The Human Rights of Small-scale Fishers and Indigenous Peoples in Norwegian Fisheries Policies
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.
Small-scale fishers, human rights and Indigenous fishing rights
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.
The human rights based approach to small-scale fisheries
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.
Norway: small-scale fisheries development and Indigenous fishing rights
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.
Increasing Sámi participation and integration in fisheries governance
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.
A lack of fishing rights recognition
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.
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