The Finnmark Commission investigation: An adequate way of completing Norway’s obligations to identify Sámi rights to lands and waters
Professor at UiT The Arctic University of Norway, and Adjunct Professor at University of Lapland.
The following quote is from Sagai Muittalægje (Sigerfjord, 1 March 1906). Isak Saba was the first Sámi elected to the Norwegian Parliament (1907–1912), and he is also known for having authored the text of the Sámi National anthem “Sámi soga lávlla.”
Will not the grass grow just as well on the meadow if you speak Sámi as Norwegian? Is it not enough that the Sami had to buy the land, which from ancient times, had been theirs?
History leading up to the Finnmark Act
The Sámi Rights Committee (1980 –
In 1984, the Sámi rights commission published a report; in section 18 “About the Sámi legal position”; the first two points of the mandate were to examine the following:
- the question about the Sámi people’s legal position in relation to lands and waters
- to evaluate and suggest “how to secure the Sámi opportunities to utilize natural resources in their areas of habitation, while also recognizing the non-Sámi population’s interests
[The third point was to investigate the need for constitutional protection of the Sámi language, culture and way of life and the fourth related to economic consequences].
In addition, the Norwegian Constitution article 110a, contains the following:
“It is the responsibility of the authorities of the State to create conditions enabling the Sámi people to preserve and develop its language, culture and way of life”
(Official translation from http://www.stortinget.no/en/In-English/About-the-Storting/The-Constitution/The-Constitution/ (accessed 9 September 2013).
Finally, ILO-169 concerning Indigenous and Tribal People in Independent States
Article 14, contains:
- The rights of ownership and possession of the peoples concerned over the lands, which they traditionally occupy, shall be recognised. …
- Governments shall take steps as necessary to identify the lands, which the peoples concerned traditionally occupy, and to guarantee effective protection of their rights of ownership and possession.
- Adequate procedures shall be established within the national legal system to resolve land claims by the peoples concerned.
Requirements for adequate procedure
Case law from the ILO monitoring bodies shows that the issue of adequate procedures within the national legal system to resolve land claims by the indigenous peoples, are considered by 1) access to the court for the concerned indigenous People and 2) thorough investigation of the evidences and in-depth application of the law.
The aim of this presentation is to examine how Norway is fulfilling its obligations to identify Sámi rights to lands and waters.
The Finnmark Commission is the most important “instrument” for carrying out the obligations of the Norwegian state to identify these rights. Obligation. This means that it works in the interest of examining how to identify Sámi rights to lands and waters. Thus, it finds adequate ways of fulfilling Norway’s obligations to identify Sámi rights to land and waters.
Norway is considered to be a driving force in the recognition of Indigenous rights, the
situation here is of interest internationally, and can be seen as a “best practice.”
The History of the Finnmark Act
The majority of the Parliamentary Committee of Justice (2004–2005) concluded the following:
- Norway is required to identify so called existing rights to lands and waters in Finnmark to meet the obligations in the ILO-169 Article 14.
- Thus legal clarification had to be included as a key element in the Finnmark Act.
- But the proposal of the Sámi Parliament to include identifying of Sámi lands according to the categories of the ILO-169 article 14 in the investigation was rejected.
The Finnmark Act finally ended up mandating an investigation of private rights of use and ownership to lands both individual and collective in character.
Finnmark Act, Section 5
Through prolonged use of land and water areas, the Sami have collectively and individually acquired rights to land in Finnmark.
In order to establish the scope and content of the rights held by the Sami and other people on the basis of prescription or immemorial usage …, a commission shall be established to investigate rights to land and water in Finnmark and a special court shall be set up to settle disputes concerning such rights, cf. chapter 5.
The investigation bodies:
- The Finnmark Commission (to investigate, identify and recognize land rights)
- The Uncultivated land tribunal of Finnmark (to settle disputes arising after the investigation) An investigation procedure that meet the requirements of ILO Convention No. 169
The Sami Rights Committee II assumes that one clearly can conclude that the Finnmark Act’s system as a whole must obviously be considered to meet the requirements of ILO Convention No. 169, Article 14 (2) and 14 (3), as evidenced in the following:
“The solution chosen in Finnmark must be considered to be in line with Norwegian’s goals of loyalty fulfill the aim of the Convention.”
I find no reason to disagree with that. Thus, it is not the selected procedures in the Finnmark Act as such that must be questioned in order to answer the question raised in the title, but the application of law. I will therefore look into the results of the three first reports of the Finnmark Commission (herein FB) before I discuss some observations about the application of law.
Investigation fields: Stjernøya and Seiland and Nesseby
The first Finnmark Commission report concerns the islands of Stjernøya and Seiland in the Alta Fjord in West Finnmark. The area covered is inhabited both by a Sámi and a non-Sámi coastal population and these areas are also summer pastures for nomadic Sámi reindeer herders. In addition, there is also extensive mining on one of the two islands.
In was also decided that the municipality of Nesseby should be investigated as the second field. The field consists of a large number of communities that are shared by a fjord. It has 900 inhabitants (2011), many of them Sámi, and an area of 1436 km2. The selection of the field is not reasoned in the report, but it is natural to assume that it is emphasized that it has a relatively large Sámi population etc.
The Completed Investigation Fields of the Finnmark Commission
Property rights in field one: Seiland and Stjernøya
The Commission does not recognize collective property rights in any part of the field. This applies both to the Sámi reindeer herders and to the Sámi and non-Sámi permanent residents. Concerning individual property rights, the Finnmark Estate (FeFo) owns all the formerly state land in field one, with the exception of one parcel of 0.02 km2.
Property rights at field two: Nesseby
The conclusion of field two, which contains a municipality that is part of the Sámi administrative area, is similar with those for field one concerning collective property rights: The Finnmark Commission concluded that neither reindeer herders, as opposed to field 1, live in the municipality year-round, or the local people at-large, have acquired any form of collective property rights.
Concerning individual property rights, FeFo (Finnmark Estate) own the investigated area, except for a private parcel of 0.007km2.
Property rights on field three: Sørøya
The conclusion of field three is similar with those for the other fields concerning collective property rights: The Finnmark Commission concluded that neither reindeer herders nor local people have acquired collective property rights. There also were no individual property rights identified in this field.
Collective Rights of Use (all the fields)
For the all the three fields, collective rights to graze livestock, harvest wood and peat, fishing, hunting and trapping, and collecting eggs, down and berries are recognized, where the Finnmark Commission generally and similarly for all three fields, concluded that the rights of the local population have an independent legal basis:
“Concerning the resident local population, these rights [described in the Finnmark Act § 22 and 23] have an independent legal basis beside the law, similar to the common rights in southern Norway, and similar to the reindeer husbandry rights in the areas where there has been reindeer husbandry historically.”
Collective Rights of Use (all the fields)
However, the Finnmark Commission conclusions do not imply any changes in the actual status:
“Although these rights, to some extent, have an independent legal basis, they are codified in the Finnmark Act, and therefore subject FeFo disposal authorizations.”
This means that it is FeFo who is mandated to govern, regulate and decide to what extend the locals are allowed to enjoy their independent rights. However, the Finnmark Commission poses a limitation on FeFo’s regulation, as other uses of the resources cannot displace local use.
To have Exclusive Rights of Use, there must be a special legal basis.
“If the locals are to be allowed to have an influence on the extent of use, the rights must have a special legal basis, established by immemorial usage or prescription time has exercised a use that goes beyond the limits that are currently enshrined in the Finnmark Act.”
This means that rights established before 1775 [when the state ownership appeared] have a weaker protection for the landowner [FeFo] or governmental regulation than rights acquired by prescription or immemorial usage after the state land management in Finnmark started.
It also means that the Finnmark Commission, in practice, does not recognize more extensive collective rights (of use or title) than already recognized in the Finnmark Act SS 22 and 23.
Individual Rights of Use
Individual rights of use are not recognized, with the following three exceptions:
- the right to a mount for salmon nets at Seiland in field one;
- this concerns a re-allocation of leasing rights to parcel by the Varanger Fjord;
- the right to have a turf hut in Čoskajeaggi in field two.
In addition, families have acquired all-year-round reindeer husbandry right in parts of the field 3.
Rights of use (example from field three)
The Finnmark commission finds that the Akkarfjord regional community has not acquired collective ownership rights north of the line Oterbukta – Saksfjorden. It has also not acquired exclusive collective use rights for local people beyond the general right, which the Commission has determined, was acquired on Sørøya based on immemorial usage. The Finnmark Commission, however, has assumed that different groups of locals in the South Island have acquired collective rights to use various forms of cultivated areas on the part of the island, which is FeFo property, where the population who belongs to the area has a preferential right to use the local resources.
The ownership evaluations/application of law:
The Finnmark Commission concluded that the local people’s use of lands in the three investigation fields is as extensive, flexible and long-lasting as the land and resource use of the locals in Manndalen, who achieved recognition of their rights in the Supreme Court Case of Svartskogen (NRt. 2001 p 1229). However, it concluded that the state’s disposal (activities) have been so extensive that the exclusive, local rights, have been extinguished.
It is not the lack of continuity and intensity of use that creates problems for legal recognition. It is also not the use of land and resources by others, but the State or Government allocations /dispositions that extinguish local rights. The State governance and exercise of ownership is thus given law-making significance.
Finnmark Commission’s application of law: The ownership evaluations
As shown, it is the State’s active disposals that have led to the local population in the investigation fields, in practice, not having recognized rights beyond what everyone has in Finnmark Act, § 22 and 23. More specifically, FC assesses these in relation to the corresponding dispositions in Svartskog case where the locals acquired title.
It is thus interesting to see to what extent it is proved that the government has allocated a greater extent in the study fields than in Svartskogen.
Governmental actions in Svartskogen, Manndalen, Troms County
The Government actively bought Svartskogen from a private society (Ophævelse af Leilændingvæsenet in Skjervø) in 1885. Since the 1920s, the Government has clearly expressed its ownership and possession, including by posting announcements on the church hill and by posting at other places etc. It has also used police reports that express ownership and have entered into a significant number leasehold agreements for hay harvesting on uncultivated land and then rejected applications for claims for cultivation of land. Thus, the state has engaged in a reasonably wide-ranging state of dispositions.
Governmental actions in Nesseby
An example is the hay fields that are leased out on state outlaying fields in Nesseby and Svartskogen, respectively.
The Evidence assessments
Evidence assessments were completed as whole without significantly entering into and assessing each specific area significantly, such as natural demarked areas such as river valleys, etc.
This means that the assessments are too broad and summarily lack concrete analysis of particular areas.
The Evidence assessments
The Finnmark commission is quoting the Supreme Court’s description of the management of Svartskogen, concluding in the same way for all the three fields, stating that:
“There is nothing in the material that is provided or submitted to the Commission, which suggests that the population as a whole or in part of the field (Stjernøya-Seland/Nesseby/Sørøya respectively) and up to present time have exercised some form of control over the local resource exploitation that can be compared with this.” (Rapport 1,p. 67, R 2, p. 68 and R 3, p. 54, respectively)
Is it evident that the government has allocated more actively in the three study fields in Finnmark than in Svartskogen?
When the question finally had to be answered whether the government has brought sufficient evidence that it has allocated more actively in the three study fields than in Svartskogen, it is difficult to answer affirmatively based on the present evidence.
How to assess governmental allocations
Case law shows that it may be questioned whether it is appropriate to place such emphasis on governmental actions. In other cases, the courts aim to “repair” unintended consequences of government allocations, rather than use them as a reasons for limiting exclusive rights use by the local people, see e.g. Rt. 1991, p 1311 (Beiarn-Skjerstad).
Based on the State’s active forest management, which had led to the farmers losing their logging rights in an earlier judgment, the Supreme Court asked:
“is it reasonable that farmers in Nordland shall have a weaker position when it comes to utilization of state unregistered land than farmers otherwise in the country?”(p. 1321).
The Sámi Rights Committee II has considered this statement in its investigation of a management regime for state lands in Nordland and Troms “as a relatively clear call for the legislators to consider the legal situation further.” Based on this, the committee has proposed to legislate:
“the right to cut timber for fire wood and other agriculture-related household needs, according to logging fields recommended by the outlying field board” (NOU 2007: 13 Den nye sameretten p. 701).
After the evidence assessment and application of law, it is implied that
The Finnmark Act section 5 (1), has not been met in any places from the three first investigation fields when it concerns collective use and property rights. It has been applied to a very small extend for individual rights. The previous regime of state ownership, which have been contested of many, has continued under the FeFo regime.
Although the presumption in the Finnmark Act s. 5 (1) has not been met any place in the first three fields, so far there has not been a square meter of Sámi land identified.
It is far too early to conclude that the Finnmark Commission investigation is an inadequate way of completing Norway’s obligations to identify Sámi rights to lands and waters.
With all due respect for the application of law, it must nevertheless be allowed to question whether the Finnmark Commission investigation meets ILO-169 requirements for thorough examination. In sum, I will emphasize that it is great that Finnmark, long after the rest of the country, finally got a review of the legal systems in outlying areas.
Pedersen, Steinar «Statens eiendomsrett til grunnen i Finnmark – en del av den interne kolonihistorie» in Harald Eidheim (ed), Samer og nordmenn (Cappelen 1999) pp. 15–38 . Isak Saba (1875–1921)