Norge har kuttet ut ‘urfolk’ som prioritert målgruppe i norsk bistand – uten et eneste vedtak eller bred offentlig diskusjon.
Les Sidsel Saugestads artikkel i Bistandsaktuelt 03.03.2016
Norge har kuttet ut ‘urfolk’ som prioritert målgruppe i norsk bistand – uten et eneste vedtak eller bred offentlig diskusjon.
Les Sidsel Saugestads artikkel i Bistandsaktuelt 03.03.2016
As the Forum for Development Cooperation with Indigenous Peoples concludes 15 years of activity, this final workshop will gather indigenous peoples, academics, and other development actors, to discuss the lessons that we have learned, and opportunities for moving forward in a changing global and national environment. In this new climate of shifting funding and political priorities, and the development of new international legislation around environmental and social issues, what is the role of research? What new models for cooperation can we envision? How can informed perspectives about critical issues on the ground reach the decision makers? In particular – what is the role of business?
The registration deadline is set to 18 January 2016 if you need accommodation.
The registration deadline without accommodation is set to 22 January 2016.
Conference fee regular participants:
No meals, conference fee only: NOK 400
Conf. fee + Lunch two days + Dinner: NOK 1 000
Conference fee UiT students:
Conference fee only: NOK 0 (free)
There will be a one-day seminar in Tromsø December 9 2015. The seminar will explore the possibilities to establish a policy-relevant network between academia, activists, aid agencies, the business sector and government that has indigenous peoples’ situation on the agenda.
SOGIP – Scales of governance and Indigenous Peoples
This Forum update describes a new collaboration between the Forum for Development Cooperation with Indigenous Peoples and a French-based research project on indigenous rights, including a conference focusing on indigenous education, to be hosted at the University of Tromsø in April 2014.
The project SOGIP (Scales of Governance: The UN, the States and Indigenous Peoples) is a five-year international comparative research program on the rights of Indigenous Peoples, funded by the European Research Council (ERC 249236) and based at the École des Hautes Études en Sciences Sociales (EHESS), in Paris, France.
The SOGIP research team studies the ways in which the UN Declaration on the Rights of Indigenous Peoples (UNDRIP), and other relevant international norms and conventions, are endorsed or dismissed by States and civil society in different cases relating to Indigenous peoples. The guiding research questions are: How do Indigenous Peoples, who organize themselves in different patterns, and who reside within different political regimes and state legal apparatuses, build models of free choice to ensure their future? And what is the role of the international Indigenous rights movement and international legal mechanisms in this process?
The SOGIP research team, led by Irène Bellier, and is composed of anthropologists, sociologists, political scientists and jurists who are specialists in different regions of the world. The regions and case studies include: Southern Africa – Botswana, Namibia; the Americas – Argentina, Bolivia, Chile, French Guyana, Mexico; Asia – India; and the Pacific – Australia, New Caledonia. In addition, the United Nations and its agencies constitute a field of investigation.
During the 5 years of the project (2010 – 2015), SOGIP is hosting a series of workshops. The first, in 2011, focused on international mobilization, governance and legal issues. The second, in 2013, addressed indigenous peoples and their rights to land, including land policy and use, conservation and extractive industries.
In 2014, for the third conference in the series, SOGIP is joining with the Forum for Development Cooperation with Indigenous Peoples to co-host the conference: Education and Learning from an Indigenous Rights Perspective: What knowledge, skills, and languages for sustainable futures? This conference will be held at the University of Tromsø, 2 – 4 April 2014.
For this meeting, SOGIP and the Forum will merge their two conference series focusing on global and local issues of indigenous rights, to address the critical issues around education. At this conference we will discuss the numerous and complex challenges of addressing educational concerns for Indigenous peoples – including issues involving language and knowledge, indigenous education models, higher education, development cooperation, and self-determination. As with previous conferences in both series, academics and practitioners, including those who are indigenous themselves, will engage in a constructive dialogue based on comparison of specific case studies, and with reference to the global context.
We look forward to good collaboration and a thought-provoking and productive conference in April.
For more information about SOGIP visit: www.sogip.ehess.fr
Researcher, NIKU (The Norwegian Institute for Cultural Heritage Research)
The human rights of small-scale fishers is an emerging issue on the international agenda with which both small-scale fishers and fisheries governors, as well as many Indigenous peoples, the world over are concerned. But what does it mean to implement a human rights based approach to fisheries, and what does it imply relative to protecting the rights of Indigenous peoples to the sea? This paper uses Norway as a case in point for exploring these questions. Norway is one of the countries that have played important and leading roles in establishing the FAO’s Voluntary International Guidelines for Sustainable Small-Scale Fisheries, concerning the human rights of small-scale fishers. At the same time, protection of Indigenous fishing rights within the framework of state management has been an on-going issue in Norway during the latest decades, which have recently come to some conclusions. Most importantly, the principle of safeguarding the material basis for Sámi culture has become an integral part of politics and policies in and for the Norwegian fisheries sector in general. This paper discusses to what extent recent changes in Norwegian fisheries policies implement a human rights based approach to fisheries, and what it entails for the protection of small-scale fishers’ human rights and Indigenous peoples’ fishing rights respectively. In the following, a brief background on the human rights based approach to fisheries is provided, before the current state of Indigenous fishing rights in Norway and how it relates to the human rights of small-scale fishers in general is dealt with in detail. Finally, a few concluding remarks on the extent to which the Norwegian case serves as a good example in the way of implementing a human rights based approach relative to protection of Indigenous fishing rights are offered.
The human rights based (HRB) approach to small-scale fisheries (SSF) is a combination of development with human rights, placing responsibility on governments as well as wealthy countries to provide development through small-scale fisheries as a human right. Development as a human right entered the UN system as an approach in the mid-1990s. In the field of fisheries, development issues such as poverty alleviation and food security are now increasingly being perceived as human rights that states have the responsibility to ensure. The FAO, Food and Agriculture Organization (FAO) of the United Nations, on its 29th session in 2011, recommended the development of an international instrument on small-scale fisheries: what has now become known as the Voluntary International Guidelines on Securing Sustainable Small-Scale Fisheries. The guidelines are focused on developing countries, and will be:
“/…/in support of poverty alleviation and equitable social and economic development, for improving governance of fisheries and promoting sustainable resource utilization. Their objective is to provide advice and recommendations, establish principles and criteria, and information to assist States and stakeholders to achieve secure and sustainable small-scale fisheries and related livelihoods” (FAO 2012).
The Guidelines are formulated through a social movement of fisheries organizations, researchers, and small-scale fishers worldwide. As part of the human rights based approach to fisheries, the guidelines entail that small-scale fishers, fish workers, and their communities, should be ensured access to fish as a way of achieving development. It encompasses civil and political rights, economic, social, cultural rights, as well as collective and solidarity rights.
Fig. 1 Relationship between the human rights of small-scale fishers and Sámi people in Norway (Slide 2).
The human rights approach to small-scale fisheries can also be seen as a social movement with the effect of creating new social groups that hold a human right to development from small-scale fisheries. This movement shares many similarities with the global Indigenous rights movement, however with some differences. An Indigenous fishing right raises questions of property and how to divide resources between the Indigenous people as a whole and the state based on the recognition of previous colonial relations and historical use. Indigenous fishing rights are rights that have been established through custom or historical use of marine resources, and may have a basis independent of state recognition. A human right to fish, on the other hand, raises questions such as the right to food, development, participation in governance of resources, recognition of sea tenure rights, and so on, for a group of small-scale fishers in relation to other groups of fishers within the fisheries sector (FAO 2012). Small-scale fishers in North Norway are currently holders of human fishing rights, but also of Indigenous fishing rights, which however invoke a different set of duties of responsibilities from the state. Thus, Sámi small-scale fishers can be the recipients of both Indigenous fishing rights as well as the human rights of small-scale fishers. As illustrated in figure 1, Indigenous rights and human rights overlap, but Indigenous rights pertain less to small-scale fishers than to Indigenous people in general (fig. 1). The relation between the four elements illustrated here (human rights, Indigenous rights, small-scale fishers and Indigenous people) can of course vary from context to context, and is here tentatively rendered to represent this relation in the Norwegian context.
What does a human rights based approach to fisheries imply? In the words of Senior Fishery Planning Officer of the Fisheries and Aquaculture Department in the FAO, Rolf Willmann, fish is food, a healthy source of animal proteins, and thus poor peoples’ access to fish should be ensured in the face of competition with industrial fisheries and undermining of customary regimes. On the other hand however, as common pool resources are often overexploited, as is often the case in unregulated small-scale fisheries in developing countries, too much protection of small-scale fisheries may tend to compound the problem rather than prevent it. Overfishing of local resources may again lead to overfishing of previously unexploited resources, and changing the composition of fish stocks, because local fishers have been pushed farther out to sea or to deeper areas in search of food for their families (Willmann 2013). Moreover, even in well-regulated systems, socio-institutional mechanisms may still not prevent starvation. In fact, there can be starvation even under relatively good ecological conditions because of social unjustness (Willmann 2013 with reference to A Sen 1999). Therefore, one needs to take a holistic approach to implementing small-scale fisheries governance and development, and these must be integrated with each other. Some good examples of the implementation of the HRBA are, for instance, the formal recognition of artisanal fisheries, and recognition of collective tenure among marginalized peoples.
How does Norway do in terms of implementing a human rights based approach in Norwegian fisheries, and in terms of Indigenous fishing rights? When the Norwegian Sámi Parliament was established in 1989, it became a stakeholder representing a variety of Sámi communities, individuals and institutions that together form the Sámi people. With the limited, but increasing power and responsibilities of the Sámi Parliament, the Sámi people could now speak with one voice. From 2005, the Sámi achieved consultative status with the Norwegian state in matters of importance to Sámi culture, livelihoods, and cultural survival. The small-scale coastal fishery in Sámi settlement areas is one such matter of importance, since the way fjord and coastal fisheries are governed, affects Sámi traditional livelihoods and opportunities to participate in and benefit from commercial fisheries. In 1991, the Sámi Parliament entered as one out of many stakeholders onto fisheries co-management bodies, and has slowly developed into one of the decision-making organs in matters not only pertaining to fisheries, but also to spatial and environmental governance of the North Norwegian coastal zone in general.
The legitimacy for inclusion of Sámi fisheries in the national fisheries management sector was established during the 1980s by the Sámi ethno-political movement and by strong criticism against the existing fisheries governance system. Especially the overfishing of vulnerable, local cod stocks was a contentious issue causing conflict between small-scale fishers in traditional Sámi areas, and Danish-seine vessels that were accused of fishing up whole stocks of cod in a few sweeps on the fjords. The conflicts between vessel and gear groups escalated when a sharp increase in Greenlandic seals (harp seal), migrating to the North Norwegian fjords in the middle of the 1980s, reduced fjord fishers’ catches even further. Reduced catches for the small-scale Sámi fishers became a problem when the authorities closed large parts of the previously open coastal fishery through the individual vessel quota system in 1990, where the criteria of access to a quota was based on catch levels from the three to four preceding years. Since coastal Sámi fishers had experienced reduced catches exactly during these years, a whole group of fishers was excluded from access to the increasingly licensed coastal fishery. When the Sámi Parliament raised the predicament of coastal Sámi fishers as their first issue in 1989, the plea for abolishing or changing the quota system was echoed by many politicians and coastal small-scale fishers in general, who were dissatisfied with the closing of the previously open coastal commons (Davis and Jentoft 2001).
The criticism from the Sámi Parliament, Sámi and small-scale fishers, and the North Norwegian public did not go without remedial action by the Ministry of Fisheries. The concept “material basis for culture” gained a foothold in the Sámi fisheries discourse during the 1990s as the dominating approach to thinking about Sámi fishing rights (Smith 1990). The Sámi Parliament was allowed a place on the Advisory Board for Fisheries Regulations (Reguleringsrådet), together with stakeholders from commercial organizations and fishers’ organizations (Sámi Parliament 2004). In 1992, it proposed the establishment of measures such as a Sámi Fisheries Zone to remedy the adversary effects of the quota system for Sámi small-scale fisheries. Even though the fisheries policy zone was not established as the Sámi Parliament had argued for, the Ministry of Fisheries implemented special regulations for fishers in a designated area within the existing regulatory framework. In the post-1989 period, these regulations made it easier for fishers with income from other occupations to participate in the closed fisheries, vessel purchases were eligible for direct financial support from a state fund for small-scale industries governed by the Sámi Parliament, and the Sámi Parliament continually negotiated higher quotas for fishers within the area during the yearly quota negotiations. In a co-management framework, this can be seen as the beginning of a cooperative phase between the Sámi Parliament and the fisheries authorities where a negotiated Sámi fisheries governance policy was sketched out.
With the consultative status of the Sámi Parliament gained in 2005, the governance relation between the two parties changed also in the field of fisheries. From being one among many stakeholders at the table, the Sámi Parliament was now to be consulted separately and to have considerable decision-making power through giving consent to, or disagreeing with, law proposals and other central governance policies pertaining to Sámi matters. The question of Sámi fishing rights was on the agenda after the government-appointed Coastal Fishing Commission for Finnmark proposed to legislate the historical fishing rights of the Sámi people. The proposal came about as a result of the legislation of land rights of the population of Finnmark to previously state-owned land in the County (Finnmark Act), where the right to seawater and fisheries had been left out. This was treated by the Coastal Fishing Commission in NOU 2008:5. The proposal included control over a share of the national quotas by a co-management body for the fisheries in Finnmark County, where a majority of the Sámi are settled. Moreover, it proposed the recognition of a historical right to fjord fisheries in some territories, a form of sea tenure (the “fjord right”) for fishers in Sámi fjord areas. During the following consultations the Norwegian government was not willing to acknowledge the historical fishing rights of the Sámi people, but offered to legislate the fishing rights of small-scale fishers in large parts of North Norway in general, and to increase the maximum quota for small-scale fishers in this area with 3,000 tons of cod. The Sámi Parliament made it clear that the question of the historical fishing rights of the Sámi had still not been settled, but consented to the rest of the proposals. The Norwegian government responded that:
“The Ministry is of the opinion that Sámi coastal and fjord fisheries and other small scale fisheries are seen as a natural part of Norwegian fisheries, and that the management of the fish resources in these areas are seen as a natural part of Norwegian fisheries management” (ibid. p. 19).
The Norwegian Parliament in 2012 chose not to recognise the historical fishing rights of the Sámi people in Norway, nor the proposal for territorial fjord rights or sea tenure. Instead of recognising Sámi tenure, a number of alleviating mechanisms were introduced, such as an addition to the Act of Participation in the fisheries, which instituted the right of small-scale fishers (fishing with vessels below 11 meters) to fish with conventional gear, and therefore the possibility to prioritise this group of fishers through quota allocations. The agreement was legislated in the Marine Resource Act, the Act of Participation and in the Finnmark Act in 2012.
Recognition of customary tenure is one of the principles central in a HRB approach to small-scale fisheries, as noted in the introduction. As the Norwegian case shows, neither Indigenous fishing rights nor a more general “fjord right” as a form of sea tenure has been recognised in the case of Norwegian small-scale fishers, Indigenous or not. However, greater room has been made within the existing framework of the Norwegian fisheries management system to protect small-scale fisheries. What is the reason for the lack of tenure recognition in Norway? Professor Svein Jentoft in a recent paper in the FAO Land Tenure Journal discusses the lack of recognition of a Sámi sea tenure in Norway. His observation is that the proposal is too controversial to be supported by the main fisheries organisations, and that Sámi fishers themselves are also ambiguous about the question. By denying the recognition of any special fishing rights, the commons is kept open and non-exclusive because resources are migratory and vessels are dependent on access to migratory resources (Jentoft 2013; Jentoft and Brattland 2011). If some areas were to be reserved for a group of fishers, this would damage the fisheries industry. This is supported in my own research which illustrates that Sámi small-scale fishers are more than even dependent on access to coastal fishing fields, and are less and less dependent on traditional fishing grounds in fjords, even though this is an important fishery for many (Brattland 2012). The historian Steinar Pedersen is, however, one among many who have argued that without the Norwegian Parliament’s recognition of the Sámi people’s historical fishing rights, based on older acts and grounded in historical usage, any small misstep or omission could seriously damage Norway’s international credibility concerning the safeguarding of Indigenous rights (Pedersen 2012).
The amount of quotas is also dependent on the resource situation, which will not always be as abundant as it is at present, something future resource governance solutions will have to take into account. This means that Indigenous people, as well as small-scale fishers in Norway, are dependent upon support from a wide range of political actors to defend the newly acquired room for small-scale fishers in Norwegian fisheries management. Fishers need to get accustomed to having a new Indigenous stakeholder with decision-making power on the scene, and the SámiParliament needs to get used to its new role as representative of an enlarged small-scale fisher constituency.
In many cases, Norway is pointed to as a model for how things are to be done, be it development aid, environmental policies or Indigenous issues. Among Norway’s achievements in the Indigenous rights field are the progressive actions of the Norwegian Parliament in the 1990s through the ratification of the ILO Convention 169, the election of Mr. Ole Henrik Magga to be the first president of the UN Permanent Forum on Indigenous Issues, the establishment of the Sámi Parliament, and not least the implementation of Indigenous rights principles, such as the duty to consult through the Consultation Agreement. Norway has also endorsed the Declaration on the Rights of Indigenous Peoples, but it has not gone as far as recognising Indigenous fishing rights. With lack of recognition of collective sea tenure among small-scale fishers in the North, the contribution in terms of implementing a human rights based approach to small-scale fisheries can be questioned.
There are, however, some fundamental differences between the Sámi small-scale fishers and small-scale fishers elsewhere. Sámi small-scale fishers are part of a welfare system, which does not make them dependent on fisheries as a livelihood. In fact, the level of costs and price of labor is making fish production in Norway much less economically profitable for fishers and producers alike than in developing countries. Competition from aquaculture and cheaper labor markets where fish production is conducted at much lower costs than by Norwegian fishers, and an inability to deliver high-quality, fresh fish at all times and seasons to feed market demands, are much bigger threats to the survival of small-scale fisheries in Norway than poverty, lack of tenure rights recognition, or overfishing. Small-scale fishers in Norway are not at the point of starvation, nor has development been denied to the small-scale fishing fleet. Most importantly, however, is the emergence of a diversity of small-scale stakeholders in the fisheries governance system in the period after the establishment of the 1990 quota system, and the current protection of the right to fish for small-scale fishers within the framework of the existing fisheries governance system. Thus, the current legal protection of Norwegian and Sámi small-scale fishers can be seen as a result of corporative integration of stakeholders into the overall governance structure, which has the effect of changing specific regulations and principles pertaining to small-scale fishers. Is this a human rights based approach to small-scale fisheries adapted to an industrial context?
I argue in my thesis (Brattland 2012) that the increasing integration of Sámi rights and policies into resource governance is producing a new ethno-ecological governance regime that supports the existence of Sámi small-scale fisheries. This does not necessarily mean that Indigenous peoples have increased their power as stakeholders in resource governance, but that states have translated Indigenous rights and policies into their own language, and created governance structures such as consultation procedures, where these are dealt with within the existing corporative structure. Seen relative to the larger human rights and Indigenous context, where tenure recognition and participation as co-managers in resource governance are important principles, the Norwegian integration of Sámi policies in the overall resource governance structure could very well serve as an example of a human-rights based approach to small-scale fisheries adapted to an industrial context. It is certainly not a schoolbook example in the way of implementing Indigenous rights in fisheries. As for a human rights based approach to small-scale fishers, however, Norway’s experience with the Sámi fishing rights issue is an example of how human rights principles can make mechanisms and institutions come about to protect small-scale fisheries. This is a point that Norway could expand upon in international fisheries development contexts and in the on-going process for developing the Voluntary International Guidelines for Sustainable Small-Scale Fisheries.
Allison, E., R. Blake, et al. (2012). Right-based fisheries governance: from fishing rights to human rights. Fish and Fisheries, 13 pp.: 14 - 29.
Brattland, C. (2012). Making Sámi Seascapes Matter. Ethno-ecological governance in coastal Norway, University of Tromsø, Faculty of Biosciences, Fisheries and Economics.
Davis, A. and S. Jentoft (2001). The challenge and the promise of Indigenous peoples’ fishing rights--from dependency to agency. Marine Policy, 25 (3), pp.: 223-237.
NOU 2008:5 Retten til fiske i havet utenfor Finnmark. The Right to Fish in the Sea off Finnmark. Ministry of Fisheries and Coastal Affairs, Oslo.
Jentoft, S. and C. Brattland (2011). Mot en samisk fiskeriforvaltning? . Hvor går Nord-Norge? Tidsbilder fra en landsdel i forandring. . S. Jentoft, J. -I. Nergård and K. A. Røvik. Stamsund, Orkana.
Jentoft, S. (2013). Governing tenure in Norwegian and Sámi small-scale fisheries: from common pool to common property? Land Tenure Journal 1/2013; FAO.
Pedersen, Steinar (2012). The Coastal Sámi of Norway and their rights to traditional marine livelihood. Arctic Review on Law on Politics, no. 3/2012.
Sámi Parliament (2004). Samisk fiskerimelding. White paper on Sámi fisheries. Sámi Parliament, Karasjok.
Sen, A. (1999). Development as freedom. Oxford University Press, Oxford.
Smith, C. (1990). Samiske interesser og fiskerireguleringer. Oslo, Det Kongelige fiskeridepartement.
Willmann, R. (2013). A human rights based approach in small-scale fisheries – a quest for development as freedom. Keynote speech at the MARE conference, Amsterdam. http://marecentre.nl/people_and_the_sea_7/
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 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:
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:
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 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:
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)
Rainforest Foundation, Norway
My name is Susan Fay Kelly and I work for Rainforest Foundation Norway. Rainforest Foundation Norway’s mission is to protect the remaining rainforests of the world and secure the human rights of Indigenous peoples and other forest-dependent groups. An understanding of the close relationship between local communities and the forests and its resources must be at the core of any strategy to protect the forests. The World Commission on Forest and Sustainable Development has estimated that 350 million of the world’s poorest people depend almost entirely on forests for subsistence and survival. At least 60 million of the forest peoples are Indigenous. Forest-based Indigenous peoples have strong social, cultural and spiritual bonds to their ancestral territories. If the forests disappear, these people lose not only their livelihoods, but also essential elements of their culture and identity. Indigenous peoples have fundamental rights to their territories, and forest protection strategies must therefore be rights-based.
Moving on, I would like to say that there is a lot of positive wording in the new guidelines developed by the ministry of Foreign Affairs. In the introduction, the former Foreign Ministers of Foreign Affairs and Development state that Norway is to be a promoter and protector of Indigenous peoples rights and Indigenous peoples living conditions all over the world. And the truth is that internationally Norway is indeed a strong promoter of Indigenous peoples’ rights. We hope that the new government will continue with these efforts.
The Rainforest Foundation Norway is happy to say that the Ministry of Foreign Affairs has consulted us during the process of finalizing the guidelines. Our main concern when we saw the new guidelines was the fact that they were supposed to replace the guidelines from 2004 and seemed to be an entirely different kind of document. Where the old guidelines stated strategic and political goals for Norway’s work within the field of Indigenous peoples, the new guidelines were in every respect non-political. Instead, the new guidelines proved to be in large a descriptive document about the human rights system concerning Indigenous peoples.
The Rainforest Foundation Norway had a meeting with the Minister of Foreign Affairs, as well as corresponding with the state-secretary, explaining our concerns that replacing the old guidelines with a non-political document would seem like a weakening of the government’s position on Indigenous peoples’ rights. Luckily, our concerns were understood, and in the introduction to the new guidelines it is now clear that these do not replace the guidelines of 2004, but are in addition, and that the Minister of Foreign Affairs will consider the need for an action plan focusing on Indigenous peoples’ rights after the World Conference on Indigenous peoples in 2014.
The document we now have before us is a good descriptive framework that can work well as a first introduction to Indigenous peoples’ rights. Rainforest Foundation Norway sees the need for such short informative guidelines that raise the awareness and provide direction in the promotion of Indigenous peoples’ rights. In the guidelines, the MFA states, “These guidelines seek to ensure that Norway pursues a coherent, integrated policy that takes into consideration the rights of Indigenous peoples.” However, the new guidelines are first and foremost guidelines for the Ministry of Foreign Affairs and their diplomatic and consular missions, as well as the Norwegian Agency for Development Cooperation, and we fail to see how this document may contribute to ensure the overarching policies of Norway. The field of Indigenous peoples’ rights is much larger than what these guidelines are able to communicate and are able to ensure. The new guidelines include no strategic assessments or signals concerning what Norway will focus on with regards to Indigenous peoples in the future – neither when it comes to financial support, thematic or geographical areas of focus, or areas where there is particular need for efforts. Indigenous peoples’ rights are treated in many different forums and in different arenas and Norway should have a strategy that suggests how the country will focus its efforts. And it is important that such a strategy is created in the not-too- distant future, as the old guidelines are now almost ten years old and a lot has happened within the field of Indigenous peoples rights during the last decade. Thus, Rainforest Foundation Norway would like to take the opportunity to stress the importance of indeed creating a new document that is political and strategic.
Going a bit more into the document, there are mainly two things I’d like to comment upon content wise. One is the checklist. We consider such a checklist a useful tool for the Minister, and not least their diplomatic and consular missions. However, it is not clear to us what happens when someone “checks off” one or more points on this list. Are there any strategies in place that describes what should be done in such a situation, or will it be up to each and everyone to then decide what to do?
The second thing I would like to highlight is the inclusion of a separate part of the guidelines that deals with business and human rights. In our point of view, this is a highly relevant and positive inclusion. In addition to being very informative, this part of the guidelines is more concrete in stating what Norway should do when dealing with Norwegian businesses that operate in countries with Indigenous peoples. The Rainforest Foundation Norway also finds it positive that Norwegian authorities will prepare an action plan that deals with how Norway will follow up the UN Guiding Principles on Business and Human Rights. The newly written report by Mark B. Taylor from Fafo, that will be the foundation on which the action plan is built, draws attention to many interesting aspects on how the different parts of the Norwegian Government ensures that the business sector respects HR. As far as we’ve heard, a first version of the action plan should be ready by the end of this year and we’re very much looking forward to reading it at contributing with our points of view.
With regard to the relationship between Indigenous peoples, business and HR, we also find it extremely positive that the Minister of Foreign Affairs included one important paragraph suggested by us. This is: “If agreement is not reached with the local community, this can lead to protests, demonstrations and/or legal proceedings, and thus to delays and additional costs for the project. If consultations with Indigenous peoples are not carried out, Norway will not support the project in question, and Norwegian companies will be advised to pull out of it.” That the Minister is so clear on this is a strong signal to Norwegian companies that operate in countries with Indigenous peoples, and we would like to commend the Ministry for its strong position on this. We sincerely hope that the action plan will contain similar strong wording.
With the new government, there will be a few changes, as we all know. For instance, Norway’s International Forest and Climate Initiative is being moved from the Ministry of Foreign Affairs to the Ministry of Environment. There might be many good reasons for this, but the Rainforest Foundation Norway would like to stress the importance of factors outside of the mainly climate related ones in the initiative. This means, among other things, to take Indigenous peoples’ rights into consideration in this work. Therefore, it is important that expertise of Indigenous peoples rights also exists in the Ministry of Environment. And in all other Ministries that do work that touch upon fields that are related to Indigenous peoples.
In the governmental platform, the new government has a positive focus on human rights. However, the Rainforest Foundation Norway is worried that this focus is stated to be primarily on civil and political rights. In our point of view, one cannot only focus on one set of human rights. One set of human rights must be understood in the context of other sets. For the most part, each set of rights is dependent on the other. For example, economical and social inequality affects civil and political rights. Class – defined as resources, social status and economy – as well as ethnicity, affects who has access to political and judicial arenas, and thus have their civil and political rights met. The government must also focus on economical, social and cultural rights, and not least: on the collective rights of Indigenous peoples. We hope this is a message Mr. Willie can take home with him from this conference.
Professor Bjørg Evjen
Board member, GÁLDU- Resource Centre for the Rights of Indigenous Peoples, Norway
Firstly, I would like to thank Mr. Petter Wille for introducing the New Guidelines for the Norwegian Foreign Service on the Rights of Indigenous Peoples.
I would also on behalf of Gáldu thank the Ministry of Foreign Affairs for including our Resource Centre for the Rights of Indigenous Peoples during the drafting of these guidelines.
As emphasized by both Mr. Wille and the guidelines themselves; Norway has still an important role to play in the protection and development of Indigenous peoples’ rights worldwide. Knowledge about Indigenous peoples, their situation, their history and their human rights, is of paramount importance for anyone who engages him or herself in international politics, business, or law.
The new guidelines are important, as they stress the need for more knowledge about Indigenous peoples’ rights within the part of the state that deals with international politics and the people that are strongly involved in various forms for diplomatic work, peace dialogue, and development policies. Further, these guidelines express a strong commitment from the Norwegian government to continue to contribute to the promotion of Indigenous peoples and their rights worldwide. We strongly hope that the new government of Norway will follow up this commitment.
The 2007 Declaration on the Rights of Indigenous Peoples is the most recent, most up-to-date internationally accepted document that recognizes Indigenous people’s rights. I am glad that the guidelines have such a clear reference to the UNDRIP, and that the two former ministers, Jonas Gahr Støre and Heikki Holmås, so clearly state that this Declaration must be implemented, both nationally and internationally.
These guidelines are also an example for other states, one might even call this an example of “best practice,” all depending on how the guidelines are being implemented within the Foreign Service and the ministry itself.
For Gáldu, it has been important to give our input for these guidelines, based on the mandate that Gáldu has, which is to, inter alia, strengthen the knowledge about Indigenous peoples’ rights within our own country, but also beyond our national borders. We have stressed the importance of self-determination, prior, informed consent and consultations as a fundamental right for all Indigenous peoples. Although we have not reached all our goals yet, the situation in Norway can serves as a model for other countries.
It is most important that Norway through its Foreign Service ensures that Indigenous rights are taken care of and call attention to the right forums, such as Universal Periodic Review in the UN system.
These are guidelines given by the state, thus they must be understood in a general manner. Nevertheless, it is meant to guide people in meeting with or approaching a different culture or cultures, cultures representing a different view of the world, and with different priorities. Important knowledge could be of a different kind from what we know; and more importantly, what is and what is not legal.
In general, the guidelines could to a greater extent encourage the Foreign Service to have a dialogue with Indigenous peoples and seek their perspectives on their own situations.
A checklist of twenty-two bullet points for the diplomatic and consular missions is intended to help increase awareness of the situation of Indigenous peoples. The answers to these questions will help identify issues and challenges that should be addressed. The answers will also reflect the given situation.
The checklist reveals a thorough understanding of the situation of Indigenous peoples, but with a couple of exceptions. The situation of women is mentioned only once, and in the very last bullet point, (and children are not mentioned at all). However, I must add that women’s situation is included when it comes to consultations; it states that it is important to include Indigenous women in consultations. Many women face double discrimination, both as women in the Indigenous community and as Indigenous people in society at large. The reason for this being mentioned in the very last paragraph could be discussed, but I will not go more into it now. Fine in itself that this is said, and in addition, that the situation of women in our own country could be a mirror to reflect on in other parts of the world. The situation of children is missing.
As to consultations, this is an important means by which Indigenous peoples should be consulted in decision-making, which may affect them directly. This could be an effective tool if the Indigenous people in question is accepted as such and their rights are in place. If not and if the Indigenous people are also not organized, the situation will be different. It should be mentioned that the UN has established more organizations to help implement Indigenous peoples’ rights nationally and internationally, namely, Permanent Forum and the UN Special Rapporteur for Indigenous Rights.
The process of meeting or including Indigenous peoples is more than saying “we see you and want you to sit by the table with us taking part in the consultations.” The multicultural meeting is about communication and sharing a common understanding of the point of departure and the purpose of the meeting. In this it is not sufficient to turn to international declarations or law to pave the way for this to happen.
In the guidelines it reads: “Achieving consent or agreement is not an absolute requirement, but the authorities are to enter into the process in good faith and with the goal of achieving consent or agreement” (p.18).
Gáldu questions if this is a too strongly said, given the differences between states and Indigenous peoples on the matter, and the different cultural understandings that lie behind the differences.
We know the major challenges Indigenous communities are facing due to globalization and increased industrialization of Indigenous peoples traditional territories. Norwegian companies are managing their businesses all over the world, and they also need to be reminded of the obligations they have, not only to comply with national legislation, but also to comply with international human rights law.
We hope that these guidelines within the Foreign Service will strengthen the knowledge and awareness about Indigenous peoples, their way of life and their rights, and that this could also lead to inspiring other ministries to develop their own guidelines for how their representatives should properly interact with Indigenous peoples, representative bodies of Indigenous peoples, and Indigenous communities.
Mr. Petter Wille
Ambassador/Special Envoy of the Norwegian Ministry of Foreign Affairs
It is a pleasure to be here today and to stand behind the Sámi flag; I have had this flag in my office for over ten years.
Last year there was a seminar in Oslo with the purpose to take stock of the developments over the last decade in the UN’s work for Indigenous people. One of the conclusions is that a lot has been achieved and there have been many positive developments. The most important developments when it comes to standard setting is the adoption of the UNDRIP and ILO 169, also the Conventions on the Rights of the Child, which also has a provision on the rights to culture for Indigenous children. In addition to the standard setting, we have also seen that the general attention paid to Indigenous issues has also increased significantly and the UN now has three mechanisms focusing on Indigenous peoples: the Permanent Forum for Indigenous Issues, the Special Rapporteur on Indigenous Issues; and the expert mechanism established by the Human Rights Council. Thirty years ago, there was only a working group in the UN called the Working Group on Indigenous Populations and the old sub-commission on the protection of minorities. Indigenous issues are also on the agenda in climate change negotiations and other international processes, for example forest initiatives, business and human rights. We have come a long way.
In 2014, the UN will hold a high level meeting on the rights of Indigenous peoples. Despite these achievements, we must say that there is no room for complacency. Indigenous peoples are still among the most marginalized populations in many parts of the world. Norway will therefore continue to give a high priority to Indigenous issues. These activities will not only involve the Ministry but also many of our foreign representatives abroad. So this is one of the reasons why we have issued these guidelines and you have now had an opportunity to see them. The guidelines have been sent out and we were lucky enough to get them printed in time to send them here.
These guidelines seek to ensure that Norway pursues a coherent, integrated policy that takes into consideration the rights of Indigenous peoples. Our overall goal is to foster respect for the rights of Indigenous peoples by ensuring that the Norwegian Foreign Service:
The guidelines also have checklists:
The purpose of this list is to help increase awareness of the situation for Indigenous peoples. We often talk about awareness, but when it comes to Indigenous peoples, we know that it is very important because there is so little awareness about Indigenous peoples’ rights. Other questions refer to living conditions and whether they have recognition of cultural and linguistic rights. Other important questions are: How are they organized with regard to the authorities, and what is the situation for Indigenous women?
Like some of you in the audience, I was involved in the drafting of the UNDRIP. When we started with this work in the UN, some states came out and said, “This is not relevant for us because we don’t have Indigenous peoples in our country.” Some countries worked for a definition that would exclude their Indigenous peoples from the definition. We ended up with no definition, which I think was the only viable solution. But it is still important to have some sort of guidance on who we are referring to when we talk about Indigenous peoples.
There is no internationally accepted definition of the term “Indigenous peoples” but in
Article 1b of Convention 169, it states:
This Convention applies to peoples in independent countries who are regarded as Indigenous on account of their descent from the populations which inhabited the country, or a geographical region to which the country belongs, at the time of conquest or colonisation or the establishment of present state boundaries and who, irrespective of their legal status, retain some or all of their own social, economic, cultural and political institutions. (ILO Convention Concerning Indigenous and Tribal Peoples in Independent Countries, no. 169)
Another important part of our work, going back to the 1980s is on standard setting. Standard setting instruments include the following, among others:
Promoting the rights of Indigenous peoples in Norwegian development cooperation will continue to include the following: bilateral cooperation; cooperation through NGOs; multilateral cooperation; and large-scale Norwegian priority initiatives.