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

Direct Request (CEACR) - adopted 2014, published 104th ILC session (2015)

Article 7 of the Convention. Development activities. The Government indicates in its report that the Ministry of Petroleum and Energy and its subordinate agency the Norwegian Water Resources and Energy Directorate (NVE) handle matters requiring consultations with the Sami Parliament on a regular basis. Consultations are normally related to the licensing process of hydropower plants, wind power plants or power lines conflicting with Sami interests/areas, but can also be relevant for new petroleum projects. In its communication, the Sami Parliament refers to the Goliath field in the Barents Sea, where production was scheduled for 2013 and the operational phase was programmed to last 15 years. It adds that, during the consultations in 2009, it was agreed that the operator has performed a comprehensive environmental impact assessment for Goliath. It was agreed that it was important that initiatives to boost local spin-off effects and expertise must also benefit the Sami. It was also agreed that the emergency contingency system to combat oil pollution on Goliath must maintain a very high standard. Agreement was not reached however between the Sami Parliament and the Ministry of Petroleum about an indigenous fund in connection with the Goliath field, or about whether the Sami have any special rights to petroleum resources in the Barents Sea. The Committee requests the Government to continue providing information on the cooperation between the Ministry of Petroleum and Energy, and its subordinate agency the NVE, and the Sami Parliament concerning oil and gas, water and energy projects.

Articles 14 and 15. Rights to land in traditional Sami areas south of Finnmark County. The Government indicates that it is currently working on the follow-up of the report of the Sami Rights Committee. One of the proposals of the Sami Rights Committee is a new statute on administrative procedures and consultations. In its communication, the Sami Parliament indicates that 2012 marked the commencement of consultations on consultation as well as administrative procedures legislation. It adds that the Government has not given the Sami Parliament any basis for consultations on the identification legislation and governance and administrative legislation. The Sami Parliament is concerned about the lack of legislative advancement in these efforts, and about whether this indicates little willingness to safeguard Sami rights to land and resources outside of Finnmark County. The Committee trusts that Articles 14 and 15 of the Convention will be duly taken into account in this process and that consultation and participation will take place in accordance with Articles 6 and 7. The Committee also requests the Government to provide further information on the measures to protect the land rights in traditional Sami areas south of Finnmark County.

Article 15(2). Mining legislation. The Government indicates that the Minerals Act was adopted in the spring of 2009 and entered into force on 1 January 2010. The Minerals Act establishes special rules to ensure the basis for Sami interests in Finnmark, including a duty to give notice before prospecting and exploration begin. Secondly, the Mineral Act contains special procedures pertaining to the processing of applications for permits for mineral activities in Finnmark. The Government indicates that a party that is extracting a deposit of minerals owned by the State shall pay the landowner an annual fee of 0.5 per cent of the sales value of the extracted minerals. In the case of land owned by the Finnmark Estate, an increased landowner fee of 0.25 per cent shall be paid in addition to the ordinary landowner fee. The Committee notes that the Government presented its Strategy for the Minerals Industry in March 2013. The Ministry of Trade and Industry carried out two consultations meetings with the Sami Parliament, which gave its approval of the chapter in the strategy about mineral activities in areas where there are Sami interests. One of the measures in the Strategy for the Minerals Industry is that the Government will consider whether the Minerals Act should be amended with the inclusion of specific rules to protect Sami interests in connection with mineral operations outside of Finnmark. The Ministry of Trade and Industry initiated consultations on the matter with the Sami Parliament and the Sami Reindeer Herders’ Association of Norway in the spring of 2013. In its communication, the Sami Parliament indicates that a decisive factor for its approval of the aforementioned Strategy was that the Ministry of Trade and Industry is to take the initiative for consultations on amendments to the Minerals Act to safeguard Sami interests and rights throughout the Sami territory, and to help maximize the efficiency of the process to achieve such legislative change. In its reply to the communication of the Sami Parliament, the Government indicates that the Strategy for the Minerals Industry was presented by the previous Government and is of a non-binding nature. The Government adds that it will consider whether the Minerals Act should be amended with the inclusion of specific rules to protect Sami interests in connection with mineral operations outside of Finnmark. If the Government considers amending these provisions, the Sami Parliament will be invited to consultations, according to the established consultation procedures. The Committee requests the Government to provide further information on the manner in which it ensures that the Sami participate in the benefits of mining activities.

Articles 7 and 15(1). Reindeer husbandry. The Committee notes that Act No. 40 relating to reindeer husbandry of 15 June 2007 was amended in June 2013. The Government reports that the amendment came into force on 1 January 2014 and implies discontinuing the system of area boards, and transfer of the responsibilities of the area boards to the county governors. In its communication, the Sami Parliament indicates that the winding up of regional administrative boards and the transfer of regional reindeer husbandry administration to the county governor was carried out without good faith consultations. The consultations were characterized by the Ministry of Agriculture and Food having taken a public and highly concrete position on the amendments before the consultations commenced. Consultations were concluded without the Ministry making any amendments to what had been decided in April 2011, date at which the Ministry announced on its website that the Reindeer Husbandry Act was to be amended. The Committee notes that the Sami Parliament is deeply concerned by the fact that the Government is not ensuring the implementation of the consultation obligations when decisions are taken in this area which is of such great importance to the Sami. In its reply to the communication of the Sami Parliament, the Government indicates that in 2011 a decision was made concerning a proposal of possible changes in the public administration of reindeer husbandry. The formal consultation process started a year later and the Sami Parliament and the Ministry of Agriculture and Food had several meetings during a period of one year. It was not possible to reach an agreement on the matter. The Government then made a final decision and the proposed changes to the Reindeer Husbandry Act were sent to Parliament. The Committee notes that the Ministry of Agriculture and Food invited the Sami Parliament to take part in the development of a framework for Sami and reindeer husbandry participation in the new regional administration. The Committee requests the Government to continue to provide information on the measures taken to ensure that the rights of the Sami to the natural resources pertaining to their lands are specifically safeguarded. Please also provide an evaluation of the impact of the changes eventually introduced in the public administration of reindeer husbandry.

Fishing rights of the Sami. The Government indicates that the Marine Resources Act includes a provision on the importance of emphasizing Sami culture considerations in regulations pertaining to fishing and in the management of fishing. Furthermore, the Participation Act has been amended in 2012 to include a provision stating that the law is to be applied in accordance with the principles of public international law on indigenous peoples and minorities. Another measure includes the establishment of a local fjord fishing advisory board that will have an important advisory role in the management of the fish resources in the northern fjords. The board will consist of three members from the Sami Parliament and three members from each of the three northern counties. The Government indicates that in December 2013 the Sami Parliament and the Ministry of Fisheries and Coastal Affairs agreed on a mandate for the local fjord fishing advisory board, and the board was formally constituted in March 2014. The mandate states that the board shall strengthen the management of the fjord fisheries, having particular attention to Sami usage and the importance of this usage for local Sami communities. Moreover, the Committee notes that the Sami Parliament is represented in the delegation that is negotiating with Finland on a new agreement on fishing for salmon in the Tana river. The primary aim of the negotiations is to reduce fishing to a sustainable level. It is intended that the new fishing regulations will be in place with effect from the 2015 fishing season. The Committee requests the Government to provide information on the measures taken to ensure that the fishing rights of the Sami are specifically safeguarded (Article 15(1)). It also invites the Government to provide information on the measures taken, with the participation of the Sami and whenever appropriate, to ensure that traditional fishing activities are strengthened and promoted (Article 23).

Article 28(3). Sami languages and education. The Government indicates that in 2009 it presented an Action Plan for Sami Languages, developed in consultation with the Sami Parliament. The principle focus of the plan is to create the right conditions to increase the number of people actively using the Sami languages. In its communication, the Sami Parliament indicated that the Action Plan contains a number of good initiatives and has been a useful tool in the work to strengthen and develop Sami languages. However, the Sami Parliament recognizes a need for a more comprehensive language policy that covers society as a whole. The Committee notes that in September 2014 the Government appointed a committee to investigate schemes, rules and measures relating to the Sami languages. Consultations between the Government and the Sami Parliament resulted in an agreement on the terms of reference for the committee. The Committee invites the Government to continue to provide updated information on the measures taken to preserve and promote the development and practice of the Sami languages.

Article 32. Contacts and cooperation across borders. The Government indicates that the Nordic countries together with the three Nordic Sami Parliaments have started negotiations on the Nordic Sami Convention. The Norwegian delegation was appointed in March 2011 and the aim is to conclude the negotiations in 2016. The Norwegian Sami Parliament indicates that Norway’s restrictive approach to the negotiations in terms of both form and content impedes the progress of the negotiations. In its reply, the Government indicates that, following the parliamentary elections in 2013, consultations were held with the Sami Parliament on a new mandate and an agreement on the mandate was achieved in May 2014. The Committee requests the Government to provide updated information on the measures taken to facilitate contacts and cooperation between the Sami across borders, including activities in the economic, social, cultural and environmental fields. In this regard, please provide updated information on the progress of the negotiations on the Nordic Sami Convention.

Observation (CEACR) - adopted 2014, published 104th ILC session (2015)

The Committee notes the Government’s report received in September 2013 and the communication by the Norwegian Sami Parliament received in January 2014. The Committee recalls that the Sami Parliament, according to the wishes expressed by the Government upon ratification, plays a direct role in the dialogue associated with the supervision of the application of the Convention.

Articles 6 and 7 of the Convention. Consultation and participation. The Government recalls that the right of indigenous peoples to participate in decision-making processes was formalized in May 2005 with the establishment of the Procedures for consultations between the state authorities and the Sami Parliament (PCSSP). As a result of this agreement, approximately 30–40 formalized consultations take place every year. The Government indicates that consultations must be conducted in good faith on the part of both parties, and with the objective of achieving an agreement. In its communication, the Sami Parliament indicates that the PCSSP has strengthened interaction and cooperation on items that may have a direct impact on the Sami. Amendments to some legislative texts or regulations have been introduced following agreement or partial agreement between the parties. The Sami Parliament further indicates that in cases in which agreement is not achieved, the consultative procedure has been characterized by a lack of disclosure and late involvement of the Sami Parliament. In these cases, the authorities have adopted a decision or taken a position publicly before the consultations began or while they were in progress. The Sami Parliament adds that there are sometimes major differences in the manner in which Article 6 of the Convention is interpreted and complied with in practice by the various government ministries. The Sami Parliament calls for clearer internal routines on the part of the Government in this area. The Sami Parliament indicates that there is no mechanism that helps clarify whether the consultation obligations have been satisfied by the Norwegian Parliament (Storting) in specific cases. Moreover, it adds that the PCSSP does not cover financial incentives or budgetary measures. It is of the Sami Parliament’s opinion that financial parameters and initiatives are of crucial importance and have a direct impact on the Sami community. The Sami Parliament does not consider meetings to be consultations in compliance with Articles 6 and 7 of the Convention where the Sami are only given an opportunity to make verbal interventions to the Minister of Finance about the budgetary needs of Sami society, but where no insight is gained into the Norwegian Government’s assessments, ranking of priorities and decisions. The Committee previously noted that under the PCSSP, the state authorities are to inform the Sami Parliament “as early as possible” about the “commencement of relevant matters which directly affect the Sami”, and emphasized that consultations should be initiated as early as possible to ensure that indigenous peoples get a real opportunity to exert influence on the process and the final outcome. In its reply to the communication of the Sami Parliament, the Government indicates that the consultation mechanism ensures that decision-makers are well acquainted with the views of the Sami Parliament and, in accordance with Article 6, seek to achieve agreement to the proposed measures. It adds that some challenges remain regarding the practical implementation of the consultation procedures. The Government will consider, in dialogue with the Sami Parliament, how these can be resolved. The Committee requests the Government to continue to pursue its efforts to address the challenges identified and to provide information enabling it to examine the manner in which the procedures established ensure the effective consultation and participation of the indigenous peoples concerned in decisions which may affect them directly, giving full effect to the requirements of the Convention.

Follow-up to the Committee’s previous comments. Amendments to the Finnmark Act. In reply to the 2009 observation, the Government indicates that section 29 of the Finnmark Act of 2005 was amended in 2012. The amendment came into force on 1 January 2013 and led to the expansion of the mandate of the Finnmark Commission to include the investigation of individual or collective rights to fishing spots upon request from a person with a legal interest in clarification of such rights. The expansion of the Commission’s mandate led to a parallel expansion of the mandate of the Uncultivated Land Tribunal for Finnmark. The Finnmark Commission issued its first report in March 2012 (the Stjernøya and Seiland field) and its second report in February 2013 (the Nesseby field). The Committee notes that a common feature of the rights recognized by the Commission for the local population and reindeer herders in the two fields is that they are based on long-term utilization. Thus, the rights are protected against expropriation and similar procedures, and also involve certain restrictions on the Finnmark Estate’s landowner rights. In March 2013, the Administrative Regulations regarding the Finnmark Commission and the Uncultivated Land Tribunal for Finnmark were amended by Royal Decree to align the procedures for appointment of members of the Tribunal with those applying to appointment of judges to the ordinary national courts. The Sami Parliament was consulted before the new procedures for appointment of members of the Tribunal were finally decided upon and the consultations led to an agreement. The Sami Parliament indicates that the Finnmark Estate Board has not adopted any decisions regarding changes in the use of uncultivated land, although the authorities have already given permission to several major land encroachment cases in Finnmark County. The Committee trusts that the necessary steps will be taken to ensure that the process of identifying and recognizing rights of use and ownership under the Finnmark Act will be consistent with Article 14(1) and also Article 8 of the Convention which requires due regard to customs and customary law of the indigenous peoples concerned in applying national laws and regulations. The Committee therefore requests the Government to provide information on progress made regarding the survey and recognition of existing rights of indigenous peoples in Finnmark County, including information on the work of the Finnmark Commission and the Uncultivated Land Tribunal for Finnmark. Please also include information on the implementation of the Finnmark Act as regards the management of the use of uncultivated land in Finnmark County and on how the rights and interests of the Sami have been taken into account in this process.

The Committee is raising other matters in a request addressed directly to the Government.

Observation (CEACR) - adopted 2009, published 99th ILC session (2010)

The Committee notes the Government’s report due on 1 September 2008 which was, however, only received by the ILO on 15 December 2008, after the Committee’s last session. The Committee recalls the communication received from the Norwegian Sami Parliament dated 28 August 2008, and notes the additional communication from the same body dated 29 April 2009. The Committee also notes the Government’s reply dated 20 October 2009, to the Sami Parliament’s comments of 29 April 2009. The Committee recalls that the Sami Parliament, according to the wishes expressed by the Government upon ratification, plays a direct role in the dialogue associated with supervision of the application of the Convention.

The Committee notes that the Government’s report provides an update with regard to the application of various parts of the Convention, while the comments of the Sami Parliament focus on a number of specific aspects. The Committee will highlight certain positive developments and also address some specific questions in relation to which difficulties have arisen.

Follow-up to the Committee’s previous comments. In its 2003 observation, the Committee examined information provided by the Government and the Sami Parliament regarding the preparation and submission to the National Parliament (Storting) of draft legislation to regulate legal relationships and administration of land and natural resources in the county of Finnmark (draft “Finnmark Act”). On that occasion the Committee urged the Government and the Sami Parliament to renew discussions on the disposition of land rights in the Finnmark, in the spirit of dialogue and consultation embodied in Articles 6 and 7 of the Convention. The Committee notes with satisfaction that following the Committee’s comments, the Storting’s Standing Committee on Justice held formal consultations with the Sami Parliament and the Finnmark County Council to discuss the draft legislation in question and received several rounds of written comments from these bodies. The final draft legislation prepared by the Standing Committee on Justice was unanimously endorsed by the Sami Parliament and a large majority of the Finnmark County Council and adopted by the Storting in June 2005 as the Act relating to the legal relations and management of land and natural resources in the county of Finnmark (the “Finnmark Act”).

The Committee notes that with the entry into force of the Finnmark Act, state ownership of some 95 per cent of the land in Finnmark was transferred to a newly created body, the Finnmark Estate, which is managed by a board composed of six members (three members elected by the Finnmark County Council and three by the Sami Parliament). Section 5 of the Act acknowledges that through prolonged use of land and water areas, the Sami have collectively and individually acquired rights to land in Finnmark, and clarifies that the Act does not interfere with collective and individual rights acquired by the Sami and other people. In order to establish the scope and content of the rights held by Sami and other people living in Finnmark “on the basis of prescription or immemorial usage or on some other basis”, the Act establishes a process for the investigation and recognition of existing rights to land, and, in this regard, provides for the establishment of a commission (“Finnmark Commission”) and a special court (the “Uncultivated Land Tribunal for Finnmark”). The Committee notes that the Finnmark Commission was appointed by Royal Decree of 14 March 2008, while the Uncultivated Land Tribunal for Finnmark had not yet been established at the time of reporting.

The Committee notes that under section 29 of the Finnmark Act, the Commission “shall investigate rights of use and ownership to the land” taken over by the Finnmark Estate “on the basis of current national law”. In this connection, the Committee also notes that section 3 clarifies that “the Act shall apply within the limits that follow from ILO Convention No. 169” and that it shall be applied “in compliance with the provisions of international law concerning indigenous peoples and minorities”. The Committee trusts that the steps necessary will be taken to ensure that the process of identifying and recognizing rights of use and ownership under the Finnmark Act will be consistent with Article 14(1), and also Article 8 of the Convention which requires due regard to customs and customary law of the indigenous peoples concerned in applying national laws and regulations. The Committee requests the Government to provide information on further developments and progress made regarding the survey and recognition of existing rights in Finnmark county, including information on the work of the Finnmark Commission and the Uncultivated Land Tribunal for Finnmark.

The Committee further notes that the Finnmark Act provides that the Sami Parliament may issue guidelines for assessing the effect of changes in the use of uncultivated land on Sami culture, reindeer husbandry, use of uncultivated areas, commercial activity and social life (section 4). The guidelines are to be approved by the competent Ministry. The Act requires the state, county and municipal authorities to assess the significance of such changes in the use of uncultivated land, taking into account the guidelines of the Sami Parliament. The Committee looks forward to receiving information on the implementation of the Finnmark Act as regards the management of the use of uncultivated land in Finnmark county and on how the rights and interests of the Sami have been taken into account in this process.

Article 6. Consultation. Both the Government’s report and the Sami Parliament’s comments highlight that following the experience of putting in place the Finnmark Act, the need for an agreed framework for consultations became evident. The Committee notes with interest that agreement between the Government and the Sami Parliament on such a framework was reached with the establishment of the “Procedures for consultations between the state authorities and the Sami Parliament of 11 May 2005” (PCSSP).  The PCSSP recognize the right of the Sami to be consulted on matters that affect them directly, set out the objective and scope of the consultation procedures in terms of subject matter and geographical area, as well as general principles and modalities regarding consultations. The Committee notes that the PCSSP are a framework agreement, which means that the state authorities and the Sami Parliament can conclude special consultation agreements concerning specific matters, as may be necessary.

With regard to the implementation of the PCSSP, the Committee notes that the Government and the Sami Parliament, in some instances, express differing views on whether or not the agreed consultation procedure has been respected. These differences appear to be related principally to the issue of whether a consultation has been initiated early enough, to uncertainties as to whether a consultation process on a specific matter has actually commenced or concluded and to whether certain announcements made by state authorities during a consultation process amount to a lack of good faith. For instance, the Sami Parliament considers that the Government prematurely announced its position on how to deal with Sami rights in the new Mining Act in March 2008, before consultations had been concluded. The Committee welcomes the PCSSP as a significant step towards ensuring that consultations, in accordance with the Convention, take place with regard to all matters affecting the Sami directly, and looks forward to receiving continuing information on its implementation and on any special agreements with regard to specific matters. Welcoming the apparently increasing number of consultation processes, the Committee encourages the Government and the Sami Parliament to consider ways and means to address and settle disagreements regarding the PCSSP’s application, particularly with regard to the abovementioned differences, in a timely fashion. Noting that under the PCSSP, the state authorities are to inform the Sami Parliament “as early as possible” about the “commencement of relevant matters which directly affect the Sami”, and emphasizing that consultations should be initiated as early as possible to ensure that indigenous peoples get a real opportunity to exert influence on the process and the final outcome, the Committee hopes that the Government will take the measures necessary to ensure that these requirements are applied fully and systematically.

Articles 14 and 15. Rights to land in traditional Sami areas south of Finnmark county. The Committee notes that the Sami Rights Committee was reappointed on 1 June 2001 to report on issues relating to the Sami’s right to, disposition and use of land and water in traditional Sami areas other than those covered by the Finnmark Act. The Government indicates that the main report of the Sami Rights Committee was presented in December 2006, and was circulated broadly for comments which were to be received by 15 February 2009. The Committee notes that the Sami Parliament expresses concerns that the process of identifying rights takes a long time and that interventions by governmental authorities in areas where rights have not been identified was “a constantly recurring problem”. The Committee welcomes the ongoing efforts with regard to the land rights of the Sami in their traditional areas south of Finnmark county. The Committee trusts that Articles 14 and 15 will be duly taken into account in this process and that consultation and participation in accordance with Articles 6 and 7 will take place. While acknowledging that the identification of rights under Article 14 is a process which may require considerable time, the Committee also considers that transitional measures should be adopted during the course of the process, where necessary, in order to protect the land rights of the indigenous peoples concerned, while awaiting the outcome of the process.

The Mining Act. The Committee notes that the Mining Act was amended in 2005, in conjunction with the enactment of the Finnmark Act. The amendments, inter alia, provided that “significant emphasis” shall be placed on the due consideration of Sami interests in Finnmark when applications for licensed prospecting are being considered and that bodies representing Sami interests are to be heard with regard to such applications. The amendments also provide that in case of mines on the land owned by the Finnmark Estate, the King may determine a higher “landowner’s fee”. The Committee further notes that a new Mining Act was enacted on 19 June 2009, which will enter into force on 1 January 2010. The new Mining Act carries over the provisions concerning Sami interests in Finnmark, but fails to address these issues in other traditional Sami areas. The Sami Parliament describes the consultation process beginning in 2007 regarding a new Mining Act as difficult, and lacking real dialogue and good faith on the part of the Government. The Government states that the consultations had been conducted in accordance with the PCSSP; however, full agreement could not be reached and the consultation had therefore been concluded without full agreement being reached. The Committee notes the Government’s statement that the follow-up to the 2006 report of the Sami Rights Committee will establish the basis for legal amendments regarding Sami rights outside Finnmark, including possible amendments to the Mining Act.

The Committee notes that the issue of benefit sharing was one of the issues on which the Government and the Sami Parliament disagreed. The Government considered that a benefit-sharing mechanism, such as the one provided for under the Finnmark Act, where the funds emanating from a higher landowner’s fee is received and managed by the Finnmark Estate as the landowner, was “appropriate to fulfil the obligations under Article 15(2) of the Convention.” The Sami Parliament considered that benefit sharing should not be limited to the landowner; in other words, indigenous peoples who are not owners of the land concerned but have traditionally used it should also participate in the benefits of exploration and exploitation of resources pertaining to the lands.

The Committee observes that Article 15(2), second sentence, reads as follows: “The peoples concerned 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.” As stated in the first sentence of Article 15(2) this applies in “cases where the State retains the ownership of mineral or sub-surface resources or rights to other resources pertaining to lands”. The term “lands” in Article 15(2) is to be understood as defined in Article 13(2) as including  “the concept of territories, which covers the total environment of the areas which the peoples concerned occupy or otherwise use”. On this basis, the Committee confirms that the Convention does not limit the participation in benefits and the receipt of compensation under Article 15(2) to indigenous peoples who are landowners under the national legislation. The Committee, however, considers that there is no single model for benefit sharing as envisaged under Article 15(2) and that appropriate systems have to be established on a case by case basis, taking into account the circumstance of the particular situation of the indigenous peoples concerned. 

In the present case, the Committee notes that agreement between the Sami Parliament and the State had been reached on 95 per cent of previously state-held land to be owned by the Finnmark Estate in the management of which Sami representatives participate on an equal footing with other representatives. The Committee also notes that the Finnmark Estate receives the funds emanating from the landowner’s fee and is competent to decide on how these funds are to be used. Based on the information before it, the Committee is not in a position to assess how this mechanism has functioned in practice with a view to allowing the Sami to participate in the benefits of mining activities in Finnmark. The Committee asks the Government to send information in this regard. In any event, the Committee recommends that the functioning of the mechanisms intended to ensure that the Sami, as the indigenous people concerned, participate in the benefits of mining activities as envisaged in Article 15(2) be reviewed jointly by the State authorities and the bodies representing Sami interests, from time to time. More generally, the Committee considers it of importance that the national mining legislation is amended as soon as possible to ensure the effective application of Articles 14 and 15 in traditional Sami areas south of Finnmark county, and urges the Government and the Sami Parliament to renew discussions on this matter. It calls on the Government to ensure that until such legislation has been enacted, the Sami rights in the areas concerned are safeguarded by other appropriate means.

Observation (CEACR) - adopted 2008, published 98th ILC session (2009)

The Committee notes the observations dated 28 August 2008 from the Norwegian Sami Parliament which, according to the wishes expressed by the Government upon ratification, plays a direct role in the dialogue associated with supervision of the application of the Convention. However, the Committee notes that the Government’s report has not been received. It hopes that the Government will make every effort to take the necessary action to submit its report in the near future, including replies to the Committee’s previous observation and any comments it may wish to make in reply to the observations made by the Sami Parliament.

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

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".

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

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.

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

The Committee notes with interest that with its report on the implementation of the Convention, the Government has sent an opinion of the Council of the Sami Parliament of Norway on the application of the Convention, and that the Government has taken close account of the opinions of the Sami Parliament in its own report. The Sami Parliament is a representative body of the country's indigenous Sami population, which has responsibility for Sami interests inside the country, in close cooperation with the national Government. The Committee notes in addition a 1992 comment of the Sami Parliament on the Government's first report, which was however received only in 1994.

The Committee also notes that the Sami Parliament has indicated its willingness to enter into an informal dialogue with the Committee, together with the Government. The Government has stated that it shares the wish to facilitate the implementation of the Convention, believing that open cooperation between governments and representative indigenous bodies may contribute effectively to the international promotion of indigenous rights and cultures, and that the Government therefore fully supports the suggestion of a supplementary dialogue.

The Committee welcomes warmly the dialogue between the Government and the Sami Parliament on the application of the Convention. It notes that this corresponds to the approach suggested in point VIII of the report form, and looks forward to continuing this exchange of information and views. It considers that this can best be carried out in the context of the regular reporting on the implementation of the Convention. The Committee also encourages the Government and the Sami Parliament to have recourse to any assistance that the International Labour Office may provide in this connection, and notes with interest a workshop in Oslo in September 1994 gathering all parties concerned in the administration of Sami questions, to discuss the Convention's implementation.

Direct Request (CEACR) - adopted 1993, published 80th ILC session (1993)

1. The Committee notes with interest the detailed information contained in the Government's first report on Convention No. 169. The Committee would be grateful for further information on the following points.

2. Article 1 of the Convention. The Committee notes that during the census of 1970 efforts were made to determine the size of the Sami population, which the Government estimates to be approximately 40,000. Please indicate whether there are any plans for a further census which would include a specific indigenous component.

3. The Committee also notes the Government's decision to identify the Sami as indigenous. Please provide information on the processes by which individuals express their self-identification as members of the Sami people.

4. Article 2. The Committee notes the establishment of the Sami Development Fund (SDF) to promote the economic, social and cultural rights of the Sami. The Committee would appreciate further information regarding the structure and programme of action of the SDF, and the number of Sami who benefit from these projects.

5. Article 4. The Committee notes the amendment to the Constitution providing special guarantees to safeguard Sami language, culture and way of life (article 110 A). The Committee further notes the various laws and administrative measures regulating traditional economic activities, such as reindeer herding, which it appears are progressively narrowing the scope for the continuation of this activity. Please indicate the participatory mechanisms used to determine the wishes of the people concerned regarding measures affecting their welfare, with specific reference to traditional economic activities. Please also include information on any measures taken or envisaged for fostering respect for Sami traditions in this regard.

6. Article 5. The Committee notes from the detailed information in the report the various measures taken by the Government to recognize and respect the social, cultural and religious values and practices of the Sami people. In this respect, the Committee also notes the report commissioned by the Government defining the legal obligation of the State to provide opportunities for the cultural preservation and development of the Sami people. The Committee would appreciate further information on the present position of traditional cultural institutions, including the siida, by which the use, access to and conservation of the reindeer grazing grounds and the relationship between the reindeer and the herders is regulated. Please indicate also any measures which have been taken or are envisaged to encourage these institutions to contribute effectively to devising strategies for resolving the present crisis in the reindeer industry.

7. Article 6. The Committee notes the requirement to consult the Sami Assembly prior to any final decision being taken on any proposed legal or administrative measures. With reference to the policy report prepared by the Government on "Sustainable Reindeer Husbandry", please indicate if the Assembly made any comments or suggestions on the report, and the effect that these comments may have had.

8. Article 7. The Committee notes that the Sami Development Fund (SDF) is responsible for devising the development strategies within the Sami administrative area. It would be grateful for further information on: (1) the mechanisms which assure the effective participation of the Sami people in the formulation, implementation and evaluation of the plans and programmes of the SDF; (2) the projects and priorities of the SDF; and (3) whether any impact-assessment studies of development projects have so far been undertaken. Please also keep the Committee informed of further developments in this regard, and on conclusions of the report now being prepared on the effects of EC membership on the Sami community.

9. With respect to traditional knowledge of environmental protection and preservation, please indicate any measures taken or envisaged to associate the siida, SRHA and other Sami organizations in development projects to ensure that such projects are also environmentally correct.

10. Article 8. The Committee notes that national courts may take cognizance of Sami customary law and judicial precedence if there is uncertainty or ambiguity. Please provide examples of how this principle has been applied by the national courts.

11. Article 9. The Committee notes that equal treatment for all citizens is enshrined in Norwegian law, and that the Constitution provides special protection for Sami culture and traditions. Please indicate if Sami penal customs and customary methods differ from the national law, and if so, provide examples of instances when this issue has arisen.

12. Article 10. The Committee notes from the Government's report that ethnicity is not a determining factor in court decisions. The Committee notes also that the courts have discretionary power to consider any special circumstances, including social and cultural background. Please provide examples of any relevant court judgements where account was taken of ethnic origin, including information on the Sami perception of this matter.

13. Article 12. The Committee notes there have been a number of cases brought in the national courts by Sami interests on matters of principle. Please provide further information on these cases. The Committee also notes that the Act on Free Legal Aid provides financial assistance to parties in civil proceedings, and legal advice. The Committee would be grateful if the Government would provide information indicating the number of Sami who have benefited from this legal assistance service.

14. Article 14. The Committee notes that the Government holds title to most of the traditional lands of the Sami to which the Sami have a right of usufruct. The Committee also notes in this regard that there are judicial decisions enforcing Sami prescriptive rights based on long-established use. It notes that, recognizing the need for a comprehensive analysis of the legal position of the Sami people, the Government has appointed the Sami Rights Commission to assess the current legal situation of the Sami as regards rights to, and use of, land and water resources, and to suggest concrete recommendations for requisite changes. The Committee notes from the report that the Government has demarcated certain areas to be within the Sami administrative zone, and that the Sami Rights Commission will include further definitional measures in its recommendations. The Committee requests the Government to keep the Committee informed of the progress of this study.

15. The Committee notes in the report that there are no specific procedures to resolve Sami claims to land or land rights and that the Sami have to use the procedures existing in the national courts. Please provide information on the legal procedures used by Sami to resolve land claims, including court decisions.

16. Article 15. The Government states in its report that Sami have the right to some of the produce of the lands they occupy and that the Sami Rights Commission will include the Samis' rights to utilization of natural resources in its study. The Committee looks forward to receiving further information regarding the extent and scope of the rights of the Sami people to resources "pertaining to their lands".

17. Article 19. Please provide further information regarding any measures taken or envisaged to determine the extent to which the land presently available to the Sami is adequate "for providing the essentials of a normal existence" and for their future development, as prescribed by this Article.

18. Article 20. The Committee notes the measures taken by the Government to increase employment opportunities for Sami. Please indicate the prevailing conditions of employment and labour inspection services within the Sami administrative areas, including information on any special problems faced by Sami in seeking and holding employment, both within and outside this area.

19. Article 25. The Committee notes that the Ministry of Health and Social Affairs has appointed a committee to evaluate the specific health and social services needs of the Sami community and that this committee includes three members from Sami-based organizations. The Committee requests the Government to provide information on the results of this committee's work.

20. Article 31. Please indicate if it has been considered necessary to take educational measures to increase awareness and respect of Sami society and culture among those in direct contact with Sami, as provided for in this Article.

21. Parts VII and VIII of the report form. The Committee notes that the Government has communicated its report on the Convention's application to the Norwegian Sami Council. Please indicate whether any observations have been received from the Norwegian Sami Council regarding the practical application or implementation of the provisions of the Convention.