Observation (CEACR) - adopted 2003, published 92nd ILC session (2004)

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

1. The Committee notes the extensive documentation and comments communicated both by the Government and by the Norwegian Sami Parliament, which, in accordance with the wishes stated by the Government on ratification, plays a direct role in the dialogue associated with supervision of the application of the Convention.

2. Articles 6, 7 and 13 to 19 of the Convention. The main point at issue is related to the proposed Finnmark Act. As indicated in the Government’s report, on 4 April 2003 it introduced "a bill to regulate legal relationships and administration of land and natural resources in the county of Finnmark." As the Government’s report states, while Sami predominate in inner Norway, Sami and other Norwegians "live side by side in Finnmark County. Sami interests therefore need to be balanced against the interests of the remainder of the population in the county if the regime is to come across as just and unifying". While the facts are not in dispute, being a matter of public record, the Sami Parliament and the Government disagree about the conformity with the Convention of both the process leading to proposal of the bill (Articles 6 and 7), and the impact on the land rights of the Sami people if the bill is made law (Articles 13 to 19).

3. The Committee notes that as this comment is being considered the proposed bill has not yet been enacted, but that work is under way for its enactment. A decision on whether or not to adopt it may have been taken by the time the Committee’s report is published.

4. Process leading to the proposal. Article 6 of the Convention provides:

1. In applying the provisions of this Convention, governments shall:

(a)  consult the peoples concerned, through appropriate procedures and in particular through their representative institutions, whenever consideration is being given to legislative or administrative measures which may affect them directly; …

2. The consultations carried out in application of this Convention shall be carried out, in good faith and in a form appropriate to the circumstances, with the objective of achieving agreement or consent to the proposed measures.

5. Consultations between the Sami representatives, the Finnmark government and the national government have gone on for over 20 years on this subject. As indicated in the preamble to the bill, the basis of the proposal is the work of the Sami Rights Commission (SRC) on clarifying and securing the legal position of the Sami people in Norway. The SRC was established in 1980; its first report formed the basis for the Sami Act of 1987 and for section 110a of the Norwegian Constitution relating to the Sami people in 1988. The first election of the Sami Parliament was held in 1989. In 1997 the SRC adopted a report on legal relations and land use in Finnmark, which has been the subject of consultations ever since.

6. The accounts of the consultations between the Government and the Sami Parliament on land rights differ. The Sami Parliament report indicates that problems in dialogue arose in 2001 and 2002, when:

... suddenly the openness in discussing concrete solutions was gone, and only … pieces were communicated to the Sami Parliament, and not even in writing. … The frustration in the Sami Parliament due to the lack of openness in the process led to a breach in confidence between the parties and to a halt in the contact between the Sami Parliament and the Government. The Sami Parliament stated in June 2002 that in order to continue the process, a complete text had to be put forward and that the minimum principal basis for the text had to be that it was built on the original proposals and that it was in compliance with international law. No formal response came from the Government to that request, but the minimum information strategy continued until the actual bill was presented … . The proposed Finnmark Act is a unilateral proposal from the Norwegian Government alleged to bring a solution and end to the lengthy debate of Sami rights to lands and waters in Norway.

7. The Sami Parliament report goes on to quote the 1998 report of the SRC subcommittee of experts on international law, discussing a possible solution similar to the one contained in the bill now in question (the substance is examined below), and stating that: "Given that indigenous peoples may be allowed to transmit their rights in this respect to peoples outside the indigenous community, a system of this type, involving joint land management in Finnmark, could be acceptable, provided the Sami Parliament consented to the arrangement, but otherwise not."

8. Finally, the Sami Parliament objects to being "regarded as just one of all the other so-called ‘interested parties’ in matters heavily affecting the Sami people such as the land rights issue".

9. The Government has indicated in its reply to the Sami Parliament’s comments that the Sami Rights Commission’s report was only one of the elements being considered by the Government, which also took into account the extensive material gathered during hearings. The bill is, however, based on the basic principles of the majority proposal made by the SRC, but some different choices have been made than those proposed by the SRC. The Government states that dialogue has continued in the same way as under previous governments, and reports the meetings held since 2001. The Committee notes that whereas the Sami Parliament characterizes these meetings as not having been true negotiating sessions, the Government position is that these were real negotiations, even if agreement could not be achieved. The Government recalls that Article 6 does not require that agreement be reached, but rather that the negotiations be carried out in good faith.

10. Addressing the allegations that these procedures leading to the proposals for the Finnmark Act were contrary to Articles 6 and 7 of the Convention, the Government states that it has tried to achieve agreement or consent from the Sami Parliament to the extent possible by presenting and discussing possible models for a Finnmark Act at the meetings which have been arranged with the Sami Parliament and the Finnmark City Council. Unfortunately, states the Government, it has not been possible to achieve such an agreement or consent as desired. The Government concludes that the obligation to consult refers to the entire process of adopting legislation, and not only to the preparations for the submission and the readings in Parliament. "The total process cannot be evaluated until the conclusion of the case, but the intention of achieving as much agreement as possible with the Sami Parliament has been the aim throughout the entire process." The Government indicates that the Storting’s (Parliament) Law Committee has asked for a legal opinion on the Finnmark Act’s proposal based on international law, which was to have been completed by the end of October 2003. The Committee has not received a copy of that opinion.

11. Substance of the proposal. In Finnmark County, which, as indicated above, is inhabited jointly by Sami and other Norwegians, the extent of land rights and access to land have been in dispute for many years. The Government acknowledges that "parts or all of Inner Finnmark consist of land which the Sami people traditionally occupy … However, the SRC has not provided any basis for the Government to identify precisely which lands the Sami people traditionally occupy within the county".

12. The Government states that the proposed new arrangement is designed to protect Sami interests, and will provide security and predictability in terms of protecting the natural resources underlying Sami culture and the use of outlying land. The Act "builds on a future administrative arrangement for Finnmark based on the principle that there should be no differences in rights for the inhabitants of Finnmark based on ethnicity". The Finnmark proposal would create the Finnmark Estate and transfer to it the State’s title to the 95 per cent of Finnmark County that the State now holds. The Estate would own and administer land and natural resources in Finnmark on behalf of all the inhabitants of Finnmark, both Sami and other Norwegians. It would be managed by a Board that would consist of three members selected by the Sami Parliament and three elected by the Finnmark County Council, with a non-voting member to be appointed by the State. The non-voting member would have the right to refer any decisions on which there was not a majority to the Government for decision. The Government states that this solution is intended to give both the Sami people and the remainder of the population in Finnmark greater influence over the county’s development, based on the obligation to protect the natural resource base for Sami culture.

13. The proposal would open up resource use in the region to all Norwegians, under the rules to be laid down by the Board. Resource exploitation in traditional areas is reserved to the Sami at present.

14. Compliance with the Convention. The Committee recognizes the very difficult issues raised by mixed Sami and non-Sami occupation of Finnmark County, and the uncertainty over the rights that Sami and other Norwegians should enjoy there. It has been the subject of long and difficult negotiations until recently.

15. The process of consultation has been going on in good faith for many years, but it is apparent that frustration over the failure to reach agreement led to a breakdown in the communications. Whether or not the Government considered that it was still negotiating in good faith as of 2001, the Sami Parliament did not feel that true consultations were still going on. In light of the differing interpretations of what was occurring, the Committee cannot be sure whether the consultations at this time remained open to the Sami Parliament being able to influence their outcome; it is apparent that there was a breakdown in confidence between the two sides, though sporadic consultations were still being held in a different form from previously.

16. As concerns the substance of the proposal for the Finnmark Estate, it appears to go beyond what is permitted under Article 14 of the Convention, though under the proper circumstances it could be in conformity with Article 15.

17. The proposal would transfer state ownership of 95 per cent of the land in the county to the Estate. It appears that this would include areas that Sami claim as their land by right of long occupation, and to which the Government acknowledges in principle that the Sami do have rights, though the extent of these lands and the content of the rights have not yet been identified as required in Article 14 of the Convention. It would give the Sami a significant role in the management and use of a larger area than that to which they now have rights, and the Government indicates that they would have more benefits from the management of the larger area than under the present situation. However, the proposal would replace the rights of ownership and possession recognized by the Convention with a right to a large share in administration of the region.

18. On the other hand, the proposals for the Estate would appear to be closer to compliance with Article 15, which recognizes that the right to natural resources on indigenous lands is often retained by the State, and that if this is so indigenous and tribal peoples on whose lands these resources lie must be able "to participate in the use, management and conservation of these resources" (Article 15(1) of the Convention).

19. The process and the substance are inextricably intertwined in the requirements of the Convention, and in the present conflict. It appears to the Committee that if the Sami Parliament, as the acknowledged representative of the Sami people of Norway, were to agree to the proposal, they could accept this solution as a resolution of the claims of land rights which have long been the subject of negotiation between the Sami and the Government. The adoption of the Finnmark Estate without such agreement amounts, however, to an expropriation of rights recognized in judicial decisions in Norway and under the Convention.

20. The Government states in its reply to the submission made by the Sami Parliament to the Committee that although the Sami Parliament has levelled criticism and has called for changes to the Act, it should be noted that the Sami Parliament has not rejected the Act.

21. The Committee notes the need to guarantee the land rights of both the Sami and non-Sami populations of the region, and recognizes that the solution must be fair, and perceived as fair, for both parts of the population. The Convention recognizes special rights for indigenous and tribal peoples in view of the vulnerability of their traditional way of life to the loss of land rights on which it is based, and the long occupancy that they often have practiced. The Convention does not, however, contemplate depriving other parts of the national population of the rights they have also acquired through long usage. In areas of Norway in which the Sami are the sole, or principal, inhabitants the implementation of this principle is much simpler than in Finnmark.

22. In these circumstances, the Committee urges the Government and the Sami Parliament to renew discussions on the disposition of land rights in Finnmark, in the spirit of dialogue and consultation embodied in Articles 6 and 7 of Convention No. 169. It once again draws attention to the provision in Article 14(1) that "measures shall be taken in appropriate cases to safeguard the right of the peoples concerned to use lands not exclusively occupied by them but to which they have traditionally had access for their subsistence and traditional activities".