Selbu Case (NRt. 2001: 769) the Supreme Court set the views of the three previous judgments aside. This was done by emphasising the characteristics of reindeer husbandry and the Sami use of lands and Sami cultural characteristics when assessing the acquiring of pastoral rights. In adopting such an
approach to the legal evaluation of the questions, the Supreme Court found that the reindeer husbandry districts of Essand and Riast-Hylling had acquired pastoral rights in the disputed areas in Selbu municipality due to immemorial usage of reindeer pastures. By virtue of being a plenary judgment, the Selbu case is an important source of law in disputes relating to the confirmation and extension of reindeer husbandry rights. It can, as such, be deemed to represent a norm in respect of how Norwegian property law should be applied, not only in reindeer husbandry disputes, but also more generally in disputes relating to confirmation and recognition of use and ownership rights in the Sami areas.
In this judgment, a unified Supreme Court stated that reindeer husbandry law imposes a burden on landowners to prove that pastoral rights do not exist in the reindeer husbandry areas, and that the right to practice reindeer husbandry has an independent legal basis grounded in immemorial usage.
Of particular importance here is the fact that the entire Supreme Court stated that in testing the rules of immemorial usage, the characteristics of the rights had to be emphasised, which means that the requirements for the confirmation of rights must be adapted to the Sami's use of land in the Sami areas. This also meant that while Sami reindeer herders have enjoyed a nomadic way of life, similar practices in respect of other grazing animals cannot automatically be transferred to reindeer husbandry. More precisely, the first voting judge, who represented the majority of the Court, stated that reindeer husbandry demands a significant amount of land, and that the use of lands varies from year to year depending on weather, wind and the condition of the pastures:
It can thus not be claimed that the reindeer have grazed in a particular area every year. Both for
this reason and because of the Sami's nomadic way of life can interruption of use not prevent acquisition of right even if it is of considerable length (NRt. 2001: 769 at p. 789).
As a consequence, the nature of reindeer herding must be taken into consideration together with grazing patterns in the evaluation of the intensity of use. The surroundings, environment, topography, pasture conditions, weather, etc., thus each have significance.
The Supreme Court has in this way adapted rules of immemorial usage such that the legal norm is today that the requirements for intensity and regularity in the use must be evaluated against a standard issued by the characteristics of the rights, and where the acquisition of such rights is considered in relation to the practice of reindeer husbandry more generally.
In this context it is clear that the Selbu Case has produced a norm as shown in the decision on fishing rights for Sami Reindeer Herders in Tydal (LF-2008-50209).
The clarification of the legal basis of reindeer husbandry and expropriation protection has taken place through case law. This is, as we have seen, now enshrined in s. 4 of the Reindeer 2007 Husbandry Act.
In addition to the judgments on reindeer husbandry rights, the Svartskog Case should also be highlighted (NRt. 2001: 1229). Based on the rules of immemorial usage, the Supreme Court found here that the local people of Manndalen in the County of Troms, which is populated predominantly by people of Sami origin, had acquired title to property registered to the Norwegian State as an owner. In assessing the current law, it should however be noted that the legislation relating to the Finnmark Act highlighted these judgments as a guideline for how the traditional Sami use of lands shall be considered as the basis for the acquisition of a right.
3. International Law
3.1. Article 27 of the International
Covenant on Civil and Political Rights
Through the Human Rights Act (21 May 1999 No. 30), The International Covenant on Civil and Political Rights (ICCPR) of 1966 was incorporated into Norwegian law with precedence over other legislation except for the Constitution. Article 27 of the ICCPR reads as follows: In those States in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practise their own religion, or to use their own language.
The provision states that minorities are free to use their own languages and enjoy their own cultures and religions. Statements from the UN Human Rights Committee (HRC), which is the monitory organ of the Covenant, show that this article not only provides protection against minorities being denied such rights, but that it also imposes an obligation on states to take positive measures to support minority languages and cultures. In its General Comment No. 23 the HRC (HRC, report, vol. 1, 1994), stated:
Although the rights protected under Article 27 are individual rights, they depend in turn on the ability of the minority group to maintain its culture, language or religion. Accordingly, positive measures by States may also be necessary to protect the identity of a minority and the rights of its members to enjoy and develop their culture and language and to practise their religion, in community with the other members of the group (para. 6.2).
The Sami Rights Committee II (NOU 2007: 13, p. 190-1) emphasise that the statement shows the relationship between the ICCPR Article 27 and Article 110a of the Norwegian Constitution.
ICCPR Article27 also includes protection of the substantial basis of the minority culture, i.e., pastures and other natural environments that are of importance for Sami traditional livelihoods. In the same report, it is also stated that the committee understands culture to be manifested in many forms:
including a particular way of life associated with the use of land resources, especially in the case of indigenous peoples. That right may include such traditional activities as fishing or hunting and the right to live in reserves protected by law (para.7).
The provision thus sets up a threshold for intervention that could threaten the exercise of Sami culture and livelihoods. The statement also points out that this protection from intervention applies in particular to indigenous peoples. In the 2008 White Paper on the Norwegian Sami policy (St.meld. nr. 28 (2007-2008), 33), the Government endorsed this position as it approved the Ministry's statement that:
In relation to the Sami as indigenous people, it is a common interpretation that the provision [ICCPR Article 27] also covers the substantial premises for the Sami total cultural exercises, also referred to as the natural resource basis for Sami culture.
The Comments of the HRC also show that modern ways of exercising traditional culture embedded in industries and livelihoods, such as coastal fishing and reindeer husbandry, also enjoy protection under Article 27. As a former Chief Justice of the Supreme Court and head of the Sami Rights Committee, dr. Carsten Smith ironically replied to the Attorney's submission to the Coastal fishing Committee (NOU 2008: 5); "it cannot be claimed that the Sami shall continue to use oars and sails to enjoy the protection of coastal fishing" (Smith 2010: 22).
Article 27 of the ICCPR is an important legal provision with a content that provides
protection against infringement in respect of natural resources and Sami traditional lands, where it sets up a framework (even though it is not precise) for how far such interventions can go. The comments of the HRC show that it can be applied to interventions in Sami coastal, river or inland fisheries. Article 27 also includes a protection against intervention in terms of the Sami reindeer husbandry industry. This notwithstanding, it must be admitted that the obligation continues to have a greater practical significance in terms of legislative processes and political negotiations than in case law.
3.2. ILO Convention No. 169
As already noted, Norway ratified ILO Convention No. 169 in 1990. Even if the legislature omitted to incorporate it through the 1999 Human Rights Act, the convention remains a significant source of law which among other things sets up requirements for consultations, for indigenous customs to be emphasised in decision-making processes, and for indigenous land rights to be identified and recognised.
In Norway, there is a broad that the Sami people are covered by the definition of indigenous peoples in Article 1. By ratifying the Convention, Norway has thus committed itself to protect the Sami lands and culture. Article 2 includes a governmental responsibility in respect of "developing, with the participation of the peoples concerned, co-ordinated and systematic action to protect the rights of these peoples and to guarantee respect for their integrity."
Article 6 encompasses the government's duty to consult indigenous peoples. According to para (1)(a), the obligation to consult includes all cases where public bodies are considering implementing legislative or administrative measures that may have a direct impact on indigenous people. This led to the agreement on consultations between the
Norwegian Government and the Sámi Parliament in 2005, described above.
Article 8 encompasses the respect for indigenous customs and customary law. Paragraph
(1) states that "In applying national laws and regulations to the peoples concerned, due regard shall be had to their customs or customary laws." This provision helps to actualise Sámi customs and customary law as a source of law (see below). This will in particular apply to the legal identification process in Finnmark, since the ILO Convention is incorporated in the Finnmark Act, and since the legislature has placed great emphasis on fulfilling its international obligations in framing the Finnmark Act. Article 8 (2) of the ILO-169 states that necessary procedures shall be established to resolve conflicts, which may arise in the application of this principle.
Of particular interest here however is the question of the legal ranking of indigenous customary laws when they are in conflict with national statutory law. This is discussed by SR C II, which does argue that indigenous customs are not unconditionally entitled to prevail (NOU 2007:13, p. 222).
Article 14 states that indigenous peoples have rights of ownership and possession over their traditional lands. The purpose of this article is that the use of lands that indigenous people have traditionally used shall be recognised and given legal protection. The international law group under the Sámi Rights Committee has noted that "if the population has been sufficiently established in the area, and they have also been the only ones to use this area, the demands of actual possession can normally be regarded as having been fulfilled" (NOU 1997:5, p. 35). Article 14, especially 14
(2) and (3) has been of significant importance in the adoption of the Finnmark Act and the establishment of the Finnmark Commission. Number (3) reads: "Adequate procedures shall be established within the national legal system
to resolve land claims by the peoples concerned." The Finnmark Commission is supposed to provide such an adequate procedure.
Article 15 encompasses indigenous peoples' rights to participate in the management of natural resources. It places restrictions on the state authorities in regulating the exploitation of land and natural resources in indigenous areas. In para 1, the article states that indigenous people have the right to participate in the use, management and conservation of such resources. In Article 15 (2) the requirement for an extended consultation duty is set out.
In cases in which the State retains the ownership of mineral or sub-surface resources or rights to other resources pertaining to lands, governments shall establish or maintain procedures through which they shall consult these peoples, with a view to ascertaining whether and to what degree their interests would be prejudiced, before undertaking or permitting any programmes for the exploration or exploitation of such resources pertaining to their lands...
Furthermore, this paragraph states that indigenous peoples shall, "wherever possible participate in the benefits of such activities, and shall receive fair compensation for any damages which they may sustain as a result of such activities."
It has however been questioned whether the 2009 Norwegian Minerals Act, which provides for increased landowner fees to the Finnmark Estate instead of providing direct benefits to the representative Sámi body, The Sámi Parliament, is consistent with Article 15 (2), see Skogvang (2010: 63-67).
3.3. Other International
Legal Obligations of Norway
Norway has endorsed the UN Convention on Biological Diversity, the European Charter
on Regional or Minority Languages and the Council of Europe Framework Convention on the Protection of National Minorities. These obligations also have legal effect in relation to the Sami people. It should also be noted that The UN Special Rapporteur Anaya has emphasised the importance of the fact that Norway has ratified these conventions.
Other international instruments of interest include the 2007 United Nations Declaration on the Rights of Indigenous People. Since many of the commitments in this Declaration are also enshrined in ILO Convention No. 169 there is little need to discuss this issue here. However, we should note that Article 21 of the Declaration follows Article 27 of the ICCPR in requiring that states implement effective measures to ensure the development of the social and economic conditions of indigenous people. The 2005 draft Nordic Sami Convention will also likely prove to be an important international legal instrument at least if, in the near future, the negotiations end in a treaty in the form of the present draft. However, the analysis of that document is also beyond the scope of this chapter.
The 1950 European Convention on Human Rights (ECHR), Protocol 1 Article 1, also retains some significance as a rule of law in the Norwegian courts when it comes to the legal protection of reindeer husbandry. For example, the Supreme Court decision NRt. 2006: 1382 on a dispute between a reindeer owner and the Reindeer administration on the closing down of a reindeer herding unit, found that the Reindeer Administration under the Norwegian Ministry of Agriculture and Food was not entitled to proceed with the said closure because, among other things, it violated the protecting of property under ECHR, protocol 1, Article 1.
The legal clarification Process (see section 2.2 above) enshrined in the Finnmark Act can also be discussed in relation to the obligations
of the ECHR, including the provision for trials to be held within a reasonable time, contained in Article 6 (Ravna 2011).
4. Sami Law
4.1. Sami Legal Traditions
and Customary Law
Sami legal traditions and customary law such as Sami internal autonomous regulations constitute The Sami law. Although this is not a written law it is binding in nature. It is important both in relation to Sami autonomy and also in the application of national Norwegian law related to the Sami. Moreover, it has significance for negotiations in respect of bilateral and multilateral agreements and treaties between states that have a Sami population and the Sami people, see e.g., the 2005 Draft Nordic Sami Convention.
Sami law has an independent legal basis; it is complied because people who are subject to them feel bound by them. Norway's ratification of ILO Convention No. 169 and subsequent policy developments, have given Sami law a formal place in Norwegian law. This means that Sami customary law should be considered both in the legislative process and in the application of the law.
This legal development also meant that Sami law has increasingly become a part of Norwegian statute (e.g., in parts of the reindeer husbandry legislation). The Finnmark Act is to some extent also built upon the foundations of Sami legal traditions. Thus, in s. 5 it states that the Act does not infringe the "rights of the Sami and others have gained by prescription or immemorial usage."
Except for the previous Finnmark land legislation and the general legislation on fishing and wildlife conservation, harvesting of outlaying fields in the Sami areas has to a relatively small extent been regulated by statutory law. Customary law has thus played a significant role
in its regulation. The well-known judge and legal scholar Erik Solem (1933), showed that the Sámi often had disputes regarding hunting grounds in respect ofthe snare trapping of grouse. In her study Elina Helander (2004) notes that Sámi informants claimed to have some sort of internal autonomy for the exercise of this trapping tradition, and that now they are in danger of losing it.
The right to build the Sámi guohti (a traditional Sámi turf hut), is another tradition that has largely been regulated by Sámi customs. This tradition was challenged when the state forest company, which managed the unregistered state property of Finnmark, adopted a regulation in 1967 saying that such turf huts only could be raised with the permission granted by the state forest company and on certain conditions.
Other Sámi customs such as: conflict resolution, the importance of family relationships, child rearing and hereditary succession still play a role in the modern life of Sámi people (Skogvang 2009: 85-93).
4.2 Sámi Law in the Norwegian Courts
To date, the use of Sámi customary law as a source of law in the courts is still in its initial phase. It therefore remains difficult to draw robust conclusions on its ultimate legal significance. Thus far, case law points to the fact that Sámi law has faced significant problems in working harmoniously with Norwegian law as the two have often collided with considerable force, and where the Supreme Court has placed strict requirements on quality and clarity on Sámi customary law.
In its 2001 ruling (NRt. 2001: 1116) the Supreme Court held that the tradition of letting dogs run free in the woods in the summer, not had a quality that let it prevail over the Norwegian Wildlife Act. Additionally, a case brought in relation to the spring hunting of ducks in the Sámi municipality of Kautokeino failed as it was
not considered to be a custom that deserved legal protection by the courts, (see: NRt. 1988: 377).
The question of the significance of Sami customary law in the slaughtering of reindeer has also been heard by the Supreme Court on two occasions (NRt. 2006: 957 and NRt. 2008: 1789). In neither cases did the Sami parties claim that particular methods of killing the reindeer, namely, by shooting with a small-calibre rifle or killing with a knife to the heart (which was not in compliance with the 1974 Animal Welfare Act), were justified by Sami customary law. It must, however, be noted that the government has shown some willingness to accept Sami customary traditions, e.g., in regulations in respect of the methods of killing reindeer (Regulations July 30, 2008 on the use of the curved knife) and by allowing spring hunting for ducks (Regulation May 2, 1994 on the quota regulation of spring hunting for ducks).
In addition, when it comes to fishing for salmon, case law exists to show that Sami customary law is set aside when it contradicts Norwegian law. For example, in a decision about fishing in the River Tana (NRt. 2006: 13), the Supreme Court, somewhat surprisingly, stated that the customary law saying that a person outside the household is allowed to fish with the authority (proxy) of the right holder, was contrary to the 1888 Tana Act. Thus such fishing was unlawful. The above-mentioned Selbu Case (NRt. 2001: 769) shows however that the Supreme Court has emphasised traditional Sami knowledge and customs related to the use of the lands in settling a claim on rights to reindeer husbandry pastures.
Beyond these examples, Sami customary law has faced significant difficulty in being recognised by the courts. This can perhaps be explained by the fact that the courts of appeal are not yet sufficiently adapted to protect Sami customary law. But it can probably also be explained by the fact that customs that have been tried in courts,
have lacked the legal quality required to obtain legal protection (NRt. 2001: 1116). According to Skogvang (2009: 75-6), the Supreme Court in criminal matters, with the exception of the 2006 judgment on salmon fishing in Tana, has evaluated the legal sources correctly.
Finally, it should be noted however that the courts of law in the Sami areas have over time become more aware of their duties in respect of familiarising themselves with Sami customary law.
5. Conclusion
The Sami people, including their legal and substantive culture, were subject to a grinding process of assimilation into the Norwegian state from the 1800s up to the post war period. Partly as a result of the focus on international human rights law after the World War II, views in respect of Sami culture, rights and customary law, slowly began to change.
In the nearly 70 years that have passed since the end of World War II, Sami language and culture has achieved increasing recognition and legal protection, both through national legislation, case law and in relation to international human rights obligations to which Norway step by step has committed itself. This also reasoned in that Sami customary law to some extend has being recognised as a source of law beyond the Sami internal autonomy. Therefore, Sami Law can currently be interpreted through three legal systems of law: The Norwegian statutory and casual law, Sami customary law and international human rights treaties.
Norway is constitutionally committed to protect Sami language, culture and society, which among other things has contributed to the establishment of the Inner Finnmark District Court in 2004, a court with a special responsibility to safeguard Sami language, culture and legal traditions. Sami legal traditions and land rights
are also given protection and recognition through Norway's ratification of ILO Convention No. 169. This protection is strengthened by the incorporation of the convention into the Finnmark Act. The ratification of ILO Convention No. 169 implies not only that Sami ownership and possessions to traditional lands shall be recognized, but also that Sami legal traditions and customary law should be given a more prominent place in Norwegian law.
Through case law it has been acknowledged that the legal basis for reindeer pastoral rights is immemorial usage - in such a way that Sami reindeer herders are given economic compensation in relation to encroachments on their pastures. These rules are now codified in the 2007 Reindeer husbandry Act. In addition, the landowners - and not the Sami herders - in cases of disputes have the burden of proving that reindeer husbandry rights do not exist on their private land if situated in the Sami reindeer herding area. Case law shows that the Supreme Court has been able to adapt and interpret the provisions of Norwegian property law in such a way that these rules, to a large extent, also are able to protect Sami use lands, waters and rights to natural resources. In other areas of law, however, progress has not been as prominent.
When the 1999 Human Rights Act was passed, the international human rights conventions were incorporated into Norwegian law and given precedence. Even if the incorporation did not include the ILO-169, this has contributed to the strengthening of the legal position of the Sami, in particular through the ICCPR Article 27.
Despite a solid foundation in law, there still remain major challenges in respect of emphasising Sami law as a legal instrument and source. One such challenge relates to the clarification of the hierarchy between Sami law and other legal sources in cases where contradictions arise.
There are also challenges to be faced in the implementation of the international conventions that protect Sami language as well as both substantive and legal culture under Norwegian law.
A current question that challenges both obligations in international law and internal legislation, concerns the Sami rights to fish in the coastal areas outside Finnmark. The Coastal Fishery Committee concluded that people living by the fjords and along the coast of Finnmark possess historical rights to fish in these areas but the government has been reluctant to acknowledge this. This means that rules saying that immemorial usage create rights, an accepted norm when it comes to pastoral rights in the mountains and outlying fields, does not reach beyond the slopes of the shoreline. This also means that the debate on the right to fish in the coastal areas of Sapmi will continue into the future.
Questions about self-determination and the extent of the rights to both non-renewable and renewable natural resources on land have also not been resolved. The question of renewable natural resources leads us back to the Finnmark Act.
Although the legislature here has shown a willingness to recognise Sami rights to lands and waters, there is still a long way to go to actually achieving this goal in practice. One problem may lie in imprecise nature of the rules in relation to
the Finnmark estate's management of land rights, which were on occasion practised in a contrary manner to local interests. Furthermore, the de facto extent to which Sámi rights to lands and waters in Finnmark are recognised by legislators, depends heavily on the legal identification processes initiated through the Finnmark Act and the Finnmark Commission. These processes are currently on-going and there are both procedural and the substantive questions remain to be resolved. The Finnmark Act in itself might be considered as recognition of Sámi rights to lands and waters. However, the the expected recognition of Sámi lands and waters is still pending, as the reports of the Finnmark Commission so far has not recognized Sámi ownership or exclusive use rights. As the settled cases creates precedents for the coming cases, the future is not promising for those who are waiting for recognition of Sámi ownership rights or use rights cases, while it can be asked if rejecting such rights are in accordance with the Finnmark Act and the international commitments in the ILO-169.
This means that we can surely agree with the UN Special Rapporteur on the Rights of Indigenous peoples, James Anaya, when he in relation to the Finnmark Act and the identification and recognition process, stated that "the adequacy of the established procedure is not yet known."
1 This article is elaborated on 0yvind Ravna, "Sami Rights and Sami Law in Norway", Polar Law Textbook II (ed. Natalia Loukacheva), Nordic Councils of Ministers, 2013(a): 270-293.
2 About the Alta Case, see http://www.galdu.org/govat/doc/eng_damning.pdf (accessed 4 September 2013).
3 About the Sami Parliament of Norway, see http://www.galdu.org/govat/doc/eng_samediggi.pdf (accessed 4 September 2013). The Constitutional amendment is reviewed in section 2.1 below.
4 Finnmark is the northernmost county on the Norwegian mainland and the most central Sami area.
5 The rules concerning the legal protection of the Sami and the Sami culture are also rules that frames a central part as the Sami Law as an academic discipline. The UN interpreting of culture implies that it also includes the rights to land and natural resources as well as the capacity to maintain traditional livelihoods. Sami Law may also include those parts of Norwegian law where the cultural differences between the Sami and the majority society implies that the law works differently (Skogvang 2009:25).
Sami law can also be understood as Sami internal lawgiving, e.g., unwritten rules rooted in Sami culture as customary law, aimed to regulate the relations and use of natural resources etc., between the members of Sami societies as well as to outsiders. If we include customary practices, legal opinions, legal thinking and application of the law, both formal and informal, this concept can be referred to as Sami legal culture (Ravna 2010:149).
6 http://www.stortinget.no/en/In-English/About-the-Storting/The-Constitution/The-Constitution/ (accessed 8 September 2013).
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Юридическая защита прав и культуры малочисленного народа саамов в Норвегии
Ойвинд Равна
Юридический факультет, Арктический университет Норвегии, Норвегия, Тромзо, NO-9037
Темой данной статьи является законодательство, касающееся правовой защиты культуры саамов и саамов как малочисленного народа Норвегии. Анализ будет проводиться со ссылкой на три правовых системы, включая право саамов и правовую культуру, исходя из текущего правового статуса. Борьба саамов за свои права на земли и воды является центральной в развитии правовой позиции саамов. Таким образом, этой части законодательства саамов будет уделено наибольшее внимание в статье.
Ключевые слова: малочисленные народы, саамы, страны Северной Европы, Норвегия, право, законодательство, международное право, оленеводство, Конвенция Международной организации труда № 169.
