Direct Request (CEACR) - adopted 1995, published 82nd ILC session (1995)

Indigenous and Tribal Peoples Convention, 1989 (No. 169) - Norway (Ratification: 1990)

1. The Committee notes with interest that a seminar was held in Norway in September 1994 to examine how to give full effect to Convention No. 169 in the country. In addition to inviting the International Labour Office to take part, representatives of the Sami Parliament, several ministries and local government were also invited, along with other experts on matters dealt with in the Convention. The Committee welcomes this initiative and hopes the Government will continue to adopt the approach of seeking consensus for the Convention's implementation. The Committee also refers to its observation.

2. Article 1 of the Convention. The Committee notes that there are no plans for a further census including specific indigenous criteria. The Committee notes that the Government expresses an interest in achieving a high level of participation in the elections to the Sami Parliament and that the right to vote depends on registration on the electoral lists so that those who are entitled to vote in the elections to the Parliament can be identified. It also notes the programme of Sami policy adopted at the Nordic Sami Conference in 1980, which establishes the basis for the identification of "Sami" persons, including self-identification as a fundamental criterion.

3. Articles 2 and 7. The Committee notes the information transmitted by the Government on the Sami Development Fund. The Committee notes that the Fund has subsidized various small projects and that its subsidies are directed towards areas in which the Sami live with a view to providing continued support for Sami culture. It also notes that during the period 1986-90, some 204 projects related to the Sami Development Fund were initiated, in which 61 per cent of the individual beneficiaries were Samis. The Committee notes with interest that responsibility for administering the Fund was transferred to the Sami Parliament in 1989 and that the budget for the Fund has doubled since 1990.

4. Article 4. The Committee recalls that in its previous comments it suggested that laws and administrative measures regulating traditional economic activities, such as reindeer husbandry, appeared to be narrowing the scope for the continuation of this activity. It notes with interest the information in the Government's report refuting this impression, which is supported at least in part by the statement of the Sami Parliament. The Committee notes with interest that the Government is obliged to put the negotiated agreement on reindeer husbandry before the Sami Parliament prior to submitting it for Parliamentary approval. It also notes that the Act of 1978 respecting "reindeer herding districts" is currently under revision and requests the Government to supply information on the amendments made to the above Act. The Committee also notes the comment of the Sami Parliament that the Government has not transferred adequate authority to it over traditional Sami livelihoods, such as reindeer husbandry, sea fishing and salmon fishing. Noting that a considerable amount of responsibility for Sami affairs has already been passed to the Sami Parliament, the Committee would be grateful if information were provided in future reports in this respect.

5. Articles 5 and 6. The Committee notes the project initiated in 1992 by the Commissioner for Children, in which children are sources of information for a survey of the living conditions and the situation of Sami children and young people. It also notes the project initiated by the youth research programme on the meeting of Sami and Norwegian culture, which will be completed in 1996. The Committee requests the Government to continue providing information in future reports on these and any other projects undertaken in relation to Article 5. The Committee also notes the comments made by the Sami Parliament that measures have been taken recently to increase participation in decision-making concerning the Sami people.

6. In this connection, the Committee notes that the Norwegian Parliament took into account the comments made by the Sami Assembly on "sustainable reindeer husbandry" in its debate on this issue. It notes that the Sami Assembly takes part in all the measures directly related with the development of the economic activity of reindeer husbandry in this area and that it has requested stronger representation on the central and regional reindeer administration boards on matters related to the management of reindeer husbandry. The Committee requests the Government to supply information in future reports on any measure that is adopted to strengthen the representation of the Sami Assembly in decision-making related to reindeer husbandry.

7. The Committee notes that the Government, together with Sweden and Finland, has signed a Protocol with a view to the adhesion of Norway to the European Union in which the obligations of these three countries in respect of the Sami people are recognized in the context of national and international law. Despite the fact that Norway will now not join the European Union, the Committee notes the declaration by the Norwegian Government concerning its responsibility to create conditions enabling the Sami people to preserve and develop their language, culture and way of life.

8. With regard to the environment, the Committee notes that the Ministry of Agriculture has instructed the regional board responsible for managing crown land in Finnmark to ask the opinion of the Sami Assembly before making any decision concerning land-use projects. The reindeer herding districts are legally entitled to be consulted and have a right of compensation in the event of economic damage, as well as the right to bring lawsuits before the courts if they consider a project to be inadmissible.

9. Article 8. The Committee notes the Government's statement that local custom is a general source of law. It notes the decisions of the Norwegian Supreme Court, according to some of which the usufruct of land by the Sami for reindeer husbandry is regarded as creating a right, although this principle has not been followed in all cases. In this connection, the Committee notes that an amendment is currently being prepared to section 2 of the Reindeer Husbandry Act. The Committee requests the Government to supply information in its next report on this amendment.

10. The Committee also notes the comment of the Sami Parliament to the effect that Sami customary law is never applied in contravention to Norwegian law and that Sami customs can be a relevant consideration only if the law is unclear. The Committee notes this information with interest. It would be grateful if information were provided on any recent instances in which there has been a conflict (apart from reindeer herding, which is now regulated principally by regulation) and on the measures envisaged in such instances to take account of Sami customary law as provided in this Article.

11. Articles 9 and 10. The Committee notes from the information provided by the Government and by the Sami Parliament that there are now no Sami penal customs or customary practices which differ from national penal law. It also notes that no cases have arisen where a Sami background has been regarded as an extenuating circumstance.

12. Article 12. The Committee notes that, under a ruling by the Supreme Court in 1992, even though they are considered to be a minority, the Sami have to perform military service. It also notes the information provided on free legal aid in areas principally inhabited by the Sami. The Committee further notes the comment by the Sami Parliament that a number of cases have been brought in the national courts by Sami interests on matters of principle. The Committee would be interested to receive information on whether these relate to matters covered by the Convention and on how they were resolved.

13. The Committee notes the comment by the Sami Parliament that Sami prisoners who are jailed outside the counties of Finnmark and Troms do not have the right to use the Sami language in prison. Subject to any further information which might be provided in later reports, the Committee does not find that this is incompatible in principle with the present Article.

14. Article 14. The Committee notes the adoption of the report entitled "Rights to and administration of land and water resources in Finnmark", which was presented in December 1993 by the Sami Rights Commission, as well as the explanations provided. It notes the reports of the working group on ownership rights and usufruct of land and water resources in Finnmark, and of the other working group on the administrative disposition of land and water resources. The Committee also notes the White Paper (St.meld.nr.52 1992-1993) and White Paper (St.meld.52 1991-1992) on the reorganization of the Directorate of State Forests and Land. It also notes that, since the new reorganization, the Government has to consult the Sami Assembly concerning any new regulation before it can be implemented.

15. The Committee notes that the majority of the Land and Water Rights Group of the Sami Rights Commission has concluded that the State holds title to unregistered land areas in Finnmark, although one member considers that the Sami population holds title to the land in Inner Finnmark. The Group agrees that the Sami do have permanent usufructuary rights in different respects based on customary law, long-established use or legislation. The Government states that the Group supports in all essentials the view expressed in this regard by the Ministry of Justice when the Convention was ratified (namely that "strongly protected usufruct must be regarded as sufficient for fulfilment of Article 14").

16. The Committee notes, however, that the Sami Parliament's position is that ownership and possession are cumulative rights, and therefore only simultaneous implementation is acceptable, and that permanent usufructuary rights do not satisfy the requirements of Article 14, paragraph 1.

17. The Committee notes that the report of the Land and Water Rights Group is an interim report which has not yet been considered by the Government, and that the Sami Rights Commission has not yet submitted a final report. No final determination has therefore been made in Norwegian law of the kind of rights which the Sami have over the lands concerned. The Committee does not consider that the Convention requires title to be recognized in all cases in which indigenous and tribal peoples have rights to lands traditionally occupied by them, although the recognition of ownership rights by these peoples over the lands they occupy would always be consistent with the Convention. The Committee awaits with interest the final determination of this question in Norway.

18. In addition to the above considerations, the Committee notes that the former Directorate for State Forests and Land was reorganized in 1993 into the State-owned Land and Forest Company, which is a public corporation, but that this does not alter ownership conditions of land in Finnmark. It notes that the regulations now provide that land disposal measures that may entail major encroachments in the natural environment in areas where Sami interests are weighty must be submitted to the Sami Parliament for comments before being implemented, an obligation which was not contained in the previous regulations. The Sami Parliament, on the other hand, states that the new system is incompatible with Article 14 and that the change has resulted in a substantial reduction of the Sami Parliament's direct political influence over the management of the land. The Committee notes that there is a potential for denial of Sami rights over the lands concerned, particularly if measures taken by the Company are not in accordance with the comments made by the Sami Parliament. The Committee refers to Article 6 of the Convention concerning consultations. It requests the Government to indicate whether such conflicts have arisen and how they have been resolved.

19. The Committee notes that the Sami Assembly has requested an immediate halt in the work of the Commission for Outlying Fields in the counties of Nordland and Troms, which is responsible for reaching decisions on borders between State and privately owned land as well as deciding who has the right to use the land. The Committee requests the Government to supply information in its next report on progress achieved in this respect.

20. The Committee notes that, to resolve land rights claims, the Sami have two possibilities: (a) to bring action in the ordinary courts of Norway, with the possibility of appeal up to the Supreme Court, or (b) for the case to be heard by the Land Disputes Tribunal, which is mandated to settle disputes as to the existence of private rights on State-owned land in the counties of Nordland and Troms. The Committee notes that the Sami Assembly has requested that the work of the Land Disputes Tribunal be suspended until the Sami Rights Commission has completed its work of clarifying existing laws in Sami areas with regard to rights to land and water resources. The Committee notes the Government's position that Sami interests will not suffer by a continuation of the work of the Tribunal, and asks to be kept informed of any developments in this respect.

21. Article 15. The Committee notes the Government's statement that to obtain licences to exploit mineral resources in Sami territories it is necessary to consult the Sami Assembly, the county council and the respective municipalities. It also notes that the Ministry of Industry and Energy has appointed a working group with a mandate to draft a new Mineral Resources Act to replace the Mining Act of 1972. The Committee notes that the working group will contact the Sami Rights Commission with a view to discussing this problem and establishing cooperation in this respect. The Committee requests the Government to supply information on the activities of the working group and its decisions.

22. The Committee also notes the statements by the Sami Parliament on this Article. In the first place, the Sami Parliament indicated that the conclusion of the Legal Working Group of the Sami Rights Commission that the State owns all sub-surface resources in Finnmark was arrived at without the necessary consideration of Sami customary law, and that this conclusion is severely criticized by some legal experts. The Committee notes that the Sami Rights Commission has not submitted a final report and would be grateful for information on further deliberations in this regard.

23. The Committee notes also that information has been provided both by the Government and by the Sami Parliament, to the effect that mineral exploration permits have been given to multinational mining companies in the municipality of Finnmark, without the prior consultations required under Article 15(2). The Committee notes that no licence has yet been issued for mineral extraction and hopes that steps will be taken to bring procedures for granting permits for both exploration and exploitation into conformity with this provision. It notes the record of deliberations of the Sami Parliament. The Committee emphasizes that respect for Articles 15 and 18, regarding resource rights and non-encroachment, do not depend on the form of rights recognized under Article 14.

24. Article 19. The Committee notes the information contained in the report. It also notes that, to resolve a conflict of interests between the reindeer husbandry industry and private land rights, in June 1984 the Parliament authorized the Government to expropriate the necessary grazing land for reindeer husbandry. The Committee also notes the views of the Sami Parliament that the Article is not applied because of the Government's failure to provide more land for Sami reindeer husbandry. Please continue to provide more information in future reports on any measures taken in this regard.

25. Article 20. The Committee notes that the Sami have the same rights as other Norwegian citizens to the assistance provided to jobseekers by the Employment Service. The Committee notes that the Nord-Trondelag Project adapted to the Sami labour market has been completed and a new project has commenced in Tysfjord in Nordland, in which the participants have the opportunity to obtain a craft certificate in Sami handicrafts (duodji), and perhaps to start their own production in this area. It also notes that reference is made once again to the problems of employment in the reindeer husbandry industry, and that the scaling back of employment is due to the need to reduce the number of reindeer. The Committee would be grateful if the Government would supply information on any new development in this respect.

26. The Committee also notes the statement by the Sami Parliament that in institutions affected by the regulations under the Language Act, employees have the right to receive training in the Sami Language, under the Sami Act. The Sami Parliament also states that necessary information, such as information on employee's rights, is not translated into the Sami language. The Committee requests the Government to comment on these statements and to provide information on the extent to which either or both raises difficulties in practice.

27. Article 23. The Committee notes the amendment made to section 4(2) of the Regulations of 26 September 1983, under which fishermen resident in municipalities covered by the Sami Development Fund can earn a higher income than the general population and still be registered in the Fishermen's Register A. It also notes that the Ministry of Fisheries appointed a committee in July 1993 to assess Sami interests in the fishery context.

28. Article 24. The Committee notes the statement in the Government's report that the Norwegian Social Security Scheme covers all persons residing in Norway on an equal basis. It also notes that the Sami Parliament indicated in its 1992 report that there are no particular social security arrangements for the Sami as a people and that the present arrangements take little or no account of their cultural background or way of life. This is said to apply particularly to the measures to be taken to adapt to changes resulting from the decrease in employment in reindeer husbandry. The Committee would be grateful to receive further comments on this question from the Government and the Sami Parliament.

29. Article 25. The Committee noted from the information supplied by the World Health Organization in February 1994, that the "Health Plan 2000" establishes the basis for the future development of the health policy and includes the project "Health and Inequalities in Finnmark" commenced in 1987 to eliminate the differences between this county and the rest of the country. It also notes the project "Social Networks and Health", which was commenced to study trends in present day Norwegian society for all groups. The Committee notes that the committee set up by the Ministry of Health and Social Affairs to evaluate the health and social services needs of the Sami community presented its report at the end of 1994. The Committee requests the Government to keep it informed in this respect. The Committee also notes that the project "Social Networks and Health" has been commenced to examine current trends in Norwegian society which may have an impact on the health of all categories. It requests the Government to indicate whether any specific study has been undertaken on the Sami.

30. The Committee also notes, from the Sami Parliament's 1992 report, that there is often a problem of communication between the Sami and the employees of the National Health Service for linguistic reasons. It would be grateful if the Government would indicate any measures which have been taken or are contemplated in this respect.

31. Articles 26 and 27. The Committee notes the information supplied on the facilities for Sami education, and particularly on new plans for day care centres for the Sami. The Committee requests the Government to keep it informed in this respect.

32. The Committee notes that article 40 of the Norwegian Constitution sets out Sami rights to instruction in the Sami language in Sami districts and notes that the Sami Assembly wants Sami pupils to be able to receive instruction in the Sami language wherever they live in Norway. It notes that it has not been possible to accommodate this request due to the limited number of teachers of Sami, but that the teaching laws and plans are under revision. Please keep the Committee informed in this respect.