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International law includes treaties and declarations that commit the national states to protect the culture and livelihood of indigenous peoples. Of particular interests is The International Labour Organization (ILO) Convention No. 169 concerning indigenous and tribal peoples in independent countries and the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP). Norway is one of 22 countries that is party to the ILO 169. In this chapter, the commitment to identify and recognize indigenous people’s lands and natural resources in relation to the indigenous Sámi in the Nordic Countries will be examined. This commitment applies in particular to Norway, which is the only country with a Sámi population who has ratified the ILO Convention. The commitments imposed to Norway thus raises several key issues regarding identification of indigenous people’s lands, including to what extent the Sámi laws and customs have significance as legal sources in such processes, and how to the state must involve the indigenous party in the process.
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Adopted June 27, 1989 and coming into force September 5, 1991. Retrieved May 10, 2012, from http://www.ilo.org/ilolex/cgi-lex/convde.pl?C169. The Convention is presently ratified by 22 states, among them Norway, see ibid.
See http://www.un.org/esa/socdev/unpfii/documents/DRIPS_en.pdf Retrieved May 12, 2012. The Declaration was adopted by the United Nations General Assembly, 107th plenary meeting, September 13, 2007, which voted on the adoption. The vote was 143 countries in favor, 4 against, and 11 abstaining. The four member states that voted against, Australia, Canada, New Zealand and the United States, have later endorse the declaration. Among the abstaining countries is The Russian Federation. Retrieved ay, 12, 2012 from http://social.un.org/index/IndigenousPeoples/DeclarationontheRightsofIndigenousPeoples.aspx
The Sámi live in the northern and central parts of Norway, Sweden and Finland, and the Kola Peninsula in Russia, where they in the three first mentioned countries, is the only indigenous people. They consist of 50,000–80,000 peoples earning their livelihood from both marine and terrestrial industries such as reindeer husbandry, agriculture and coastal fishing, see Harald Gaski in Store Norske Leksikon, http://snl.no/samer. For more information about the Sámi, see the Sámi Parliament’s web page. Retrieved May 4, 2012, from http://www.samediggi.no/artikkel.aspx?AId = 3688&MId1 = 3487. The Article 14 of the ILO Convention no. 169 is of particular interests, which imposes the contracting States to identify and recognize indigenous peoples’ traditional lands.
Lov (Act) 17. juni 2005 nr 85 om rettsforhold og forvaltning av grunn og naturressurser i Finnmark fylke (Finnmarksloven) [Act 17 June 2005 No. 85 relating to legal relations and management of land and natural resources in the county of Finnmark]. English translation. Retrieved April 20, 2012, from http://www.ub.uio.no/ujur/ulovdata/lov-20050617-085-eng.pdf
James Anaya, The situation of the Sami people in the Sápmi region of Norway, Sweden and Finland,
Report on the situation of human rights and fundamental freedoms of indigenous people (2011), Para. 44 Retrieved May2,2012 from http://unsr.jamesanaya.org/docs/countries/2011_report_sami_advance_version_en.pdf
The different opinions was clearly shown in several Northern Norwegian Newspaper during the process of adopting the act, see Øyvind, R. (2004). Forslaget til ‘Finnmarkslov’ og bygdefolks rettigheter. Kritisk juss, 1 (30), 35–57.
See NOU 2007: 13 Den nye sameretten, pp. 31–68.
See Finnmarkskommisjonen, Rapport felt 1 Stjernøya / Seiland, March 20, 2012. As the report was submitted at the time this paper was to be completed, the findings in the report is no topic here. For a brief analysis of the findings, see: Øyvind Ravna, “The First Investigation Report of the Norwegian Finnmark Commission”, International Journal on Minority and Group Rights, 3 2013 (20), pp. 443–457. The Finnmark Commission has afterwards delivered three more reports; Rapport felt 2 Nesseby, February 13, 2013 and Rapport felt 3 Sørøya, October 16, 2013 and Rapport felt 5 Varangerhalvøya Øst, June 24, 2014.
In the original law text the name is Finnmarkseiendommen – Finnmárku opmodat (the last in Sámi language). In Fm Act S. 6 the Finnmark Estate is defined as “a separate legal entity with its seat in Finnmark, which shall manage the land and natural resources… as the owner in accordance with the purpose and provisions of the Act in general”.
An overview of the Finnmark Act and the procedural law requirements can be found in Øyvind Ravna, ‘The Process of Identifying Land Rights in parts of Northern Norway: Does the Finnmark Act Prescribe an Adequate Procedure within the National Law?” Yearbook of Polar Law, Brills (3) 2011 pp. 423–453 on pp. 425–429.
The term “Uncultivated Land Tribunal for Finnmark” is often used in English translation. It does not reflect the Sámi point of view, since livelihood and cultural activities historically have not depended on actual land cultivation. The outlying land and mountainous areas are consequently Sámi cultural land. Therefore the more neutral form, the Land Tribunal for Finnmark, is used.
Kongeriget Norges Grundlov 17. mai 1814 [The Constitution of the Kingdom of Norway 17 May 1814], Article 110 a. English translation. Retrieved May 3, 2012, from http://www.stortinget.no/en/In-English/About-the-Storting/The-Constitution/The-Constitution
Lov 21. mai 1999 nr. 30 om styrking av menneskerettighetenes stilling i norsk rett (menneskerettsloven) [Act 21 May 199 No. 30 relating to the strengthening of the status of human rights in Norwegian law], In English translation. Retrieved May 3, 2012 from http://www.ub.uio.no/ujur/ulovdata/lov-19990521-030-eng.pdf
Ot Prp [Proposition to the Parliament] Nr 53 (2002–2003) Om lov om rettsforhold og forvaltning av grunn og naturressurser i Finnmark fylke (Government bill for the Finnmark Act). See also James Anaya, supra note 5, Para 18. For more reading about the Alta Case, see Galdu, The damming of the Alta-Kautokeino Watercourse (The Alta Case). Retrieved May 3, 2012, from http://www.galdu.org/govat/doc/eng_damning.pdf and Svein S. Andersen & Atle Midttun (1985). Conflict and Local Mobilization: The Alta Hydropower Project, Acta Sociologica, 28, 317– 335.
See Henry Minde, “Challenge of indigenism: the struggle for sami rights and self-government in Norway in 1960–1990”, Svein Jentoft, Henry Minde and Ragnar Nilsen (eds.), Indigenous Peoples: Resource Management and Global Rights, (Ebourn Academy Publishers, Delft 2003), pp. 75–104 at p. 81 and Henry Minde, The International Movement of Indigenous Peoples: an Historical Perspective, Center for Sámi Studies, University of Tromsø. Retrieved May 3, 2012 from http://www.sami.uit.no/girji/n02/en/003minde.html
Sverre Tønnesen, (1972) Retten til jorden i Finnmark. Rettsreglene om den såkalte “Statens umatrikulerte grunn” – en undersøkelse med særlig sikte på samenes rettigheter, Universitetsforlaget, Bergen.
The Sámi Rights Committee had a mandate of four points where the first was to examine “the question about the Sámi people’s legal position in relation to land and water” including a consideration of the need for changes in current law, in where it could submit proposals for new regulations including new legislation. The next two points where to examine and suggest “how to secure the Sámi population opportunities to utilize natural resources in their areas of habitation, while also recognizing the non-Sámi population’s interests” and to examine the need of a constitutional protection of Sámi culture and language. The last point was of administrative and economical character, see NOU [Norwegian Public Report] 1984: 18 Om samenes rettsstilling, pp. 43–44. The particular proposal for a Finnmark Act was worked out in NOU 1997: 4 N aturgrunnlaget for samisk kultur.
NOU 1993: 34 Rett til og forvaltning av land og vann i Finnmark, p. 263 (My italics).
NOU 1997: 4, p. 241. In former times siida was a Sámi community which managed a physically-determined territory; see Erik Solem, Lappiske rettsstudier, pp. 81–84. Today the concept is used for a family-related working unit in reindeer husbandry, c.f. Reindeer Husbandry Act, S. 51–56.
This is worth noting, as the Uncultivated Land Commission for Nordland and Troms (1985–2004), which was a tribunal mandated to determine boundaries between State and Private lands in the Counties of Nordland and Troms, at that time (1990s) was at the peak of its productivity.
The Sámi Rights Committee also proposed the land consolidation court would be the appeal body, since the procedure to determine boundaries under Section 88 and 89 of the 1979 Land Consolidation Act seemed the most natural process form when it came to delineation questions.
Ot.prp. nr. 53 (2002–2003) Om lov om rettsforhold og forvaltning av grunn og naturressurser i Finnmark fylke (The Finnmark Act), p. 43. An important reason for the governmental acknowledgement was the Norwegian ratification of the United Nations’ International Labor Organization (ILO) Convention No. 169 concerning Indigenous and Tribal Peoples in Independent Countries in 1990.
Cf. the Proposal for a Finnmark Act Section 5(1), see Ot.prp.nr 53 (2002–2003) p. 122. All translations of quotations, except for the one of Finnmark Act, are done by the author.
Ot.prp. nr. 53 (2002–2003), pp. 98–99.
See also Jon Gauslaa, “Lov om rettsforhold og forvaltning av grunn og naturressurser i Finnmark fylke (finnmarksloven)” Gyldendal rettsdata, note 3.
Ot.prp. nr. 53 (2002–2003), Ibid., p. 8 and 122, cf. the draft S. 5.
Ibid., p. 97.
Innst. O. nr. 80 (2004–2005), p. 14.
Geir Ulfstein and Hans Petter Graver, Folkerettslig vurdering av forslaget til ny finnmarkslov. Retrieved April 28, 2012 from http://www.regjeringen.no/nb/dep/jd/dok/rapporter_planer/rapporter/2004/folkerettslig-vurdering-av-forslaget-til.html?id=278377
In 2005 there was also entered into a consulting agreement between the Norwegian Government and the Sámi Parliament to contribute to a practical implementation of the state’s international legal obligation to consult the Sámi, see Prosedyrer for konsultasjoner mellom statlige myndigheter og Sametinget. Retrieved May 12, 2012, from http://www.regjeringen.no/nb/dep/fad/tema/samepolitikk/midtspalte/prosedyrer-for-konsultasjoner-mellom-sta.html?id=450743
Innst. O. nr. 80 (2004–2005), p. 15.
Innst. O. nr. 80 (2004–2005), p. 15 and p. 37.
Ibid., p. 15 and p. 27.
Ibid., p. 17. Cf. chapter 5 of the Finnmark Act, entitled “Surveying and recognition of existing rights”.
Ibid., p. 17.
Ibid., p. 21.
Ibid., p. 15.
Forskrift (regulation) 16. mars 2007 nr. 277om Finnmarkskommisjonen og Utmarksdomstolen for Finnmark, s. 5 and 6. An amendment of September 21, 2012 (no. 66), implies that the Finnmark Commission also has mandate to investigate claims of rights to fishing grounds in the coastal areas of Finnmark if someone with legal interest requeres it.
See Finnmarkskommisjonen, Rapport felt 1 Stjernøya/Seiland, March 20, 2012 p. 15, where it is stated that there is “nothing in the Finnmark Act or the preparatory works that indicate that the legislator’s intention has been that the Commission’s reports should contain an accurate statement of the boundaries between properties and already meted and the Finnmark Estate”.
Innst. O. nr. 80 (2004–2005), p. 28. This was later opposed by the Sámi Rights Committee II, see NOU 2007: 13 Den nye sameretten, p. 453. The Sámi Rights Committee II was appointed in 2001 to investigate the legal situation for the Sámi south of Finnmark. Their findings were published in NOU 2007: 13.
Innst. O. nr. 80 (2004–2005) p. 28 where the Committee majority mention the Mountain Commission (1953–1953) and the Uncultivated Land Commission for Nordland and Troms (1985–2004).
Innst. O. nr. 80 (2004–2005) p. 19.
See http://www.domstol.no/Enkelt-domstol/Finnmarkskommisjonen/Om-kommisjonen/Medlemmer-og-ansatte/. Retrieved May 15, 2011, where the composition of the Commission is shown. Two members are Sámi from the Sami areas of Inner Finnmark, one is from the coastal areas and one is representing the outdoor interests. The head, Jon Gauslaa was formerly the head of the Sámi Rights Committee II. He is from southern Norway and has a most “neutral” background.
Innst. O. nr. 80 (2004–2005), p. 19.
For further reading, see Øyvind Ravna, ‘Sámi Legal Culture – and its Place in Norwegian Law in Rendezvous of European legal cultures, eds. Jørn Øyrehagen Sunde and Knut Einar Skodvin, Bergen 2010, pp. 149–165.
NOU 2007: 13, p. 222.
See also case law published in Nrt. 2008 p. 1789 on the evaluation Sámi customary law.
Innst. O. nr. 80 (2004–2005), p. 36. More about the cases, see Øyvind Ravna, ‘The Process of Identifying Land Rights in parts of Northern Norway’ pp. 429–432 and Gunnar Eriksen, Alders tids bruk, Bergen 2008 pp. 324–348.
The three first fields of the Commission is Stierdna-Sievju/Stjernøya-Seiland (field 1), Unjarga/Nesseby (field 2), and Sállan /Sørøya (field 3), cf supra note 8. Fields 1 and 3 consist of islands in the Alta Fjord in West-Finnmark, while field 2 is a municipality in eastern Finnmark.
Innst. O. nr. 80 (2004–2005), p. 19.
Ibid., p. 20.
The Finnmark Act S. 32 Para 1, 2nd sentence.
Ibid., p. 21.
For more reading (in Norwegian), see Øyvind Ravna, ‘Rettsvirkningen av rettskartleggings og anerkjennelsesprosessen i Finnmark’, Lov og Rett, (50) 4/2011, pp. 220–240.
Ibid., p. 21.
Ibid., p. 21.
Ibid., p. 21.
The tribunal must also be seen as part of Norway’s obligation under Article 14 of the ILO Convention No. 169. The Tribunal is not yet established (May 30, 2012).
Innst. O. nr. 80 (2004–2005), p. 22.
At the moment this is however problematic, since the first report was filed March 20, 2012, and the Tribunal is not yet established (May 30, 2012).
Innst. O. nr. 80 (2004–2005), p. 23.
See Øyvind Ravna, ‘The Finnmark Act 2005 Clarification Process and Trial ‘Within a Reasonable Time”, Nordic Journal of Human Rights (29) 2/2011 pp. 184–205.
Note to Section 2 of the Regulation on the Finnmark Commission (March 16, 2007 No. 277) of Royal Decree 16 March 2007 p. 3.
Innst. O. nr. 80 (2004–2005), p. 23 where it is stated “[i]f the deadline is exceeded, a party may bring the matter before the ordinary courts”.
Ibid., p. 23.
Ibid., p. 25.
The amended to the civil procedure Act 22 May 1981 No. 24 meant that the access of appeal was strictly limited in relation to previous Commissions, where the judgments could be appealed directly to the Supreme Court. The amendment had its origin in that the Supreme Court in 1979 proposed to limit the appeal right so that the Appeal Committee of the Supreme Court can refuse to promote the case under the Civil Procedure Act S. 373, para 3 (4), if it found “that neither the decision importance beyond this case or other circumstances give reason that the appeal will be tried by the Supreme Court”.
See NOU 2007: 13 pp. 431–455.
Ibid., p. 453.
See also the ILO Convention No 169 Article 12 and 14 (3) and the UN Declaration on the Rights of Indigenous Peoples Article 40.
Comparable arrangements in other countries could be discussed, but there is probably not much to be mentioned. For an overview, see NOU 2007: 13, pp. 247–271.
See NRt 2001 p. 769 (Selbu) and NRt. 2001 p. 1229 (Svartskogen), which set up norms for how the rules on immemorial usage are to be applied to Sámi land claims.
See NRt. 2001p. 1116 and NRt. 2008 p. 1789.
James Anaya, The situation of the Sámi people in the Sápmi region of Norway, Sweden and Finland. Retrieved September 20, 2011, from http://unsr.jamesanaya.org/docs/countries/2011_report_Sámi_advance_version_en.pdf, paragraph 44.
Ibid., Para. 49.
The reservation has been more relevant as the Finnmark Commission has delivered more investigations (see supra note 8); in the first three reports there are not found collective use rights beyond the extend of the Finnmark Act and no ownership rights of the Sámi or non-Sámi locals. See also the additional remarks of the author on the bottom of the main text. For more reading on the Finnmark Commission’s findings, see Ravna, Ø. (2013). The First Investigation Report of the Norwegian Finnmark Commission, International Journal on Minority and Group Rights, 3(20), 443–457 and (in Norwegian) Ravna, Ø. (2013), Finnmarkskommisjonens bevisvurderinger og rettsanvendelse – drøftet ut fra dens to første rapporter, Lov og rett, 8 (52), 612–631.
- Recognition of Indigenous Lands Through the Norwegian 2005 Finnmark Act: An Important Example for Other Countries with Indigenous People?