The Proposed Nordic Saami Convention: National and International Dimensions of Indigenous Property Rights 9781472566379, 9781849462723

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Acknowledgements We gratefully acknowledge the Nordic Council of Ministers for providing funding to support the research and collaboration that led to this volume. In particular, the funding allowed us to host three meetings of the research group in Banff, Alberta, Tromsø, Norway and Rovaniemi, Finland. Many of the administrative chores associated with the project were undertaken by Tanja Joona. Tanja also assumed the local responsibilities associated with the meeting in Rovaniemi, and Christina Allard provided similar assistance for the Tromsø meeting. We thank them both for all of that assistance. We should also like to thank all those, in addition to the contributors to this volume, who participated in the three seminars and who enriched our discussions. And lastly, Tahnee Prior, a student from Waterloo, Ontario, who was an intern at the Northern Institute for Environmental and Minority Law at the Arctic Centre in Rovaniemi during the Fall of 2011, provided a wonderful summary of our discussions at the Rovaniemi meeting and cheerfully and efficiently provided valuable editorial and language-checking assistance in finalising many of the contributions in this volume. Nigel Bankes and Timo Koivurova June 2012 Calgary and Rovaniemi

List of Contributors Christina Allard LLD Post-doctoral, fellow, Faculty of Law, University of Tromsø, and Assistant Professor, Department of Social Science, Luleå University of Technology. Nigel Bankes Professor and Chair in Natural Resources Law, Faculty of Law, University of Calgary, and Adjunct Professor, Faculty of Law, University of Tromsø. Else Grete Broderstad Research fellow in political science within the field of governance and indigenous rights, Centre for Sami Studies, University of Tromsø. Jonnette Watson Hamilton Professor, Faculty of Law, University of Calgary. Leena Heinämäki Research Fellow, Northern Institute for Environmental and Minority Law, Arctic Centre, University of Lapland. Elina Helander-Renvall Senior scientist and director of the Arctic Indigenous Peoples and Sami Research Office, Arctic Centre, University of Lapland. Juha Joona Research Fellow, Northern Institute for Environmental and Minority Law, Arctic Centre, University of Lapland. Tanja Joona Research Fellow, Northern Institute for Environmental and Minority Law, Arctic Centre, University of Lapland. Timo Koivurova Research professor and director, Northern Institute for Environmental and Minority Law, Arctic Centre, University of Lapland. Jennifer Koshan Associate Professor, Faculty of Law, University of Calgary. Sharon Mascher Professor, Faculty of Law, University of Calgary and Honorary Research Fellow, Univesity of Western Australia. Verónica Potes Doctoral candidate, Faculty of Law, University of Calgary. Øyvind Ravna Professor (Dr Juris) of Law, head of the Reaserch Group of Sámi- and Indigenous law, Faculty of Law, University of Tromsø and Editor-in chief of Arctic Review on Law and Politics. Jeremy Webber Canada Research Chair in Law and Society and Director of the Consortium on Democratic Constitutionalism, Faculty of Law, University of Victoria.

Introduction NIGEL BANKES AND TIMO KOIVUROVA

T

HIS VOLUME OF essays is principally concerned with the recognition of the property interests (ownership interests and use rights) of indigenous peoples within the settler State, with some focus on the property interests of the Saami within the three Nordic countries of Norway, Sweden and Finland. The essays are the product of a multi-year collaboration between researchers from Nordic countries and elsewhere, generously supported by the Nordic Council of Ministers.1 The particular impetus for the project came from the ongoing deliberations between the Nordic States and the Saami peoples of those three States on the possible adoption of a Nordic Saami Convention, an international treaty between the Nordic States to be agreed to by the Saami, to provide a framework for the recognition of the Saami as an indigenous people separated by international boundaries. A draft of a proposed Nordic Saami Convention was released in 20052 and negotiations to try to finalise a text resumed in 2011 with a view to concluding an agreement by 2015. This volume seeks to provide a broader context for examining the draft Convention. In addition, the authors of the various chapters identify issues that the negotiators might wish to consider (or re-consider) as they seek to finalise the text. The Saami people are an indigenous people inhabiting northern Norway, Sweden, Finland and the Kola Peninsula in the Russian Federation. Some Saami communities are to be found along the coast (fishing, coastal or sea Saami), while others pursue reindeer herding in forest areas (forest Saami) or migrate with their herds between the mountains and coastal areas (mountain Saami).3 1

For information on the Nordic Council see . Nordisk samekonvensjon: Utkast fra finsk-norsk-svensk-samisk ekspertgruppe (Oslo, Kopi og distribusjonsservice, 2005). Unofficial English translations of the draft Convention are available from the Saami Council website at and in (2007) 3 Journal of Indigenous Peoples Rights 98. The draft Convention was part of a larger report. That entire report has not been made available in translation but some parts have. Eg, Annex III to the report dealing with the Saami right of self-determination is available as J Henriksen, M Scheinin and M Åhrén, ‘The Saami People’s Right to Self-Determination’ (2007) 3 Journal of Indigenous Peoples Rights 52. 3 M Ahrén, ‘Indigenous Peoples’ Culture, Customs, and Traditions and Customary Law— The Saami People’s Perspective’ (2004) 21 Arizona Journal of International & Comparative 2

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As James Anaya, the United Nations Special Rapporteur on the rights of indigenous peoples, recognises, the Saami are traditionally organised around the siida,4 that is a local organization that plays an important role in the distribution of lands, water and natural resources. Within the siida, members had individual rights to resources but helped each other with the management of reindeer herds, hunting and fishing. On the basis of these structures, the Sami developed sophisticated systems for land distribution, inheritance and dispute resolution among siida. Although historical developments have weakened the Sami people’s traditional patterns of association, the siida system continues to be an important part of Sami society.

Divided by international boundaries, and with the mountain Saami following the regular seasonal migration of their herds, the Saami of these four States have long been the subject of bilateral international treaties dealing with the terms on which they can move across the landscape with their herds. The most famous of these agreements is the so-called Lapp Codicil of 1751, annexed to the Strömstad Treaty between Denmark (Norway) and Sweden (Finland).5 Thus the Saami have long been objects of international law. Broderstad, in chapter six of this volume, provides an account of the evolving nature of treaty relations between Norway and Sweden dealing with Saami reindeer-herding rights. But could the Saami also be subjects of international law in the sense of participating in generating the legal norms that apply to them, in the same way that States, as subjects of international law, generate both treaty norms and norms of customary international law? In the mid-1980s, the Saami Council, an umbrella organisation of the Saami organisations of Norway, Sweden, Finland and Russia, proposed that the four States along with the Saami should develop a Saami Convention to address the situation of the Saami as an indigenous people divided by international boundaries. The Nordic Council took up this idea in 1995 and appointed a committee to review the issue. The committee recommended that the governments proceed by establishing an Expert Group. They did so, establishing such a group in 2002 comprising one member appointed by each of the three States and one member appointed by each of the three Saami parliaments

Law 63, 65–66; Report of the Special Rapporteur, James Anaya, on the rights of indigenous peoples on the situation of the Sami in the Sápmi region of Norway, Sweden and Finland, A/HRC/18/35/Add.2, 6 June 2011, para 5. 4

Anaya, above n 3, para 6. JG Elbo, ‘Lapp reindeer movements across the frontiers of northern Scandinavia’ (1952) 6 Polar Record 348. There is an English translation of the Codicil available on the website of the Arctic Centre at . 5

Introduction 3 of the three States.6 The Expert Group presented its consensus report, comprising a draft text and a commentary, to the three governments and the Saami parliaments in November 2005. The proposed text has four official languages (Finnish, Norwegian, Swedish and Saami). An unofficial English translation has also been made available.7 In addition to a Preamble, the draft comprises seven chapters or groups of articles as follows: —

— — — — —

—

Chapter I, the general rights of the Saami people (including clauses addressing the right of self-determination and non-discrimination, as well as a clause dealing with the recognition of Saami legal customs) Chapter II, Saami governance Chapter III, Saami language and culture Chapter IV, Saami right to land and water Chapter V, Saami livelihoods (with specific clauses dealing with reindeer husbandry) Chapter VI, the implementation and development of the Convention (including clauses dealing with an implementation committee, as well as an article (Article 46) requiring the State Parties to make the provisions of the Convention directly applicable as national law) Chapter VII, final provisions (dealing with entry into force, etc, but with two unusual provisions stipulating that the Convention should be submitted to the three Saami parliaments for approval and that ratification may not occur unless and until the three Saami parliaments have approved the text).

Each of the three States subsequently appointed a committee or similar body to prepare an assessment of the draft Convention. Those assessments focused on the extent to which the provisions of the Convention codify or go beyond the obligations of States as a matter of customary international law, and the extent to which domestic legislation and practices might have to be changed to accommodate the provisions of the draft Convention were

6 The Saami parliaments are unique Saami representative bodies in the three States. Anaya (above n 3, para 37) refers to them as principal vehicles for Saami self-determination. It will be observed that the three Nordic States and the Saami elected to proceed without involving Russia. T Koivurova, ‘The Draft for a Nordic Saami Convention’(2008) 6 European Yearbook of Minority Issues 103, 109, explains that the involvement of Russia was simply too difficult given Russia’s general stance in relation to the recognition of indigenous people in UN fora and the reality that there are numerous indigenous peoples in Russia, making it difficult for the Russian Federation to become a party to an international convention focusing on the rights of the Saami. On the Nordic Saami parliaments, see K Myntti, ‘The Nordic Saami Parliaments’ in P Aikio and M Scheinin (eds), Operationalizing the Right of Indigenous Peoples to SelfDetermination (Institute for Human Rights, Åbo Akademi University, 2000) 203–21. 7 Above n 2.

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it to enter into force.8 The three States indicated in September 2007 that they were prepared to enter into negotiations based on the draft text, and held the first negotiating session in March 2011. Of the three States only Norway is a party to Convention No 169 of the International Labour Organisation Concerning Indigenous and Tribal Peoples in Independent Countries (‘ILO 169’).9 Both Sweden and Finland have considered ratifying the Convention, but one of the key obstacles for both States has been a concern about the interpretation and implementation of the land and resource provisions of the Convention (Articles 13–19), and the changes that the Convention might require in domestic law and practice. Some of the implications of becoming a party are well developed by Hans Petter Graver and Geir Ulfstein in an opinion prepared for the Norwegian Parliament (the Storting), in which they assess whether the draft Finnmark legislation satisfied Norway’s international obligations under both the International Covenant on Civil and Political Rights10 and ILO 169.11 Given this background, it is hardly surprising that the members of the Expert Group found it particularly difficult to reach consensus on the land and resource provisions of the draft Convention.12 However, the Group did reach agreement (although the Finnish Government appointees— each member had a substitute—to the Group indicated in a covering letter that it was only with difficulty that they had been able to accept some of the provisions of the draft, including the Land and Resource provisions of Chapter IV). Chapter IV comprises seven articles (Articles 34–40). Article 34 deals with the recognition of Saami ownership and use rights, while Article 35 deals with the protection of those rights. Articles 36 and 37 may also be paired together: Article 36 deals with the utilisation of natural resources, and Article 37 with Saami rights to compensation and profit sharing as a result of resource exploitation. Article 38 extends the provisions on ownership, protection and resources to fjords and coastal areas, and has a

8 The committee reports were all prepared in the respective national languages of the three States. The authors of the different chapters in this volume benefited from being able to review unofficial translations prepared as follows: the Finnish report (translation prepared by Timo Koivurova, Leena Heinämäki and Tanja Joona); the Norwegian report (translation of Final Remarks prepared by Susann Skogvang); a summary of the Swedish report (translation provided by Christina Allard). 9 International Labour Organisation Convention (No 169) concerning Indigenous and Tribal Peoples in Independent Countries, Geneva (adopted 25 June 1989 and entered into force 5 September 1991) (1989) 28 International Legal Materials 1382. Indeed, Norway was the first country to ratify. 10 16 December 1966, 999 UNTS 171. 11 HP Graver and G Ulftstein, ‘The Sami People’s Right to Land In Norway’ (2004) 11 International Journal on Minority and Group Rights 337. 12 M Åhrén, ‘The Saami Convention’ (2007) 3 Gáldu C ˇ ála—Journal of Indigenous Peoples Rights 8, 27. Åhrén was the nominee of the Swedish Saami parliament on the Expert Group.

Introduction 5 special clause dealing with access to quota resources. The final two articles are also linked in so far as they recognise the right of the Saami parliaments to be engaged in the co-determination of the lands and resources of traditional use areas (Article 39) and environmental management of these areas (Article 40).13 Of course these are not the only provisions of the draft Convention that have a bearing on the land and resource interests of the Saami people. As subsequent essays in this volume will show, other related and crucially important provisions of the draft include certain provisions of the preamble that emphasise the foundational importance of land and waters for Saami culture. Thus Article 3 acknowledges the Saami right to self-determination (addressed in this volume by both Koivurova and Heinämäki); Article 4 identifies the rights-holders, ie those covered by the Convention (addressed in this volume by J Joona and T Joona); Article 9, deals with the recognition of Saami legal customs (addressed here in the chapters by Ravna and Helander-Renvall); Article 16 the involvement of Saami parliaments in matters of importance (also addressed by Heinämäki); and Part V of the Convention dealing with Saami livelihoods and especially reindeer husbandry (addressed by both Ravna and Allard). The discussion of the draft Convention serves as the backdrop to the current volume. It confirms the importance of land and resource rights for indigenous people, and it also confirms that the recognition of these rights by the settler State may prove to be very contentious. But, difficult as these issues are, it is apparent that they must be resolved to the satisfaction of all concerned—the three States and the Saami—if the Convention is to be concluded and ratified. This volume is divided into four parts. Part One serves to place discussion of the recognition of indigenous property rights by settler States within a broader international and theoretical context. Part Two of the volume locates the draft Convention in the context of international law, while Part Three examines aspects of the status of Saami land rights within each of the Nordic States. Part Four concludes the volume with a series of comparative essays examining the treatment of indigenous property rights within different settler States, as well as an essay dealing with gender equality issues in the context of the recognition of indigenous rights. Part One comprises essays by Nigel Bankes and Jonnette Watson Hamilton (both from Calgary, Canada) and Jeremy Webber (Victoria, Canada). Bankes’ essay leads off the volume by examining the different justifications that have been offered for recognising the property interests of indigenous peoples within settler societies. Bankes identifies three lines 13 For a more detailed analysis of these provisions, see Åhrén, ibid, 26–30; and N Bankes, ‘Indigenous Land and Resource Rights in the Jurisprudence of the Inter-American Court of Human Rights: Comparisons with the Draft Nordic Saami Convention’ (2011) 54 German Yearbook of International Law 231.

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of argument. One, drawing on the doctrinal content of domestic laws of the settler State, offers three distinct reasons why the settler State should recognise the property rights of indigenous peoples. One reason begins with the observation that indigenous communities governed themselves in accordance with their own laws before the acquisition of sovereignty by the settler State. Those laws survived the acquisition of sovereignty unless expressly erased by the new sovereign, and thus indigenous property interests established in accordance with those laws continue and should be recognised by the settler State. Another justification starts with the proposition that all legal systems recognise that actual occupation of lands provides a basis for the acquisition of rights by virtue of legally-recognised possession leading to title. All that is necessary in order to recognise an indigenous property interest in the settler State is to apply the norms of the settler State in a nondiscriminatory way to the occupation of territory by indigenous people. A third justification has emerged more recently, suggesting that neither of the previous justifications is entirely convincing, and proposing instead a sui generis approach, drawing on the relationship between the settler State and indigenous societies, and thus the idea of inter-societal law. A second line of argument in the literature seeks to justify the recognition of aboriginal property interests by drawing upon the doctrinal categories of international human rights law. The arguments here are wide-ranging and draw upon a number of different human rights norms, including the right to self-determination and the right of a people not to be deprived of their means of subsistence, the right to equality and the correlative duty of nondiscrimination, and the right to culture and, through that, the right to be connected to traditional territory. A third line of argument emerges from the writings of political theorists such as James Tully. The argument here is that settler societies should recognise indigenous property interests principally on the ground that indigenous communities never consented to the alienation of their traditional territories. Bankes concludes his chapter by addressing the right to restitution for past dispossessions. It is one thing to argue that a settler State has a continuing duty to recognise the property interests of indigenous communities if they have never been dispossessed of their lands, or if title to the lands is vested in the State or an entity of the State, but it is not so obvious that the duty to recognise indigenous property interests carries over to the situation where the lands and territories in question are held by settlers, and perhaps have been for generations, as a result of historic acts of dispossession. Watson Hamilton’s contribution ‘Acknowledging and Accommodating Legal Pluralism: An Application to the Draft Nordic Saami Convention’, endeavours to set the draft Convention within the broader context of legal pluralism (multiple legal orders within a given social space), and in doing so situates legal pluralism within the normative theories of recognition, reconciliation and transitional justice. Watson Hamilton describes three waves

Introduction 7 of legal pluralism and engages with the question of how multiple legal orders, including those of the indigenous community, the settler State and international law, ‘fit together’. Recognition and reconciliation are both terms that are widely used to describe the emerging relationships between settler societies and indigenous peoples, but, as Watson Hamilton notes, both terms are freighted with different meanings. Thus, for some, recognition by the State of indigenous status is a hegemonic act by the settler State, more concerned with self-legitimation than the legitimation of the other. Reconciliation may be process-orientated or outcome-orientated, with outcome-orientated versions of reconciliation ranging from peaceful coexistence to a shared comprehensive vision. The latter, however, suggests a ‘prior social unity’ which may be fictional. Western liberal democracies are less comfortable using the language of ‘transitional justice’ in describing emerging relationships with indigenous peoples because of the term’s associations with regime changes and gross human rights violations, but it may provide a useful vocabulary both to acknowledge the past and to construct a shared future. Whatever conceptual framework is adopted, legal pluralism is a crucial component of recognising the existence of partially autonomous societies; and pluralism requires that we consider the relationship (interlegality) between these different orders. Is the relationship hierarchical, or is it respectful of autonomy? In considering this question Watson Hamilton draws important insights from the literature and applies them to the draft Convention. She suggests that the draft Convention does not offer a consistent view of interlegality. Some of the provisions privilege Saami norms (especially Article 43 acknowledging an important role for agreements between reindeer-grazing communities) and create space for autonomy (Article 3 on self-determination), while other provisions seem less deferential to those norms (eg the due regard and due respect language found in a number of provisions, including Articles 9, 34 and 38). Jeremy Webber continues the discussion of legal pluralism in his contribution on the ‘Public-Law Dimension of Indigenous Property Rights’. Webber emphasises that indigenous property rights can never be severed from the legal and political orders that created them. ‘Legal pluralism,’ he suggests, ‘is intrinsically bound up with institutional pluralism’. Thus the recognition of indigenous property interests is inevitably also a recognition of an indigenous normative order.14 Webber demonstrates this by referring to a number of examples, including decisions as to who has the right to use certain lands and resource sites and how we determine who might 14 And see K McNeil, ‘Judicial Approaches to Self-Government since Calder: Searching for Doctrinal Coherence’ in H Foster, H Raven and J Webber (eds), Let Right Be Done: Aboriginal Title, the Calder Case, and the Future of Indigenous Rights (Vancouver, UBC Press, 2007) 128, 130–31; and John Borrows, ‘Let Obligations be done’, ibid, 201, 209.

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be the current ‘owners’ of traditional lands. Inevitably, in answering these questions, we must turn to the normative order of the indigenous society. Those norms may be allusive and flexible but they are still norms, and they provide important mechanisms of change for indigenous societies. For Webber, then, the division between public law and private law is a false dichotomy, nothing more than an artefact of our construction of legal categories.15 And this is true not only of property as a legal institution, but also of other well-known institutions which we often label ‘private’. These institutions include the corporation, forms of co-ownership, the trust and the condominium. One of the implications of all of this in the present context is the suggestion that we should be careful, when recognising indigenous title, not to erase these underlying normative orders by using institutions such as land corporations and land trusts transplanted from the legal system of the settler State. There is a risk if we do so that such institutions will focus on accountability to others (eg governments), and on discharging private and proprietary roles rather than broader governmental roles. This theme reemerges later in the volume in the essays by Mascher and Bankes. Part Two of the volume sets the draft Nordic Saami Convention in the broader context of international human rights law and the transnational characteristics of the Saami people, with essays by Timo Koivurova and Leena Heinämäki (both from Rovaniemi, Finland) and Else Grete Broderstad from Tromsø, Norway. In his essay, entitled ‘Can Saami Transnational Indigenous Peoples Exercise Their Self-Determination in a World of Sovereign States?’, Koivurova traces the development of the right of self-determination in international law from the classical period of decolonisation following World War II and the adoption of common Article 1 of the two international human rights Covenants in 1966, through to the adoption of the UN Declaration on the Rights of Indigenous Peoples by the General Assembly of the United Nations in 2007.16 He suggests that the compromises adopted in moving the Declaration through its final stages (from approval by the Human Rights Council to adoption by the General Assembly) mean that self-determination for indigenous peoples must be achieved internally rather than externally. That said, this conclusion still needs to be read in the context of common Article 1 of the Covenants.17 It is widely recognised that the realisation of the right of self-determination is particularly challenging for transnational peoples. This was understood 15 See also in this context the distinction between dominium (ownership) and imperium (sovereignty), a distinction which McHugh suggests is simply a fusty distinction of western lawyers which makes little sense to others, including not only indigenous people but also political theorists: PG McHugh, Aboriginal Title: The Modern Jurisprudence of Tribal Rights (Oxford, Oxford University Press, 2009) 334–35. 16 UN General Assembly, United Nations Declaration on the Rights of Indigenous Peoples, 2 October 2007, A/RES/61/295. 17 And see to the same effect, Anaya, above n 3, paras 32–33.

Introduction 9 during the classical period of decolonisation; the doctrine of uti possidetis was developed, as Koivurova emphasises, to ensure that self-determination was realised within the boundaries of the colonial State and was not used to dismantle those boundaries. The UN Declaration largely confirms this approach in the context of indigenous peoples with its concluding provision on territorial integrity. Furthermore, the only provision of the Draft (Article 36) which addresses the situation of transnational peoples is limited to facilitating contacts between a people separated by an international boundary rather than, as Koivurova puts it, encouraging them to unite.18 Seen in this context, the draft Nordic Saami Convention is a considerable achievement since it celebrates the Saami as a transnational people and develops a vision in which it is possible to conceive of four nations co-existing within the physical space and territories of three States. There is a caution, however, in Koivurova’s remarks; the draft is still a draft, and Finland in particular seems to regard the current articulation of the right to self-determination in Article 3 of the draft as too ambitious and going beyond what is required by international law. Koivurova’s concluding statement provides a natural segue to Leena Heinämäki’s contribution, which deals with questions both of international law and of Finnish domestic law. Heinämäki examines the claim that the terms of the draft Convention go beyond Finland’s current international commitments and as such require changes to domestic law. In this context Heinämäki discusses two central questions. The first relates to the expression of the right of self-determination in the draft Convention, and the second relates to the treatment of indigenous consent. In both cases she concludes that the draft Convention does not go beyond current requirements of international law, or at least not beyond the requirements of the UN Declaration. As to the right to self-determination, Heinämäki concludes that the way in which the right is expressed in the draft Convention is sui generis (in much the same way as some—eg Koivurova—argue that the reference to selfdetermination in the UN Declaration is sui generis, since, as Koivurova points out, it is qualified by the context in which it is expressed, ie the compromise provisions that Koivurova discusses in his chapter), especially in so far as it fails to mention the right of the Saami freely to determine their political status, a key element of common Article 1 of the Covenants. As to the issue of consent, and, in particular the idea of prior informed consent, Heinämäki suggests that international law already requires not just consultation but also consent, at least in those circumstances in which government action may cause significant harm to Saami interests. Heinämäki finds support for this conclusion not only in the jurisprudence of the Inter-

18 The Declaration, Art 36. Anaya highlighted Art 36 in the introduction to his report on the situation of Saami people, ibid.

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American Court of Human Rights, but also in the decisions of the Human Rights Committee under Article 27 of the International Covenant on Civil and Political Rights (ICCPR), and especially its Poma Poma decision.19 Else Grete Broderstad’s essay on cross-border reindeer husbandry, subtitled ‘Between Ancient Usage Rights and State Sovereignty’, explores the negotiations between Norway and Sweden concerning cross-border reindeer husbandry. While focusing on the current round of negotiations, Broderstad also sketches the history of these negotiations from the Lapp Codicil of 1751 forward. The current round concluded in 2009 with a signed treaty, but the treaty has still to be ratified, giving rise to a set of questions as to why these negotiations have proven to be so difficult. In responding, Broderstad offers two alternative framings to explain the difficulties. One framing is a norm-based model in which cross-border reindeer herding is seen to be based on a set of rights going back to the Lapp Codicil. This is complicated by competing norms based on national citizenship, which leads to a collision of norms. A second framing is an interest-based model which recognises that cross-border reindeer herding has elements of a zerosum game in which Swedish and Norwegian Saami are competing for a limited grazing area and national governments respond to their domestic constituents in the resulting distributive bargaining. Seen within this context, the Lapp Codicil, celebrated as an international instrument that recognises Saami rights (the Saami Magna Carta), is also an important source of tension between Norway and Sweden in so far as, from Norway’s perspective, it represents a relic of a colonial past which created an on-going Swedish servitude over Norwegian territory. This leads Norway to seek to move beyond the rights-based claims of the Codicil and to favour more politically appropriate solutions that respond to the interests of the main domestic reindeer-herding association. Sweden remains reluctant to abandon the rights-based position grounded in the Codicil, while recognising that the procedures that it embodies are perhaps not workable. There are at least two important elements of the current unratified agreement, which are also reflected in the draft Nordic Saami Convention. First, the agreement contemplates the creation of two committees, both of which will be comprised of herders. Second, both instruments emphasise the importance of agreements between herders on both sides of the boundary, and indeed the draft Convention privileges these agreements in the event of any conflict. Broderstad emphasises the importance of appropriate procedures and institutions in situations where norms conflict. Part Three of the volume examines issues of Saami land and reindeergrazing rights in each of the three Nordic States: Øyvind Ravna (from

19 Poma Poma v Peru (27 March 2009), UN Human Rights Committee, Communication No 1457/2006, Doc CCPR/C/95/D/1457/2006.

Introduction 11 Tromsø, Norway) looks at the position in Norway, Christina Allard (from Tromsø, Norway and Luleå, Sweden) examines the situation in Sweden and Juha Joona (Rovaniemi, Finland) looks at the complex historical position in Finland. Two other essays complement the national coverage provided by Ravna, Allard and Joona. Thus, Tanja Joona (Rovaniemi, Finland) examines the definitional issues associated with Saami status and the related right to be included within the ambit of the Convention, while Elina Helander-Renvall (also Rovaniemi, Finland) emphasises the need for pluralistic approaches that recognise the importance of Saami customary norms as well as State norms. Although focusing on Norway, Ravna’s contribution deals at both the theoretical and practical levels with the important question of how indigenous people go about establishing title and use rights to their lands. This is often challenging, since indigenous peoples use land in ways different from the people of settler societies, and may not leave many visible traces on the landscape. If the indigenous culture is an oral culture, such records as exist will be the written records of the settler society, and ownership and land rights cases will be litigated in the courts of the settler society using the rules of evidence of that society. These rules have developed in light of the land use patterns and needs of the settlers, rather than the land use patterns and needs (economic and cultural) of the indigenous community. Ravna shows how Norwegian law has evolved in response to these challenges in the last couple of decades, both through important decisions (notably the Selbu and Svartskog cases)20 and through an important amendment to the Reindeer Husbandry Act in 1996. This amendment reversed the onus of proof, making it necessary for landowners to prove that there is no right to herd in outlying fields included in a designated reindeer-husbandry area. These important developments in Norwegian law were influenced by Norway’s ratification of ILO 169, but they have in turn influenced the development of the draft Nordic Saami Convention. Thus, as Ravna points out, Article 34 of the draft, drawing directly on the Norwegian jurisprudence, requires that the national legal system must be sensitive to the reality ‘that Saami land and water usage often does not leave permanent traces in the environment’. There are also signs, as both Ravna and Allard recognise, that the Norwegian case law is having some influence on the Swedish courts, most notably in the recent Nordmaling case.

20 McHugh, above n15, writing principally about Anglo settler colonies, has emphasised the important role that judicial decisions (he terms them ‘breakthrough cases’) can play in the national recognition of indigenous title. McHugh discusses the significance of the Norwegian cases briefly, ibid, 213–17. But while emphasising the importance of case law in making the ‘breakthrough’, McHugh also acknowledges that any follow-up may require further legislative or constitutional enactments (eg ibid, 310). In this respect Ravna and McHugh share common ground.

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In examining Swedish law dealing with issues of Saami title and use rights, Allard focuses on the question: ‘Who holds the reindeer herding right in Sweden?’ Allard suggests that the treatment of this topic in Swedish law is conceptually complicated but also confused and highly problematic. The issue is complicated because the positive law, the Reindeer Herding Act, vests the reindeer-herding right in the Saami people collectively but then goes on to say that the right to herd reindeer may be exercised only by a member of a Saami village. The treatment of the topic is conceptually confused since the current legislation provides that the right which is vested in the Saami collectively is founded on immemorial prescription. This hardly seems realistic. It is one thing to say that a particular Saami village may establish a right by immemorial prescription, but quite another to say that such right vests in all Saami. According to Allard, some of the reasons for the conceptual confusion may be traced back to a view of Saami as a primitive people roaming generally about the landscape with little organisation and no internal divisions of lands. The practical difficulties with these arrangements arise when we start to pose questions such as who has standing to complain about an infringement of the right, and who has the duty to compensate in the event that herding activities cause damage to landowners. The doctrine of immemorial prescription is still important, however, since it underlines the point that the reindeer-herding right has an independent legal basis and does not depend on statute. This is crucial in terms of the legal status of the right, since a right based on immemorial prescription is a civil law right much like any other property right, whereas an entitlement based simply on the statute is more vulnerable and affords the State (including the Saami parliament) a larger degree of discretion in dealing with such an interest. In sum, Allard offers a number of reasons for suggesting why it might be important to re-think the subject of the reindeer-herding right. In doing so, she suggests that it would be more logical to attribute the right to the Saami village or a smaller group within the village (a siida). This would also bring Swedish law and practice closer to that of Norway, which interprets similar provisions vesting the reindeer-herding right in the Saami far less literally. Some convergence in Nordic law on these issues would be consistent with the sentiment expressed in the draft Nordic Saami Convention for harmonisation of rights regardless of the international boundaries. In considering the position of Saami land rights in Finland, Juha Joona takes an historical approach to the pattern of settlement in northern Finland, largely in order to assess whether the national definition of Saami (in Finland), combined with the definition of the rights-bearer in the Convention (which has a significant twist in relation to Finland), is sensitive to the historical record. In doing so Joona identifies a significant problem associated with Article 4 of the draft Convention which deals with the question of

Introduction 13 to whom the Convention applies. As drafted, the Article creates a number of alternative possibilities by which a person may become a subject of the Convention, including a language qualification and a voting qualification. However, one of the possible qualifying criteria, the criterion relating to the pursuit of Saami reindeer husbandry, applies only to those pursuing reindeer husbandry in Norway or Sweden—not Finland. Joona suggests that the resulting definition, in conjunction with the way in which the Finnish statutory definition of Saami has evolved over the last 40 years, creates the potential for serious injustice to the original Saami inhabitants of northern Finland, the Forest Lapps. In order to demonstrate the problem, Joona traces the pattern of settlement in central and northern Finland, drawing attention to three developments. The first development is the incursion of settlers into Saami areas at the end of the seventeenth century. This wave of settlement served to dispossess the Forest Lapps of much of their lands and resources. At the same time, the settlers sought to stamp out the use of the Saami language. A second development was the migration of Mountain Lapps from Norway into the area, along with their large reindeer herds, during the first part of the nineteenth century. This development created additional competition for land and resources for the original Forest Lapps. The third and more contemporary development refers to the measures taken to develop a definition of Saami in Finland beginning in the 1970s. These efforts focused on language rather than livelihood. Joona contends that this approach tended to favour Mountain Lapps (who were more likely to have retained language) and to exclude Forest Lapps. As the original inhabitants, the Forest Lapps not only suffered more at the hands of original settlers, but they were also more likely to have lost their language, both because of the longer passage of time and because they were victimised for speaking the language. As a result, Joona suggests that Article 4 of the draft Convention, as well as Finnish domestic laws and policies, need to be revised to ensure that the draft Convention does not further perpetuate and validate a past injustice. Tanja Joona’s contribution, entitled ‘The Subjects of the Draft Nordic Saami Convention’, is, in many respects, a companion piece to Juha Joona’s chapter. She too focuses on Article 4 of the draft Convention and Finnish practice in defining Saami, but her approach is less historical. Instead, Tanja Joona works with what she identifies as a paradox or inconsistency within the draft Nordic Saami Convention. This inconsistency in her view arises from the tension between the emphasis in the draft on the unity of the Saami people, the importance of developing a unified legal approach to Saami in each of the three countries and the insistence that the border should not be seen as an obstacle, and yet, at the same time, deferring to the authority of each of the three States in critical ways to determine the scope of application of the Convention through the language of Article 4. As noted above, Article 4 prescribes four ways in which a person may

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qualify as a rights-bearer under the Convention: the first criterion is language; the second criterion rests on having ‘a right to pursue Saami reindeer husbandry’, but only in Norway and Sweden (not Finland); the third criterion rests on eligibility to vote in elections to the Saami parliaments in each of the three States; while the fourth rests on descent from any of the above. The State plays a distinctive role in operationalising each of these criteria, even in the case of language, where, as both Tanja Joona and Juha Joona point out, the State (as is the case in relation to many indigenous peoples around the world) plays and has played a crucial role in validating (as in official language status) or denigrating (punishing those who speak the language) the indigenous language. Tanja Joona concludes her chapter with a specific proposal for the amendment of Article 4. Elina Helander-Renvall’s is the last essay in this part of the volume. Helander-Renvall’s essay examines Saami customary law, focusing on research carried out in Tana, in Eastern Finnmark in northern Norway. Her chapter examines customary norms in relation to reindeer herding, ptarmigan trapping, fishing and the gathering of cloudberries. Drawing on a number of different definitions of customary law generated by both anthropologists and lawyers, and working with ideas of pluralism and multiple systems of ordering, she is able to describe a number of customary rules regarding the use of lands and resources which were still prevailing at the time of her research. These rules included the idea that villages, and within the villages families and family groups, have their own specific areas of use. Such ‘ownership’ rights might be modified where one family ceases to use a particular area, but also by ‘having friends’ which might allow a person temporarily to use another’s territory for hunting or fishing where necessary because of, for example, water conditions or ptarmigan movements. In this sense, the customary norms are dynamic, flexible and adaptable. In some cases this may cause a conflict between the positive law of the State which, for example, divides a river into fishing zones and assigns the right to fish in particular zones, and the customary norms which permit the visiting right described above. Helander-Renvall cautions that we need to be careful not to lose what is important about customary law through a process of State recognition, although she emphasises that an increased recognition of customary law is consistent with national and international policies favouring greater autonomy for indigenous societies. If Part One of the volume provides one part of the context (the conceptual and theoretical) for thinking about the draft Nordic Saami Convention, Part Four provides another part of that context with a series of three chapters on developments in relation to indigenous land rights in three different parts of the world: Ecuador and Peru (Verónica Potes, Quito, Ecuador), Australia (Sharon Mascher, Perth, Australia and Kamloops, Canada) and Canada (Nigel Bankes), as well as a chapter that considers the manner in

Introduction 15 which different instruments, including the draft Convention, deal with the equality rights of indigenous women (Jennifer Koshan, Calgary, Canada). Potes’ chapter broadens the context both geographically and conceptually. Geographically, Potes’ contribution focuses on the situation of indigenous peoples in South America, a region with a strong level of participation in ILO 169, and more specifically on the situation of the Achuar people, divided, like the Saami, by an international boundary, in this case the boundary between Ecuador and Peru. Conceptually, however, what distinguishes this chapter is the introduction of the idea of the settler State as a ‘plurinational State’. This term, first introduced into the Ecuadorian Constitution in 2008, reaches beyond the more conceptually limited terms ‘pluricultural’ and ‘multiethnic’ found in the earlier constitutional reforms of 1996. While the concept of the plurinational State seems to have considerable potential to decolonise power and inter-societal relations, and to replace a vertical order of domination by the settler society of the indigenous society with a more horizontal relationship, Potes, like Heinämäki in relation to the right of self-determination, is concerned to inquire into the practical effect of plurinationality, especially in relation to two dimensions: control over land and resources, and political autonomy. Her overall conclusion is that the promise of plurinationality has yet to be realised, especially within these two dimensions. This is because the State is reluctant to cede control over natural resources, especially non-renewable natural resources. Furthermore, it has proven difficult for the Achuar to take advantage of the various governmental models for achieving autonomy that are recognised in the constitution. This conclusion serves to emphasise that constitutional recognition of indigenous land and resource interests, or even more so perhaps, that recognition by an international instrument, is not itself enough; it is implementation that counts, and in the task of implementation the devil may well lie in the details. Mascher’s contribution examines ‘The Australian Approach to Recognising the Land Rights of Indigenous Peoples’. Mascher’s essay begins with the pivotal, paradigm-shifting, aboriginal land rights decision of the High Court of Australia known as Mabo No 2, before turning to the legislative response of the Australian Commonwealth Government through the enactment and subsequent amendment of the Native Title Act (NTA) 1993. Mascher points out that the legislation had multiple objectives, only one of which was to provide for the recognition and protection of native title following Mabo. Other objectives aimed at creating certainty of title for non-aboriginal interests and at providing a legal mechanism for determining which activities (‘future acts’) would still be allowed to occur on aboriginal lands. Thus, while the legislation has achieved some success and has resulted in the titling of significant areas of aboriginal lands, it has also been subject to significant criticism.

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The principal responsibility for titling aboriginal lands in Australia rests with the National Native Title Tribunal, secondarily with the Federal Court. Thus, to the extent that the scheme emphasises tribunal determinations rather than negotiated agreements, it shares something in common with the procedure adopted in Norway’s Finnmark Act for the recognition of the property interests of the Saami and others in Finnmark. Mascher’s analysis of the implementation of the legislation and the literature on the NTA allows her to offer some useful comparative comments in relation to the draft Convention. The first relates to the right to negotiate/consent in relation to future resource activities on indigenous lands, a concept which is reflected in the NTA, the draft Convention (Articles 16 and 36) and in somewhat different terms in the United Nations Declaration (see Articles 19, 30 and 32, and also Heinämäki’s essay in chapter five of this volume). Mascher’s main point here is that the generalised injunction to negotiate in Australia has proven to be amorphous and difficult to enforce, thus leading her to suggest that it would be useful to particularise these requirements in the draft Convention. A second comment is that the NTA has proven to be as much concerned with property certainty for non-indigenous Australians as for (if not more than) indigenous Australians. Here Mascher comments that the same may not be true in the Nordic States, noting (and here following Ravna) that the Norwegian Government and courts in particular have been willing to accord the necessary certainty by shifting the onus of proof, at least in relation to reindeer husbandry rights. However, Mascher does offer the caution that the rather general ‘due regard’ language of Article 34 may not create the desired certainty for all interests. A third comment relates to the tendency of the Australian courts to fragment the conceptualisation of native title by focusing too rigidly on the language of the NTA, thereby losing in translation not only the full scope of a native title but also the broader connections between native title and the common law (as opposed to statutory) recognition of native title. But here again Mascher suggests that the language of the draft Convention and the leading role played by the Norwegian legislature and courts suggests that this may not prove to be a problem in the Nordic States. Bankes’ chapter also examines some of the implementation issues associated with State recognition of indigenous titles. Just as Mascher notes that State recognition might be quite limited and fragmented, and comes on terms and conditions in Australia, and just as Tanja Joona draws attention to the importance of defining the rights-bearer in the context of both national legislation and the draft Convention, Bankes examines similar issues in the context of modern land claim agreements in Canada. In doing so, Bankes also examines the debate that exists in the literature with respect to the titling of indigenous lands. Much of that debate has been triggered by the writings of de Soto, who, at least in the context of developing countries, has famously argued that informal, communal approaches to holding

Introduction 17 land preclude access to capital and likely condemn the owners to poverty and under-development. On the other hand, others argue that the titling of land will lead to its commodification, potentially contrary to indigenous values, and may lead to the loss of an irreplaceable land base. Closely associated with this debate in the context of Anglo-imperial policies is the long-standing government policy of providing that indigenous lands are inalienable except to the government. Seen against this backdrop, Bankes examines how land ownership issues are dealt with in land claim agreements in Canada. Unlike other related instruments, such as ILO 169 and the UN Declaration, as well as some national constitutions, the draft Nordic Saami Convention has little to say about the rights of indigenous women other than to recognise in the preamble that ‘increased consideration shall be given to the role of women’. Koshan’s contribution, ‘The Nordic Saami Convention and the Rights of Saami Women: Lessons from Canada’, uses this observation as a launching point for considering the merits and potential pitfalls of including express guarantees of equal rights for indigenous women in such instruments. Drawing on the work of Saami and non-Saami Nordic scholars, Koshan refers to some of the concerns of Saami women, including under-representation in Saami parliaments as well as concerns that relationships with land have been profoundly masculinised in the land rights discourse. While cautioning against essentialising indigenous women within a particular State or region, and while sensitive to concerns about the purported dichotomy between individual and collective rights, Koshan traces the decisions that led to the inclusion of a specific equality clause in the part of Canada’s Constitution that recognises aboriginal rights as well as the subsequent jurisprudence on this clause. In the end, she concludes that the equality clause has had little impact in aboriginal rights litigation since it was included in 1983; however, the clause may be important in supporting legislation dealing with such matters as family violence and on-reserve property issues, both of which have been a major concern for aboriginal women in Canada. In the end, and emphasising rights as relational concepts, Koshan sides with those who take the view that individual and collective rights are congruous and not oppositional. This relational view of rights may be particularly important in recognising indigenous views of property and the role of women in transmitting and protecting rights in relation to land. Koshan’s purpose in canvassing the arguments for and against the inclusion of a guarantee of equal rights for women in an indigenous rights instrument is not to urge the adoption of such a provision, but to provide ‘food for thought’ for those who may be in the position of considering such matters in the context of the draft Nordic Saami Convention. The conclusion of the volume draws out some of the themes that emerge from this group of essays.

1 Recognising the Property Interests of Indigenous Peoples within Settler Societies: Some Different Conceptual Approaches NIGEL BANKES

[M]any of the representative Western theories of property do not provide an impartial conceptual framework in which [Aboriginal] demands for justice with respect to property can be met.1

I. INTRODUCTION

T

HIS CHAPTER SURVEYS some of the literature on different justifications for recognising the property interests of indigenous peoples within settler societies. In doing so the chapter tries to place the provisions of Chapter IV of the draft Nordic Saami Convention in a broader theoretical context.2 The chapter identifies three different forms of justification and argument in the literature. First, there is a line of argument that seeks to justify the recognition of indigenous property interests on the doctrinal grounds sanctioned by the domestic legal system of the settler State. This literature distinguishes between on the one hand property rights claims that draw on the recognition of the customary laws (including the property laws) of an indigenous society by the legal system of the settler society, and, on the other hand, property rights claims which draw on the recognition of the legal implications of prior

1 James Tully, ‘Aboriginal Property and Western Theory: Recovering a Middle Ground’ (1994) 11 Social Philosophy and Policy 153, 153. 2 Nordisk samekonvensjon: Utkast fra finsk-norsk-svensk-samisk ekspertgruppe (Oslo, Kopi og distribusjonsservice, 2005). Unofficial English translations of the draft Convention are available from the Saami Council website at and in (2007) 3 Journal of Indigenous Peoples Rights 98.

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indigenous occupation within the legal system of the settler society. There is some interplay between these two doctrinal justifications in both the case law and the literature. By its nature, this first body of literature is specific to different legal systems, although common law authors draw on both imperial law and collectively on the jurisprudence of the individual former colonies of the British Empire.3 Secondly, there is a line of argument in the literature and jurisprudence that seeks to justify the recognition of aboriginal property interests by drawing upon the doctrinal categories of international human rights law. This body of literature draws on the foundational right of self-determination, the right to equality and the right to culture. The relevant jurisprudence draws on domestic as well as international case law, including, in particular, the two Mabo decisions of the High Court of Australia,4 the Western Sahara Advisory Opinion5 of the International Court of Justice, and the property rights jurisprudence of the Inter-American Court of Human Rights and the Inter-American Commission on Human Rights.6 Thirdly, some political theorists justify the recognition of indigenous property interests principally on the ground that indigenous communities never consented to the alienation of their traditional territories. Much of this literature is a response to John Locke, who famously argued against the need to recognise indigenous property interests, and indeed argued that European powers and settlers could justifiably acquire the property and territories of indigenous peoples without their consent.7 This third line of reasoning calls upon us to address an additional question, which is this. If the Lockean arguments are as badly flawed as we think, and if indigenous territories around the world have been acquired by fraud, deception and force, and without consent, then what are the 3 See J Gilbert, ‘Historical Indigenous Peoples’ Land Claims: A comparative and international approach to the common law doctrine on indigenous title’ (2007) 56 International and Comparative Law Quarterly 583. Gilbert canvasses the case law from a number of common law countries, including Belize, Botswana, Malaysia and Kenya, as well as Canada, Australia and New Zealand. He also refers to South Africa as a pluralistic legal system, based on both English common law and the Roman-Dutch civilian tradition, which has integrated the main elements of the concept of indigenous title into the South African legal order (ibid, 589). See also PG McHugh, Aboriginal Title: The Modern Jurisprudence of Tribal Rights (Oxford, Oxford University Press, 2009). McHugh is principally concerned with the Anglo colonies of Canada, Australia and New Zealand, but also canvasses more briefly (ch 4) the situation in Malaysia, Tanzania, southern Africa, Belize, Norway, the Philippines, Kenya and Japan. 4 Mabo v Queensland (No 1) (1988) 166 CLR 186; Mabo v Queensland (No 2) (1992) 175 CLR 1. 5 Advisory Opinion re Western Sahara [1975] ICJ Rep 12. 6 For reviews of this case law, see N Bankes, ‘The protection of the rights of indigenous peoples to territory through the property rights provisions of international regional human rights instruments’ (2011) 3 Yearbook of Polar Law 57; and G Pentassuglia, ‘Towards a Jurisprudential Articulation of Indigenous Land Rights’ (2011) 22 European Journal of International Law 165. 7 J Locke, Second Treatise of Government, ch V , ‘Of Property’ (1690) (New York, Liberal Arts Press Inc, 1952).

Different Conceptual Approaches 23 consequences for future action? In particular, does the present generation of settlers have a duty to restore such lands and resources to the original owners, or should any such obligation be contingent on establishing the justice of any such restoration, taking into account all the relevant and changed circumstances? The literature dealing with this issue is closely associated with the name of Jeremy Waldron and the supersession thesis.8 Before dealing with each of these strands in the literature, it is important to recognise the epistemological difficulties that are present in each, given the absence of a shared understanding of the term ‘property’.9 Not only is property a contested term within the legal and political systems of settler societies, it is also a term that may have radically different contents within indigenous cultures and legal systems.10 Modern western conceptions of property focus on the private and abstract aspects of property, and emphasise the economic rights (rather than obligations) associated with property, including the right to exclude and the right to sell.11 This western paradigm invokes an individual owner rather than a community owner, and routinely refers to property as a bundle of rights (good against the entire world) and therefore as a set of relationships with others rather than the subject matter of the property itself. By contrast, indigenous communities are more likely to reflect on their relationship with land and territory, and to express their responsibility for that territory. That relationship may be of profound spiritual and religious significance, connected to both time past and time future. Individual entitlements may be tangled with family, clan and community entitlements and responsibilities.12 Hence we must be careful in talking 8 Waldron’s contributions include: ‘Settlement, Return and the Supersession Thesis (2004) 5 Theoretical Inquiries in Law 236 (hereafter ‘Settlement’); ‘Superceding Historic Injustice’ (1992) 103 Ethics 4; ‘Redressing Historic Injustice’ (2002) 52 University of Toronto Law Journal 135; ‘Historic Injustice: Its Remembrance and Supersession’ in Oddie and Perrett (eds), Justice, Ethics and New Zealand Society (Auckland, Oxford University Press, 1992) 139 (hereafter ‘Historic Injustice’). 9 B Edgeworth, ‘Post-property? A postmodern conception of private property’ (1988) 11 University of New South Wales Law Journal 87, pointing out, eg (at 90 and 114), that CB McPherson’s speculative suggestion that property might be conceptualised as a right not to be excluded is both fundamentally postmodern but also practically meaningless. See CB McPherson, ‘Liberal Democracy and Property’ in CB McPherson (ed), Property: Mainstream and Critical Positions (Toronto, University of Toronto Press, 1978) 199–207. 10 Other projects face analogous challenges. See, eg, Walters’ exploration of the meaning of aboriginal law, M Walters, ‘The Morality of Aboriginal Law’ (2006) 31 Queen’s Law Journal 470. 11 For a review, see J Watson Hamilton and N Bankes, ‘Different Views of the Cathedral: The Literature on Property Law Theory’ in A McHarg et al (eds), Property and the Law in Energy and Natural Resources (Oxford, Oxford University Press, 2010) 20. 12 See, eg, J Martinez Cobo, Study of the Problem of Discrimination Against Indigenous Populations ( New York, United Nations, 1987) vol V, paras 509 ff; A Anghie, ‘“The Heart of My Home”: Colonialism, Environmental Damage, and the Nauru Case’ (1993) 34 Harvard International Law Journal 447, 486–87; M Tehan, ‘To Be or Not To Be (Property) AngloAustralian Law and the Search for Protection of Indigenous Cultural Heritage’ (1996) 15 University of Tasmania Law Review 267, 274–75; and see discussions of indigenous peoples’ conceptions of property in the cases of the Inter-American Court, eg Awas Tigni, below n 62 and further cases listed below n 121.

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about the recognition of indigenous property interests. Are we recognising an indigenous conception of property and relationship with territory, or a liberal western conception, or are we recognising a hybrid or sui generis form?13

II. DOCTRINAL JUSTIFICATIONS FOR THE RECOGNITION OF AN INDIGENOUS PROPERTY INTEREST

As noted in the introduction, the literature dealing with the domestic law of aboriginal title offers two doctrinal justifications for the recognition of an indigenous property interest. One approach seeks to justify the indigenous property interest on the basis of the legal significance of the fact of prior occupation within the law of the settler State. Kent McNeil refers to this as ‘common law aboriginal title’.14 A second approach justifies the recognition of the indigenous property interest based on the continuation of the customary laws of the indigenous people. Gilbert, for example, takes this view and concludes that the law in a number of jurisdictions affirms that ‘the existence of indigenous peoples’ rights to their land is to be found in indigenous peoples’ own customary laws’.15 I shall use the label ‘customary law indigenous title’ for this justification. For McNeil, these are two distinct ways of justifying an indigenous property interest.16 The principal significance of the common law aboriginal title approach is that it requires the settler State to recognise an indigenous property interest even where ‘a customary system of real property law might not have existed, or might be incapable of proof’.17 More recently, Brian Slattery has offered a third way of explaining the case law in which he refers to the indigenous interest as ‘a sui generis right grounded in ancient relations between the Crown and Indigenous peoples’.18 I discuss each of these approaches in turn below.

A. Common Law Aboriginal Title McNeil’s discussion of common law aboriginal title is (appropriately) long, complex and technical, but the basic points are these. First, there is a distinction to be made between ‘occupation which is a matter of fact depending on physical presence on or control over land from possession, a conclusion 13 See in particular here B Slattery, ‘The Metamorphosis of Aboriginal Title’ (2006) 85 Canadian Bar Review 255. 14 K McNeil, Common Law Aboriginal Title (Oxford, Oxford University Press, 1989). 15 Gilbert, above n 3, 591. 16 McNeil, above n 14, 241. 17 Ibid, 192 and 195 (emphasis supplied). 18 Slattery, above n 13, 263.

Different Conceptual Approaches 25 of law’.19 Secondly, in English law a person in occupation is presumed to be a possessor.20 Thirdly, English law protects a person in possession and recognises that such a person has a form of title which may be asserted against trespassers and adverse claimants who cannot themselves show a title.21 Fourthly, a possessory title may ripen into a more secure ownership interest by operation of statutory limitations periods.22 Fifthly, the content of the title would be the equivalent of an estate in fee simple—the strongest property interest known to the common law. Sixthly, in a territory acquired by settlement by the English Crown, indigenous people in actual and prior occupation of lands should be able to take advantage of these rules of English law and claim a presumptive title—thereby forcing the Crown or a third party to prove a better title.23 The premise of the argument is not a pre-existing indigenous legal system,24 it is simply the fact of prior occupation (ie physical control and use of the land), and this, suggests McNeil, should be easier to establish than a system of customary law.25 But what amounts to occupation? Much will depend upon the circumstances, but McNeil does address the difficult case of an indigenous people following a nomadic hunting–gathering lifestyle. His conclusion is clear:26 [T]here can be little doubt that a group of hunter-gatherers who habitually and exclusively ranged over a definite tract of land, visiting religious sites and exploiting natural resources in accordance with their own interest and way of life would have been in occupation of that land.

Slattery refers to this approach as the translation of indigenous occupation and uses of land into rights known to English law, as does McHugh.27 Slattery adds that [p]resumably if Indigenous occupation is not sufficient to establish the existence of a fee simple, it might give rise to some other right known to English property law, such as a profit à prendre—the right to use and derive profits from land belonging to another.28

19

McNeil, above n 14, 197. Ibid, 73. 21 Ibid, 74. 22 Ibid, 77 23 Ibid, 241. 24 Ibid,197 and see italicised quotation in text to n 17. 25 Ibid, 241. 26 Ibid, 203–04. 27 McHugh, above n 3, 117–18. 28 Slattery, above n 13, 267. It is not clear to me that McNeil would use the word ‘translation’ in this context. 20

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B. Customary Law Indigenous Title The doctrinal arguments in favour of recognising property rights as customary norms are all based on some version of the presumed continuity thesis, ie that where a sovereign acquires the territory of another sovereign, the property rights of the inhabitants are presumed to continue unless the new sovereign exercises its powers in some lawful way to change (extinguish) those property entitlements.29 As originally developed, the continuity thesis was said to apply to new territories acquired by conquest or cession.30 Cession of course implies treaties, and treaties, consent; conquest implies force, but both involve the recognition that there was a prior sovereign. There was no need for the continuity thesis where lands were unoccupied, ‘desert and uncultivated’—there was nothing to be continued; such true terra nullius lands could be acquired by occupation or settlement. While the facts should have precluded the application of acquisition by settlement to lands occupied by indigenous societies—thereby forcing the ‘inevitable conclusion’ of acquisition by conquest or settlement, this was, in many cases, not ‘politically acceptable’.31 Creative policy makers and courts preferred to resort to the fiction that lands could be treated as terra nullius and acquired as such where the territory had ‘by European standards … no civilized inhabitants or settled law’.32 But the result of categorising an occupied territory as a territory acquired by settlement and not conquest or cession was to invite the conclusion that there was no pre-existing system of property laws that needed to be recognised or continued.33 While this fictitious claim has been most closely associated with Australia, where, as Simpson argues, the Australian legal system has redefined terra nullius on no fewer than three occasions, each time to expand its reach,34 29 See Gilbert, above n 3, 589, although referring as well to the doctrine of recognition implying the need for an act of recognition from the new sovereign. The need for an act of recognition was associated with the distinction between settled colonies and colonies that were acquired derivatively (by cession or conquest). McHugh, above n 3, 76–77 and 285, discusses this ‘canard’. 30 For the details of the English/imperial rules, see Hepburn, ‘Disinterested Truth: Legitimation of the Doctrine of Tenure Post-Mabo’ (2005) 29 Melbourne University Law Review 1, 5, and McHugh, above n 3. 31 G Simpson, ‘Mabo, International Law, Terra Nullius and the Stories of Settlement: an unresolved jurisprudence’ (1993–94) 19 Melbourne University Law Review 195, 200. 32 Ibid, at 201, quoting Gibbs J in Coe v Commonwealth (1979) 24 ALR 118. See also N Oskal, ‘Political Inclusion of the Saami as Indigenous People in Norway’ (2001) 8 International Journal on Minority and Group Rights 235, 257, noting that until about 1740 the Saami were treated by the courts and other authorities in Sweden, Finland and Norway as owners, but after that time ‘the first stories of Saami areas as terra nullius occur and are used to justify that the state has a private ownership to the land and not just jurisdiction over the areas’. 33 Or at the very least there could be presumption of continuity absent an act of recognition, such as the Royal Proclamation of 1763, by the new sovereign. 34 Simpson, above n 31, 198–202. Ritter, however, argues that the doctrine of terra nullius only really emerged in Australian law post-Milirrpum as a way of explaining ‘why Aboriginal rights to land had not been recognized under Australian law’: D Ritter, ‘The “Rejection of Terra Nullius” in Mabo: A Critical Analysis’ (1996) 18 Sydney Law Review 5, 7.

Different Conceptual Approaches 27 variations of the argument appear in other jurisdictions. For example, Eide notes that while the Norwegian Government did not originally assert private ownership over unregistered land in Saami areas, by 1850 the Government was taking the view that ‘it was inherent in the sovereignty over the territory that the state also owned the land, except from [sic] that part which had been transferred to settled individual owners’, and that ‘the institutions of the Norwegian legal order, the executive, the parliament and the courts, have all taken it for granted that the state could assert ownership of these lands’.35 While Mabo (No 1) provides the doctrinal turning point in Australia, and the Western Sahara Advisory Opinion in international law, both Simpson and Ritter36 suggest that Mabo happened because of an interpretive crisis engendered by the ‘enormous discrepancy between historical fact and law’,37 a discrepancy that could be resolved only by applying the doctrine of continuity to lands acquired by settlement as well as to lands acquired by cession or conquest.38 The terra nullius doctrine had become an unacceptable fiction. There is a considerable literature on the respective merits of these two doctrinal approaches. Slattery notes that an indigenous interest based on a customary law approach may be contingent and variable, whereas an indigenous interest based on occupation and a common law aboriginal title will be uniform in its content.39 McNeil in his later writings seems to suggest that there are at least strategic reasons (if not theoretical reasons) for seeking to make a case based on common law aboriginal title rather than a customary title, largely because of the potentially differing content of the two forms of title.40 While a common law aboriginal title effectively establishes a fee simple form of entitlement with a large content, a customary law title may be confined to the provable elements of that title or particular sticks in the bundle. Another way to put this is that a possessory (or common law) title approach

35 A Eide, ‘Legal and Normative Bases for Saami Claims to Land in the Nordic (sic)’ (2001) 8 International Journal on Minority and Group Rights 127, 140. See also in this volume Ravna, ch 7 (discussing Norway and esp at section II.A) and Allard, ch 8 (principally discussing Sweden). 36 Ritter, above n 34, 6. 37 Simpson, above n 31, 201. 38 For Australia, see Mabo (No 2), above n 4; for Canada, see Delgamuukw v British Columbia [1997] 3 SCR 1010, para 145, Mitchell v MNR [2001] 1 SCR 911, esp paras 9–10, and J Borrows, ‘Sovereignty’s Alchemy: An analysis of Delgamuukw v British Columbia’ (1999) 37 Osgoode Hall Law Journal 537. 39 B Slattery, ‘A Taxonomy of Aboriginal Rights’ in H Foster, H Raven and J Webber (eds), Let Right Be Done: Aboriginal Title, the Calder Case, and the Future of Indigenous Rights (Vancouver, UBC Press, 2007) 111. 40 K McNeil, ‘Aboriginal Title and Aboriginal Rights: What’s the Connection’ (1997) 36 Alberta Law Review 117.

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may enhance the mutual recognition space conferred by the common law and the aboriginal legal system.41 The customary law approach has been especially subject to criticism in Australia following the adoption of Native Title Act 199342 and the subsequent interpretive case law. For example, Godden and Tehan43 suggest that the customary law title approach has been used by the High Court to limit ‘indigenous interests in land to a model of discrete rights that must be sourced back to a factually identifiable custom or tradition’,44 resulting in ‘the consistent refusal to accord to native title a realistic commercial content’.45 Similarly, Lisa Strelein notes that the bundle of rights approach ‘suggests that native title is a collection of rights without any underlying or unifying factor that connects those rights and those people to the land’.46 Thus it offers recognition in terms that the common law understands, but it never recognises the different relationship between people and territory that may be encoded in the indigenous legal system.47 C. The Sui Generis Approach Slattery has developed a sui generis conception of indigenous title in response to what he identifies as limitations in each of the customary and common law approaches. For Slattery, the customary law approach leaves certain gaps which need to be filled by non-customary norms. These gaps include norms to deal with:48 (a) conflicting claims by more than one indigenous group in relation to the same tract of land; (b) the conflicting claims of the indigenous community and a person claiming under a State title; 41 L Strelein, ‘Conceptualising Native Title’ (2001) 23 Sydney Law Review 95, 98, and drawing on Noel Pearson’s writings. But is the recognition mutual or unilateral? 42 See Mascher, ch 13 of this volume. 43 L Godden and M Tehan, ‘Translating Native Title to Individual “Title” in Australia: Are Real Property Forms and Indigenous Interests Reconcilable?’ in E Cooke (ed), Modern Studies in Property Law, vol 4, 262 (Oxford and Portland, OR, Hart Publishing, 2007). 44 Ibid, 277. See also B Slattery, ‘The Generative Structure of Aboriginal Rights’ (2007) 38 Supreme Court Law Review (2nd) 595, 597, noting that the approach of the Canadian courts in identifying and protecting aboriginal rights (as opposed to title) ‘tends to yield rights that have a limited ability to serve the modern needs of Aboriginal peoples and may also fit uneasily with third-party and broader societal interests’. 45 Godden and Tehan, above n 43, 289. 46 Strelein, above n 41, 101. 47 See S Motha, ‘Mabo: Encountering the Epistemic Limit of the Recognition of Difference’ (1998) 7 Griffith Law Review 79. Motha argues that Mabo recognised sameness rather than difference, with the other being brought into conformity by the power of settler law (ibid, 88): ‘[T]he common law has reduced the actual indigenous relationship to the land to something other than what it is.’ 48 Slattery, above n 13, 265–67. Slattery is addressing the position in Canada; I have generalised from his basic discussion.

Different Conceptual Approaches 29 (c) (d) (e) (f)

the rights (if any) of the settler State in indigenous lands; the alienability of indigenous lands outside the indigenous community; extinguishment; and the rights of the indigenous community in the individual (possibly) titled lands of its members.

While Slattery’s emphasis is on possible lacunae, he is also concerned with what are effectively choice of law matters, ie whether a matter (eg extinguishment) should be covered exclusively by customary law, by settler law or by some combination, such as some form of inter-societal law. The common law indigenous title approach does not suffer from these lacunae since it answers each one by reference exclusively to the law of the settler State. But this is also its weakness, for it creates the risk that ‘something important will be lost in translation’.49 Slattery’s sui generis approach draws on historical practice (the Royal Proclamation 1763, treaty making, the trilogy of early Indian title decisions of Chief Justice Marshall in the United States and two decisions of the Privy Council)50 dealing with the relations between indigenous and settler societies. It is not grounded in the norms of either system but is a distinctive form of title. According to Slattery, it51 gives an Indigenous group the exclusive right to possess and use its traditional lands for such purposes as it sees fit, subject to the restriction that the lands cannot be transferred to outsiders but may only be ceded to or shared with the Crown, which holds an underlying title to the land. Viewed externally, aboriginal title is a uniform right … Viewed internally, it delimits a sphere within which the customary legal system of each group continues to operate …

While Slattery finds support for this third approach in early decisions and practice, and also in the Delgamuukw decision of the Supreme Court of Canada (in which the majority rejected the First Nations argument ‘that aboriginal title is tantamount to an inalienable fee simple’ but also rejected the Crown’s position that ‘it is no more than a bundle of rights to engage in a variety of specific traditional practices’),52 he is forced to concede that the more recent Marshall and Bernard53 decision of the Supreme Court of

49

Ibid, 268 (emphasis in original). Ibid, 271–78 and referring successively to the three Marshall decisions of Johnson v M’Intosh, 8 Wheaton 543 (1823), Cherokee Nation v Georgia, 5 Peters 1 (1832), Worcester v Georgia, 6 Peters 515 (1832); and St Catherine’s Milling (both the Privy Council decision (1888) 14 AC 46 and Justice Strong’s decision in the Supreme Court of Canada (1887) 13 SCR 577) and Amodu Tijani v The Secretary, Southern Nigeria [1921] 2 AC 399. 51 Slattery, above n 13, 270 (emphasis in original). 52 Ibid, 278; Delgamuukw, above n 38, para 118. 53 R v Marshall; R v Bernard [2005] 2 SCR 220. 50

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Canada adopts the translated right view of aboriginal title (which I refer to here as the ‘common law indigenous title’ approach).54 In addition to Slattery, several other authors, including Borrows, Walters, Webber, Macklem and McNeil (in more recent writings), have emphasised the importance of developing a body of inter-societal law that recognises the reality of a continuing relationship, rather than the binary approach of either customary indigenous law or recognition within the law of the settler society and on the terms of that society.55

III. JUSTIFYING THE RECOGNITION OF INDIGENOUS PROPERTY INTERESTS THROUGH INTERNATIONAL HUMAN RIGHTS LAW

International human rights law provides several distinct normative bases for recognising indigenous property interests, while at the same time moving beyond the proprietary paradigm for conceiving of indigenous land rights.56 I discuss three such bases here: the right to self-determination, the right to equality (non-discrimination) and the right to culture. Other authors use different categories. For example, Kingsbury, in a number of related articles57 dealing more generally with the recognition of indigenous interests (ie not specifically property), identifies five conceptual approaches for thinking about ‘indigenous group issues’ within the international legal order: (a) human rights and non-discrimination; (b) minority rights; (c) self-determination;

54

Slattery, above n 13, 280. See, eg, Borrows, ‘Creating an Indigenous Legal Community’ (2005) 50 McGill Law Journal 153 (and referring to the need to reach beyond the bijuridical culture of Canada to multijuridical or legally pluralistic vision); Walters, above n 10; J Webber, ‘Relations of Force and Relations of Justice: The Emergence of Normative Community Between Colonists and Aboriginal Peoples’ (1995) 33 Osgoode Hall Law Journal 623; P Macklem, Indigenous Difference and the Constitution of Canada (Toronto, University of Toronto Press, 2000); B Olthuis, ‘The Constitution’s Peoples: Approaching Community in the Context of Section 35 of the Constitution Act, 1982’ (2009) 54 McGill Law Journal 1, 6–9 and 47. 56 McHugh, above n 3, 228, and noting generally (ibid, 45 and 241) that property represents a conservative way of imagining the struggle between indigenous people and the settler State while (political) claims based on the language of autonomy, self-government and selfdetermination are more radical. 57 B Kingsbury, ‘Reconciling Five Competing Conceptual Structures of Indigenous Peoples’ Claims in International and Comparative Law’ in P Alston (ed), Peoples’ Rights (Oxford, Oxford University Press, 2001) 69; B Kingsbury, ‘Reconstructing Self-Determination: A Relational Approach’ in P Aikio and M Scheinin (eds), Operationalizing the Right of Indigenous Peoples to Self-Determination (Turku, Institute for Human Rights, Åbo Akademi University, 2000) 19; B Kingsbury, ‘Competing Conceptual Approaches to Indigenous Group Issues in New Zealand’ (2002) 52 University of Toronto Law Journal 101. 55

Different Conceptual Approaches 31 (d) sovereignty; and (e) indigenous peoples (ie as a specialised body of international law including such instruments as ILO 169).58 Eide draws upon three categories: the principle of non-discrimination, the rights of minorities, and the specific rights of tribal and indigenous peoples.59 Martin Scheinin similarly has observed that different human rights treaties use different techniques and language to achieve the same central objective, that of granting ‘indigenous peoples protected possession and use of the land and natural resources within a particular territory as a basis of their distinct culture’.60 Thus ILO 169 emphasises land, Article 27 of the International Covenant on Civil and Political Rights (ICCPR)61 focuses on culture, while the American Convention on Human Rights ‘seems to stretch the right to property’62 to protect indigenous titles. The European Convention on Human Rights focuses in turn on the protection of private and family life.63

A. The Right to Self-determination The right of all peoples to self-determination is the foundational principle on which all other human rights depend.64 The right is capable of generating a distinct justification for recognising indigenous property interests in so far as access to land and resources is crucial to the economic, social and cultural development of indigenous peoples. Indeed, as Henriksen and colleagues point out, ‘it is almost meaningless to talk of a right of self determination for indigenous peoples that excludes a right to land and natural resources’.65 The right of self-determination as articulated in the common

58 International Labour Organisation, Convention No 169 Concerning Indigenous and Tribal Peoples in Independent Countries (27 June 1989, 1650 UNTS, 383, hereafter ‘ILO 169’). 59 Eide, above n 35, 140–46. 60 M Scheinin, ‘The rights of an individual and a people: towards a Nordic Sámi Convention’ (2007) 3 Journal of Indigenous Peoples Rights 40, 45. 61 1966, available at . 62 1144 UNTS 123; Scheinin, above n 60, 45, fn 19. In a footnote to the American Convention, Scheinin refers to Mayagna (Sumo) Awas Tingni Community v Nicaragua, Judgment of 31 August 2001, Series C, No 79, which he describes as radical because it concludes that the right to property protects ‘the indigenous legal systems that are based on customary law’. For a review of the jurisprudence of the Court dealing with indigenous property rights, see Bankes, above n 6. 63 Scheinin, above n 60, 45. 64 A Cassese, Self Determination of Peoples: A legal reappraisal (Cambridge, Cambridge University Press, 1995); A Huff, ‘Indigenous Land Rights and the New Self-determination’ (2005) 16 Colorado Journal of International Environmental Law and Policy 285, 309. 65 J Henriksen, M Scheinin and M Ahren, ‘The Saami People’s Right to Self-Determination, Background Material for the Nordic Saami Convention’ (2007) 3 Journal of Indigenous Peoples Rights 52, 78.

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first article of the two international human rights covenants expressly provides that a people may ‘never be deprived of its own means of subsistence’, and thus clearly contains a ‘resource dimension’.66 Anaya observes that this provision is ‘relevant to indigenous land claims’ and intersects with the idea of property,67 while Tully emphasises that the right of self-determination lies at the heart of decolonisation struggles and, when exercised consistently with the principle of territorial integrity, ‘consists in the recognition of indigenous peoples as free, equal and self governing peoples under international law, with shared jurisdiction over lands and resources on the basis of mutual consent’.68

B. The Right to Equality (The Duty of Non-discrimination) Eide is one author who argues that the international law of non-discrimination as applied to property supports indigenous claims to ownership of land. Thus, as applied to the Saami, it would constitute discrimination to deny the validity of the ownership originated in exclusive use by the Saami when the ownership of the plots of land based on original and exclusive use by ethnic Norwegians, Swedes or Finns has been accepted in the past.69

Eide anticipates two objections to this claim. The first objection is that the equivalent settler use of land for grazing and similar purposes results in rights in common in those areas where the underlying title is vested in the State. Eide’s response is that the analogy is inapt, in so far as the commons grazing right of an ethnic Norwegian is simply a supplement to the main source of living which is based on private ownership, whereas for the Saami, ‘the lands collectively used by the Saami constituted the full and whole basis of their livelihood’.70 The second objection is the claim that international law protects the idea of individual private property and not communal property. Eide dismisses this latter claim by the simple expedient of referring to the principal text, Article 5(d)(v) of the Convention on the Elimination of All

66

Ibid. J Anaya, Indigenous Peoples in International Law, 2nd edn (Oxford, Oxford University Press, 2004) 141. 68 J Tully, ‘The Struggles of Indigenous Peoples for and of Freedom’ in D Ivison, P Patton and W Sanders (eds), Political Theory and the Rights of Indigenous Peoples (Cambridge, Cambridge University Press, 2000) 36, 56 (emphasis in original). 69 Eide, above n 35, 141. 70 Ibid, 142. A proposition amply supported by the decision of the High Court of Australia in Mabo (No 1), above n 4. 67

Different Conceptual Approaches 33 Forms of Racial Discrimination,71 which outlaws discrimination in relation to property owned alone or in association with others.72 The duty of non-discrimination creates a duty to apply the same rules (or rules that are no more demanding) to indigenous peoples as to other citizens of the settler State when parties seek to establish the existence of a property interest (or the State seeks to extinguish such an interest).73 But the duty may also require special measures,74 and as Ravna suggests, this may require that evidentiary rules be modified to make it easier for members of oral and nomadic cultures to establish their claims.75 The duty also requires the State to protect customary titles in a way which is as effective as the protections offered to State-granted titles. This may require the State to identify, delimit and title indigenous lands. James Anaya puts it this way: Inasmuch as property is a human right, the fundamental norm of nondiscrimination requires recognition of the forms of property that arise from the traditional or customary land tenure of indigenous peoples, in addition to the property regimes created by the dominant society.76

C. The Right to Culture Indigenous land rights are also central to cultural survival. As Pentassuglia observes, land rights ‘serve the purpose of protecting indigenous identity as defined by the cultural and spiritual attachment of the community to its traditional lands’.77 There are at least two steps to the argument that a right to culture or a right to protection of cultural integrity provides normative support for the property claims of indigenous people. The first step is to establish the close connection between land and resources and culture. Numerous authors have made this case, and the close connection between land and culture for indigenous peoples is surely unassailable.78 The Inter-American Court (in the context of a right to property rather than a right to culture) puts the point this way: ‘For indigenous communities relations to land are not merely a matter of possession and production,’ the close ties of such indigenous communities to the land ‘must be recognized and understood 71

21 December 1965, available at . Eide, above n 35, 142. 73 K McNeil, ‘Racial Discrimination and Unilateral Extinguishment of Native Title’ in K McNeil, Emerging Justice: Essays on Indigenous Rights in Canada and Australia (Saskatoon, Saskatchewan, Native Law Centre, 2001) 357; and McNeil, above n 40, 135–38. 74 Judge Tanaka (diss), SW Africa Cases (Second Phase) [1966] ICJ Rep 4, 301–08. 75 See Ravna, ch 7 of this volume; and also the Draft Nordic Saami Convention, Art 34(3). 76 Anaya, above n 67, 142. 77 Pentassuglia, above n 6, 167. 78 See references above, n 12. 72

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as the fundamental basis of their cultures, their spiritual life, their integrity and their economic survival.’79 Along the same lines, the Human Rights Committee (HRC) in its general comment on Article 27 of the ICCPR has emphasised that culture manifests itself in different ways, ‘including a particular way of life associated with the use of land resources’.80 The second step is to consider the scope of the right. While any articulation of the right to cultural integrity is likely to, as Eide puts it, ‘serve as a barrier against deprivation of land rights which have been historically acquired by particular indigenous peoples’,81 it has not been easy for petitioners before the HRC to establish that State resource activities interfere with traditional activities to such a degree that they amount to a deprivation of the right to culture.82 But even if that is the case, both the HRC and authors emphasise that the State may also owe a duty to take positive measures83 to protect indigenous access to resources and even to restore land which has been taken, at least where that land is necessary to ensure cultural integrity.84 A land base is crucial to the exercise of a distinctive way of life.85 A further dimension of the right to culture, which links back to the domestic doctrinal arguments based on the recognition of customary property norms, is the view that the right to culture should protect the legal (customary) relations between indigenous peoples and their lands and resources; that is to say, the right to culture should protect ‘indigenous cultural institutions and systems’.86

IV. JUSTIFYING THE RECOGNITION OF INDIGENOUS PROPERTY INTERESTS IN POLITICAL THEORY: CONSENT

As noted in the introduction to this chapter, the discussion of the recognition of indigenous property interests in the political theory literature is in large part a response to, and a rejection of, John Locke’s arguments which he developed in order to justify the claims of European settlers to acquire territory and property in the Americas without the consent of the 79

Awas Tingni, above n 62, para 149. Human Rights Committee, General Comment No 23, available at . 81 Eide, above n 35, 143. 82 See, eg, JT Möller, ‘Case law of the UN Human Rights Committee Relevant to Members of Minorities and Peoples in the Arctic Region (2011) 3 Yearbook of Polar Law 27; P Thornberry, Indigenous Peoples and Human Rights (Manchester, Manchester University Press, 2002) 167–72; Anaya, above n 67, 136–37; and Heinämäki in ch 5 of this volume. 83 General Comment No 23, above n 80; and see also S Wiessner, ‘The Cultural Rights of Indigenous Peoples: Achievements and Continuing Challenges’ (2011) 22 European Journal of International Law 121, 133. 84 Eide, above n 35, 143. 85 B Kingsbury, ‘Claims by Non-State Groups in International Law’ (1992) 25 Cornell International Law Journal 481. 86 Wiessner, above n 83, 133. 80

Different Conceptual Approaches 35 indigenous inhabitants. Tully87 suggests that Locke offered four main ‘arguments, contrasts and assumptions’ to justify the imposition of European conceptions of property in this way. These arguments and assumptions serve to misrecognise or misrepresent aboriginal property and political organisation.88 The first two arguments serve to establish that aboriginal peoples have no rights in the land; the third and fourth arguments justify appropriation by European settlers without the consent of the indigenous peoples.

A. John Locke’s Arguments The first argument is that aboriginal peoples live in a pre-political state of nature and at an early (backward) stage in political development, living a subsistence lifestyle and without an established system of property.89 The second argument is that, lacking a settled lifestyle, the property conceptions of aboriginal people are confined to products of the chase that may be reduced to possession. They have no property in those hunting territories since they have not mixed their labour (cultivating, improving, etc) with the land.90 Thirdly, there is the argument that aboriginal peoples will be better off with the establishment of European institutions of property and settled agriculture, given the resulting efficiencies and productivity gains. This is effectively an argument that the aboriginal peoples have been more than compensated for their losses.91 And fourthly, (and here making the connection between property and government) aboriginal peoples have no formal institutions of government, but operate instead by consensus rather than executive fiat. Since they lacked formal institutions, there was thus no need to deal with aboriginal societies on a nation-to-nation basis.92

B. Tully’s Responses Tully’s response to the first two lines of argument draws on both empirical observation and ideals of equality. The empirical observation is perhaps best voiced by Chief Justice Marshall in the US case of Worcester v Georgia93

87 Tully, above n 1, and more generally Strange Multiplicity: Constitutionalism in an age of diversity, (Cambridge, Cambridge University Press, 1985); and in the Nordic context, see Oskal, above n 32, 236–51. 88 Tully, above n 1, 158 et seq. 89 Ibid, 159. And see also Ravna, ch 7 of this volume. 90 Tully, above n 1, 159–60. 91 Ibid, 160–61. 92 Ibid, 162. 93 6 Peter 515 (1832), 542 (USSC).

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and by Justice Judson in the Canadian case Calder v AGBC,94 that when the settlers arrived, the tribes, First Nations and other indigenous people were already there, in organised societies and with their own norms and institutions, albeit incorporating in their institution of property ideas of responsibility for individuals, families and clans as well as the right to exclude. Thus, the lands and territories were not un-owned but ‘under the ownership and jurisdiction’ of the First Nation. Ideals of equality support this argument by denying the privileges of the labour theory of acquisition of property that Locke confers on the largely (but not exclusively) western activities of cultivation, tilling and improving.95 Once this privilege is removed, arguments based on first occupation favour indigenous inhabitants rather than settler societies, who must now rely on what Nozick refers to as the principle of just transfer (ie consent) rather than the principle of just acquisition.96 If we succeed in undermining Locke’s arguments for why the European powers could acquire property without the consent of the indigenous inhabitants, we are left with the normative premise that the lands and territories of indigenous peoples can be acquired only by their consent, or, in other words, that we should recognise ‘the coexistence and equality of Aboriginal forms of property and government’97 along with those of the settler society. Here, Slattery, Tully, Henderson, Webber, Walters, Borrows98 and others all emphasise that consent was indeed a feature of early Imperial policy and encoded in the Royal Proclamation of 1763 and ideas of treaty federalism, as well as the traditions of the aboriginal legal systems of North America as represented by the normative framework of the Two Row Wampum.99 The Two Row Wampum signifies the continuity, coexistence and coequality of each tradition of customs and ways.100 Consent is crucial in order to legitimise the exercise of sovereignty and the acquisition of property, because 94

[1973] SCR 313. Oskal, above n 32, 242 and 246. 96 R Nozick, Anarchy, State and Utopia (New York, Basic Books, 1968) 151 et seq. 97 Tully, above n 1, 174. 98 Slattery, above n 13; Tully, Strange Multiplicity, above n 87, discussing consent as one of the three conventions (the others being mutual recognition and continuity) at 122; Walters, above n 10, emphasising not only consent but also, in his discussion of the covenant chain and the condolence ceremony, the importance of respect for aboriginal laws, and M Walters, ‘Promise and Paradox: The Emergence of Indigenous Rights Law in Canada’ in B Richardson, S Imai and K McNeil (eds), Indigenous Peoples and the Law: Comparative and Critical Perspectives (Oxford and Portland, Oregon, Hart Publishing, 2009) 21; Webber, above n 55; J Borrows, ‘Wampum at Niagara: The Royal Proclamation, Canadian Legal History, and Self-Government’ in M Asch (ed), Aboriginal and Treaty Rights in Canada: Essays on Law, Equality and Respect for Difference (Vancouver, UBC Press, 1997) 155; and J Borrows, Recovering Canada: the Resurgence of Indigenous Law (Toronto, University of Toronto Press, 2002). 99 Tully, above n 1, 177. 100 Borrows, ‘Wampum at Niagara’, above n 98, emphasises that the Royal Proclamation should be seen as part of the covenant chain of treaty relations between the Crown and First Nations rather than as a unilateral declaration of the Crown’s will. 95

Different Conceptual Approaches 37 the European powers recognise the importance of consent in their dealings with each other.101 The importance of consent as a governing normative principle is also relevant to the continuing relationship between indigenous and settler societies. Not only does the principle of consent endorse consensual modes of proceeding such as treaty making,102 but the absence of consent serves to undermine the moral authority of the settler State’s rules in relation to extinguishment of indigenous titles. While the constitutional recognition of aboriginal and treaty rights in Canada dramatically changed the rules on extinguishment, this has not been the case in other settler societies such as Australia. There are two critiques of the extinguishment rules invented by settler societies. The first is that such rules deny aboriginal property interests the equal recognition and respect accorded to non-indigenous property interests in so far as they admit of the possibility that indigenous property interests may be extinguished by an executive act not expressly authorised by the legislative branch.103 The second and deeper critique is that the application of the extinguishment rules of the settler society emphasises the vulnerability of indigenous property interests and continues the violence of settler law against indigenous societies.104 This is deeply incompatible with the idea of approaching ‘[i]ndigenous law as an equal partner in negotiating and producing space in which both laws can operate’.105 Instead, as Strelien puts it, the ‘idea that Indigenous peoples’ rights over their traditional land can be extinguished by an act of the colonial state is clearly an invention of one legal system in asserting its dominance over another,’106 while for Hepburn it ‘highlights the structural inequality associated with the implementation of native title within a feudal tenure framework’.107

101

Tully, Strange Multiplicity, above n 87; and Tully, above n 68, 52. J Tully, ‘Consent, Hegemony and Dissent in Treaty Negotiations’ in J Webber and C Macleod (eds), Between Consenting Peoples: Political Community and the Meaning of Consent (Vancouver, UBC Press, 2010). 103 McNeil, ‘Racial Discrimination’, above n 73; Hepburn, n 30, 36. 104 See Motha, above n 47, noting (at 91) that Mabo’s rejection of the terra nullius doctrine was ‘an attempt by the common law to free itself of … violence,’ but that this violence is continued (at 94) by the Court’s endorsement of the rules of extinguishment. See also Hepburn, above n 30, 25, attributing the vulnerability of native title at least in part to the Court’s failure to abolish the doctrine of tenure which, she suggests, maintains an ‘inevitable conflict between tenured estates issued by the Crown and customary native title interests’. 105 Strelien, above n 41, 115. 106 Ibid, 116. See also Oskal, above n 32, 258, noting that the State (Norway) ‘has been able to remove indigenous peoples’ usage rights without following the rules and procedures that are otherwise required pursuant to internal law and the principles of international human rights’. And to the same effect, Eide, above n 35, 139–40. 107 Hepburn, above n 30, 27. 102

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Nigel Bankes V. IS THERE A DUTY OF RESTORATION OR RESTITUTION?

The arguments in the previous sections provide normative and doctrinal arguments requiring the State to recognise indigenous property interests. This is all very well prospectively, but the difficulty arises when we confront historical practice and observe that indigenous peoples have been systematically dispossessed of their lands—in some cases by force and coercion, in some cases by fraud, and in many cases by law through the extinguishment of indigenous titles by the legislation of the new sovereign or by inconsistent government grants of titles to settlers.108 What are the implications of this? Does it follow that there is a duty of restitution? And if so, what is the scope of that duty? The United Nations Declaration on the Rights of Indigenous Peoples109 addresses the issue in Articles 27 and 28; but as Pentassuglia notes, there was considerable unease about the scope of the right to restitution during negotiations, and in the end this unease was reflected in a ‘compromise solution’ in which it was agreed that the Declaration should contain more ‘substantive standards relating to the protection of current lands and procedural, process-oriented requirements to deal with past injustices’.110 Pentassuglia recognises that there is some support for the right to restitution (or the right to be compensated with alternative lands or money in the absence of restitution) in the jurisprudence of the Inter-American Court of Human Rights, which, in some circumstances, may require the State to expropriate a State-granted title in order to make restitution. The circumstances are important, and relevant factors include the cultural and spiritual significance of the land to the indigenous community and its continued attachment to those lands, and perhaps also the relevant connections of the settler interests (but not merely the fact that the settler is putting the lands to productive use). By engaging in this sort of principled balancing exercise, Pentassuglia suggests that the Inter-American Court subordinates the private property interests of settler titles ‘to the higher interests of cultural pluralism’.111 But others are more sceptical of sweeping claims to restoration or restitution, and in the present context it is important to note that the drafters of the draft Nordic Saami Convention were unable to reach agreement on

108 For a general discussion. see JC Weaver, The Great Land Rush: and the Making of the Modern World, 1650–1900 (Montreal and Kingston, McGill-Queen’s University Press, 2003). 109 UN GA Res 61/295, 13 September 2007. 110 Pentassuglia, above 6, 169; and N Bankes, ‘Indigenous Land and Resource Rights in the Jurisprudence of the Inter-American Court of Human Rights: Comparisons with the Draft Nordic Saami Convention’, (2011) 54 German Yearbook of International Law 231. 111 Pentassuglia, above n 6, 173; and see the cases listed in n 121.

Different Conceptual Approaches 39 the existence or scope of any right to restitution.112 Waldron in particular argues that, depending upon the circumstances, a deprivation of lands and resources that was unjust at the time that it happened may no longer be unjust, so that those (or their successors) who were wrongfully deprived of their land and resources no longer have a just claim to their return.113 Waldron’s scepticism is part of a more general scepticism of what he terms the ‘grievance industry’ and arises from his commitment to cosmopolitanism, emphasizing the fluidity and porousness of cultural boundaries … the significance of movement and migration, the absurdity of claims based on prehistorical first occupancy, and importance of focusing the concerns of justice on the here and now …114

In developing this thesis Waldron is careful to emphasise that his arguments are designed to address historic injustice. Thus he acknowledges that the principal response to the unlawful or unjust dispossession is, in the immediate future, simply the return of the land.115 He is also careful to emphasise that such injustices should not be forgotten: ‘Apologies and acknowledgements are properly demanded and at least symbolic compensation may be due to descendants of those who were originally treated unjustly.’116 Waldron examines two models of the argument for reparation. One model of reparation seeks to offset the effect of past injustice, to put the person or persons in the current generation in the same position they would have been had the injustice not occurred. Waldron terms this the ‘counterfactual approach’, because it involves speculation as to what might have happened. His principal critique of this approach is simply—how would we know? What would the indigenous inhabitants have done with their land had it not been taken away from them?117 The second model of reparation is that of restoration. This model seeks to stop ongoing injustice rather than to correct for injustice that has occurred. On this account, the taking of indigenous lands is not an isolated act of injustice but a persisting injustice which may be resolved simply by returning the land. But even on this account we soon run into challenges similar to those posed by the counterfactual approach once we proceed beyond a generation—for example, to whom should we make restitution?118

112 Instead, Art 34(4) contains a savings clause stipulating that ‘the provisions of this article shall not be construed as to imply any limitation in the right to restitution of property that the Saami might have under national or international law’. For commentary, see M Åhrén, ‘The Saami Convention’ (2007) 3 Gáldu Cˇála—Journal of Indigenous Peoples Rights 8, 29 and Bankes, above n 110. 113 See generally Waldron’s articles listed above n 8. 114 Waldron, ‘Settlement’, above n 8, 239. 115 Waldron, ‘Historic Injustice’, above n 8, 154. 116 Waldron, ‘Settlement’, above n 8, 244. See also Watson Hamilton, ch 2 of this volume. 117 Waldron, ‘Historic Injustice’, above n 8, 146–53. 118 Ibid, 155.

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But Waldron suggests that there are other objections. For example, over time, and ‘for better or worse, people build up structures of expectation around the resources that are actually under their control’.119 And on the other side, those who are the successors of those wrongfully deprived of their lands cannot make the personhood-based property argument that they are morally connected to particular land or object if they never had it in their possession. But Waldron does recognise that this is hardly an all-ornothing argument. In particular he concedes that120 it may not apply so clearly to cases where the dispossessed subject is a tribe or community rather than an individual, and where the holding of which it has been dispossessed is particularly important for its sense of identity as a community. … Claims that land of religious significance should be returned to its original owner may have an edge over claims for the return of land of which the significance for them is mainly material or economic.

There are echoes of this line of reasoning in the decisions of the InterAmerican Court of Human Rights dealing with indigenous property right, most notably in three cases involving Paraguay.121 Waldron buttresses his argument with the more general point that claims to restitution must also be justified in light of changes in background circumstances. It is not enough to say that because X is mine, it must always remain mine; instead, ‘a claim about property rights needs to be justified, and the burden of justification is directly proportional to the importance of the other interests that are perceived to be affected by the claim’.122 Waldron goes on to illustrate this point with his famous waterhole examples.123 His general argument is that with the passage of time and successive generations of settlers and indigenous peoples (and even where there is continuing discrimination against indigenous inhabitants), there is a case for redress, but that the redress that is called for124 is not a return to the status quo ante, the situation obtaining [before wrongful dispossession]. What is called for is a distribution morally appropriate to present circumstances, present resources, and the present population of inhabitants who 119

Ibid, 156. Ibid, 158–59. 121 Yakye Axa Indigenous Community v Paraguay, Judgment of 17 June 2005, Series C, No 125; Sawhoyamaxa Indigenous Community v Paraguay, Judgment of 29 March 2006, Series C, No 146; and Xákmok Kásek Indigenous Community v Paraguay, Merits, Reparations and Costs, Judgment of August 24, 2010, Series C, No 214. And for discussion, see Bankes, above n 6. 122 Waldron, ‘Historic Injustice’, above n 8, 159. 123 In these examples different tribal peoples lay claim to different waterholes in conditions where there are enough waterholes for each group. But then the waterhole of one tribal people (B) dries up. In such a circumstance, ‘it is surely no longer permissible’ for tribal groups C, D and E to exclude B from their waterholes, ‘notwithstanding the legitimacy of their prior appropriation’. Waldron, ‘Settlement’, above n 8, 241. 124 Waldron, ‘Historic Injustice’, above n 8, 165. 120

Different Conceptual Approaches 41 have no choice but to live in these territories, not to a set of circumstances in the past where everything was different. In this sense a historic injustice can be superseded, and its reparation trumped, as it were, by principles of justice applied directly to present circumstances.

This argument does not preclude restoration in appropriate circumstances, but it does insist that all such claims have to be responsive to changes in circumstances and broader justice-based concerns. But this also has implications for the nature of future negotiations between indigenous people and the settler State. If we reject ‘backward-looking arguments for reparative justice,’ part of our duty of remembering is, as Margaret Moore suggests, ‘to reflect on the historical facts about conquest and exclusion [and] … aspire to put the relationship between indigenous and nonindigenous people on a more equal and reciprocal footing’.125 This suggests that any modern settlement should strive to ensure that indigenous people have adequate access to resources to attain the same standards of living and well-being as the settler population, but also access to resources to maintain their cultural connection to land and territory. Waldron is not alone in expressing these reservations and concerns.126 Dwight Newman, for example, questions more generally the normative force of claims based on prior occupation, and suggests that ‘nobody would reasonably maintain that prior occupation has unlimited, all pervasive normative force for modern ownership’127 and reject any redistributive role for the State.128 Thus, instead of prioritising first occupation, Newman endeavours to develop a theory in which prior occupation is read ‘as a proxy’ for something that Newman argues is of much greater normative significance, namely, ‘[a]boriginal community connections to the land’;129 and those connections, he argues, may be established and continue without prior possession.130 Slattery also contributes to this debate in his ‘Metamorphosis’ article. While that contribution principally addresses the legal nature of indigenous title (customary, common law or sui generis) as discussed above, the author also addresses a second question, namely, the practical consequences of recognising an indigenous title. Here Slattery notes that the ‘courts are torn between 125 M Moore, ‘Indigenous Peoples and Political legitimacy’ in Webber and Macleod (eds), above n 102, 143, 152. 126 See also W Kymlicka, Liberalism Community and Culture (Clarendon Press, Oxford, 1989) 158–59, questioning the importance of first occupation in the context of claims to restitution and stating ‘that is not a reason yet why the ultimate goal shouldn’t be some form of equality of resources for all the citizens of the country, rather than any permanent special status’. 127 D Newman, ‘Prior Occupation and Schismatic Principles: Toward a Normative Theorization of Aboriginal Title’ (2007) 44 Alberta Law Review 779, 791. 128 Ibid, 796, all, that is, except perhaps Robert Nozick, above n 91. 129 Newman, above n 127, 798. 130 Ibid, 800.

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a desire to right a great historical wrong [unlawful dispossession] … and deep misgivings about doing so at the expense of third parties and the larger society’.131 Slattery’s response to this ‘moral conundrum’ is to argue that what he refers to as historical title based on principles of recognition has ‘undergone a metamorphosis’, becoming instead ‘a generative right governed by Principles of Reconciliation’.132 The distinction between a static right and generative right is that a generative right is not capable of immediate self-implementation, and indeed ‘to suggest that historical aboriginal title gives rise to modern rights that automatically trump third party and public interests constitutes an attempt to remedy one grave injustice by committing another’.133 Instead, the courts are capable of identifying the core elements of the right but its implementation can be achieved only by negotiations and agreements between the parties.134 This serves to place a great deal of emphasis on process and negotiations as a way of resolving claims of indigenous title.135 Not all agree with this sort of distinction, or at least with the consequences of making a distinction between historical and current acts of dispossession. For example, Eide, while acknowledging a fundamental distinction between ‘claims based on historical rights versus claims based on needs’,136 argues that if it can be shown that the past refusal to recognise Saami ownership rights was based on ‘a pattern of racial or ethnic discrimination, this should be redressed by now restoring those rights’.137 It might be cautioned, however, that it is not clear from the context whether Eide is referring to property currently claimed by the State as State property, or to private rights. It is surely easier to justify arguments for the restoration of indigenous lands that are held by the State than by a private owner. However, there is broad agreement that in at least some cases, the cultural or religious significance of particular lands may justify a claim to restitution even as against a private owner.

VI. CONCLUSIONS

This chapter has examined several different doctrinal and theoretical justifications that have been offered for recognising indigenous property 131 Slattery, above n 13, 256–57 and 261–62, arguing that the original remedy envisaged by the common law (expulsion of those occupying indigenous lands) was no longer practicable. See also Slattery, above n 44, 623–25. 132 Slattery, above n 13, 259 (emphasis in original). 133 Ibid, 282. 134 Ibid, 262. 135 For a similar emphasis on the importance of process in working through the implications of shared sovereignty, see J [Sa’ke’j] Youngblood Henderson, ‘Dialogical Governance: A Mechanism of Constitutional Governance’ (2009) 72 Saskatchewan Law Review 29. 136 Eide, above n 35, 131. 137 Ibid, 142.

Different Conceptual Approaches 43 interests within the settler State. I have examined the literature within a three-part framework. The categories of that framework are not mutually exclusive. There is significant cross-fertilization between domestic law and international law. There is, for example, considerable overlap between the demand for equality evident in international law and in the writings of political theorists such as Tully, and the work of legal academics such as McNeil who principally work within the domestic legal system. I have also explored an additional aspect of recognising indigenous property interests, namely, the scope of the duty to make restoration to remedy the historical dispossession of indigenous lands. It has further been my intention to draw attention to some connections between the themes explored here and the land and water provisions of the draft Nordic Saami Convention. First, the draft does reflect the duty of the State to recognise Saami property interests, and in doing so (Article 34) it draws upon both national norms and international norms. Secondly, overall, the text favours relying upon the legal consequences of occupation and possession (protracted usage) within domestic law as the basis for recognition, rather than relying upon the normative force of Saami property laws and customs. Thirdly, the draft draws on ideas of substantive equality when dealing with the tests to be applied to the recognition of Saami rights based on protracted use (Article 34(3)), and also in relation to the effective protection of Saami property rights (Article 35) and the right to compensation where resource extraction activities cause damage to Saami lands (Article 37). Fourthly, and as already noted, the text is quite equivocal with respect to any rights that the Saami may have to the restitution of lands of which they might have been wrongfully deprived, especially where such territorial interest may now be vested in third parties. The range of views expressed in the literature suggests that this equivocation is perhaps well justified. Lastly, I suggest that the three Nordic States may very much understand the rights of the Saami as generative rights which demand precisely the sort of transborder negotiations that are reflected in the procedure for the elaboration of the draft Convention.

2 Acknowledging and Accommodating Legal Pluralism: An Application to the Draft Nordic Saami Convention JONNETTE WATSON HAMILTON

I. INTRODUCTION

T

HE 2005 DRAFT Nordic Saami Convention presents a unique vision of three States and four peoples.1 The draft Convention may be seen as an instrument that facilitates interaction between indigenous and State legal systems.2 Even if viewed more cautiously, it requires the three Nordic States to grant some degree of recognition to Saami legal customs. Regardless of how expansively it is interpreted, the draft Convention is an example of the recognition and management of legal pluralism. The most common issue within legal pluralism, in the last three decades of the twentieth century, was whether we were ‘prepared to admit the theoretical possibility of more than one legal order or mechanism within one socio-political space, based on different sources of ultimate validity and maintained by forms of organisation other than the state’.3 Thus, the Sami

1 Nordisk samekonvensjon: Utkast fra finsk-norsk-svensk-samisk ekspertgruppe (Oslo, Kopi og distribusjonsservice, 2005). Unofficial English translations of the draft Convention are available from the Saami Council website at and in (2007) 3 Journal of Indigenous Peoples Rights 98. 2 I use the terms ‘legal systems’ and ‘legal orders’ interchangeably and without implying that there is necessarily anything systematic or orderly about the phenomenon being discussed. Benda-Beckman prefers ‘conceptions’ as a collective term that encompasses rules, principles, categories, concepts, standards, notions, schemes of meaning: F von Benda-Beckmann, ‘Who’s Afraid of Legal Pluralism?’ (2002) 47 Journal of Legal Pluralism 37, 48–52. Delmas-Marty uses ‘legal ensembles’ because she sees it as a more neutral term: M Delmas-Marty, Ordering Pluralism: A Conceptual Framework for Understanding the Transnational Legal World, trans N Norberg (Oxford, Hart Publishing, 2009) 17. 3 Benda-Beckmann, above n 2, 37.

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Rights Commission in 2001 identified legal pluralism as a key concept in research into Saami customs and legal perceptions.4 In the twenty-first century, most legal practitioners and scholars readily acknowledge the complexity of legal orders that exist in most societies.5 The key question in legal pluralism scholarship today is how to come to grips with this complexity.6 Certainly recent writing in legal pluralism, which concentrates on hybridity—situations in which laws overlap without fully supplanting each other7—and interlegality—the dynamic relationship between different laws8—seems particularly apt for the draft Nordic Saami Convention and negotiations toward a final Convention. The concept of ‘legal pluralism’ has no agreed-upon meaning.9 It may be described most simply as a situation in which two or more legal systems co-exist in one Nation State, population or individual.10 More completely, it might be said that legal pluralism describes and theorises situations in which two or more legal systems occupy the same social field and must therefore negotiate the resulting mutually constitutive relationship between them.11

4 TG Svensson, ‘Indigenous Rights and Customary Law Discourse: Comparing the Nisga’a and the Sami’ (2002) 47 Journal of Legal Pluralism 1, 3. The other key concepts are custom and legitimacy: Benda-Beckmann, above n 2, 37. 5 Benda-Beckmann, above n 2, 38–39. 6 Ibid, 39. 7 R Michaels, ‘Global Legal Pluralism’ (2009) 5 Annual Review of Law and Social Science 243, 254. 8 Ibid, crediting coining of the term to B de Sousa Santos, ‘Law: A Map of Misreading—Toward a Postmodern Conception of Law’ (1987) 14 Journal of Law & Society 279, 297–99. 9 For surveys of the debates on this concept, see SE Merry, ‘Legal Pluralism’ (1988) 22 Law and Society Review 869 ff; Benda-Beckmann, above n 2; R Michaels, ‘The Re-State-Ment of Non-State Law. The State, Choice of Law, and the Challenge from Global Legal Pluralism’ (2005) 51 Wayne Law Review 1209, 1221 ff, 1250 ff, all with further references. 10 Michaels, above n 7, 245. For surveys of the fast-growing and increasingly disparate literature on legal pluralism, see GR Woodman, ‘Ideological Combat and Social Observation: Recent Debate About Legal Pluralism’ (1998) 42 Journal of Legal Pluralism and Unofficial Law 21; P Schiff Berman, ‘Global Legal Pluralism’ (2007) 80 Southern California Law Review 1155; SE Merry, ‘International Law and Sociolegal Scholarship: Towards a Spatial Global Legal Pluralism’ (2007) 41 Studies in Law, Politics and Society 149; BZ Tamanaha, ‘Understanding Legal Pluralism: Past to Present, Local to Global’ (2008) 30 Sydney Law Review 375; M Hertogh, ‘What is Non-State Law? Mapping the Other Hemisphere of the Legal World’ in H van Schooten and J Verschuuren (eds), International Governance and Law: State Regulation and Non-state Law (Cheltenham, Edward Elgar Publishing, 2008) 11; W Twining, ‘Normative and Legal Pluralism: A Global Perspective’ (2010) 20 Duke Journal of Comparative and International Law 473. 11 P Schiff Berman, ‘The New Legal Pluralism’ (2009) 5 Annual Review of Law and Social Science 225, 227. ‘Social field’ refers to Moore’s ‘semi-autonomous social field’, a widely-used concept within legal pluralism. A social field ‘has rule-making capacities, and the means to induce or chorus compliance; but it is simultaneously set in a larger social matrix which can, and does affect and invade it, sometimes at the invitation of persons inside it, sometimes at its own instance’: SF Moore, Law as Process: An Anthropological Approach (Routledge & Kegan Paul, 1978) 56.

Acknowledging & Accommodating Legal Pluralism 47 The term ‘legal pluralism’ was originally coined to describe the legal world of former colonies where European States added their law to traditional legal orders.12 This early pluralist scholarship, written mainly by anthropologists, focused on the hierarchical relationship of what were seen as separate legal systems.13 Running through nearly all of the ‘classical’ legal pluralism, or first-wave literature, is a positivist ideal type that William Twining calls the ‘social fact’ view of legal pluralism.14 Although older and positivist, this body of literature is still relevant in the draft Nordic Saami Convention context, because it focused on indigenous legal orders in the context of colonialism. A second wave—‘new’ legal pluralism—focused on legal pluralism within non-colonised States, particularly in the industrialised countries of Western Europe. This body of literature analyses the laws of immigrant groups and religious, ethnic and cultural minorities in industrialised societies, and unofficial forms of ordering within social networks or institutions.15 The current third wave of literature—‘global’ legal pluralism—is mainly concerned with globalisation and supra-national legal orders.16 Much of it centres on the European Union.17 This body of literature is relevant because of the role of international law in Saami claims.18 The transnational nature of Saami claims to self-determination also makes this body of literature germane. So too does its focus on models of ‘fitting together’ different systems of law. Given the recognition of legal pluralism in the draft Convention, this chapter focuses on the more recent preoccupation of the legal pluralism scholarship, namely, how to deal with the complexities of multiple legal orders. My review of the literature on ‘fitting’ together State and indigenous legal systems is not comprehensive but limited to those aspects applicable to the draft Convention. However, I do not totally ignore the earlier issue

12 For discussions and debates about the history of legal pluralism, see J Griffiths, ‘What is Legal Pluralism?’ (1986) 24 Journal of Legal Pluralism 1; Merry, above n 9; J Vanderlinden, ‘Return to Legal Pluralism: Twenty Years Later’ (1989) 28 Journal of Legal Pluralism and Unofficial Law 149; de Sousa Santos, above n 8; F von Benda-Beckmann, ‘Citizens, Strangers, and Indigenous Peoples: Conceptual Politics and Legal Pluralism’ (1997) 9 Law Anthropology 1; BZ Tamanaha, ‘The Folly of the “Social Scientific” Concept of Legal Pluralism’ (1993) 20 Journal of Law and Society 192; Tamanaha, above n 10. 13 Berman, above n 11, 227. 14 Twining, above n 10, 486. 15 Hertogh, above n 10, 15. 16 See eg W Twining, ‘A Post-Westphalian Conception of Law (Review Essay)’ (2003) 37 Law & Society Review 199; SE Merry, ‘From Law and Colonialism to Law and Globalisation’ (2003) 28 Law and Social Inquiry 569; Michaels, above n 9; Berman, above n 10; Merry, above n 10; Michaels, above n 7; Twining, above n 10; N Krisch, Beyond Constitutionalism: The Pluralist Structure of Postnational Law (Oxford, Oxford University Press, 2010). 17 See eg N MacCormick, Questioning Sovereignty: Law, State and Nation in the European Commonwealth (Oxford, Oxford University Press, 1999); M Delmas-Marty, above n 2. 18 See Bankes, ch 1; Koivurova, ch 4; and Heinämäki, ch 5 of this volume.

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in legal pluralism scholarship, the question of acknowledging the existence of legal pluralism. Based on the Nordic legal literature available in English and interaction with Nordic members of this project, my impression is that the unitary Nordic States, with their traditions of legal positivism, still have difficulty acknowledging legal pluralism. Finland, Sweden and Norway are all unitary States, with constitutional frameworks based upon the idea of one people governing themselves.19 As such, they may have less room to accommodate different arrangements for various groups than do federal States.20 Mainstream jurisprudence in Norway, Sweden and Finland has for more than a century been influenced by legal positivism, emphasising the autonomy of law and the identification of law with legislation.21 I therefore look at two aspects of the acknowledgement question. First, I situate legal pluralism within the normative theories of recognition, reconciliation and transitional justice. Legal pluralism is one of the things that gets ‘recognised’ in the process of reconciliation, which itself is one of the two goal of transitional justice. Secondly, I consider the legal pluralism literature on the specific issue of ‘What is law?’ That literature is relevant given that there are some who deny the status of law to indigenous legal orders and seek to characterise those orders as something ‘other’—usually lesser—than law. I deal with the context of legal pluralism first in section II., and then with the ‘What is law?’ issue. Models of interlegality are considered in section III. I apply the concepts and issues being discussed throughout sections II. and III. to the draft Convention and the Nordic Saami context. In my conclusion, in section IV., I address the advantages and disadvantages of the ‘messiness’ of legal pluralism, and the factors that have been identified as necessary to its flourishing. II. RECOGNISING LEGAL PLURALISM

A. Recognition, Reconciliation and Transitional Justice The struggle for ‘recognition’ has been called ‘the paradigmatic form of political conflict in the late [twentieth] century’, with cultural domination replacing exploitation as the fundamental injustice.22 ‘Recognition’ has also 19 KÅ Modéer, ‘Harmonization or Separation? Deep Structures in Nordic Legal Cultures’ (2007) 50 Scandinavian Studies in Law 179, 180. 20 T Koivurova, ‘The Draft for a Nordic Saami Convention’(2008) 6 European Yearbook of Minority Issues 103, 117. 21 H Hyden, ‘Sociology of Law in Scandinavia’ (1986) 13 Journal of Law and Society 131, 132; H Minde, ‘A Century of Norwegian Research into Sámi Rights’ (1993) 37 Scandinavian Studies in Law 109, 136. 22 N Fraser, ‘From Redistribution to Recognition? Dilemmas of Justice in a “Post-Socialist” Age’ in C Willett (ed), Theorizing Multiculturalism: A Guide to the Current Debate (Malden, Mass, Blackwell Publishers, 1998) 19, 19.

Acknowledging & Accommodating Legal Pluralism 49 provided a ready theoretical framework within which to discuss how to achieve reconciliation between settler States and indigenous peoples.23 In Canada, for example, reconciliation is linked with two forms of recognition: the recognition that much of what the Government did to aboriginal people in the past was wrong, and the recognition of aboriginal peoples’ rights and difference within the framework of liberalism.24 Reconciliation is a goal of transitional justice, although ‘reconciliation’ is a highly-contested concept in the transitional justice literature.25 It has a variety of meanings and is depicted as both a process and a goal.26 Despite its conceptual imprecision, the Supreme Court of Canada confirmed its significance in its unanimous decision in Mikisew Cree First Nation v Canada (Minister of Canadian Heritage), which begins as follows: The fundamental objective of the modern law of aboriginal and treaty rights is the reconciliation of aboriginal peoples and non-aboriginal peoples and their respective claims, interests and ambitions.27

The theoretical and empirical literature that describes, compares and critiques responses to systematic or widespread violations of human rights, may be grouped together as the literature of ‘transitional justice’.28 Teitel defines transitional justice as ‘a concept of justice, intervening in a period of political change, characterised by a juridical answer to the wrongs of past repressive regimes’.29 Transitional justice is said to have two goals: justice and, as noted above, reconciliation.30 23 A Schaap, ‘Political Reconciliation through a Struggle for Recognition?’ (2004) 13 Social and Legal Studies 523. 24 C Blackburn, ‘Producing legitimacy: reconciliation and the negotiation of aboriginal rights in Canada’ (2007) 13 Journal of the Royal Anthropological Institute 621, 628–29. 25 L Laplante, ‘Reconciliation(s): Transitional Justice in Postconflict Societies’ (2011) 45 Law & Society Review 230, 235. Weinstein has recently argued that reconciliation is a questionable goal for transitional justice because of the multiple meanings of the imprecise term: HM Weinstein, ‘Editorial Note: the Myth of Closure, the Illusion of Reconciliation: Final Thoughts on Five Years as Co-Editor in Chief’ (2011) 5 The International Journal of Transitional Justice 1, 6. 26 J Borrows, ‘Practical Recolonisation?’ (2005) 28(3) University of New South Wales Law Journal 614. 27 Mikisew Cree First Nation v Canada (Minister of Canadian Heritage), 2005 SCC 69, [2005] 3 SCR 388, para 1. Tsilhqot’in Nation v British Columbia, 2007 BCSC 1700, paras 1338–82, contains a thorough review of the history of the concept of ‘reconciliation’ in Canadian aboriginal rights case law. 28 For overviews of this body of literature, see eg J Mendez, ‘Accountability for Past Abuses’ (1997) 19 Human Rights Quarterly 255; D Crocker, ‘Reckoning with Past Wrongs: A Normative Framework’ (1999) 43 Ethics & International Affairs 43; RG Teitel, ‘Transitional Justice Genealogy’ (2003) 16 Harvard Human Rights Journal 69; J Elster, Closing the Books: Transitional Justice in Historical Perspective (New York, Cambridge University Press, 2004); P de Greiff and P Duthie (eds), Transitional Justice and Development: Making Connexions (New York, International Center for Transitional Justice, 2009). 29 RG Teitel, Transitional Justice (Oxford, Oxford University Press, 2000) 69. 30 BA Leebaw, ‘The Irreconcilable Goals of Transitional Justice’ (2008) 30 Human Rights Quarterly 95; M Ignatieff, ‘Articles of Faith’ (1996) 5 Index of Censorship 110; Mendez, above n 28.

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While usually used to describe sharp breaks in regimes following gross human rights violations and crimes against humanity, the concept of transitional justice has also been applied to democratic countries with indigenous populations and to those countries’ transitions from colonial to post-colonial States.31 For example, the historical wrongdoing that the modern Nisga’a Treaty with Canada addresses is the prior refusal of settler governments and courts to recognise that the Nisga’a had rights, particularly in their lands and other natural resources, and to deal with those rights through a treaty process.32 As is the case with most histories of inner colonialism,33 the history of Saami people in what became the Nordic countries has also been marred by the progressive loss of their lands and natural resources without consent or conquest.34 In their northward expansion, the Danish-Norwegian and Swedish-Finnish kingdoms justified their claims to Sápmi by asserting that the people who lived there belonged to them.35 Transitional justice concerns seem as relevant to the Nordic States as they do to Canada and Australia. Nevertheless, in liberal democratic States, indigenous peoples’ aspirations tend to be discussed within the discourse of multiculturalism and ‘the politics of recognition’36 rather than in terms of transitional justice.37 31 J Webber, ‘Rights and Wrongs, Institutions and Time: Species of Historic Injustice and their Modes of Redress’ in D Dyzenhaus and M Moran (eds), Calling Power to Account: Law, Reparations, and the Chinese Canadian Head Tax Case (Toronto, University of Toronto Press, 2005) 165, 168; C Jung, ‘Canada and the Legacy of the Indian Residential Schools: Transitional Justice for Indigenous Peoples in a Non-Transitional Society’ (2009) APSA 2009 Toronto Meeting Paper, online at . 32 Blackburn, above n 24, 621. 33 ‘Inner colonialism’ refers to the historical process whereby the dominant agricultural and commercial cultures in the southern metropolitan areas of Norway, Sweden and Finland spread northwards and pushed the hunting, gathering and nomadic cultures of the indigenous groups into more marginal areas, or assimilated them into the mainstream cultures: A Sandberg, ‘Collective Rights in a Modernizing North—On Institutionalizing Sámi and Local Rights to Land and Water in Northern Norway’ (2008) 2 International Journal of the Commons 269, 274. 34 J Anaya, Report of the Special Rapporteur on the Situation of Human Rights and Fundamental Freedoms of Indigenous People, Addendum: The Situation of the Sami people in the Sápmi region of Norway, Sweden and Finland, United Nations General Assembly, Human Rights Council, 12 January 2011, A/HRC/18/XX/Add.Y, para 46. See also M Åhrén, ‘Indigenous Peoples’ Culture, Customs and Traditions and Customary Law—The Saami People’s Perspective’ (2004) 21 Arizona Journal of International and Comparative Law 63; E Josefsen, The Saami and the National Parliaments: Channels for Political Influence (Geneva, Inter-Parliamentary Union and United Nations Development Programme, 2010); B Hobson, M Carson and R Lawrence, ‘Recognition Struggles in Trans-National Arenas: Negotiating Identities and Framing Citizenship’ (2006) 10 Critical Review of International Social and Political Philosophy 443; H Beach, The Saami of Lapland, Report No 55 (London, The Minority Rights Group, 1988); Sandberg, above n 33; T Ingold, Hunters, Pastoralists and Ranchers: Reindeer Economics and Their Transformations (Cambridge, Cambridge University Press, 1980). 35 Minde, above n 21, 113. 36 C Taylor, ‘The Politics of Recognition’ in A Gutmann (ed), Multiculturalism: Examining the Politics of Recognition (Princeton, NJ, Princeton University Press, 1994) 36. 37 D Short, ‘Reconciliation and the Problem of Internal Colonialism’ (2005) 26 Journal of Intercultural Studies 267.

Acknowledging & Accommodating Legal Pluralism 51 Indigenous peoples’ claims are not seen as requiring a radical restructuring of the State because the State is seen as democratic and therefore legitimate. Only a greater recognition within the dominant liberal State is seen as required. A disinclination to see indigenous peoples’ claims as issues of transitional justice may therefore limit the depth and breadth of change that is seen as necessary. Other factors affect the degree of restructuring seen as necessary. Transitional justice has both backward- and forward-looking dimensions. Which orientation prevails affects what is considered relevant to claims of justice, the effect of the passage of time on those claims, and the institutions considered appropriate for judging and remedying those claims.38 In its backward-looking aspect, transitional justice requires a reckoning with the past that might involve ascertaining what happened, retributive justice for the perpetrators, and acknowledgement and reparations for the victims, among other things.39 The forward-looking element is about constructing a new political order that includes all citizens.40 The prospective and retrospective orientations are seen by many as leading to conflicting goals, usually framed as a tension between justice and reconciliation.41 For example, governments may try to use transitional justice to draw a line to separate the past from the present in order to legitimise current policy, but indigenous people may want to use the past to critique current policy.42 The goal of reconciliation has been invoked as shorthand for compromises perceived as necessary in the name of stability and certainty. Viewed retrospectively, the more limited the awareness of indigenous legal norms within non-indigenous legal institutions, the more time and education will be required for the mutual comprehension and mutual recognition that promote dialogue.43 Establishing the truth of contested histories is understood as necessary to moving forward as a nation.44 Long delays in the recognition of indigenous peoples’ prior ownership and use of their traditional territory have resulted in present-day recognition being

38

Webber, above n 31, 169. A Valls, ‘Between Past and Future: Recent Work on Transitional Justice’ (2000) 4 Trames 394, 396. 40 Ibid. 41 See eg Leebaw, above n 30; Mendez, above n 28. 42 Jung, above n 31, 1. 43 D Yarrow, ‘Law’s Infidelity to Its Past: The Failure to Recognize Indigenous Jurisdiction in Australia and Canada’ in LA Knafla and H Westra, Aboriginal Title and Indigenous People: Canada, Australia and New Zealand (Vancouver, UBC Press, 2010) 85, 96. 44 A Orford, ‘Commissioning the Truth’ (2006) 15 Columbia Journal of Gender and Law 851. The effects of denial in the context of the Finnish Civil War in 1918 are examined in T Forsberg, ‘Forgiveness, Post-Conflict Justice and the Finnish Civil War 1918. Reconciliation without Truth?’, a paper prepared for presentation at the Annual Convention of the International Studies Association, New York, February 2009, available online at . 39

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highly constrained by the extent and complexity of non-indigenous interests and the political reality of minority status.45 Without a sense of history, it can be difficult for non-indigenous citizens to understand the rights of the indigenous peoples as group rights vested in communities and not held by all citizens.46 With respect to the forward-looking element of transitional justice that seeks a new inclusive political order, liberal democratic States such as Australia and Canada tend to discuss indigenous peoples’ aspirations within the discourse of multiculturalism. Recognition theorists such as Kymlicka47 and Waldron48 have frequently discussed indigenous peoples’ claims in the same terms as those of ethno-cultural minorities, and focused on internal citizenship-based solutions to diversity. Indigenous and post-colonialist scholars such as Tully49 and Short50 see this type of approach as trivialising the distinct claims of indigenous peoples and Tully has recast the struggle for recognition as a struggle over the norms of recognition.51 He emphasises the uniqueness of indigenous peoples’ claims, both culturally and in terms of the issue of consent—immigrant minorities chose to become citizens of the settler nation, but many indigenous peoples have never willingly ceded their lands or political autonomy. For many indigenous people, full social

45 RS Meinzen-Dick and R Pradhan, ‘Legal Pluralism and Dynamic Property Rights’, CAPRi Working Paper No 22 (Washington, DC, International Food Policy Research Institute, 2002) 15; P Schiff Berman, ‘Towards a Jurisprudence of Hybridity’ (2010) 1 Utah Law Review 11, 13. 46 PLAH Chartrand, ‘The “Race” for Recognition: Toward a Policy of Recognition of Aboriginal Peoples in Canada’ in LA Knafla and H Westra (eds), Aboriginal Title and Indigenous People: Canada, Australia and New Zealand (Vancouver, UBC Press, 2010) 125, 127–28; PW Hutchins, ‘Power in Principle: State-Indigenous Relations across Time and Space’ in LA Knafla and H Westra (eds), Aboriginal Title and Indigenous People: Canada, Australia and New Zealand (Vancouver, UBC Press, 2010) 214, 219. 47 W Kymlicka, Multicultural Citizenship: A Liberal Theory of Minority Rights (Oxford, Clarendon Press, 1995); W Kymlicka and W Norman, Citizenship in Diverse Societies (Oxford, Oxford University Press, 2000). But see W Kimlicka, ‘Beyond the Indigenous/ Minority Dichotomy?’ in S Allen and A Xanthaki (eds), Reflections on the UN Declaration on the Rights of Indigenous Peoples (Oxford, Hart Publishing, 2011) 183, acknowledging distinctions between indigenous peoples and national minorities/stateless nations. 48 J Waldron, ‘Minority Cultures and the Cosmopolitan Alternative’ (1992) 25 University of Michigan Journal of Law Reform 751. 49 J Tully, Strange Multiplicity: Constitutionalism in the Age of Diversity (Cambridge, Cambridge University Press, 1995) 53; J Tully, ‘The Struggles of Indigenous Peoples for and of Freedom’ in D Ivison, P Patton and W Sanders (eds), Political Theory and the Rights of Indigenous Peoples (Cambridge, Cambridge University Press, 2000) 36, 55. 50 Short, above n 37. 51 J Tully, ‘The Practice of Law-making and the Problem of Difference: One View of the Field’ in OP Shabani (ed), Multiculturalism and the Law: A Critical Debate (Cardiff, University of Wales Press, 2006) 286; J Tully, ‘On Reconciling Struggles over Recognition: Toward a New Approach’ in A Eisenberg (ed), Equality and Diversity: New Perspectives (Vancouver, University of British Columbia Press, 2006) 15.

Acknowledging & Accommodating Legal Pluralism 53 participation is not the goal of recognition; instead, for them, recognition of their claims to self-determination is key to achieving reconciliation.52 What is meant by ‘reconciliation’? Oduro concludes that most, if not all, legal scholars and practitioners would agree on a number of points: first, that reconciliation has a materialistic element, requiring redistribution of resources; secondly, that it is a long-term process; thirdly, that it must be voluntary; fourthly, that it involves stages requiring action from each party; and, fifthly, that reconciliation is conditional on each party’s actions.53 Process-orientated understandings of reconciliation, such as Oduro’s, view reconciliation as involving multi-sequential stages that seek slowly to bring conflicting individuals or groups from a position of antagonism to one of cooperation.54 Outcome-orientated reconciliation sees reconciliation from the standpoint of end results such as restored mutual trust, a renewed relationship based on the present and not the past, community engagement, changes in behaviour and attitudes, and structural transformation that improves the economic and material well-being of people as a response to changing attitudes. Crocker’s well-accepted typology identifies three broad meanings of reconciliation, all outcome-orientated.55 First is the most minimal understanding, where reconciliation is merely peaceful co-existence. The second conception refers to situations where citizens respect each other and seek to create space to hear each other out on public policy matters of common concern. Third is the conception of a shared comprehensive vision of mutual healing, restoration and mutual forgiveness.56 All three meanings should be useful to the Saami parliaments and Nordic States negotiating a final Convention. 52 P Patton, ‘Reconciliation, Aboriginal Rights and Constitutional Paradox in Australia’ (2001) 15 Australian Feminist Law Journal 25; JB Henriksen, ‘The Continuous Process of Recognition and Implementation of the Sami People’s Right to Self-determination’ (2008) 21 Cambridge Review of International Affairs 27, 30. 53 F Oduro, ‘A Review of the Literature on Reconciliation: What Do We Understand by “Reconciliation”? (Emerging Definitions of Reconciliation in the Context of Transitional Justice)’, a paper presented at The Center for the Study of Violence and Reconciliation and International Development Research Center Workshop, Evaluating Experiences in Transitional Justice and Reconciliation: Challenges and Opportunities for Advancing the Field, Cape Town, South Africa, April 2–4 2007, 19. See also J Meierhenrich, ‘Varieties of Reconciliation’ (2008) 33 Law & Social Inquiry 195, 212 (agreeing with Oduro that reconciliation requires bilateral action and must be consensual and voluntary). 54 Oduro, above n 53, 29–30. 55 DA Crocker, ‘Truth Commissions, Transitional Justice, and Civil Society’ in RI Rotberg and D Thompson (eds), Truth v Justice: The Morality of Truth Commissions (Princeton, NJ, Princeton University Press, 2000) 99, 108. 56 Crocker’s third conception may be seen in J Borrows, Recovering Canada: The Resurgence of Indigenous Law (Toronto, University of Toronto Press, 2002). Borrows’ recognition is a mutual recognition that has been called a ‘blueprint for the epistemological, ideological and correlative legal shifts that are necessary in order to effect such a reconciliation’: see B Bhandat, ‘Re-Covering the Limits of Recognition: The Politics of Difference and Decolonisation in John Borrows, Recovering Canada: The Resurgence of Indigenous Law (Review Essay)’ (2007) 27 Australian Feminist Law Journal 125, 133.

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Crocker’s third, robust conception of reconciliation is problematic in the inner colonialism context, where indigenous peoples never shared nor wished to share a comprehensive vision with their colonisers.57 Alfred critiques this robust sense of reconciliation as inappropriate in settler nations because it presupposes a prior social unity that needs to be restored.58 In the context of the modern Nisga’a Treaty with Canada, for example, Blackburn argues that this conception of reconciliation produces political legitimation by emphasising modernist themes and a modern temporality, involving a progressive movement away from the past into an improved future built upon enlightenment values.59 It leaves unrecognised the exclusionary tendency at the heart of modernity’s universalising pretensions.60 This exclusionary tendency and the political perspective associated with it have also been the focus of much criticism of the reconciliation process in Australia. A formal, 10-year process of reconciliation between indigenous and non-indigenous Australians began in 1991 with the Australian Government’s creation of the Council for Aboriginal Reconciliation.61 Its goal was to achieve ‘a united Australia which respects this land of ours, values the Aboriginal and Torres Strait Islander heritage, and provides justice and equity for all’.62 However, after 1996, a new, more conservative Government emphasised health, housing, education and employment, generating criticism for divorcing the need to address social inequalities from the need for reparations for the past injustices of dispossession and oppression, and the need for recognition of indigenous rights.63 As a political and legal means of dealing with the legacies of colonialism, the Australian process has been critiqued as merely yet another form of political domination.64 Thus the rhetoric of ‘reconciliation’ is viewed by many as catering to apologists.65

57 T Alfred, Heeding the Voices of our Ancestors: Kahnawake Mohawk Politics and the Rise of Native Nationalism (Toronto, Oxford University Press (Canada), 1999) 63. 58 A Schaap, ‘The Proto-politics of Reconciliation: Lefort and the Aporia of Forgiveness in Arendt and Derrida’ (2006) 41:4 Australian Journal of Political Science 615. 59 Blackburn, above n 24, 622. 60 Ibid. 61 W Sanders, Journey Without End: Reconciliation between Australia’s Indigenous and Settler Peoples, CAEPR Discussion Paper No 237 (Canberra, Centre for Aboriginal Economic Policy Research, 2002). 62 Council for Aboriginal Reconciliation, Council for Aboriginal Reconciliation: An Introduction (Canberra, Council for Aboriginal Reconciliation, 1993) 3. 63 D Short, ‘Australian “Aboriginal” Reconciliation: The Latest Phase in the Colonial Project’ (2003) 7 Citizenship Studies 291; J Cockayne, ‘More than Sorry: Constructing a Legal Architecture for Practical Reconciliation’ (2001) 23 Sydney Law Review 576. 64 S Motha, ‘Reconciliation as Domination’ in S Veitch (ed), Law and the Politics of Reconciliation (Aldershot, Ashgate, 2007) 69. See also S Veitch, ‘Pro Patria Mori: Law, Reconciliation and the Nation’ in D Manderson (ed), Courting Death: The Law of Mortality (London, Pluto Press, 1999) 148. 65 Leebaw, above n 30, 101–02.

Acknowledging & Accommodating Legal Pluralism 55 There is no scholarly consensus on how reconciliation can be achieved, but the criteria put forward include greater public knowledge about the past and new formulas for the coexistence of differences within a Nation State.66 It is in the search for new formulas for the coexistence of differences with a Nation State that legal pluralism is most relevant. The meaning of ‘recognition’ is also contested. On the one hand is the view that the recognition of indigenous peoples’ law is an acknowledgement that the latter already exists as law outside of, and prior to, State law.67 According to Fitzmaurice, the term ‘recognised’ in Article 14 of the ILO Convention No 16968 may and should be interpreted to mean that the rights are not allocated by a State but are rights that were already held by virtue of indigenous peoples’ traditional occupation of certain areas.69 Many constitutions adopted in the 1990s in the Andean countries include some form of recognition of indigenous law and use the word ‘recognise’ to acknowledge that the constitution is not creating the situation of legal and other diversity but rather acknowledging its pre-existence.70 In Canada, Chartrand argues that recognition is a useful concept in the context of aboriginal self-government because it applies primarily to the idea of recognising the capacity of a politically distinct entity to enter into legal relations with the State.71 However, recognition is controversial among many indigenous legal scholars because it has traditionally been a hegemonic act, with colonisers deciding whether or not to recognise the existing indigenous legal order.72 A number of scholars contend that recognition primarily legitimates the current distribution of power and resources. Hunter has argued that recognition of native title in Australia is more about self-legitimation of the courts, the law and the legal process than it is about returning land to aboriginal people.73 Povinelli has advanced the view that although the

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Blackburn, above n 24, 635. GR Woodman, ‘Customary Law in Common Law Systems’ (January 2001) 32 IDS Bulletin 28, 29. 68 International Labour Organisation Convention No 169 Concerning Indigenous and Tribal Peoples in Independent Countries (adopted 25 June 1989 and entered into force 5 September 1991) 28 International Legal Materials 1382, at . Art 14(1) provides, in part: ‘The rights of ownership and possession of the peoples concerned over the lands which they traditionally occupy shall be recognised.’ (emphasis added) 69 M Fitzmaurice, ‘The New Developments Regarding the Saami Peoples of the North’ (2009) 16 International Journal on Minority and Group Rights 67, 93. See also G Ulfstein, ‘Indigenous Peoples Right to Land’ (2004) 8 Max Planck United Nations Yearbook 1, 24. 70 RY Fajardo, ‘Legal Pluralism, Indigenous Law and the Special Jurisdiction in the Andean Countries’ (2004) 27 Beyond Law 32, 34. 71 Chartrand, above n 46, 128. 72 J Griffiths, ‘The Idea of Sociology of Law and Its Relation to Law and to Sociology’ (2005) 8 Current Legal Issues 49. 73 R Hunter, ‘Aboriginal Histories, Australian Histories, and the Law’ in B Attwood (ed), The Age of Mabo: History, Aborigines, and Australia (Sydney, Allen & Unwin, 1996) 1. 67

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Australian liberal democratic State has at last come to recognise aboriginal rights, it has done so in a way that undermines the bone fides of that recognition by imposing a narrow criterion of authenticity on recognition.74 In Canada, Coulthard argues that the contemporary politics of recognition promises to reproduce the configurations of colonial power that indigenous demands for recognition have sought to transcend, because ‘recognition’ is conceived as something that is ultimately ‘granted’ or ‘accorded’ to a subaltern group by a dominant group.75 When the State legitimises the authority of non-State legal orders, it also assumes the authority to define what counts as legitimate non-State justice institutions and rules.76 There are close ties between theories of recognition and legal pluralism. Those connections are most straightforward when the act of recognition by the State is conceived of as an act of seeing what was always there, an indigenous legal order that pre-dated the encroachment of colonialism. However, even when recognition is thought of as an act of beneficence by the State, and the State as the determiner of what is included in the category of ‘law’, multiple legal orders are acknowledged.

B. What is Law? While the concept of legal pluralism and scholarly interest in it is relatively new, the fact of legal pluralism, even in the Nordic States, is not. Indeed, as Sandberg notes, one of the common features of the inner colonisation of the arctic and subarctic regions, including the Fennoscandia region, is that the colonisation was never quite complete, the new order never quite supplants the old.77 A few examples will have to suffice. Svensson identifies cases in which matters culturally specific to the Saami were taken into account in Norwegian law in the Court Records for the County of Finnmark 1620–1770.78 Custom regarding exclusive Saami use was acknowledged, 74 EA Povinelli, The Cunning of Recognition: Indigenous Alterities and the Making of Australian Multiculturalism (Durham, NC, Duke University Press, 2002). 75 GS Coulthard, ‘Subjects of Empire: Indigenous Peoples and the ‘Politics of Recognition in Canada’ (2004) 6 Contemporary Political Theory 437. 76 HM Kyed, ‘The Politics of Legal Pluralism: State Policies on Legal Pluralism and Their Local Dynamics in Mozambique’ (2009) 59 Journal of Legal Pluralism and Unofficial Law 87; D Pimentel, ‘Legal Pluralism in Post-colonial Africa: Linking Statutory and Customary Adjudication in Mozambique’ (2011) 14 Yale Human & Development Law Journal. Access online at . 77 Sandberg, above n 33, 274. 78 TG Svensson, ‘Interlegality, A Process for Strengthening Indigenous Peoples’ Autonomy: The Case of the Sámi in Norway’ (2005) 51 Journal of Legal Pluralism and Unofficial Law 51, 52. See also Juha Joona, ch 9 in this volume; and A Kristensen, ‘Saami Customary Law and Legal Perceptions As Shown in Court Records from Finnmark 1620–1770’ in TG Svensson (ed), On Customary Law and the Sami Rights Process in Norway, Proceedings from a Conference at the University of Tromsø 1999 (Tromsø, Universitetet i Tromsø, 1999) 77.

Acknowledging & Accommodating Legal Pluralism 57 reinforced by means of court decisions, or affirmed officially by means of State legal procedure. Åhrén reminds us that as late as 1817, Swedish law stipulated that certain cases should be settled by Saami courts, and that at one time the Saami legal system was regarded as distinct and applied in parallel to the non-Saami legal system.79 And Søreng describes how the formal regulating orders that influence fisheries are rooted in different systems locally, nationally and internationally which are not necessarily in conformity with what user groups perceive as their rights.80 She also discusses cases in both the International Court of Justice and the Norwegian Supreme Court, in which local fisheries customs were recognised by the courts.81 Despite these examples, and many more that are available, Åhrén lamented only a few years ago that [i]t has proved surprisingly difficult … to get traditional nonindigenous lawyers (and political representatives) to accept that there can—and when two people share the same territory indeed shall—exist multiple legal systems within one geographical area.82

This is one issue with which legal pluralism may be able to assist. Not only is the literature replete with numerous well-documented and compelling examples, but the issue of ‘What is law?’ is a long-debated one. Much of the first wave of literature on legal pluralism was directed against monism (the idea of law as unitary, a systematic whole), legal centralism (the idea that the State is the sole source of law) and State law superiority (the idea that non-State law is hierarchically inferior to and dependent on State law).83 Prior to the 1980s, the dominant legal theories were antagonistic to legal pluralism.84 Griffiths summed up this antagonism as the view that ‘law is and should be the law of the state, uniform for all persons, exclusive of all other law, and administered by a single set of state institutions’.85

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Åhrén, above n 34, 109. SU Søreng, ‘Fishing Rights Struggles in Norway: Political or Legal Strategies?’(2007) 55 Journal of Legal Pluralism and Unofficial Law 187, 190. 81 Ibid, 200–01. 82 M Åhrén, ‘The Saami Convention’ (2007) 3 Gáldu C ˇ ála—Journal of Indigenous Peoples Rights 8, 19. 83 Twining, above n 10, 499 and 501. 84 For a review, see GR Woodman, ‘Ideological Combat and Social Observation: Recent Debate about Legal Pluralism’ (1998) 42 Journal of Legal Pluralism & Unofficial Law 21. 85 Griffiths, above n 12, 3. In his early work, Tamanaha relied on the difficulty of formulating criteria to distinguish the legal from the non-legal among non-State normative orders to support his position that ‘law’ should be reserved for State law: see Tamanaha, ‘The Folly of the “Social Scientific” Concept of Legal Pluralism’, above n 12, 206. Tamanaha later adopted the position that law should mean whatever people use it to mean: see BZ Tamanaha, A General Jurisprudence of Law and Society (Oxford, Oxford University Press, 2001) 133–205. 80

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By the 1980s, the key issue became the conceptual one: What is law?86 Law and its ‘other’—whether that ‘other’ be facts, society, custom or norms—became, and continues to be, the subject of sustained scholarly engagement.87 The first wave of mainly anthropological scholarship took an empiricist-positivist approach to law.88 These theories prescribed formal criteria to define the concept of ‘law’—such as the existence of a system of rules, institutionalisation, enforcement of rules with sanctions and so on—and then applied these criteria to prima facie regulatory orders in order to draw conclusions as to whether they are ‘legal’ or not.89 The problem with this approach is the criteria. From where are the criteria drawn to determine ‘valid norms’? Who formulates them? A positivist approach is seen as particularly problematic in the context of efforts to decolonise.90 Do we merely draw the criteria from our own experience of the law?91 If so, we may be perpetuating colonialism: [I]f there are self-regulated groups which are colonised by the dominant legality, classifying their form of regulation in the terms of the dominant legality has an equally colonising effect.92

Suggested definitions of law are too numerous to discuss here.93 It is more useful to contemplate the three trends in the literature since the first-wave positivist approaches that Michaels distilled: the idea that each order defines law for itself and for others; that they do so with universalistic aspiration but only particularist effect; and that, as a result, the definition of law must be negotiated—or contested—between legal orders.94 These trends suggest questions that are relevant to interactions between indigenous peoples and 86

Griffiths was one of the first to consider the concept of ‘law’: see Griffiths, above n 12. See eg E Melissaris, Ubiquitous Law: Legal Theory and the Space for Legal Pluralism (Farnham, Ashgate Publishing, 2009). Some argue that ‘What is law?’ is not a particularly relevant question. Berman, for example, views law as an endpoint of a continuum of normative pluralism: Berman, above n 10. Twining similarly describes legal pluralism as merely a special case of normative pluralism: Twining, ‘A Post-Westphalian Conception of Law’, above n 16, 231–32. 88 E Melissaris, ‘The more the merrier? A new take on legal pluralism’ (2004) 13 Social and Legal Studies 57, 58. 89 Ibid, 68. 90 Ibid. 91 Rose illustrates this tendency in the context of colonialism with her metaphor of the Eurocentric self, positioned within a Hall of Mirrors: DB Rose, ‘Indigenous Ecologies and an Ethic of Connection’ in N Low (ed), Global Ethics and Environment (London, Routledge, 1999) 175, 177. 92 Melissaris, above n 88, 68. 93 For a review of the conceptual debate, see Tamanaha, above n 10. 94 Michaels, above n 7, 250, citing K Günther, ‘Legal Pluralism or Uniform Concept of Law? Globalisation is a Problem of Legal Theory’ (2008) 5 No Foundations: Journal of Extreme Legal Positivism 5; G Teubner, ‘Global Bukowina: Legal Pluralism in the World Society’ in G Teubner (ed), Global Law Without a State (Aldershot, Ashgate/Dartmouth, 1996) 3; P Schiff Berman, ‘From International Law to Law and Globalization’ (2005) 43 Columbia Journal of Transnational Law 485; Michaels, above n 9. 87

Acknowledging & Accommodating Legal Pluralism 59 Nation States. For example, do the Saami define their law for themselves and for the Nordic States? Is the effect of their law specific to themselves? Are Saami claims to define their law as law contested by the Nordic States? Do they need to be negotiated in order to reach a final Convention? The issue of what counts as law and who decides, continues to be an important one for a Nordic Saami Convention. The draft Convention recognises the Saami as an indigenous people and recognises that they have the right of self-determination under international law.95 However, as Åhrén has noted, this position is not fully reflected in the only article of the draft Convention which explicitly addresses the Saami peoples’ law, even though respect for a people’s legal system is essential to the exercise of their right to self-determination.96 Article 9, on ‘Saami legal customs’, provides as follows:97 The States shall show due respect for the Saami people’s conceptions of law, legal traditions and customs. Pursuant to the provisions in the first paragraph, the States shall, when elaborating legislation in areas where there might exist relevant Saami legal customs, particularly investigate whether such customs exist, and if so, consider whether these customs should be afforded protection or in other manners be reflected in the national legislation. Due consideration shall also be paid to Saami legal customs in the application of law.

Although the first paragraph requires the States to show ‘due respect’ for Saami understandings of both law and their customs, the focus in the rest of Article 9 is on ‘legal customs’ only, leaving doubt about the status accorded a Saami legal order. In contrast, the United Nations Declaration on the Rights of Indigenous Peoples offers more extensive recognition.98 Article 5, for example, specifically recognises that indigenous peoples have the right to maintain and strengthen their legal institutions, and Article 34 states that indigenous peoples have the right to promote, develop and maintain existing juridical systems.99

95 Draft Nordic Saami Convention, Arts 2 and 3. Unofficial English version. Access at . 96 Åhrén, above n 82, 19. 97 Draft Convention, above n 95, Art 9 (emphasis added). 98 UN General Assembly, United Nations Declaration on the Rights of Indigenous Peoples, 2 October 2007, A/RES/61/295. 99 Ibid, Art 5 provides: ‘Indigenous peoples have the right to maintain and strengthen their distinct political, legal, economic, social and cultural institutions, while retaining their right to participate fully, if they so choose, in the political, economic, social and cultural life of the State.’ Art 34 provides: ‘Indigenous peoples have the right to promote, develop and maintain their institutional structures and their distinctive customs, spirituality, traditions, procedures, practices and, in the cases where they exist, juridical systems or customs, in accordance with international human rights standards.’

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Does the second paragraph of Article 9 contemplate Saami legal custom as a source of law, rather than as law itself? The question ‘What is custom?’ is closely related to the question ‘What is law?’ Svensson sees customs as the foundation of law, a law-generating characteristic of all cultures.100 As Svensson sees it, eventually customs—facts—evolve into customary law, a legal concept.101 Thus he conceives of custom as a source of law, but not as law itself. Webber appears to take a similar view, seeing all law as customary because all law is grounded in the practices of particular societies, and because all law, even legislation, finds its meaning in an interpretive relationship to those practices.102 In the doctrine of sources of law, the Nordic legal systems are said to be close to civil law systems.103 Their unifying and key element is the primacy of legislation.104 Historically there have been different views on customary law as a legal source in the different Nordic countries: The Sami’s different legal positions in Norway and Sweden can be mentioned as one example. Norway has ratified the ILO Convention nr 169 regarding ethnic minorities, Sweden has not. The Supreme Court in Norway has had a more open evaluation of customary law arguments, which also has resulted in a more positive attitude to ethnic minority rights than what Swedish courts have made in similar cases. The modern Swedish position that only customs which are legitimized by the legislator are regarded as valid law has created a dilemma for the Swedish judges.105

In Finland, it is said that, while the doctrine of sources of law also recognises the binding force of established customary law, its practical relevance is very minimal.106 This specific point relates to a larger one, made initially by Geertz, namely, that the basic categories in each legal order can differ profoundly.107 As Webber elaborates, the understandings of what constitutes a fact and what constitutes a law, and of how to resolve disputes, are included among these basic categories.108 As an example, Webber notes that while those of us who live under a Western legal order tend to assume that there must be an authoritative way to resolve disputes, with the solution then being 100

Svensson, above n 4, 4. Ibid, 4–5. 102 J Webber, ‘The Grammar of Customary Law’ (2009) 54 McGill Law Journal 579, 581. 103 GA Zaphiriou, ‘Introduction to Civil Law Systems’ in RA Danner and M-LH Bernal (eds), Introduction to Foreign Legal Systems (New York, Oceana Publications, 1994) 47, 49. 104 J Husa, ‘Precedent in Finland—Paradigm In Transition’ in EJ Hollo (ed), Finnish Legal System and Recent Development: XVIIth International Congress of Comparative Law, 16–22 July 2006, Utrecht, Netherlands (Helsinki, Edita Publishing, 2006) 7, 9. 105 Modéer, above n 19, 181. 106 Husa, above n 104, 10. 107 C Geertz, ‘Local Knowledge: Fact and Law in Comparative Perspective’ in Local Knowledge: Further Essays in Interpretive Anthropology (New York, Basic Books, 1983) 167. 108 Webber, above n 102, 603–04. 101

Acknowledging & Accommodating Legal Pluralism 61 imposed on the parties, many North American indigenous peoples’ respect for autonomy extends to the interpretation of society’s norms, and there is a great reluctance to impose a particular interpretation of the law.109 Demands for conformity to a single way of knowing—or a single understanding of ‘law’—can only act as a bar to reconciliation between indigenous people and colonisers.110

III. LEGAL PLURALISM AND MODELS OF INTERACTION

Whether a Saami legal order is recognised as law or merely as a source of law, that legal order still interacts with the Nordic States’ legal systems. In this section, I describe some of the methods of accommodating different legal orders within one or more Nation States that are found in the draft Convention. Before I do so, I briefly discuss methods for suppressing legal pluralism through efforts to separate and efforts to harmonise the different legal orders. I use the extremes of separation and harmonisation to organise the descriptions of ways to accommodate legal pluralism into three groups: those with greater autonomy for indigenous legal systems, those with more limited autonomy, and those in which the interaction between the indigenous legal order and that of the Nation State is hierarchical. In order for two or more partially autonomous societies, each with its own legal order, to coexist within one or more Nation States, the legal orders must relate to one another in some fashion. ‘Interlegality’ is one name for these relations. de Sousa Santos introduced the term to describe the unstable relation between different laws, either as a psychological state of the individual subject to more than one set of norms, or as a description of a dynamic state of affairs.111 I use it here in that second sense. While interlegality has proven to be a popular concept, it says nothing about the types of relations that fill or should fill the space between multiple legal systems.112 The literature on legal pluralism agrees that once multiple legal orders are recognised as coexisting in one geographic area, conflict between legal orders operating in the same social space is inevitable. Addressing that conflict requires addressing process. Berman—who recently surveyed

109

Ibid, 606–07. Alfred, above n 57, 63. 111 de Sousa Santos, above n 8, 297–99. 112 Michaels, above n 7, 254. Hybridity, a similar concept describing situations in which laws overlap without fully supplanting each other, is more controversial: Berman, above n 45, 12. Woodman has questioned whether hybridity puts an end to legal pluralism because a hybrid solution replaces the co-existence of two or more legal systems with a single law: GR Woodman, ‘Social and Religious Diversity, Legal Pluralism: Can State Law Survive?’ (2007) 15 IIUM Law Journal 154, 165–66. 110

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a number of mechanisms, institutions and practices for managing legal pluralism—focuses on process because he believes that people may acquiesce in procedural mechanisms even though they may never agree on norms.113 As Webber has noted, a focus on processes allows us to concentrate on how, despite diversity, we can come to provisional working solutions, provisional norms, that allow people to live together.114 Focusing on process allows apparently conflicting norms to continue to apply to particular groups, whereas a focus on substance inevitably requires that one group’s values prevail over those of another. Attempts to suppress, rather than manage or accommodate, inevitable conflict between legal orders abound. Most scholars identify two very different types of responses aimed at eliminating substantive differences. For example, Berman contrasts efforts at sovereignist, territory-based separation, in which communities try to seal themselves off from outside influences by becoming more insular, with universalistic harmonisation or fusion schemes.115 In a later work, Berman shorthands these two choices as separation or assimilation, neither of which requires or allows negotiation between legal orders.116 Delmas-Marty looks for a middle way between separation and fusion,117 and in a recent literature review, McGarry, O’Leary and Simeon write about secession and assimilation as the extremes of their continuum.118 Both extremes attempt to eliminate legal pluralism by aiming for a prevailing, singular legal regime. Success is rare and usually only partial. The sovereignist, separation or secession approach is becoming more and more difficult in our increasingly globalised world.119 The fusion, or assimilationist or universal harmonisation approach is much more possible and common. While most often a reaction to perceived compromises of international human rights in religious or ethnic customary law, elements of a universalist harmonisation approach to indigenous customary law may be found in several South American constitutions.120 113

Berman, above n 10, 1164. J Webber, ‘Legal Pluralism and Human Agency’ (2006) 44 Osgoode Hall Law Journal 167, 170. 115 Berman, above n 10, 1179–91. 116 Berman, above n 45, 11. 117 Delmas-Marty (n 2). 118 J McGarry, B O’Leary and R Simeon, ‘Integration or Accommodation? The Enduring Debate in Conflict Regulation ‘ in S Choudhry (ed), Constitutional Design for Divided Societies: Integration or Accommodation? (Oxford, Oxford University Press, 2008) 41. 119 Pimentel, above n 76, 18. 120 Many constitutions adopted in the 1990s in the Andean countries include the recognition of the jurisdictional functions of indigenous communities according to their customary laws and within the territorial sphere of indigenous communities. The usual limit on this recognition is that there shall be no incompatibility between customary law and the fundamental rights defined by the national legal system and internationally recognised human rights. See Fajardo, above n 70, 34. 114

Acknowledging & Accommodating Legal Pluralism 63 One of the interesting things about the draft Nordic Saami Convention— and the current Saami parliaments—is that different aspects of both arrangements may be seen as lying towards each end of a separation/ assimilation spectrum. Broderstad has noted this apparent contradiction in connection with the Saami parliaments.121 One goal of those institutions is political autonomy, or the development of self-government arrangements for the indigenous minority, but integration of authority is a second goal, associated with the inclusion of indigenous considerations in the decision structures of Norway, Sweden and Finland.122 In the draft Convention, Article 3 provides that the Saami have the right of self-determination and, specifically, the right to determine their own economic, social and cultural development, and to dispose of, to their own benefit, their own natural resources. On the other hand, Article 17 provides that the Saami parliaments have a right to be represented on public councils and committees when these bodies deal with matters that concern Saami interests. Articles 39 and 40 provide the Saami parliaments with a right of ‘co-determination’ in the public and environmental management of certain land and other resources.123 An alternative way of conceptualising the difference is to think of Article 3 as providing for ‘split power’, and Articles 39 and 40 for ‘shared power’. Although a claim to self-determination is usually a claim for split power based on a territorial or subject-matter division, it is possible to interpret the claim for Sami self-determination as a demand for co-determination or some type of power-sharing arrangement.124 In between these two extremes of separation and assimilation, we find a wide variety of pluralistic structures, institutions and procedures. These pluralist approaches cannot be arranged tidily along a continuum ranging from separation at one end to assimilation at the other end.125 Some institutions, such as federalism (and the Saami parliaments just discussed), depend both on local autonomy for sub-units and integration into one federal unit. Nevertheless, it is possible to organise approaches into three groups: 121 EG Broderstad, ‘Political Autonomy and Integration of Authority: The Understanding of Saami Self-Determination’ (2001) 8 International Journal on Minority and Group Rights 151, 151–52. 122 Ibid. 123 The meaning of ‘co-determination’ in the draft Convention is unclear, but the term does have a history in the Nordic countries. ‘Co-determination’ originally referred to a variety of institutionalised practices that provide for employee information, consultation and/or decision-making in the management of a company. See eg W Däubler, ‘Co-Determination: The German Experience’ (1975) 4 Industrial Law Journal 218; A Sandberg, Technological Change and Co-determination in Sweden (Philadelphia, Temple University Press, 1992); K Levinson, ‘Codetermination in Sweden: Myth and Reality’ (2000) 21 Economic and Industrial Democracy 457; N Kluge, ‘Corporate Governance with Co-Determination—A Key Element of the European Social Model’ (2005) 11 Transfer: European Review of Labour and Research 163. 124 AJ Semb, ‘Sami Self-Determination in the Making?’ (2005) 11 Nations and Nationalism 531. 125 I am grateful to my colleague, Jeremy Webber, for graciously pointing this out when I attempted to do so in an earlier draft.

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those that recognise greater autonomy for the Saami, those that recognise a more limited amount of autonomy, and those that facilitate a hierarchical arrangement between dominant State legal systems and a subordinate Saami legal order. What follows are brief descriptions of only some of the many methods of interaction between legal orders, ie those that may be seen in the draft Convention. Before canvassing these methods, however, mention must be made of at least three major factors that should be kept in mind in applying models of interlegality in the Nordic Saami Convention context. The first factor is the transnational aspects of the draft Convention; the fact that the Saami are a people within four Nation States’ boundaries complicates the formation of post-colonial relationships in a number of ways. The legal literature on transnational indigenous claims is sparse.126 The nomadic nature of some Saami’s use of the land complicates the transnational nature of the Saami claims by adding to cross-border issues. The legal literature on the use of nomadic lands is also quite limited and tends to address only specific geographic areas.127 Nonetheless, aspects of the transnational nature of the draft Convention have been considered in some detail. For example, Sillanpää identified the fact that the Saami land title issue is in different stages of development in each Nordic country as a problem for the draft Nordic Saami Convention.128 This asymmetry of approaches to Saami legal orders, which I have mentioned previously, is the second factor that must be kept in mind. These differences might suggest the need for slower, more incremental changes in one State’s laws, independent of what is occurring in the other two Nordic States—an approach already taken with respect to Russia’s absence from the draft Convention. However, Articles 10 and 46 of the draft Convention suggest that the current asymmetry is to be phased out.129 A return to harmonisation, at least

126 Exceptions include literature looking at the claims of the Roma from more than an international human rights perspective, such as LH Meyer, ‘Transnational Autonomy: Responding to Historical Injustice in the Case of the Saami and Roma Peoples’ (2001) 8 International Journal on Minority and Group Rights 263 and J Lajcakova, ‘Advancing Empowerment of the Roma in Slovakia through a Non-territorial National Autonomy’ (2010) 9 Ethnopolitics 171. See also ch 4 by Koivurova in this volume. 127 J Gilbert, ‘Nomadic Territories: A Human Rights Approach to Nomadic Peoples’ Land Rights’ (2007) 7 Human Rights Law Review 681, 683. 128 L Sillanpää, ‘Small Nations of the Russian North and Their Rights As Indigenous Peoples: Some Observations and Preliminary Hypotheses’ (2000) 45 Journal of Legal Pluralism and Unofficial Law 77, 84. 129 Art 10 provides that the three States shall strive to ensure continued harmonisation of legislation and other regulation of significance for Saami activities across national borders. Art 46 provides that Norway, Sweden and Finland are to make the provisions of the Convention directly applicable as national law in order to ensure as uniform an application of the Convention as possible.

Acknowledging & Accommodating Legal Pluralism 65 in the context of law that is significant to Saami activities across Nordic borders, is contemplated by Article 10.130 Thirdly, the diverse nature and circumstances of the Saami people complicate responses. Not only are some Saami nomadic herders, others are dispersed and urban, and still others—the majority—are neither nomadic nor urban. Some Saami might be members of groups that are culturally and linguistically quite separate from mainstream Nordic society, whereas others might belong simultaneously to both Saami and a Fennoscandian society. Different conceptions of group identity might mean different objectives for interaction. One more cautionary note might be sounded at this point. In looking at models of interaction between legal orders, there is no ‘once and forever’ choice, nor any need to settle on only one mode of interaction. Many of the examples which follow are partial, dealing with only some subject-matter or only certain geographic areas. A. Models of Interaction Between Legal Systems with Greater Autonomy When two national, sub-national or trans-national units have legal systems that appear to be entirely separate from one another, it is still possible for there to be some mutual influence in what Berman calls a ‘Dialectical Legal Interactions’ model.131 There is no direct review or dialogue mandated between various tribunals and regulatory decision-makers, but interactions between these institutions may have a dialectical and iterative quality. Berman sees this type of interaction as built into the structure of federalism, for example when the decisions of provincial or State courts influence other provincial or State courts. Berman uses the example of the interactions between the European Court of Human Rights and the constitutional courts of European Member States.132 This model is similar to Delmas-Marty’s ‘coordination through cross-reference’, where interaction is limited to horizontal processes, such as reciprocal influence.133 An example in the Fennoscandian context might be the indirect influence of court decisions from one Nordic State,

130 KÅ Modéer, above n 19, 182–83. These harmonisation provisions are interesting because, while harmonisation of the legislation in the Nordic countries had priority in the earlier decades of the 20th century, it has been out of favour since the 1970s due to scepticism about consensus of Nordic law: ibid. Certainly, since 1994 and Finland and Sweden’s membership in the European Union, and Norway’s outside status with respect to the EU, the traditional goal of harmonisation has seemed even more distant. 131 Berman, above n 10, 1197. I rely on his recent typology of interlegality in the globalisation context in section III. 132 The erosion of Finland’s legal institutions as a result of globalisation and new relationships to supra-national entities like the European Council and the European Union is the subject of comment. For one example in English, see Modéer, above n 19, 181. 133 Delmas-Marty, above n 2, 16–17.

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recognising customs that have existed since ‘time immemorial’, on decisions in another Nordic State.134 A second model of interaction between two or more largely autonomous legal systems contemplates the assertion of jurisdiction over the same act or actor by multiple legal communities.135 The existence of overlapping claims may lead to negotiations between the groups claiming jurisdiction.136 Berman provides the example of ‘complementarity regimes’, in which one legal community agrees not to assert jurisdiction.137 Åhrén’s interpretation of Article 3 of the draft Convention fits within this type of model.138 Article 3 recognises the Saami’s right to self-determination, and Åhrén argues that this requires the Nordic States to define fields of activities over which they will not seek to exercise jurisdiction.139 A pluralist approach to conflict of laws involves making choices between relatively autonomous legal systems.140 Rather than relying on the more case-by-case approaches of the previous two models, a conflict of laws model relies on overarching rules to determine which autonomous regime takes precedence in any particular instance. This manages interlegality by providing more coordination than the first two models. Berman argues that three classical legal doctrines grouped under the rubric of conflict of laws—jurisdiction, choice of law and judgment recognition—are specifically meant to manage hybrid legal spaces, even if they are seldom used to do so.141 He believes that conceiving of normative clashes in conflict of

134 To what extent was Sweden’s Supreme Court decision in the Nordmaling case in April 2011 influenced by earlier decisions of the courts in Norway in the Selbu case and the Svartskog case? In Norway’s Supreme Court, the Selbu and Svartskogen cases confirmed that Saami property rights to land follow from traditional use and are not contingent upon formal recognition in national legislation. In the Nordmaling case, the Swedish Supreme decided the Saami could allow their animals to graze between 1 October and 30 April each year on now private land that the Saami had historically used for that purpose. Rt 2001 s 1229 (Svartskogen Case), unofficial English version available at www.galdu.org. see Ravna ch 7, and Mascher ch 13 of this volume; NRt 2001 (Selbu Case), see Allard ch 8 and HelanderRenvall, ch 11 of this volume; NJA 2011 s 109 (Nordmaling Case), see Allard, ch 8 of this volume. Rt 2001 s 1229. 135 Berman, above n 10, 1210. Berman labels this model ‘Jurisdictional Redundancies’. 136 G Christie, ‘A Colonial Reading of Recent Jurisprudence: Sparrow, Delgamuukw and Haida Nation’ (2005) 23 Windsor Yearbook of Access to Justice 17, 28. 137 Berman, above n 10, 1210. The most well-known complementary regime is probably that of the International Criminal Court (ICC). The complimentarity provisions of the ICC Statute—Arts 17 to 19—limit the ICC’s investigations to those situations where the State concerned is unable or unwilling to investigate and prosecute, thereby avoiding potential incompatibilities. See D Radosavljevic, ‘An Overview of the ICC Complementarity Regime’ (2007) 3 Review of International Law and Politics 96; M Goldmann, ‘Implementing the Rome Statute in Europe: From Sovereign Distinction to Convergence in International Criminal Law?’(2007) 16 Finnish Yearbook of International Law 5. 138 Åhrén, above n 34. 139 Ibid, 112. 140 Berman, above n10, 1228. 141 Berman, above n 45, 27.

Acknowledging & Accommodating Legal Pluralism 67 laws terms reorientates the inquiry in a way that ‘takes more seriously the non-state community assertion’, with the result that State courts must ‘articulate truly strong normative justifications for not deferring to the non-state norm’.142 The idea is to make the State’s decision-makers ‘uncomfortable in their knowledge of their own power, respectful of the legitimacy of competing legal systems, and aware of the possibility that multiple meanings and divergent practices ought sometimes to be tolerated, even if painfully so’.143 Article 43 of the draft Convention is an example of a conflict of laws approach. It outlines how conflicts of norms are to be resolved if local agreements, customary rights or international treaties exist to govern reindeer grazing across national boundaries.144 Article 43 provides that if agreements have been concluded between Saami villages, siidas or reindeergrazing communities concerning the right to graze reindeer across national borders, these agreements shall prevail over a bilateral treaty. In the absence of an applicable agreement, if a valid bilateral treaty on the subject-matter exists, the treaty applies. However, notwithstanding any such treaty, if a person claims that he or she has reindeer-grazing rights based on custom that go beyond the bilateral treaty, he or she has the opportunity to make his or her claim and have it prevail. Article 43 therefore provides overarching rules to determine which relatively autonomous regime takes precedence in any particular instance. Article 43 sets out a specific relationship between Saami custom and Nordic law which is an odd fit with the more general Article 9. Article 43 appears explicitly to recognise custom as superior to bilateral treaties, treating custom itself as law.145 Article 9 contemplates that Nordic law recognises Saami custom. Article 43 is not as supportive of Saami custom as it might appear if we consider only its conflict of laws rules. There is also the matter of who decides these Saami claims. Saami claiming customary reindeer-grazing 142

Ibid. J Resnik, ‘Living Their Legal Commitments: Paideic Communities, Courts, and Robert Cover’ (2005) 17 Yale Journal of Law & Humanities 17, 25. 144 Koivurova, above n 20 128. 145 The third paragraph of Art 43 of the draft Nordic Saami Convention provides: ‘In the absence of an applicable agreement between Saami villages (samebyar), siidas or reindeer grazing communities (renbeteslag), if a valid bilateral treaty regarding reindeer grazing exists, such a treaty shall apply. Notwithstanding any such treaty, shall a person asserting that he or she has a reindeer grazing right based on custom that goes beyond what follows from the bilateral treaty, have the opportunity to have his or her claim tried before a court of law in the country on which territory the grazing area is situated.’ It seems likely that the heightened status accorded to Saami custom in Art 43 is related to what is known as the Lapp Codicil of 1751, an Addendum to a treaty between Denmark-Norway and Sweden-Finland made for the ‘preservation of the Lappish nation’, which specifically recognised the cross-border reindeerherding rights of the Saami. See T Koivurova, ‘The Draft Nordic Saami Convention: Nations Working Together’ (2008) 10 International Community Law Review 279, 280. 143

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rights have their claims tried before a court of law in the Nation State in which the grazing area is situated. Thus potential conflicts between customary law and bilateral treaties are referred directly to State courts, rather than to an institution with representatives from both legal systems. One might point to another paragraph in Article 43, which provides that disputes about the interpretation or application of local agreements are brought, in the first instance, before arbitration committees the composition and procedure of which are determined by regulations jointly decided by the three Saami parliaments, as encompassing more recognition to a Saami legal order. However, that provision goes on to provide that a party who is dissatisfied with the decision of the arbitration committee has the right to sue on the matter in a court of law in the Nation State in which the grazing area is situated. This appears to contemplate the type of appeal that involves a de novo proceeding in court, in which no deference would be shown to the arbitration committee’s decision. Saami custom may take precedence on reindeer-grazing rights across international borders, but it will be interpreted by State courts, thus limiting autonomy. B. Models of Interaction Between Legal Orders with Limited Autonomy A wide variety of what Berman calls ‘Limited Autonomy Regimes’ are common.146 Borrowing from Steiner’s typology, Berman divides these regimes by three types of jurisdiction: geographical or territory-based jurisdiction, power-sharing jurisdiction (whether one institution has overriding authority or not), and personal or subject-matter jurisdiction.147 Although limited autonomy regimes are usually determined by constitutional arrangements, they may also be based on devolution by statutory law or customary law.148 All of these regimes have been seen as potentially applicable to indigenous peoples, with preference for one approach or the other dependent upon geographical location and territorial concentration of the indigenous population, the group’s cultural and linguistic integrity, the commitment of the population in question and the ability to define the territory in question.149

146

Berman, above n 10, 1203. Berman, above n 45, 13–14, citing H Steiner, ‘Ideals and Counter-Ideals in the Struggle over Autonomy Regimes for Minorities’ (1991) 66 Notre Dame Law Review 1539, 1541–43. Semb divides them into territorial and non-territorial approaches: AJ Semb, ‘How Norms Affect Policy—The Case of Sami Policy in Norway’ (2001) 8 International Journal on Minority and Group Rights 177. 148 A Eide, V Greni and M Lundberg, ‘Cultural Autonomy: Concept, Content, History and Role in the World Order’ in M Suksi (ed), Autonomy: Applications and Implication (The Hague, Kluwer Law International, 1998) 251, 256. 149 N Loukacheva, ‘On Autonomy and Law’, Working Paper for the Major Collaborative Research Project on ‘Globalization and Autonomy’ 18. Access online at . 147

Acknowledging & Accommodating Legal Pluralism 69 Some scholars believe that, in circumstances where a choice is possible, only the territorial principle is compatible with indigenous peoples’ self-determination.150 The territory-based regime allows groups that are territorially concentrated limited autonomy within a Nation State, with such limits often based on subject-matter (eg control over police, schools, natural resources, etc).151 Ethnicity or indigeneity does not necessarily play a formal role in territorial approaches.152 For example, administratively-based territorial autonomy is achieved by drawing administrative boundaries so that the indigenous population is a majority within those boundaries and may therefore effectively realise a degree of autonomy within a national framework (eg the Nunavut territory in Canada).153 In that way, territory-based legal pluralism may be used to manage interaction among groups either in a pluralist federation, or a pluralistic unitary State (ie one with internal boundaries that respect nationality, ethnicity, language or religion).154 Article 22 of the draft Convention requires the three Nation States to seek to identify and develop the area within which the Saami people can manage their particular rights and, if implemented, could be an example of a territory-based limited autonomy regime. For geographically-dispersed groups, a second type of limited autonomy regime involves direct power-sharing arrangements, such as a fixed number of legislative seats or judicial appointments, or mandatory consultations.155 Article 17 of the draft Convention, for example, provides that the Saami parliaments shall have the right to be represented on public councils and committees when these public bodies deal with matters that concerns the interests of the Saami. Because ‘representation’ is limited to certain matters, however, it is not clear what kind of power-sharing arrangement Article 17 contemplates. Is it a right to attend? To present? To appoint? Articles 39 and 40 of the draft Convention seem to fit more easily into this power-sharing type of interaction with their requirement for co-determination in public and environmental management.156 The co-determination in 150 D Sanders, ‘Self-determination and Indigenous Peoples’, in C Tomuschat (ed), Modern Law of Self-Determination: Developments in International Law, vol 16 (Dordrecht, Martinus Nijhoff Publishers, 1993) 55, 70. 151 This type of regime is similar to Christie’s ‘Embedded Sovereign Systems’ model, which rests on the notion of a unified legal system encompassing aboriginal sub-systems: see Christie, above n 136, 28–29. 152 J Dahl, ‘Development of Indigenous and Circumpolar People’s Rights’ in L Lyck (ed), Nordic Arctic Research on Contemporary Arctic Problems: Proceedings from Nordic Arctic Research Forum Symposium (Tilborg, Tilborg University Press, 1992) 183. 153 WJ Assies, ‘Self-determination and the ‘New Partnership’ in WJ Assies and AJ Hoekema (eds), Indigenous Peoples’ Experiences with Self-Government (Copenhagen, International Work Group for Indigenous Affairs and the University of Amsterdam, 1994) 31–71. 154 McGarry et al, above n 118, 63–66. 155 Berman, above n 45, 13–14, citing Steiner, above n 147, 1541–43. 156 Art 39, on land and resource management, provides: ‘In addition to the ownership or usage rights that the Saami enjoy, the Saami parliaments shall have the right of co-determination

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Articles 39 and 40 is restricted to certain territories, namely, the areas referred to in Articles 34 and 38. Article 34 provides for individual or collective ownership rights based on protracted traditional use of land or water areas.157 Article 38 expands those rights to water areas.158 They seem to be a blend of territory-based and power-sharing limited autonomy regimes. Collectively these articles describe a particularly complex model of interlegality. Adding a further layer of complexity, the co-determination rights in both Articles 39 and 40 are also tied to Article 16. Article 16 requires State authorities to negotiate with the relevant Saami parliament before they make decisions on matters of major importance to the Saami, and also requires the States to get the consent of the relevant Saami parliament if the contemplated State measures may significantly damage the basic conditions for Saami culture, Saami livelihoods or society. A requirement to obtain consent means that the relevant Saami parliament would have a veto in the limited situations specified in Article 16—a type of subject matter-based autonomy. The consent aspect of Article 16 grants the greatest amount of autonomy to the Saami. It also illustrates the range of models of interaction within just two provisions of the draft Convention. Article 36 also requires the consent of the relevant Saami parliament and, in addition, the affected Saami people, to resource extraction that would make it impossible or substantially more difficult for the Saami to continue to use the relevant area if the use is essential to the Saami culture. The vetoes in Articles 16 and 36 of the draft Convention recognise a substantial degree of autonomy for the Saami people within a territorial-based, subject-matter specific, limited autonomy regime. The vetoes in Articles 16 and 36 of the draft Convention, and the representation on public councils and committees in Article 17, are also elements in models of consociationalism.159 Consociation, which typically involves group recognition, cross-community executive power-sharing, proportionality, autonomy and mutual veto rights, is associated with the innovative work of Lijphart.160 The defining feature of consociationalism is the mutual vetoes

in the public management of the areas referred to in Articles 34 and 38, pursuant to Article 16.’ Art 40, on environmental protection and environmental management, provides: ‘The States are, in cooperation with the Saami parliaments, obliged to actively protect the environment in order to ensure sustainable development of the Saami land and water areas referred to in Articles 34 and 38. Pursuant to Article 16, the Saami parliaments shall have the right of co-determination in the environmental management affecting these areas.’ 157 Art 34 of the draft Convention provides, in part, that ‘[p]rotracted traditional use of land or water areas constitutes the basis for individual or collective ownership rights to these areas for the Saami in accordance with national or international norms concerning protracted usage’. 158 Art 38 of the draft Convention provides: ‘The provisions of Articles 34–37 concerning rights to water areas and use of water areas shall apply correspondingly to Saami fishing and other use of fjords and coastal seas.’ 159 Krisch, above n 16, 75. 160 McGarry et al, above n 118, 58–62, citing A Lijphart, Thinking about Democracy: Power Sharing and Majority Rule in Theory and Practice (New York, Routledge, 2007).

Acknowledging & Accommodating Legal Pluralism 71 which force joint executive decision-making.161 This feature is present in Articles 16 and 36 of the draft Convention, although by merely specifying the need for the consent of the relevant Saami parliaments and, in the case of Article 36, affected Saami people, without stating more about the process of decision-making, it is not clear whether the considerable autonomy recognised in models of consociationalism was explicitly contemplated. The third type of limited autonomy regime is built on the idea of personal law carried around by an individual, regardless of where he or she is. It is generally accepted that if the relevant groups are geographically dispersed then devolution must follow personal lines, which means it must be more limited in its extent, typically focusing on group rights to govern cultural and educational affairs.162 For example, in 1995 the Finnish Constitution was amended to recognise the status of the Saami as an indigenous people and to accord the Saami the right to maintain and develop their own language and culture.163 Semb supports the non-territorial principle, even if territorial-based regimes are possible, arguing, first, that decision-making power should be distributed on the basis of individuals’ desire to be politically associated with some people rather than with others and, secondly, that those who are subject to the jurisdiction of a particular body should have the right to vote in elections for that particular body.164 Article 5, paragraph three, of the draft Convention provides an example by extending the States’ responsibility to provide favourable conditions for the development of the language, culture, livelihoods and society of the Saami people to Saami persons residing outside the traditional Saami areas. Article 14, dealing with the Saami parliaments, which provides that they act on behalf of all the Saami people of their respective Nation States and that members of the parliaments shall be elected by the Saami, is another example. Ethnicity is a criterion without being linked to the territory of indigenous peoples’ domiciles in the case of the Saami parliament in Norway.165

C. Models of Interaction Between Legal Orders in a Hierarchical Relationship Once we turn to consider models involving a hierarchically-superior State, it may be that the conditions necessary for a self-sufficient non-State legal 161

Krisch, above n 16, 61. Ibid, 62. 163 The Constitution of Finland, 11 June 1999 (731/1999), ss 17 and 121. These provisions remained unchanged in the new Finnish Constitution which entered into force on 1 March 2000. 164 Semb, above n 147. 165 L Gaski, ‘Sami Identity as a Discursive Formation: Essentialism and Ambivalence’ in H Minde (ed), Indigenous peoples: self-determination, knowledge, indigeneity (Delft, Eburon, 2008) 219, 230. 162

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system no longer exist.166 The other models of interlegality considered in this section of the book provide a role for some degree of harmonisation imposed by the State. The mechanisms that Berman groups under the label ‘Subsidiarity Schemes’ push decision-making down to the most local unit of governance, with the goal of fostering repeated consideration of other potential lawmaking communities.167 Devolution is the key idea behind this model, ie the transfer of law-making authority to local or regional governments. Devolution has been connected to internal decolonisation in the Arctic, most obviously for Greenland and the Faroe Islands in their relationship with Denmark.168 In Finland, where municipalities are protected by the constitution to some degree, the trend has also been toward greater autonomy to municipalities through devolution.169 Article 43, establishing arbitration committees the composition and procedure of which are determined by regulations jointly decided by the three Saami parliaments, could be an example of this model, depending on the regulations. One possible problem with subsidiarity schemes—and with other models of non-territorial limited autonomy regimes—is that if the focus is on the devolution of administrative tasks, it may look like participation by lobby groups or special interest organisations, unconnected to status as an indigenous population.170 What Berman calls ‘Hybrid Participation Arrangements’, which hybridise the decision-making body or process itself, are also approaches which harmonise interactions by sacrificing autonomy.171 Berman cites the example of hybrid courts, with international and national judges, in post-conflict settings where they are likely to be palatable to a large cross-section of the populace and contribute to a sense of fairness. The arbitration committees contemplated by Article 43 of the draft Convention could be implemented by the Saami parliaments in such a way as to be a small example of this type of approach. Moving still further away from autonomy for a Saami legal order, we find some of the ways that States have typically recognised non-State law. We are now into the type of legal pluralism known as ‘weak’ legal pluralism.172 This describes a legal pluralism where non-State law is hierarchically 166 Webber has noted that what is necessary for a self-sufficient non-State legal system might be something like the tight, stabilising web of relations provided by the structure of kinship: see Webber, above n 102, 610. 167 Berman, above n 10, 1207. 168 N Bankes et al, ‘Legal Systems’ in Arctic Human Development Report (Stefansson Arctic Institute, 2006) 101, 115. 169 Ibid, 115. 170 Broderstad, above n 121, 165. 171 Berman, above n 10. 1218. 172 Griffiths, above n 12. For many, strong legal pluralism is the only real legal pluralism: RA Macdonald, ‘Custom Made—For a Non-chirographic Critical Legal Pluralism’ (2011) 26 Canadian Journal of Law & Society 301.

Acknowledging & Accommodating Legal Pluralism 73 inferior to, and depends on the recognition by, the State.173 Article 9, the only article to deal specifically with a Saami legal order, is a model of weak legal pluralism. Michaels divides models of state recognition of non-State law into three types.174 His categories of weak legal pluralism are incorporation, deference and taking into account. ‘Incorporation’—or ‘delegation’, to use Michaels’ term—is the transformation of non-State law into subordinated State law.175 The process recognises non-State societies as norm generators, but denies their norms the status of law.176 From the State’s standpoint, non-State customs acquire the status of law only at the moment they are attached and subordinated to the State’s law. Nevertheless, the dominant society’s incorporation may allow the customs and legal perceptions of indigenous peoples to play a decisive role in conflict resolution.177 Other points of concern to indigenous groups arise when discussion turns to methods of incorporation. One problem with the recognition of indigenous rights by incorporation is that State legal systems are motivated to define the areas, rights holders, and the rights and interests with the clarity required by a capitalist economy, and in so doing they inevitably simplify and transform them.178 Codification has been one of the basic strategies used to incorporate customary law.179 According to Svensson, the Saami maintain that it is only by means of codification of their customary rights that their traditional knowledge will be instrumental in future legal and political conflicts; they have learned from experience that if the basics of their culturally-specific normative orders are transferred to a written source, their ability to prove their rights increases.180 Nevertheless, Svensson acknowledges that codification may render customary law more static than desirable, that part of its power as a dynamic and innovative force may be lost, and that it may lead to misinterpretation or misuse of customary law

173 Michaels, above n 7, 248. Strong legal pluralism, on the other hand, refers to ‘an irreducible set of legal orders that can be partly in harmony, partly in in contest with each other’. 174 Michaels, above n 9, 1228–34. 175 Ibid, 1234–35. 176 Ibid, 1232–34. This model corresponds roughly to Christie’s ‘Translating Vital Interests into Aboriginal Rights’, whereby aboriginal peoples and their lands are brought under the control of the Crown in a way that removes aboriginal sovereignty from the picture while translating the pre-existing vital interests of aboriginal nations into rights which could be incorporated into a single regime of rights and interests under the Crown’s dominion. See Christie, above n 136, 30. 177 Svensson (ed), above n 78, 113. 178 N Peterson, ‘Common Law, Statutory Law, and the Political Economy of the Recognition of Indigenous Australian Rights in Land’ in Knafla and Westra (eds), above n 46, 171–84, 172–73. 179 Tamanaha, above n 10, 383–84. 180 Svensson, above n 4, 32. See also Svensson (ed), above n 78, 114.

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by outsiders.181 The need to make claims in ways that are compatible with mainstream legal discourse has elsewhere resulted in the essentialisation, reification and idealisation of indigenous customary law practices.182 Deference and taking into account have been alternatives methods for the State to recognise indigenous law. ‘Deference’ is the transformation of non-State law into facts.183 Customs are used when State courts and administrative bodies apply the non-State’s laws but the State does not recognise them as constituting law in and of themselves. The distinction between law and fact is crucial, because if these practices were recognised as law and designated as the applicable law through a choice of law process, then these practices would be on equal footing with the State’s law. If these practices are recognised only as facts, they are subordinated to the state’s laws. Article 34 provides that protracted traditional use of land or water areas is the basis for individual or collective Saami ownership rights, and requires that particular regard be paid to the interests of reindeer-herding Saami. However, it also provides that if these land or water areas are used by the Saami in association with other users, the exercise of rights by the Saami and the other users shall be subject to due regard for each other and for the nature of the competing rights. Who is to pay ‘due regard’ is not clear, but the article is otherwise an example of deference to use, ie a fact. More obviously, Article 38 provides that due regard shall be paid to Saami use of fish and other marine resources, and their importance to local Saami communities in connection with the allocation of catch quotas and other regulation of these resources. Alternatively, the ‘due regard’ required by Articles 34 and 38 may be examples of merely ‘taking into account’, which only signals some type of sympathetic consideration by the courts or other decision-making bodies.184 Article 9—the only article in the draft Convention explicitly to mention Saami law—could be interpreted as an example of merely ‘taking into account’.185 Recall that Article 9 provides: The States shall show due respect for the Saami people’s conceptions of law, legal traditions and customs. Pursuant to the provisions in the first paragraph, the States shall, when elaborating legislation in areas where there might exist relevant Saami legal customs, particularly investigate whether such customs exist, and if so, consider whether these

181

Svensson (ed), above n 78, 113–14. DL Van Cott, ‘A Political Analysis of Legal Pluralism in Bolivia and Colombia’ (2000) 32 Journal of Latin American Studies 207, 212. See also M Walters, ‘The Morality of Aboriginal Law’ (2006) 31 Queen’s Law Journal 470, on the difficulty of trying to understand the customary law of another society. 183 Michaels, above n 9, 1233–34. 184 Krisch, above n 16, 85. 185 Fitzmaurice, above n 69, 126. 182

Acknowledging & Accommodating Legal Pluralism 75 customs should be afforded protection or in other manners be reflected in the national legislation. Due consideration shall also be paid to Saami legal customs in the application of law. (emphasis added)

While calling for respect for the Saami people’s customary legal system, Article 9 leaves it to non-Saami institutions to determine to what extent, if any, they will acknowledge that legal order.186 The Nordic States are only committed to considering what they find to be relevant Saami legal customs. A duty merely to consider may well amount only to ‘taking into account’. If the States determine that relevant custom exists, the States are committed only to assessing whether those relevant Saami legal customs ‘should’ be afforded protection. On what basis is this normative decision to be made? ‘Taking into account’ need not be substantively meaningless. There are several aspects of British Columbia Supreme Court Chief Justice Finch’s approach to consultation in the recent decision in West Moberly First Nations v British Columbia,187 that indicate that the State’s ‘taking into account’ or ‘having due regard for’ could amount to something respectful of other legal traditions. In that case, Chief Justice Finch insisted on mutual accommodation by stating that the Crown’s duty of consultation would never be adequately fulfilled if it began with the premise that the preferences of the settler society will always prevail.188 He also required that the consultation process provide a satisfactory, reasoned explanation as to why the position of the First Nation was not accepted, if it was not.189

IV. CONCLUSION

Most of the provisions of the draft Convention that deal with methods of interaction between Saami and State legal regimes, directly or indirectly, accord a lesser amount of autonomy to Saami peoples’ law. What is more unusual, however, is the variety of interaction contemplated by the draft Convention. There is no need, of course, for only one procedure or process of interaction. A ‘one size fits all’ approach seems both impossible and undesirable given the diversity among the Saami people, the variation in the subject-matter covered by the draft Convention, and the asymmetry of the Nordic States’ stances on Saami law and rights to land and other natural resources. The variety may merely acknowledge the necessary complexity of recognising legal pluralism in this context. However, it may also be a symptom of resistance to the very idea of acknowledging legal pluralism. 186 187 188 189

Åhrén, above n 82, 19. West Moberly First Nations v British Columbia, 2011 BCCA 247. Ibid, para 150. Ibid, para 148.

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It may indicate a lack of agreement on what relationships of interlegality should look like. Given the minor role that Saami law explicitly plays in the draft Convention, the latter possibility seems more likely than the former— the variety of interactions contemplated by the draft Convention suggests the lack of a shared vision of the status of Saami law or the desirability of legal pluralism. Proponents of legal pluralism have argued that normative conflict between overlapping legal systems is not only unavoidable but also sometimes desirable. Berman, for one, argues that ‘messy interactivity’ is potentially desirable because it acknowledges the multiple affiliations that people have, it helps ensure non-State communities are taken seriously and included when differences are managed, and it may result in better substantive decisions because there is more space for variations and experimentation.190 Krisch puts forward three different virtues of normative conflict: adaptation, contestation, and checks and balances.191 Legal pluralism promises to allow for adaptation to new circumstances in a more rapid and less formalised way by leaving the relationships between legal systems undetermined. Contestation assumes that constitutional frameworks are typically expressions of power and that the element of openness to a pluralist order may provide greater space for contestation by weaker actors. The most common argument for pluralism is based on an analogy to checks and balances in domestic constitutions, with no single legal system enjoying ultimate decision-making powers but instead facing checks by other systems that may have equally strong claims to authority. Complexity of interactions may play a role in whether or not efforts to manage legal pluralism are successful. However, Van Cott has identified variables that account for the ‘success’ of legal pluralism—which she defines as the extent to which multiple legal systems are able to operate without interference, and the extent to which conflicts among legal systems are managed institutionally—and complexity is not one of those variables.192 At the end of her empirical and comparative study, she concludes that the success of legal pluralism is determined by the outcome of repeated strategic interactions among indigenous peoples’ organisations, the professional judiciary and State institutions. These interactions, in turn, are affected by the capacity of the political system, the legal tradition and society to tolerate normative diversity; the geographic isolation and cultural alienation of indigenous communities; the degree of internal division within indigenous communities, and movements regarding legal pluralism in general and in specific cases that have arisen; and the availability of effective legal

190 191 192

Berman, above n 45, 12. Krisch, above n 16, 78–89. Van Cott, above n 182, 209.

Acknowledging & Accommodating Legal Pluralism 77 mechanisms to indigenous communities seeking to protect their rights.193 Sillanpää identified one of Van Cott’s variables as an especially important factor, namely, the existence of a pluralist ideology within States that enables politicians and civil servants to listen to the claims of groups.194 Toleration or better accommodation of diversity and legal pluralism seems crucial to moving forward. One frequent incentive for change is the need to make the legal system more ‘authentic’, that is to create a better fit between society and its norms.195 The Nordic Nation States are considered by many to be progressive and moral leaders. This gives the Saami ‘reputational leverage’, based on pressure to live up to one’s image, or reputation, as a leader on such issues.196 The Nordic States can be pressured based on gaps between reputation and performance. Moral leverage is also relevant in this context. Actors such as the Saami find allies in transnational networks and other organisations and entities that accept international human rights norms and standards, thus creating leverage on recalcitrant governments to follow those norms and standards.197 And both reputation and moral leverage are connected to legal leverage, the pressure to implement transnational and international law.198 Achieving transitional justice or reconciliation is a very gradual process. Acknowledgement of legal pluralism is but a first step, and accommodating legal pluralism requires many steps and repeated interactions over a long period of time. Svensson has emphasised the time interlegality takes, both empirically, when looking at historical examples, and conceptually, when conceiving of it as a mutually accepted and acknowledged process requiring reciprocal respect and full recognition of cultural distinctiveness.199 Given how long these processes take, perhaps it is time to take more steps along the journey to accommodating legal pluralism.

193

Ibid. Sillanpää, above n 128, 80. 195 Van Cott, above n 182, 211. 196 B Hobson, M Carson and R Lawrence, ‘Recognition Struggles in Trans-National Arenas: Negotiating Identities and Framing Citizenship’ (2006) 10 Critical Review of International Social and Political Philosophy 443, 446. 197 Ibid. 198 Ibid, 447. 199 Svensson, above n 78, 52 and 61. 194

3 The Public-Law Dimension of Indigenous Property Rights JEREMY WEBBER*

I. INTRODUCTION

T

HE RECOGNITION OF indigenous land rights is often understood along something like the following lines:

(a) The rights arise in the period pre-dating the non-indigenous government’s assertion of sovereignty and are conceived to be, initially, either rights recognised within an indigenous legal order or the simple product of the indigenous people’s occupation of the land. (b) These rights survive the non-indigenous government’s assertion of sovereignty; they are respected by the new regime and are, in effect, absorbed into the property regime of the new State, enforced as part of the law of that State. Note that in this account, the rights that are respected are proprietary only. Those rights are, in effect, severed from the political and legal orders that created them, and are now treated as rights exercised within the political and legal order of the new State. But how adequate is that account? As we shall see, rights are intrinsically bound up with the legal order by which they have been defined and according to which they are interpreted, adjusted and deployed. Their operation, their use in practice, may often require institutional structures that appear, to western eyes, to be more akin to public-law than to private-law institutions. Shearing these dimensions from the rights can do violence to them such that, once shorn, the rights no longer have the scope or function that they

* My thanks to Ardith Bailey and Jared Wehrle for their able research assistance, and to Else Grete Broderstad, Ardith Bailey, Nigel Bankes, Heidi Kiiwetinepinesiik Stark, Timo Koivurova, Kent McNeil, Richard Overstall and the other participants in the research project on the ‘The Recognition of Indigenous Property Systems within Arctic States’, for their insightful comments on previous drafts of this argument.

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once did. They have been truncated, replaced with a right that maintains only a superficial resemblance to the original—a shell reconstructed according to the social and legal presuppositions of the incoming society. In this chapter, I argue the necessity of taking these public-law dimensions into account when recognising and protecting indigenous rights, so that land rights and governance go hand in hand. I first explore the ways in which indigenous land rights necessarily presuppose the continuation of an indigenous legal order and indigenous institutions, revealing the essential public-law dimension of those rights. I then turn to analogous structures within non-indigenous orders, in which the proprietary and the governmental, the private law and the public law, are compounded. This section deconstructs a simple opposition between the proprietary and the governmental, showing that they are more entangled than we commonly assume, even in non-indigenous legal orders. It also helps to clarify the characteristics of indigenous orders and the forms of recognition appropriate to them. Lastly, in conclusion, I sketch alternative ways of recognising, in institutional form, the public-law dimensions of indigenous land rights. I shall refer repeatedly to the governmental or public-law dimensions of indigenous rights. I use those terms interchangeably to capture the legal and institutional structure that regulates the rights—that specifies the incidents that attach to the rights and addresses conflicts over their definition and detention. I accept, then, the significance of legal pluralism: the existence of multiple legal orders within a given social space, so that, alongside the State’s law, norms from outside the State continue to regulate human activity. Legal pluralism alone does not tell us how these legal orders should interact. The indigenous norms may be recognised by the State; they may be accepted and enforced as part of State law; or they may be denied or actively suppressed by State institutions. It simply tells us that different normative orders continue to structure human conduct in practice, whether recognised by the State or not. Moreover, legal pluralism is intrinsically bound up with institutional pluralism. Norms are never self-interpreting or self-executing. They require processes and institutions to define them, apply them and resolve conflicts in their interpretation.1 Legal and institutional pluralism are therefore two sides of the same coin, and it is in this combined sense that I refer to the public-law, the governmental, dimensions of indigenous rights. Indigenous institutions need not have the same level of formality, the same visibility or the same specialised personnel that State institutions possess. By referring to a governmental dimension, I do not mean, for example, that a separate class of governors, exercising coercive authority, must exist. Rather, I mean simply that any normative order must have its own processes

1 J Webber, ‘Legal Pluralism and Human Agency’ (2006) 44 Osgoode Hall Law Journal 167, esp 176–82.

The Public-Law Dimension 81 for defining rights, regulating conflicts and adjusting rights to changing circumstances over time, although those processes may not be centralised in specialised officials but may be dispersed within the society. Often the term ‘governance’ is used to draw attention to this disseminated form of organisation.2 Moreover, the processes need not have coercive power. Coercion is often taken to be an essential requirement of law, but that dogma dramatically oversimplifies citizens’ reasons for compliance, even for State law. Rather, it is the capacity to specify norms that is essential—the ability to determine an authoritative interpretation of what the law requires among the welter of possible interpretations.3 The socially-determined interpretation may be imposed by coercive means, or it may be left for acceptance without coercion. Indigenous processes often depend not so much on the ability to coerce, but on the desire of members to remain members: individuals and sub-groups go along with the outcome, even if they disagree, because they realise that the alternative is to separate themselves, wholly or in part, from the community.4 This chapter also brackets questions of sovereignty.5 In debates such as these, we often stumble over the question of final authority, derailing our discussions at a very early stage by demanding to know which institution has the ultimate say. I do not presuppose any particular answer to that question. Indeed, it is a mistake to think that actions in the immediate term must be held hostage to the identification of a sovereign.6 For the purposes of this argument, it is sufficient to accept that different orders of law can coexist, orders that are engrained in practices within their various communities, practices that have their own mechanisms of definition and that are deeply cherished by their communities. There remains a tension between these forms of autonomy and common notions of law and governance. 2 See, eg NJ Sterritt, First Nations Governance Handbook: A Resource Guide for Effective Councils (Canada, Indian Affairs and Northern Development, 2003). This use of ‘governance’ has close affinities to Foucault’s concept of ‘governmentality’: G Burchell, C Gordon and P Miller (eds), The Foucault Effect: Studies in Governmentality (Chicago, Ill, University of Chicago Press, 1991). 3 J Webber, ‘Naturalism and Agency in the Living Law’ in M Hertogh (ed), Living Law: Reconsidering Eugen Ehrlich (Oxford, Hart Publishing, 2009) 208–11 and 221. 4 J Webber, ‘The Grammar of Customary Law’ (2009) 54 McGill Law Journal 579, 606–08. 5 For arguments that do extend to sovereignty (although perhaps in limited form) from similar foundations, see K McNeil, Emerging Justice? Essays on Indigenous Rights in Canada and Australia (Saskatoon, University of Saskatchewan, Native Law Centre, 2001) 95–101; K McNeil, ‘Judicial Approaches to Self-Government since Calder: Searching for Doctrinal Coherence’ in H Foster, H Raven and J Webber (eds), Let Right Be Done: Aboriginal Title, the Calder Case, and the Future of Indigenous Rights (Vancouver, UBC Press, 2007); M Walters, ‘The Morality of Aboriginal Law’ (2006) 31 Queen’s Law Journal 470. 6 See, eg, the remarkable Haida Gwaii Reconciliation Act, SBC 2010, c17, which recites, in its Preamble, that the Haida Nation and the BC government ‘hold differing views with regard to sovereignty, title, ownership and jurisdiction over Haida Gwaii’ and that both ‘will operate under their respective authorities and jurisdictions’, yet establishes a joint structure for land use management in Haida Gwaii (formerly the Queen Charlotte Islands).

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In particular, this approach rejects a conception of law that insists upon the singleness of the national population and the national parliament as the exclusive font of law. I accept the value of cultural and legal diversity, and believe that it is possible to accommodate it without imperilling principles of equality and democratic self-government. Such accommodations are typical of federal regimes. Indeed, the vision expressed here is fundamentally federal.7 In arguing for the essential public-law dimension of indigenous rights to land, I draw principally on the contexts I know best: North America and Australia. It is possible that an indigenous people may have adjusted its aspirations so that it no longer claims a measure of legal or political autonomy but only asserts rights to resources under the general law. Such an adjustment would be entirely legitimate. I suspect, however, that the abandonment of governmental claims is very much the exception, not the rule. For reasons developed in this chapter, indigenous claims almost always have a public-law dimension. That appears to be true of the Saami as well, as the notes to this chapter make clear. Initiatives in the Nordic countries have edged towards this recognition. This is suggested by the creation of Saami parliaments in each of the Nordic countries—although the lack of legislative authority for these parliaments detracts from their current ability to play a governmental role. It is also true—perhaps more true—of measures such as Norway’s recognition of the siida, the traditional kinshipbased Saami herding collective, as a means of regulating and administering Saami reindeer herding.8 This chapter underlines the centrality of such measures in most arguments for indigenous rights to land. They are, almost always, a necessary concomitant of the protection of indigenous property rights.

II. THE PUBLIC-LAW DIMENSION OF INDIGENOUS PROPERTY RIGHTS

In some circumstances, the public-law dimension of indigenous rights is fully apparent in the rights’ enunciation. A good example is the Treaty of Waitangi in Aotearoa/New Zealand, in which the Maori signatories

7 See J Webber, Reimagining Canada: Language, Culture, Community and the Canadian Constitution (Montreal, McGill-Queen’s University Press, 1994) esp 219–22. See also A Shachar, Multicultural Jurisdictions: Cultural Differences and Women’s Rights (Cambridge, Cambridge University Press, 2001). 8 See TG Svensson, ‘Interlegality, A Process for Strengthening Indigenous Peoples’ Autonomy: The Case of the Sámi in Norway’ (2005) 51 Journal of Legal Pluralism and Unofficial Law 51, 75; and Ravna, ch 7 of this volume, and Broderstad, ch 6 of this volume, who notes the value of regulating cross-border reindeer management through the use of local agreements between herding groups.

The Public-Law Dimension 83 accepted (in the English version of the text) the ‘Sovereignty’ of the Crown, while expressly preserving ‘the full exclusive and undisturbed possession of their Lands and Estates Forests Fisheries and other properties’—a phrase which, in the Maori version, uses the words ‘te tino rangatiratanga,’ which has been translated as ‘the unqualified exercise of their chieftainship’.9 This chapter is not concerned with such explicit provisions. Rather, it focuses on situations in which, ostensibly, land rights alone are held to exist, and notes the various ways in which elements of governance and regulation must, on reflection, be implicit in those rights. First and most obviously, the initial recognition of indigenous rights to land must draw, at least implicitly, on indigenous law. The traditional owners cannot be determined unless one knows, by that law, who is entitled to exercise authority over the lands. Simple use cannot be sufficient. It is very rare that lands would be used by a lone individual. Normally, they would be used by a number of persons under a wide array of arrangements: a collective entity, such as a family or more extensive kinship group, might harvest resources from the land; different families might use a tract jointly; one family might allow harvesting by others; or there might be multiple but different rights in the same land (one group might be entitled to walk across another group’s territories to access their own tract and, in doing so, may be entitled to take certain species; other species may be reserved to the group that holds the territory).10 These modes of land use cannot be distinguished—one cannot even distinguish who is a usurper and who an owner—without referring to claims of right, not mere patterns of use. And those claims of right may be adjudicated only by referring to the particular people’s norms. The dominant legal theory of the source of indigenous rights accords with this perception. Under this view, indigenous rights are the continuation of rights held prior to colonisation. They are a special case, then, of the general rule in international law that property rights are not erased by a change of sovereignty but should, in principle, be recognised by the new sovereign.11 That theory is too simple. It suggests that indigenous rights

9 IH Kawharu (ed), Waitangi: Ma ´ori and Pa´keha´ Perspectives of the Treaty of Waitangi (Oxford, Oxford University Press, 1989) Appendix, 316–21. The apparent divergence between the Maori and the English versions, which were both used at the signing of the treaty, has generated a long debate in New Zealand about the scope and nature of the rights protected. 10 See, eg, the description of rights to land among the Mistassini Cree in A Tanner, Bringing Home Animals: Religious Ideology and Mode of Production of the Mistassini Cree Hunters (New York, St Martin Press, 1979) 182–202. 11 I Brownlie, Principles of Public International Law, 6th edn (Oxford, Oxford University Press, 2003) 623–24 and 627; R Jennings and A Watts (eds), Oppenheim’s International Law, 9th edn (London, Longman, 1992), vol 1, 215–17. The application of these principles to indigenous peoples required, of course, the abandonment of the view that indigenous peoples were incapable of producing law. See Jennings and Watts, 687. In common law countries, these emerging international principles were also refracted through distinctively common

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result from the application of a grand transhistorical principle, when in fact they generally emerged from a long process of trial and error between settlers and indigenous peoples. The particular nature of the rights reflects the idiosyncrasies of that process, including the relative power of the parties.12 Rather than preceding settlement, the international law with respect to indigenous land rights has been crystallised much more recently, and has then been read back across that experience in an attempt to formulate, retrospectively, general normative principles for a much more heterodox reality. The dominant theory also suggests that the rights are preserved intact under the new regime, whereas in practice they are always adapted and adjusted, so that they represent a mediated, not a pristine, form of the rights. And it has applied to the indigenous/non-indigenous encounter the tendency, in modern law, to separate questions of property and governance, a tendency which is, I shall argue, too simplistic. But the dominant theory is nevertheless right that indigenous land rights find their origin in an indigenous order of law, not merely an order of fact. The indigenous legal order even plays an important role if one conceives of indigenous rights as resulting from acquisitive prescription—simply, that is, from indigenous peoples’ long occupation of the land. The use that gives rise to prescription is one that follows the pattern of the right claimed. In order to obtain ownership, for example, one has to use the immoveable ‘as its owner’; one has to use it in a manner that is equivalent to the way an owner would use it, and one has to do so with the animus of asserting ownership.13 That use cannot be ‘equivocal’; it cannot be consistent with another legal capacity under which the user might be acting.14 Prescription is parasitic, then, on the structure of the right. When dealing with indigenous rights, the indigenous landholders’ actions are patterned upon indigenous conceptions of entitlement and responsibility; it is those rights that the landholders are, by their actions, purporting to exercise. If, in

law discussions of the acquisition of territory. See B Slattery, ‘The Land Rights of Indigenous Canadian Peoples, As Affected by the Crown’s Acquisition of Their Territories’ (DPhil Oxford University, 1979) 10–62; Mabo v Queensland (No 2) (1992) 107 ALR 1, 20–42 (per Brennan J). 12 For this reason, in Canada it has become common to refer to indigenous rights as a body of ‘intersocietal law’: B Slattery, ‘Understanding Aboriginal Rights’ (1987) 66 Canadian Bar Review 727; J Webber, ‘Relations of Force and Relations of Justice: The Emergence of Normative Community between Colonists and Aboriginal Peoples’ (1995) 33 Osgoode Hall Law Journal 623; Royal Commission on Aboriginal Peoples, Report of the Royal Commission on Aboriginal Peoples (Minister of Supply and Services Canada, 1996) vol 1, 99–132. 13 This is the language used in the prescription provisions of the Civil Code of Quebec, art 2918. 14 JEC Brierley and R Macdonald (eds), Quebec Civil Law: An Introduction to Quebec Private Law (Toronto, Emond Montgomery, 1993) 280–81.

The Public-Law Dimension 85 prescription, a right is acquired by use under colour of right, the relevant right must be the indigenous one.15 To this point, I have been discussing indigenous land rights as though nonindigenous legal orders recognised the rights of the indigenous landholders themselves. But in fact, it is rare that recognition works this way. Normally, State institutions do not inquire deeply into indigenous law and declare that specific individuals hold particular rights by virtue of that law. Instead, they find that indigenous title is vested in the indigenous people as a collectivity. This should not be understood as a statement that the property is owned collectively. It is very rare that indigenous peoples, by indigenous law, hold their entire territory in equal and undivided co-ownership. On the contrary, land is generally held by individuals, families and kinship groups.16 Those landholders strongly defend their rights, even against other members of their own people. Non-indigenous courts and governments, when they recognise indigenous title in communal terms, should not be taken to have cut across this system, reforming the internal landholdings to accord with an ideal of primitive communism. Rather, they have recognised (generally implicitly) that the internal allocation of lands is to be governed by the indigenous people itself. They are, in essence, recognising a sphere of territorial jurisdiction, where the allocation of lands is determined by indigenous norms. After all, non-indigenous courts and governments have neither the interest nor the expertise to rule on the fine points of indigenous peoples’ law.17 There is, then, something of a mismatch between the language used to discuss indigenous land rights and the way those rights are recognised. Lawyers normally speak as though the property rights of traditional owners are being recognised. But it is not the property rights themselves that are vindicated in most indigenous-rights litigation. Instead, the people’s collective right over the land is respected, a right that is more akin to the territorial jurisdiction of a government, within which members’ entitlements are governed by indigenous law. The proprietary impulsion—the desire to secure indigenous 15 When applying prescription, it is also worth considering what attention should be paid to indigenous conceptions of extinctive and acquisitive prescription. Broderstad, ch 6 of this volume, refers to Norwegian Saami principles under which, if herding in an area ceases, other herders can assume the right. See also TG Svensson, ‘On Customary Law: Inquiry into an Indigenous Rights Issue’ (2003) 2 Acta Borealia 95, 106–08, and ‘Indigenous Rights and Customary Law Discourse: Comparing the Nisga’a and the Sámi’ (2002) 47 Journal of Legal Pluralism and Unofficial Law 1, 11–12. 16 See, eg, the complex of rights for the James Bay Cree described in Tanner, above n 10. In the Nordic context, Åhrén notes the existence of usufructuary rights held by households and individuals within the sii’da, rights with which the official recognition of rights-holders tends to conflict: M Åhrén, ‘Indigenous Peoples’ Culture, Customs and Traditions and Customary Law—the Saami People’s Perspective’ (2004) 21 Arizona Journal of International and Comparative Law 63, 93. 17 J Webber, ‘Beyond Regret: Mabo’s Implications for Australian Constitutionalism’ in D Ivison et al (eds), Political Theory and the Rights of Indigenous Peoples (Cambridge, Cambridge University Press, 2000) 70–72.

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peoples’ rights over their lands—still operates, for indigenous individuals do want to protect their lands from incursions. But they generally achieve that protection not as individuals holding a right of property under State law, but as members of an indigenous people, whose collective control of the land is recognised.18 Non-indigenous courts and governments have realised this only indistinctly. Moreover, they have, knowingly or unknowingly, restructured indigenous land use in a manner that showed scant respect for indigenous law.19 Indeed, they have often done so in the service of what has frequently been their primary aim: to remove lands from indigenous control so that they may be transferred to their non-indigenous constituents. They have, for example, recognised individual chiefs or heads of families as full, beneficial, individual owners of lands, when those lands have often been subject to a complex of rights and responsibilities, so that individuals’ landholding looks more like a trust—like stewardship on behalf of the members of their family or kin group—than individual ownership.20 Non-indigenous governments have let their biases shape their interpretations of communities’ practices. They have, for example, tended to neglect the role of women in indigenous communities, concentrating on men’s activities in determining land use (focusing on hunting or fishing, for example, rather than berrypicking or root-harvesting), and they have often presumed that lands were owned by the men, not by the women.21 When dealing with indigenous communities as collectivities, they have misread and interfered, recognising some leaders and not others; applying their own conceptions of authority in ways that cut across indigenous checks and balances; imposing definitions of membership; and amalgamating, dividing and reorganising indigenous governing structures.22 The respect for indigenous practices, like the respect 18

See, eg, Allard, ch 8 of this volume. Examples are legion in the Dominions of the former British Empire. Similar processes occurred in the Nordic countries. Eg, in Norway, artificially-created bureaucratic ‘districts’ were the primary means of administering reindeer-herding rights until Norwegian jurisprudence and legislation recognised the role of the sii’da. See Svensson, ‘On Customary Law’, above n 15, 106; and Svensson, above n 8, 75. 20 See, eg, J Promislow, ‘One Chief, Two Chiefs, Red Chiefs, Blue Chiefs: Newcomer Perspectives on Indigenous Leadership in Rupert’s Land and the North-West Territories’ in H Foster et al (eds), The Grand Experiment: Law and Legal Culture in British Settler Societies (Vancouver, UBC Press, 2008). 21 For an important corrective, which emphasises women’s role in harvesting and the knowledge that comes with it, see NJ Turner, ‘Lessons from the Grandmothers: Women’s Roles in Traditional Botanical Knowledge and Wisdom in Northwestern North America’ in Z Füsun Ertug˘ (ed), Proceedings of the Fourth International Congress of Ethnobotany (Istanbul, Yayinlari, 2006). In Norway, the Government’s failure to recognise Saami women’s roles in the 1978 Reindeer Husbandry Act has had consequences for Saami identity, traditional practices and women’s rights. See R Kuokkanen, ‘Indigenous Women in Traditional Economies: The Case of Sámi Reindeer Herding’ (2009) 34 Signs: Journal of Women in Cultural and Society 499, 500–03. See also, Svensson, above n 8, 56. 22 For examples in the Nordic context, see Åhrén, above n 16, 93–95. 19

The Public-Law Dimension 87 for indigenous lands, has therefore been far from perfect. But when indigenous rights have been recognised, non-indigenous governments have inevitably deferred to the structure of indigenous landholding under indigenous peoples’ own law. Indeed, non-indigenous courts and governments have tended not to bother with the detail of individual and familial holdings, but have instead recognised that the people as a whole hold territorial rights, leaving it to them to apportion and regulate those lands. But if indigenous property interests must have been nested in a broader normative order at the time of settlement, did the public-law dimension of the rights survive the assertion of non-indigenous sovereignty? The answer must be yes. Indigenous sovereignty may have been constrained by the assertion of non-indigenous authority, but some public-law dimension must nevertheless persist. This is certainly true if the post-settlement indigenous right is vested in a collectivity, such as the people as a whole, or a familial or kinship group. For the collectivity to be able to act at all into the future, there have to be norms governing who can do what on behalf of the group, including who can make decisions in relation to land and territory. Very frequently there will be norms with respect to the process of decision-making—rights of deliberation; principles about the level of concurrence required in order to make a decision. There has to be, in short, constitutional law for the group.23 Moreover, almost always, a body of resource law will continue to regulate how the land may be used, by whom. The land will not be open to use by whomever wants in whatever way they want; it will be held by different individuals or kinship groups, who exercise prerogatives over certain tracts, often subject to normative obligations as to the manner of their exercise.24 Given the decentralised character of indigenous societies, there is often a very strong belief that these rights must be respected even by the people as a whole. Indeed, it often seems that the kinship group, as opposed to the people as a whole, is the primary unit, with the latter held together by the looser bonds of shared language, overlapping traditions (including traditions of social order) and more extended familial ties. Because lands are held through time, the recognition of rights today also implies the existence of inheritance law that continues to operate postsettlement. The same individuals who held the land 100 or 200 years ago obviously do not hold the land today. The principles of succession could, of course, be imposed from outside, so that a court or government uses its

23

See the brief description of procedure within siidas in Åhrén, ibid, 72–73. See Tanner, above n 10. Similarly in Sápmi, customary rules dictate patterns of land use within and between siidas. See Åhrén, above n 16, 69; Ravna, ch 7 of this volume. See also McNeil, Emerging Justice?, above n 5, 89–93, for an argument that this essential form of governance is implicit in the recognition of indigenous title. 24

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own criteria to decide who is the owner. One sometimes suspects that this is happening when courts speak of descent in quasi-biological terms, tracing the genealogy of today’s claimants as though biology alone suffices, for this is clearly too simple. Descent is a complex phenomenon, shaped by factors that differ from culture to culture. Does it pass through the male line, the female line, or some complex combination of these? Does it pass to all biological descendants equally, or are some family members preferred (the first-born, the last-born, males, females)?25 Is it conditional on the descendent entering into possession of the land or maintaining contact with the community, so that people who sever their relations do not inherit? Do those adopted into a family benefit from rights of descent? Is there discretion in the choice of the successor, on the part of either the community or the deceased?26 One cannot help but apply some set of answers to these questions when one determines descent. Surely, when dealing with indigenous lands, it makes sense to use the answers of the indigenous community itself, so that indigenous interests are held by people entitled to the lands, not individuals whom some non-indigenous judge has imported into the ranks of descendants. In any serious attempt to respect indigenous rights we are pushed to refer to the indigenous order. We determine the landholders by informing ourselves about that order by speaking to its custodians—the indigenous community today—either directly or through the mediation of anthropologists. Here again, courts and governments often avoid the need to enter into the details of indigenous inheritance by treating the rights as though they were held by the indigenous community as a whole, leaving the community to determine who specifically is entitled to the land. The problem of succession is sidestepped by vesting the land in a political entity that never dies. But again, this attribution is not designed to settle who, as between members, holds the beneficial ownership. That is left up to the community, applying its own norms. What is more, for many indigenous peoples, rights are interdependent with the processes used to determine them. Change the processes and the rights themselves would change significantly. Take the Gitksan of northern British Columbia, for example. There, the inheritance of chiefly names—to which are annexed lands, ceremonial roles and other rights—is achieved through the highly structured institution of the Feast. While biological relationship counts for a great deal, it is not determinative. A recipient has 25 In Saami legal traditions, the youngest child tends to inherit family property. Both men and women could inherit property equally, although this is not necessarily the case today. See Svennson, above n 8, 61; Kuokkanen, above n 21, 501–02. 26 All these variations exist in the traditional norms of indigenous peoples in Canada. For definitions of descent in contemporary membership codes, see K Gover, Tribal Constitutionalism: States, Tribes, and the Governance of Membership (Oxford, Oxford University Press, 2010) esp 32–47.

The Public-Law Dimension 89 to prove himself or herself worthy of the name, able to fulfil its obligations and, if it is a high-status name, willing to maintain its prestige. There is a great deal of consultation prior to the Feast to ensure that the different Houses will assent to the name’s conferral. And in the Feast itself, representatives of the different Houses, welcomed into the Big House with formality and seated according to their relationship to the House that is hosting the Feast, will be entitled to comment on the name and rights conferred. They are able to demonstrate support for the naming, provide their own interpretation of its incidents or indicate their disapproval (which can be cataclysmic). In the end, the name may be conferred, with its responsibilities reinforced and clarified. In fact, Val Napoleon cites one recent instance in which a name was split between two recipients, because one was considered best positioned to look after the territories, while the other was most able to fulfil the responsibilities of the Feast hall.27 A judge or governmental official, exercising decision-making authority in his or her courtroom or office, would have difficulty reproducing such outcomes! This, of course, is just one example of the wide array of processes that exist in indigenous societies. The processes are often allusive because they occur within non-State societies, in which power is widely distributed and no single body is entitled to make binding determinations that can be enforced on the parties. Indeed, the traditions themselves are often held in decentralised manner, with different kinship groups having their own traditions. Among the Gitksan, Feasts often consist of narratives and counternarratives—narratives in which interpretations of the people’s norms are embedded and from which conclusions are derived. Val Napoleon has shown how such a process can lead to final determinations.28 Success depends upon consultation in advance and deliberation at the Feast, so that positions and counter-positions may be articulated and discussed. It puts a premium on wisdom, diplomacy, personal judgement, strategies for the retention of memory, long exposure to the traditions of the people and oratory. Those who disagree with the emerging decision will often acquiesce because they know that continued cooperation requires, in large measure, that they go along with the predominant interpretation. It is, however, possible for a participant to reject the emergent position. In contemporary treaty negotiations, for example, a number of communities will often negotiate jointly for a time, but one or more may then break away over some issue, negotiating independently or sitting out of further negotiations, in a manner that has deep roots in the decentralised character of the societies.

27 V Napoleon, ‘Ayook: Gitksan Legal Order, Law and Legal Theory’ (PhD University of Victoria, 2009) esp 196–209 and 255–56. 28 V Napoleon, ‘Living Together: Gitksan Legal Reasoning as a Foundation for Consent’ in J Webber and CM Macleod (eds), Between Consenting Peoples: Political Community and the Meaning of Consent (Vancouver, UBC Press, 2010).

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The rights held within indigenous peoples are distorted when this distributed character of indigenous norms is replaced with a single, centralised conception of the people’s law by, for example, the adjudication of the norms by a non-indigenous court. A single variant of the people’s law may be taken to be canonical and extended to the whole of society, sometimes without the decision-maker realising what he or she is doing. The borders of the society may be reified, simplified, with changes to the society’s composition excluded. Restructuring, simplification, the choosing of one particular tradition over others, the preference for one authority over others, are often implicit in such adjudication, in the indigenous context as in other areas of legal pluralism (such as the interpretation and application of religious law29). There may be reason to engage in that reorganisation. Many indigenous communities themselves combine State-like processes with traditional mechanisms, experimenting with different forms of integration among them. But the significance of the change should be recognised and the necessity of indigenous participation in any such changes acknowledged. The high degree of decentralisation within indigenous societies may often lead non-indigenous people to question whether these are indeed legal orders. If one requires that all law operate in State-like fashion, with crisp boundaries and centralised mechanisms for determination, then indigenous orders will indeed seem to be non-legal. But if one approaches law in a more flexible fashion, looking for norms that are invoked and applied, processes by which determinations are made which are then broadly accepted, and the capacity of the society to maintain normative traditions and processes over time, then indigenous societies do possess law, albeit in a form adapted to the absence of a central authority. What is more, one should not exaggerate the degree of certainty in State-structured legal orders. Generally, States provide mechanisms for achieving certainty through legislation or adjudication; prior to those determinations, very frequently, contending interpretations coexist. Moreover, the vast bulk of legal matters is dealt with ‘prior to determination’ through conciliation or negotiation. These are still processes to which law is central: the participants are negotiating precisely over how their legal rights should be understood; they settle their disputes against the backdrop of the law. Even when matters come before State institutions for adjudication, one should not exaggerate the level of certainty achieved. A definitive result is imposed in the particular case, but on the general interpretation of the law there are often contending lines of authority. This is patent in the common law, but the persistence of contending traditions of interpretation is also a feature of civil law systems. Think,

29 See, eg, the effect of recognition on the form and the substance of Muslim law in British India: V Narain, Gender and Community: Muslim Women’s Rights in India (Toronto, University of Toronto Press, 2001) 13–23.

The Public-Law Dimension 91 for example, of the coexistence of theories of fault and risk in the law of civil obligations.30 Normative relations can therefore be genuinely legal and yet be prone to contending traditions of interpretation, even in the long term. In this regard, indigenous orders may not be so profoundly different, even though they lack coercive mechanisms for final determination in individual disputes. And of course, States have their own body of non-State law, which also depends overwhelmingly on non-coercive, dialogic mechanisms: international law, the foundation for the draft Nordic Saami Convention itself. Lastly, the determination of indigenous rights today recognises, at least implicitly, that indigenous legal orders have internal mechanisms of change—their own law-making (or at least law-developing) capacity. Indigenous societies, like all societies, are always evolving, always adapting to new circumstances. Indeed, some measure of adaptation is implicit in the very effort to apply one’s norms to new situations, for through that process, the norms achieve definition that they never had before. It is the contemporary traditions—the traditions that determine who owns what lands today—that the law of indigenous rights seeks to respect, not the law that existed prior to contact. What interest does anyone have in enforcing the rights of decades or centuries ago, when no one lives by those rights now? It is not that rights once existed, but that they continue to exist, that commands our normative attention. We respect indigenous rights because, if we did not do so, we would effectively be turning indigenous people into interlopers, squatters on their own lands, liable to dispossession not by some fictive act of 200 years ago, but today. Indigenous rights do require some measure of continuity, but this is not constancy in the rights themselves; it is continuity in the people’s relationship to the land and the social order by which that relationship is understood and structured. As in any society, the continuity is dynamic, not static, always evolving through the continued application and adaptation of the society’s traditions.31 Indeed, if we sought to protect the rights as they existed in the past, what point would we choose? Non-indigenous settlement is often discussed as though it were an event, but of course it is a process that generally lasted decades, if not centuries, as the land was occupied and the new authority asserted. Over time, the autonomy of indigenous societies was eroded, but that erosion was a piecemeal affair, with stations along the way that were often determined by mutual adjustment and negotiation, the final outcome being, at any point, unknown. At what point should indigenous rights be held to have crystallised? Have they crystallised even today? The research that gave rise to this volume is itself an effort to determine the implications 30

See the account of this debate in F Ewald, L’État providence (Paris, Grasset, 1986). See S Young, The Trouble with Tradition: Native Title and Cultural Change (Sydney, Federation Press, 2008) esp 426–38. 31

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of indigenous property rights in the context of today’s law. Once one realises that the relationship between indigenous and non-indigenous orders is extended through time, driven forward by each new appropriation of land for a hydroelectric dam, in which the indigenous people too have exercised agency and have not merely been passive objects of the State, then the notion that there is a crisp division between a period before and a period after settlement, with indigenous rights crystallised in the former, appears highly artificial. We are still living in the era of encounter. All this talk about indigenous law and institutions may strike some readers as overblown. Many indigenous people themselves do not use the terms this way. They have often internalised the State’s definition of law, so that law is something that is done coercively to them. Law is the actions of police, prosecutions and imprisonment, taxation, dispossession or the taking away of children because of neglect. It is not the mechanisms used to order their own communities. But if the terms do seem overblown, one need only reflect on what an indigenous person means when he or she says, ‘This is my land.’ That ‘my’ implies much of what has been said here. It involves an assertion of right, an assertion grounded not on a government grant but on occupation recognised as right within the contemporary order of the indigenous people. It presupposes a right of succession to those lands—some definite manner by which the lands have been passed down to this recipient, by the traditions of the people. And it will often carry a complex of obligations—obligations to use the land for the benefit of a familial group; obligations to ancestors and their spirits; rights that are exercised through a collective process of deliberation and decision; obligations to let others pass across the land to access their own territories; responsibilities regarding the acceptable level of harvesting; and so on. A claim to indigenous title necessarily involves a claim to an autonomous legal order, operative in the present.

III. STEPPING STONES TO RECOGNITION: THE COMPOUNDING OF PROPERTY AND GOVERNANCE IN NON-INDIGENOUS LEGAL ORDERS

The combination of proprietary and governmental dimensions is not unique to indigenous rights. It occurs extensively in non-indigenous orders as well. Indeed, to some extent, the distinction between public law and private law is a deliberately simplified one, providing an artificial but useful clarity in the face of a more complex reality. Is, for example, the law of corporations public or private? Corporations once had a very public dimension, the corporate form signalling the imprimatur of the State and carrying certain prerogatives (powers of expropriation; special exemptions from liability). They were created for mixed public and private purposes: building a

The Public-Law Dimension 93 highway, canal, bridge or railway; running a municipality; pursuing a line of trade.32 Gradually, over time, we have come to think of corporations as private actors, although they still benefit from valuable prerogatives (such as limited liability) and are subject to extensive regulation in the public interest (including, in some countries, rights of democratic participation by key constituencies, such as workers). Indeed, there was once a time, not terribly long ago, when property and governance were utterly compounded in the feudal order of society, with political authority inscribed in the very structure of property relations. The common law retains an essentially feudal structure with respect to rights in immoveables (although the structure has lost its governmental significance). Common law courts drew upon that structure to express the relationship between indigenous peoples and the non-indigenous sovereign. The latter was held to have acquired, on the assertion of sovereignty, the ‘radical title’ to the land. That title was, in effect, slipped behind the indigenous interest, which now took the form of a ‘burden’ on the Crown’s radical title, in a variation on the feudal order of estates.33 The confounding of proprietary and sovereign rights is clear. That conception of indigenous title was employed in Canada right up to the late twentieth century, although it has now fallen out of fashion. The liberal revolutions in law, starting from the earliest years of the nineteenth century, began to prise apart rights to land and rights to government. In most civil law countries, rights to land were reconstructed on the assumption that the natural form of property rights was complete dominion by an individual owner. Feudal entitlements and obligations were abolished. Rights to govern were conceived to be founded upon the free assent of individuals, often to protect individuals’ property interests, now conceived as pre-political. A similar evolution occurred in England and its colonies, although that evolution proceeded by hollowing out the feudal forms instead of abolishing them. Since that time, proprietary rights have generally been conceived to be separate from governance, subject to different conceptions of their origin and shaped in their development by very different normative considerations. 32 For the US experience, see MJ Horwitz, The Transformation of American Law, 1780– 1860 (Cambridge, Mass, Harvard University Press, 1977) 109–14. 33 Mabo v Queensland (No 2) (1992) 107 ALR 1, 32–37 (per Brennan J). The political significance of these proprietary relationships is not exhausted. When the High Court of Australia recognised the existence of native title in its decision in Mabo, Brendan Edgeworth wrote of the significance of a title that did not result from a grant from the Crown and was therefore (in his view) allodial (not subject to feudal division into estates). He argued that this should be seen as a step forward in the emancipation of property rights from the feudal model, complementing Australia’s political evolution towards a republic. See B Edgeworth, ‘Tenure, Allodialism and Indigenous Land Rights at Common Law: English, United States and Australian Land Law compared after Mabo v Queensland’ (1994) 23 Anglo-American Law Review 397.

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The split has not, however, been absolute. Structures of governance continue to interact closely with property rights and are sometimes written into them. Moreover, there is a very strong argument that constitutional structures work in tandem with property regimes to determine the basic legal order of society, so that far-reaching efforts at political reform often depend upon changes to the structure of property, as indeed was the case in the liberal transformations of the nineteenth century.34 Indeed, one reason why some countries find it difficult to recognise indigenous property rights is that the rights impliedly recognise the continued significance of autonomous social-political orders, governed by traditions of which non-indigenous governments are ignorant, with highly decentralised authority, possessing multiple rights to land and tending to impede the commercialisation of land, which was one important driver to the liberal transformation of property rights in the first place.35 The recognition of indigenous property rights seems to some people to be a reversion. One very common way in which structures of governance are combined with private rights in contemporary non-indigenous law is through the use of corporations. This device allows a group of persons to hold real rights in its own name. It offers substantial scope for that collectivity to define its internal structures of decision-making and the manner in which members relate to the corporation’s property. In the case of a corporation created to manage a residential building, for example, the corporation can stipulate specific rights of occupancy for its members, provide mechanisms for regulating that occupancy, and create its own mechanisms for making decisions and resolving disputes—all functions which have strong governmental overtones, although they occur in this case within a sphere deemed to be private. The corporation serves, in effect, as the constitutional order for the collectivity, in relation to the corporation’s property. Some jurisdictions have established special corporate forms, subject to special restrictions, in order to ensure that those entities serve a particular social function long into the future. This is true, for example, of non-profit corporations or cooperatives. These corporate forms—especially cooperatives—often embody a particular ideal of social interaction. And both cooperatives and non-profit

34 See J Webber and K Gover, ‘Proprietary Constitutionalism’ in M Tushnet, T Fleiner and C Saunders (eds), Routledge Handbook of Constitutional Law (New York, Routledge, 2012). Might this be the reason why real rights are generally conceived as a numerus clausus, so that real rights cannot be created, by private will alone, in unprecedented forms? See B Rudden, ‘Economic Theory v. Property Law: The Numerus Clausus Problem’ in J Eekelaar and J Bell (eds), Oxford Essays in Jurisprudence: Third Series (Oxford, Clarendon Press, 1987). 35 For this role in the abolition of seigneurial tenures in Quebec, see B Young, In Its Corporate Capacity: The Seminary of Montreal as a Business Institution, 1816–1876 (Montreal, McGill-Queen’s University Press, 1986) xiii–xvi.

The Public-Law Dimension 95 corporations are frequently used in the delivery of what are clearly public services, such as social housing, medical care or child care. In corporations, the governance structures are not built into the real rights themselves. The corporation is simply an artificial person, which then holds property rights in the same manner as other parties. But there are legal structures in which property and governance rights are thoroughly compounded. This is true, for example, of even the simplest forms of co-ownership, which have to involve some rules as to how decisions are taken (unanimously? by majority?), the rights of the parties to use the object, and provisions for what happens upon death of a co-owner, a co-owner’s sale of his or her share or dissolution of the co-ownership.36 These provisions become much more elaborate in the form of organised co-ownership often known as ‘condominium’. In condominium, owners possess a compound right, the three elements of which cannot be separated: (a) a right of full ownership over their individual unit; (b) a right of undivided co-ownership in the common areas (the land underneath the structure; the foundations; the common walls; and so on); and (c) a right to participate in the governing council of the condominium, as well as an obligation to bear the costs of the decisions taken by that council (in a manner akin to taxation).37 Very often, condominiums also require that arbitration be used for the resolution of disputes between co-owners, so that their relations are governed by rules that have some autonomy from the rules governing society as a whole. The compound right of a condominium owner exists within a proprietary realm. Indeed, it differs from a simple corporation precisely in that it is the individuals, not the corporation, who hold the real rights to the land and building. The individuals benefit, then, from the presumption that they are true owners, with direct rights over the property and very extensive rights over their particular units. They are not subjected, in all respects, to the collective rules of decision. While there are obvious and extensive differences between the rights held in condominium and the internal legal relations of indigenous peoples, there are also marked structural similarities. In many indigenous societies too, the foundational relationship is a relationship to land. The Anishinabek scholar John Borrows speaks, for example, of ‘landed citizenship’, in which the relationship to the land is primordial, from which all other relations 36 See, eg the rules regarding simple indivision (the simplest form of co-ownership) in the Civil Code of Quebec, arts 1012–1037. The default rules can be relatively rudimentary or they can be extensive, but some such rules must exist. 37 See, eg Civil Code of Quebec, arts 1038f.

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flow.38 And although the relationship to the land is not conceived to be one of complete dominion of one individual over his land, which serves as the paradigm for ownership in civil law systems, there is a strong sense, in many North American peoples, that families or other kinship groups are the foundational units, enjoying very great autonomy in their actions. Although they collaborate for many purposes through the institutions of their people, they do not generally consider themselves to be subject to the absolute sovereignty of that broader entity. A third mechanism for combining the proprietary and the governmental is the common law institution of the trust. It has, of course, been adopted by many civil law jurisdictions, although not without some tension between its obligations and the paradigm of absolute individual ownership, precisely because the trust contemplates the co-existence of multiple and differential rights in land, held by different parties and extending through time, which substantially limit the ability of either party to dispose of the object.39 The trust is distinctive in that it splits the rights of control from the right to benefit from the object. The former are held by the trustee, who has exclusive authority to administer the object (in the manner specified by the trust). The trustee must, however, exercise those rights solely in the interest of the beneficiary. The trustee’s rights are therefore rights of stewardship, wholly conditioned by his or her responsibilities to the beneficiary. And there may, of course, be several individuals who collectively exercise the role of trustee, in which case the trust instrument determines how they are to make their decisions. The trust has proven to be a remarkably adaptable instrument. It has been used to structure business ventures in place of corporate forms. Even in the sphere of corporate law itself, obligations derived from relationships of trust have been used to define the responsibilities of corporate directors.40 Trusts have been created to administer property in the public interest, through the use of charitable trusts, including trusts for the management of lands of environmental or historical significance. Trusts have been created to serve the interests of a limited segment of the people. In Canada and the United States, the obligations of non-indigenous governments, when administering indigenous lands, have been patterned on the

38 J Borrows, ‘“Landed” Citizenship: Narratives of Aboriginal Political Participation’ in AC Cairns et al (eds), Citizenship, Diversity, and Pluralism: Canadian and Comparative Perspectives (Montreal, McGill-Queen’s University Press, 1999). 39 See, eg, the chapter on the influential Quebec trust in D Waters, M Gillen and L Smith (eds), Water’s Law of Trusts in Canada, 3rd edn (Toronto, Thomson Carswell, 2005) 1335–68. 40 PL Davies (ed), Gower and Davies’ Principles of Modern Company Law, 7th edn (London, Sweet & Maxwell, 2003) 370–442.

The Public-Law Dimension 97 obligations of a trustee.41 Indeed, the trust has been used as a metaphor for rights of stewardship generally. It has been applied to the obligations of government, and of politicians individually, to the public that they serve. Kevin Gray has argued that its core conception of stewardship is characteristic of many rights of ownership, which often seek to balance individual rights with public benefit. He has shown, for example, how the notion of trust was used to qualify the rights of holders of natural monopolies in the nineteenth-century United States, limiting the prerogatives of the owners in the interest of the public at large, and he has shown that the same instincts have been used to support limitations on the rights of owners of privatised assets today.42 Looking at these institutions, then, one sees different means of combining governmental and proprietary rights so that they form one consolidated whole. Many of the elements identified as the public-law dimension of indigenous land rights are present in these private-law institutions: the establishment of an internal constitutional law for the taking of collective decisions; the development of an autonomous body of law for the management of the collectivity’s internal relations, including mechanisms that allow that law to develop over time; the creation of structures for the resolution of disputes among members; the combination of differential rights to land—distributed rights to land—with collaboration in the framework of the collectivity as a whole; and the conditioning of rights of ownership by onerous obligations, owed to members of defined groups (indeed owed, at times, to public purposes rather than people, purposes such as environmental protection or the relief of poverty). These structures have been created within what is ostensibly the private law, but that should not blind us to the fact that the functions appear closely analogous to the rights of governance and legal administration inherent in indigenous rights. Expand the size of the constituency and the territories, and a corporation, a cooperative, a condominium or a trust begins to appear like a kind of mini-government, acting on behalf of its limited public. The fact that these are all defined as occurring within a private sphere is largely an artefact of our legal categories.

41 Guerin v The Queen [1984] 2 SCR 335; B Slattery, ‘First Nations and the Constitution: A Question of Trust’ (1992) 71 Canadian Bar Review 261; LI Rotman, Parallel Paths: Fiduciary Doctrine and the Crown-Native Relationship in Canada (Toronto, University of Toronto Press, 1996). 42 Kevin Gray, ‘Regulatory Property and the Jurisprudence of Quasi-Public Trust’ (2010) 32 Sydney Law Review 221.

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This provides us with a range of structures that combine the proprietary and the governmental, albeit in a sphere conceived to be private. Various combinations of these structures have been used to accommodate the public-law dimension of indigenous rights. Corporate forms have been used, for example, to provide a vehicle for the collective administration of indigenous lands. Under the system of native title determinations that exists now in Australia, purpose-built ‘prescribed bodies corporate’ are created to hold the lands once determinations have been made.43 That specific system suffers from too narrow a definition of those corporations’ mandate. The corporations end up focusing entirely on land management and have difficulty integrating that role with the range of tasks that indigenous communities require. They are also designed to serve the interests of the class of traditional owners alone, whereas today’s indigenous communities often include people who have been relocated onto lands for which they are not traditionally responsible. Too narrow a focus on such bodies’ proprietary role, in other words, ends up frustrating a broader governmental role. But if the mandate and membership of corporations are defined broadly enough, they can serve as a flexible means for accommodating many indigenous aspirations. The general idea of using the corporate form to relate to the non-indigenous legal order in a manner the latter can understand, while nevertheless permitting significant autonomy internally, is a good one. The great Australian political scientist, Charles Rowley, wrote in the 1970s of such a corporate form constituting a ‘carapace’, within which indigenous social ordering might operate with the allusiveness and flexibility typical of indigenous norms.44 Such a model of land rights administration is found in the Land Councils of Australia’s Northern Territory. They have a broad and flexible mandate, and have been among the most successful structures for the administration of land rights.45 Land trusts too have been used to hold and administer indigenous lands. They capture well the idea of stewardship of lands, although the trust form alone does not provide the constitutional structures to allow for community self-government. They have, however, sometimes been combined with

43 The experience with prescribed bodies corporate has been sufficiently recent that studies have been rare, but see the discussion of similar issues with respect to ‘native title representative bodies’ in D Ritter, Contesting Native Title: From Controversy to Consensus in the Struggle over Indigenous Land Rights (Crows Nest, Allen & Unwin, 2009) 47–71 (prescribed bodies corporate are briefly discussed at 25–26). 44 CD Rowley, Outcasts in White Australia (Harmondsworth, Penguin, 1970) 423 and 429. 45 For an accessible introduction to these councils, see M Dodson, D Allen and T Goodwin, ‘The Role of the Central Land Council in Aboriginal Land Dealings’ in Making Land Work (Canberra, Australian Agency for International Development, 2008), vol 2, available on-line at .

The Public-Law Dimension 99 corporate forms that furnish that element.46 Indeed, a constellation of structures often operates in indigenous communities, each structure focused on a particular role—although at the risk of generating tension among the organisations and fracturing the decision-making process. Under the James Bay and Northern Quebec Agreements, for example, the Makivik Corporation serves as general representative of the Inuit of northern Quebec and a development corporation in its own right, Inuit lands are held by land corporations (of which only beneficiaries of the Agreements are members), Inuit business activities are conducted by community cooperatives, and Inuit also participate as citizens in the Kativik Regional Government and three other regional institutions, which have an Inuit majority, although all residents of the territory are able to vote and stand for election. This division of responsibility has limited what those institutions are able to do, however. There was recently a move to amalgamate three regional institutions into a single government for the Inuit region of northern Quebec, although that specific proposal was rejected by a referendum.47 The experience of these organisations shows the limitations, as well as the possibilities, of using purely private-law structures for these matters. Although in theory the institutions may provide the breadth of mandate and responsiveness to members that one seeks in a government, in practice they often are designed in much narrower terms. Each organisation is given specifically defined roles. Each organisation’s constituency is determined as a function of those roles, so they often have constituencies that overlap very substantially but are not identical. Typically, the structures of accountability and oversight are also geared to these roles, and this can mean that patterns of accountability run predominantly to outsiders—to, for example, government departments that have responsibility for the program areas in which the organisations are operating. While accountability is a good thing, accountability to outsiders may interfere with democratic accountability to the community’s own members, which ideally one would like to see in representative institutions. The fracturing of responsibility among different organisations may accentuate this effect, for the members’ political participation is divided among organisations, each of which has its own constituency and structure of government.48

46

Ibid. See M Mitchell, From Talking Chiefs to a Native Corporate Élite: The Birth of Class and Nationalism among Canadian Inuit (Montreal, McGill-Queen’s University Press, 1996) esp 365–85; Amiqqaaluta—Let Us Share: Mapping the Road Toward a Government for Nunavik ([Ottawa], Report of the Nunavik Commission, March 2001); ‘Referendum on the creation of the Nunavik Regional Government—The addition of votes confirms the preliminary results’, Directeur Général des Élections du Québec News Release (18 May 2011), available online at . 48 See the discussion in Ritter, above n 43. 47

100 Jeremy Webber These operational problems point towards a more fundamental problem of theoretical fit. Structures developed within the private law are generally conceived to have limited normative status and roles. They are the result of private initiative, developed by the consent of their participants, within a legal framework that pre-existed that exercise of consent. In the case of the private-law institutions discussed here, that framework is provided by the State. Indeed, the narrow interpretation of institutional role and the tendency to emphasise accountability to outsiders, which often afflict indigenous corporate forms, are themselves a function of the State’s determination of this framework. That dependency on the State does not accord well with indigenous peoples’ relationship to their institutions. That relationship is primary, not derivative. Their attachment to their traditions is not a product of a contract, which the members of today’s communities decide to conclude. Rather, it is akin to the relationship of non-indigenous citizens to their Nation States. They have grown up within those traditions; their normative positions have been framed within the terms of those traditions. They may one day make the traditions their own, but when that happens, it will be more like the actions of a person who, as an adult, accepts the religion in which he or she was raised. This is indeed a form of consent, but it is not a standard contractual form. It does not occur in a clear field. It is, rather, the conscious claiming of a connection that has, in a sense, already claimed you.49 Indigenous traditions make that kind of claim on their people. They provide the fundamental normative language through which individuals understand their responsibilities. They provide the framework within which social interaction occurs.50 They are more like the structure of a society reflected in the public law than the more limited agreements concluded within the private law. Members of indigenous peoples may be willing to adapt their institutions to co-existence within a non-indigenous State, but they see this as an encounter between social orders, each of which has its own inherent source of legitimacy, its own comprehensive normative language. This source of legitimacy, this normative language, cannot be subsumed within the State’s order. It has the capacity of reacting against that order, making its own contribution to the terms of coexistence. And it is that demand, coming from outside the normative order of the State, that has given rise to indigenous rights. For these reasons, it is often most appropriate to conceive of indigenous structures in public-law terms. The best analogies are to decentralised governance, indeed often to federalism, in which differentiated political and 49 See the exploration of various meanings of consent, including this one, in J Webber, ‘The Meanings of Consent’ in J Webber and CM Macleod (eds), Between Consenting Peoples: Political Community and the Meaning of Consent (Vancouver, UBC Press, 2010), esp 24f. 50 Webber, above n 4, 618–22.

The Public-Law Dimension 101 legal communities are accommodated within the structure of the State, each of which has its own distinctive institutions and processes. This allows for the range and flexibility, the accountability to members and the sense of original legitimacy that fits most indigenous communities. These structures need not be identical, need not take the form of one unified jurisdiction, for all members of a particular indigenous people. Indigenous peoples are often strongly decentralised internally; an essentially federal structure may allow each of these various indigenous communities to exercise a measure of autonomy. That autonomy will have to be balanced against institutional efficacy and economies of scale. Many indigenous peoples have engaged in a process of coalescence, seeking to creating larger structures precisely so that they might exercise a broader range of responsibilities.51 There has to be room, then, for those internal debates and reconfigurations to occur. The ultimate structure will likely be some compromise between local indigenous autonomy and a more general capacity for action. And it may also be the case that, for some indigenous people, private-law structures continue to be preferable. I began this chapter by noting that, over time, indigenous people have made adjustments to the new societies with which they are now intimately connected. When indigenous communities retain substantial cohesion, significant commitment to their own norms, and attachment to their own processes of deliberation and decision, then public-law structures will generally be most appropriate, existing in some form of federal division of authority with State institutions. In other cases, however, indigenous people will have adapted substantially to the non-indigenous institutional order and will have lost the practical normative autonomy necessary to sustain autonomous public-law institutions. In those instances, it may still be important to recognise the individuals’ and families’ right to continue using their lands, but the best institutional apparatus may be less ambitious. For those people, land trusts and various corporate forms may be most appropriate. The purpose of the public-law dimension of indigenous rights is not to create new, all-encompassing indigenous Nation States, which then enter into competition with existing States. Indeed, such an organisation would rarely fit the present commitments of indigenous people, which, very frequently, combine deep attachment to their indigenous communities with a sense of bruised but nevertheless real connection to the States in which they now live. And of course, indigenous societies often lack the strong sense of internal cohesion characteristic of Nation States. Indigenous rights are, in 51 See, eg, the recommendation along these lines of Canada’s Royal Commission on Aboriginal Peoples: Canada, Report of the Royal Commission on Aboriginal Peoples, vol 2, ‘Restructuring the Relationship Part 1’ (Ottawa, Canada Communication Group, 1996) 177–84.

102 Jeremy Webber many ways, a profound challenge to, not an expression of, the model of the Nation State. Rather, indigenous rights recognise that indigenous property is a vehicle for retaining a different relation to land, a significantly different social order, in dynamic relationship with other surrounding societies. That autonomy cannot be sustained without a measure of institutional and legal autonomy. Indigenous rights are about making space for these orders, by securing the institutional and normative autonomy, and the control over resources, necessary for them to survive and flourish.

4 Can Saami Transnational Indigenous Peoples Exercise Their Self-determination in a World of Sovereign States? TIMO KOIVUROVA

I. INTRODUCTION

T

HE SELF-DETERMINATION OF peoples is not easily accommodated within a system of law having as its constituency Nation States. After the Second World War, the human rights movement gained strength and many argued that we should focus on humans, not States. At the outset, international human rights law could readily fit within the State structure of the international community. After all, the 1948 Human Rights Declaration1 and the 1966 Covenants2 were mostly about building better Nation States by enhancing the formal and substantive equality between the citizens of these States. Yet the seeds of change were already planted with the common Article 1 to the 1966 Covenants, arguing that all peoples have the right to selfdetermination, with which they may freely determine their political status and freely pursue their economic, social and cultural development. This is revolutionary language, given that here we have a collective human right in the two primary legally-binding human rights treaties, a right that arguably underlies all other individual human rights. If read as it is written, it is a legally-binding obligation on States to honour the self-determining power 1 Universal Declaration of Human Rights (adopted 10 December 1948), UNGA Res 217 A (III) (hereafter ‘UDHR’), Art 5. Access at . 2 The International Covenant on Civil and Political Rights, adopted and opened for signature, ratification and accession by General Assembly Resolution 2200A (XXI) of 16 December 1966, entered into force on 23 March 1976, 999 UNTS 171. International Covenant on Economic, Social and Cultural Rights, adopted and opened for signature, ratification and accession by General Assembly Resolution 2200A (XXI) of 16 December 1966, entered into force on 3 January 1976, 993 UNTS 3.

106 Timo Koivurova of peoples; and here, peoples cannot be equated to States. States are not the beneficiaries of human rights treaties; peoples, and the individuals composing them, are. Even though it is clear that the mainstream of international law upholds the Nation States as the primary subjects of international law, it is interesting to study how much space peoples (which are not States) have been able to carve out for themselves in international law. It is important to emphasise that I am not focusing on the self-determination of peoples who already form States. These peoples are evidently the clearest case of the accepted self-determination of peoples, but not the most interesting;3 it is the exceptional cases where peoples do not form States—especially those peoples who live in many countries—that are more challenging from the viewpoint of international law and are of interest here. Generally, it is interesting that peoples have indeed been able to have their self-determination accommodated with a highly institutionalised system of interdependent doctrines of international law, all revolving around the State as the centre of gravity. This chapter focuses on the right to self-determination of transnational peoples, peoples whose component parts are divided by international borders, and in particular it examines how Saami transnational indigenous peoples have been able to advance their right to self-determination. If one reads common Article 1 of the two 1966 Human Rights Covenants literally, it speaks of self-determination residing in a people, not portions of a people. Section II. of the chapter aims to reflect on how the general law of selfdetermination of peoples relates to State sovereignty, and how it thereby influences the way we are able to think of the rights of transnational peoples in international law. Thereafter, the focus in section III. will be on studying the evolving law relating to indigenous peoples. Does this body of law guarantee selfdetermination to indigenous peoples, in particular to transnational indigenous peoples? Here a brief analysis of the 2007 UN Declaration on the Rights of Indigenous Peoples is useful, as it was directly negotiated by States and indigenous peoples for over 20 years, and thus captures the essential normative consensus as to what direction the law regulating the relations between States and indigenous peoples should take. With a solid background of general international law and law relating to indigenous peoples in mind, it is then possible in section IV. to analyse the draft for a Nordic Saami Convention, developed by the Nordic Saami parliaments together with the three States—Norway, Finland and Sweden. The draft is based on the idea that Saami have a right to self-determination. 3 See eg A Cassese, International Law, 2nd edn (Oxford, Oxford University Press, 2005) 60–64. He argues that ‘Art 1, common to the two 1966 UN Covenants on Human Rights … essentially confers on the peoples of all the contracting parties the right to internal selfdetermination’ (ibid, 62).

Can Saami Exercise Their Self-determination? 107 It goes beyond what is politically required by the UN Declaration in that it envisages a gradually-increasing Saami unity in exercising self-determination, even if it is still the Saami parliaments that exercise that right. It is, hence, of interest to examine this pioneering process in depth and to analyse whether Saami people might actually achieve self-determination via this process within the States in which they live. Section V. draws conclusions as to whether general international law and the law relating to indigenous peoples is equipped to accommodate or even support claims by transnational indigenous peoples to an ever-increasing unity via their right to self-determination. At the very least, the draft Nordic Saami Convention is built on the idea that the Saami, as actors, have selfdetermination as a transnational people, which must be accommodated by the three States where Saami live. Hence, the last section of this chapter explores whether the Saami and the Nordic States have gone further in advancing the rights of transnational indigenous peoples than general international law and the evolving law related to indigenous peoples. The answer to this question will then demonstrate whether the draft Nordic Saami Convention may be regarded as a pioneering attempt by the respective Saami parliaments and States, or as an endeavour that is already required by general international law and in particular the law relating to indigenous peoples.

II. DOES INTERNATIONAL LAW OF STATES GIVE A PLACE FOR PEOPLES AND THEIR CLAIM FOR SELF-DETERMINATION?

Let us first examine how the mainstream understanding of international law perceives who is a rightful power-holder in international law. First, it appears as though the ultimate end-state for any group wanting to exercise full rights in international society is to become a State. To achieve this goal, the candidate entity needs to possess an effective government, territory, population and the capability of establishing relations with other States. Moreover, the community of States must, at least to certain extent, recognise it as a State. In order for the group to become a State, it is of little relevance whether it might be considered to be a people in an ethnographic sense. What does matter is that an effective government controls a territory with a population, and that the community of States accepts this candidate into its club. However, the international law of States has been able to carve out a place for peoples. When European colonialism in Africa and Asia lost its political legitimacy, this development quickly manifested itself in international law. The community of States had to come to terms with the normative development that colonised peoples have a right to self-determination in international law. This could have signified a real challenge of even revolutionary potential as to how political authority and power are organised in international society.

108 Timo Koivurova In theoretical terms, at least, if colonial peoples have a right to selfdetermination, there is no final political status, referred to as a ‘State’, to be achieved. If people have other ideas for organising their polity, they would appear to be entitled to execute them.4 More importantly, self-determination inheres in people, not States. The act of being a State would be only one of the choices for which persons might opt in exercising their right freely to determine their political status. If self-determination inheres in peoples, it is always the people who will dictate their political status to the future. Naturally, things did not evolve in this way. The colonial peoples’ right to self-determination was implemented in such a way that it could be accommodated within the system of international law. First, the process as a whole, conducted primarily under the auspices of the UN, accorded selfdetermination to territories rather than peoples, even though decolonisation was many times described as the exercise of the self-determination of colonised peoples. It was the trusteeship territories and non self-governing territories (and in some cases even mandated territories) whose people were eventually accorded the right to self-determination. It was the territory—not a process designed to identify who the authentic colonised peoples were— that determined who had the right to self-determination. This ‘territorial approach’ to self-determination was manifested by newly-independent States gaining their self-determination to territories the boundaries of which had been drawn by the colonists long before they became independent and which were given legal recognition in international law (uti possidetis).5 Furthermore, the whole process operated on the assumption that the peoples of these territories sought to establish new States, not that they would establish some new forms of self-determination that would not fit 4 As is provided in the UN’s Friendly Relations Declaration, the emergence into any other political status freely determined by a people constitutes one mode of implementing the right of self-determination by that people. See the Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United (adopted 24 October 1970), UNGA Res 2526 (XXV), available at . 5 As the International Court of Justice put it in The Case Concerning the Frontier Dispute (Burkina Faso v Republic of Mali) (Judgment) [1986] ICJ Rep 554, 567: ‘At first sight this principle [uti possidetis] conflicts outright with another one, the right of peoples to selfdetermination. In fact, however, the maintenance of the territorial status quo in Africa is often seen as the wisest course, to preserve what has been achieved by peoples who have struggled for their independence, and to avoid a disruption which would deprive the continent of the gains achieved by much sacrifice. The essential requirement of stability in order to survive, to develop and gradually to consolidate their independence in all fields, has induced African States judiciously to consent to the respecting of colonial frontiers, and to take account of it in the interpretation of the principle of self-determination of peoples … Thus the principle of uti possidetis has kept its place among the most important legal principles, despite the apparent contradiction which explained its coexistence alongside the new norms. Indeed it was by deliberate choice that African States selected, among all the classic principles, that of uti possidetis. This remains an undeniable fact …’

Can Saami Exercise Their Self-determination? 109 within the system of international law. International law also quickly closed the door on self-determination when overseas territories (and the people living within these borders) gained their independence and became proper States. To make it clear that self-determination applied only to colonies overseas, the salt-water criterion emerged, which required geographical distance between the colonised peoples wanting to exercise their right to self-determination and the State of which they were a part. The right to self-determination of peoples—understood in that way—thus did not pose a threat to the metropolitan territories of States. However, the self-determination of peoples always had the potential to reach further. When the Covenants on Civil and Political Rights and Economic, Social and Cultural Rights were negotiated during the 1960s, common Article 1 was perhaps the most controversial provision. Some States perceived the article as limited to colonial situations, while the majority felt that it should apply to the people of any territory but should not accord minorities any right to secede (for whom Article 27 was thus tailored).6 The two relevant paragraphs of Article 1 are as follows: 1.

2.

All peoples have the right to self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development. All peoples may, for their own ends, freely dispose of their natural wealth and resources without prejudice to any obligations arising out of international economic cooperation, based upon the principle of mutual benefit, and international law. In no case may a people be deprived of its own means of subsistence.

It would seem fairly clear that, in any ordinary treaty interpretation, Article 1 applies to all peoples, not only to colonial peoples, even if there is no authoritative definition of who constitutes a people in international law. As stated above, these rights do not inhere in States or governments but in peoples—common Article 1 being part of a human rights treaty. Lastly, and presumptively, if ‘people’ were given any meaning, it would seem to refer to people in an ethnographic sense, not to a component part of the people.7 Hence, there was always the potential for the self-determination of peoples to reach further than colonial peoples. It was difficult to justify why other kinds of alien domination were different from European colonialism. Surely the basic rationale for why colonialism lost its legitimacy was that foreign powers should not control the fate of African and Asian peoples, and that the same legitimacy deficit would come to haunt any power wanting 6 D McGoldrick, The Human Rights Committee: Its Role in the Development of the International Covenant on Civil and Political Rights (Oxford, Oxford University Press, 1991) 14–15. 7 J Crawford, ‘The Right of Self-Determination in International Law: its Development and Future’ in P Alston (ed), Peoples’ Rights (Oxford, Oxford University Press, 2001) 7, 27.

110 Timo Koivurova to invade and dominate another people anywhere in the world, including outside of colonial context. If the goal of decolonisation was to liberate these people to govern themselves, and determine their common destiny, would that not also imply that if a people cannot do that in an existing State, they should do it somewhere else? After all, if they cannot participate in the political life of a State, is that not also a form of alien domination, another people in control of a State and dominating the other(s). These types of considerations gained strength, and found their way into various kinds of State-negotiated instruments. This development is well reviewed in perhaps the most famous modern case dealing with the meaning of the ‘self-determination of peoples’ in international law, the Reference decision of the Canadian Supreme Court in response to the question: ‘[D]oes international law give the National Assembly, legislature or government of Quebec the right to effect the secession of Quebec from Canada unilaterally?’8 What made this Advisory Opinion so influential—even though an opinion of a national court and not an international court— was that the Supreme Court made use of the writing of leading scholars of international law on this topic.9 The most interesting aspect of the Opinion—from the perspective of this chapter—is how the Supreme Court advances a general view of what the ‘self-determination of peoples’ means in current international law, namely, who are the holders of what type of self-determination, aspects that clearly capture the essence of the modern law of self-determination. The Supreme Court begins by outlining the basics; it first endorses the view that international law, in some specific circumstances, recognises the right of a people to self-determination.10 The Court is also of the view that this is not only a conventional right but also a general principle of

8 Reference re Secession of Quebec from Canada [1998] 2 SCR 217. Three questions were referred to the Supreme Court: ‘1. Under the Constitution of Canada, can the National Assembly, legislature or government of Quebec effect the secession of Quebec from Canada unilaterally? 2. Does international law give the National Assembly, legislature or government of Quebec the right to effect the secession of Quebec from Canada unilaterally? In this regard, is there a right to self-determination under international law that would give the National Assembly, legislature or government of Quebec the right to effect the secession of Quebec from Canada unilaterally? 3. In the event of a conflict between domestic and international law on the right of the National Assembly, legislature or government of Quebec to effect the secession of Quebec from Canada unilaterally, which would take precedence in Canada?’ 9 Since Quebec declined to take part in the proceedings, an amicus curiae was appointed on behalf of the Supreme Court to represent the interests of Quebec. Both the Minister of Justice and the amicus curiae commissioned leading international law experts on the issue to provide their opinion on the international law aspects raised by question 2. 10 See Reference, above n 8, para 113.

Can Saami Exercise Their Self-determination? 111 international law.11 But who are these people? The Supreme Court provides a very interesting answer: International law grants the right to self-determination to ‘peoples’. Accordingly, access to the right requires the threshold step of characterizing as a people the group seeking self-determination. However, as the right to self-determination has developed by virtue of a combination of international agreements and conventions, coupled with state practice, with little formal elaboration of the definition of ‘peoples’, the result has been that the precise meaning of the term ‘people’ remains somewhat uncertain.12

Yet even though it was not able to provide a clear-cut definition of ‘people’ (such a definition does not exist in international law), the Court advances the following view: It is clear that ‘a people’ may include only a portion of the population of an existing state. The right to self-determination has developed largely as a human right, and is generally used in documents that simultaneously contain references to ‘nation’ and ‘state’. The juxtaposition of these terms is indicative that the reference to ‘people’ does not necessarily mean the entirety of a state’s population. To restrict the definition of the term to the population of existing states would render the granting of a right to self-determination largely duplicative, given the parallel emphasis within the majority of the source documents on the need to protect the territorial integrity of existing states, and would frustrate its remedial purpose.13

Even though the Court contemplates, in passing, that the Quebec population appears to share many characteristics (such as a common language and culture) that are relevant in determining whether a group is a people, it did not have to make this determination, given that in any case it came to the conclusion that Quebec has no grounds for unilateral secession.14 Yet what is interesting is that it did conclude that there may be many self-determining peoples in a State. These peoples normally exercise their right to selfdetermination within existing States (internal self-determination), but if they cannot do so, their right to external self-determination is, in exceptional cases, triggered—perhaps even leading to secession from an existing State.15 The Court even seems to accept, in addition to colonial situations and alien domination, that the external self-determination of people may be

11 12 13 14 15

Ibid, Ibid, Ibid, Ibid, Ibid,

para para para para para

114. 123. 124. 125. 126.

112 Timo Koivurova exercised as a remedy if the people cannot meaningfully participate in the political life of a State, even though it does say this cautiously.16 Now, the question arises as to how the Court’s treatment of ‘people’ might be interpreted. It certainly provided that the ‘people’ does not have to be the same as the whole population of an existing State. Consequently, there may be many peoples in one State. It also quickly contemplated the general criteria of what is a ‘people’ (common language and culture), but as the Court did not have to determine this, it left it at that. It may be presumed, however, that the Court’s liberal treatment of the effectivity principle—that if the entity is able to gain independence in the streets and even receives recognition from other States, it can become a State—testifies to the effect that, for the Court, any entity that would go as far as Quebec did, organising referendums to declare independence unilaterally from the mother State, qualifies presumptively as a people.17 It is important to realise that, from the perspective of this chapter, the Supreme Court places vast importance on the territorial integrity of States.18 The question of who has a right to self-determination must be seen against the background of territorial integrity of each and every State in the world. In normal circumstances, if there are many peoples in a State, they exercise these rights internally within the sovereign State. As the Court notes, international law does not prohibit or permit secession in these circumstances, but it certainly lays a heavy burden for such a group to secede. However, and most importantly, the peoples’ right to self-determination always takes place within the context of a Nation State. If there is a people living in four States, such as the Saami people, each of these ‘segments’ enjoys its selfdetermination within each of the States. If one or all of them have grounds for external self-determination, they have to break free from their home State, on legal grounds (they have been oppressed) or illegally (by being successful in the streets).

16 This cautious attitude may be seen ibid, paras 134–35: ‘A number of commentators have further asserted that the right to self-determination may ground a right to unilateral secession in a third circumstance. Although this third circumstance has been described in several ways, the underlying proposition is that, when a people is blocked from the meaningful exercise of its right to self-determination internally, it is entitled, as a last resort, to exercise it by secession. The Vienna Declaration and Programme of Action, UNGA Res 48/121, A/ CONF.157/23 requirement that governments represent “the whole people belonging to the territory without distinction of any kind” adds credence to the assertion that such a complete blockage may potentially give rise to a right of secession. … Clearly, such a circumstance parallels the other two recognised situations in that the ability of a people to exercise its right to self-determination internally is somehow being totally frustrated. While it remains unclear whether this third proposition actually reflects an established international law standard, it is unnecessary for present purposes to make that determination …’ 17 Ibid, paras 141–42. 18 Ibid, para 112: ‘[I]nternational law places great importance on the territorial integrity of nation states and, by and large, leaves the creation of a new state to be determined by the domestic law of the existing state of which the seceding entity presently forms a part …’

Can Saami Exercise Their Self-determination? 113 The International Court of Justice (ICJ) confronted similar issues when giving an Advisory Opinion to the UN General Assembly over whether the unilateral declaration of independence by the Provisional Institutions of selfgovernment of Kosovo was in accordance with international law.19 Before the ICJ gave its Opinion, it was argued that if Kosovo gained independence, it might come to mean that international law makes it legal for segments of people, in an ethnographic sense, to possess self-determination and possibly secede from existing States.20 As Kosovars are only a component part of a larger Albanian people, it was argued that it is important to ask to whom the right of self-determination belongs.21 Borgen comments that if the ICJ were to make the point of Kosovo as a special case, as it had been under international administration for so long, the ICJ’s Opinion might still create a dangerous precedent, since for him, the right to self-determination has traditionally rested on the whole people understood in an ethnographic sense. At the time, he foresaw the following dangers in this Opinion: If that is the case, then the international community may be creating precedent that we will see cited by other ethnic enclaves seeking separation, be they Russians in Abkhazia or Krajina Serbs. Previously, neither of these groups was viewed as having a strong claim for the privilege of secession, as neither of these groups is a ‘nation’ in the ethnographic sense, but rather fragments of Russian or Serb ethnic groups.22

Yet the ICJ was, arguably, able to circumvent all politically-charged issues involved in creating any kind of precedent with its Advisory Opinion by declining to deal with difficult issues related to the self-determination of peoples.23 The Court focused on the very narrow question of whether the 19 Accordance with International Law of the Unilateral Declaration of Independence in respect of Kosovo (Request for Advisory Opinion), General List No 141 [2010] ICJ, available at . 20 CJ Borgen, ‘Kosovo’s Declaration of Independence: Self-Determination, Secession and Recognition’ (2008) 12 American Society of International Law. ASIL insights, available at www.asil.org. 21 Ibid. As Borgen states: ‘[O]ne may argue that the Kosovars are a “people”, having inhabited Kosovo for centuries. However, the Kosovar Albanians are more generally perceived as an Albanian ethnic enclave, rather than a nation unto themselves.’ 22 Ibid. 23 As the Court stated in para 56: ‘The question put to the Supreme Court of Canada inquired whether there was a right to “effect secession”, and whether there was a rule of international law which conferred a positive entitlement on any of the organs named. By contrast, the General Assembly has asked whether the declaration of independence was “in accordance with” international law. The answer to that question turns on whether or not the applicable international law prohibited the declaration of independence. If the Court concludes that it did, then it must answer the question put by saying that the declaration of independence was not in accordance with international law. It follows that the task, which the Court is called upon to perform, is to determine whether or not the declaration of independence was adopted in violation of international law. The Court is not required by the question it has been asked to take a position on whether international law conferred a positive entitlement on Kosovo unilaterally to declare its independence or, a fortiori, on whether international law generally

114 Timo Koivurova declaration of independence, as such, is prohibited in the practice of States, a question which it could easily answer in the negative. Yet this has not prevented international law commentary on possible precedential aspects of the Advisory Opinion.24 Nevertheless, the modern law of self-determination makes it very difficult for transnational peoples to exercise their right to self-determination. In the case of the Saami, these four segments of a people would need to make their case against their Nation States, a fact that would make it very difficult for such a people to unite, exercise their self-determination and form a State.

III. HAVE (TRANSNATIONAL) INDIGENOUS PEOPLES BEEN ABLE TO GAIN SELF-DETERMINATION IN INTERNATIONAL LAW?

A. Introduction During the decolonisation period, the peoples of the African and Asian continents were able to exercise their right to self-determination. However, once the process was over, the international law of States closed off quickly and made it clear that self-determination primarily applies to overseas colonies; the so-called salt-water criterion emerged, requiring geographical distance between the colonised peoples wanting to exercise their right to

confers an entitlement on entities situated within a State unilaterally to break away from it. Indeed, it is entirely possible for a particular act such as a unilateral declaration of independence not to be in violation of international law without necessarily constituting the exercise of a right conferred by it. The Court has been asked for an opinion on the first point, not the second.’ In paras 82 and 83 the ICJ makes clear that it will not touch upon issues related to self-determination: ‘The Court has already noted … that one of the major developments of international law during the second half of the twentieth century has been the evolution of the right of self-determination. Whether, outside the context of non-self-governing territories and peoples subject to alien subjugation, domination and exploitation, the international law of self-determination confers upon part of the population of an existing State a right to separate from that State is, however, a subject on which radically different views were expressed by those taking part in the proceedings and expressing a position on the question. Similar differences existed regarding whether international law provides for a right of “remedial secession” and, if so, in what circumstances. There was also a sharp difference of views as to whether the circumstances which some participants maintained would give rise to a right of “remedial secession” were actually present in Kosovo. … The Court considers that it is not necessary to resolve these questions in the present case. The General Assembly has requested the Court’s opinion only on whether or not the declaration of independence is in accordance with international law …’ 24 For instance, Ralph Wilde perceives that the implication of the Court’s finding that the prohibition on violating territorial integrity is applicable only to States, and not to non-State actors, may lead to the situation where the non-State actors become aware that no international law rule bars independence declarations. See R Wilde, ‘Accordance with International Law of the Unilateral Declaration of Independence in respect of Kosovo’ (2011) 105 American Journal of International Law 301. See also R Falk, ‘The Kosovo Advisory Opinion: Conflict Resolution and Precedent’ (2011) 105 American Journal of International Law 50.

Can Saami Exercise Their Self-determination? 115 self-determination and the State of which they were a part. Metropolitan States were not threatened as colonies were geographically distant. This may be contrasted with the challenge which indigenous peoples pose to the system of international law. They too were colonised, in some cases much earlier than African and Asian peoples, but they live within the metropolitan territories of established States, making it difficult to apply any ‘territorial approach’ to the self-determination of indigenous peoples. Depending on the way in which indigenous peoples are defined, it is estimated that there are 300–500 million indigenous peoples globally. This means that granting them self-determination would pose a direct challenge to the way in which the States of the world have organised their internal governance structures.25 Hence, at first sight, it would seem very difficult for indigenous peoples to exercise any kind of self-determination in the world of States. Yet, as will be shown below, the process to adopt a UN Declaration on the rights of indigenous peoples has made some important openings.

B. The Process to Adopt the UN Declaration The work to produce the UN Declaration began as early as 1985 within the Working Group on Indigenous Populations (WGIP), consisting of five expert members (who, from the beginning, allowed broad access for indigenous peoples, irrespective of whether they had gained status with the Economic and Social Council).26 For almost a decade, the WGIP devoted a large part of its time to drafting the text of a UN Declaration. Representatives of indigenous peoples, government delegations and experts on the subject all took part in this process. In 1994, the then Sub-Commission on Prevention of Discrimination and Protection of Minorities adopted the draft Declaration prepared by the WGIP and sent it to its parent body, the Commission on Human Rights (now replaced by the Human Rights

25 See, eg, L Malezer, ‘Permanent Forum on Indigenous Issues: Welcome to the Family of the UN’ in J Castellino and N Walsh (eds), International Law and Indigenous Peoples (Leiden, Martinus Nijhoff Publishers, 2005) 67. 26 In 1982 the WGIP was established as a subsidiary organ to the Sub-Commission on Prevention of Discrimination and Protection of Minorities (now the Sub-Commission on the Promotion and Protection of Human Rights), endorsed by ECOSOC on 7 May 1982; UN Doc E/Res/1982/34. It comprises five members of the Sub-Commission, one representing each of the five geographical regions designated by the UN for electoral purposes. As a subsidiary organ of the Sub-Commission, the Working Group is located at the lowest level of the hierarchy of UN human rights bodies. Its recommendations have to be considered and accepted first by its superior body, the Sub-Commission, then by the Commission on Human Rights (now the Human Rights Council) and the Economic and Social Council (ECOSOC), before moving on to the UN General Assembly.

116 Timo Koivurova Council), for consideration.27 The article on self-determination drew heavily on common Article 1(1) of the Covenants: Indigenous peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.28

Another important provision of the 1994 draft, from the perspective of future framing of the right to self-determination of indigenous peoples, was Article 31, which outlined the following: Indigenous peoples, as a specific form of exercising their right to self-determination, have the right to autonomy or self-government in matters relating to their internal and local affairs, including culture, religion, education, information, media, health, housing, employment, social welfare, economic activities, land and resources management, environment and entry by non-members, as well as ways and means for financing these autonomous functions.29

The draft Declaration’s provision on self-determination was heavily influenced by the persistence of indigenous peoples,30 who attached great importance to having the right expressed in the draft and who had rejected (1993) an earlier version which stated, much more modestly: Indigenous peoples have the right of self-determination, in accordance with international law, subject to the same criteria and limitations as apply to other peoples in accordance with Charter of the United Nations. By virtue of this, they have the right, inter alia, to negotiate and agree upon their role in the conduct of public affairs, their distinct responsibilities and the means by which they manage their own interests. An integral part of this is the right to autonomy and self-government.31

In 1995, the Commission on Human Rights considered the text submitted by the Sub-Commission and decided to establish an inter-sessional working group32 with the mandate to draw up a draft Declaration for the consideration of the Commission for eventual adoption by the UN General Assembly within the framework of the International Decade of the World’s Indigenous People (1995–2004). The inter-sessional working group consisted only of State representatives, although indigenous peoples were given access to the process as observers.

27 Draft United Nations Declaration on the Rights of Indigenous Peoples, UNGA A/Res/61/295 (1994/5), available at . 28 Draft UN Declaration on the Rights of Indigenous Peoples, UNGA, E/CN.4/Sub.2/1993/29/ Annex I, (1993), Art 3. 29 Ibid, Art 31. 30 CE Foster, ‘Articulating Self-determination in the Draft Declaration on the Rights of Indigenous Peoples’ (2001) 12 European Journal of International Law 141, 142. 31 Ibid, 156. Discrimination Against Indigenous Peoples, Report of the Working Group on Indigenous Populations on Its Tenth Session, UN ESCOR, 44th Sess, Agenda Item 15, operative para 27, UN Doc E/CN.4/Sub.2/1992/33. 32 Resolution of the Commission on Human Rights 1995/32, (1995).

Can Saami Exercise Their Self-determination? 117 Even though progress was slow in the inter-sessional working group, and the goal of having the UN General Assembly adopt the UN Declaration by the end of 2004 was never achieved, in June 2006, the newly-created UN Human Rights Council adopted the Declaration (but not without opposition—30 votes in favour, 2 against, 12 abstentions),33 recommending that the UN General Assembly adopt it, with the following formulations of the right to self-determination: Article 3 Indigenous peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development. Article 4 Indigenous peoples, in exercising their right to self-determination, have the right to autonomy or self-government in matters relating to their internal and local affairs, as well as ways and means for financing their autonomous functions.

Even though the original 1994 draft and the 2006 draft (adopted by the Human Rights Council) are identical in framing the right to selfdetermination of indigenous peoples, the decision to move Article 31 (on autonomy and self-government) immediately to follow Article 3 on self-determination, made it possible to read these two provisions together. It may now be argued that Article 4 specifies that indigenous peoples’ right to self-determination is limited to a ‘right to autonomy or self-government’, or to what is often referred to as the right to internal self-determination within the confines of existing States. This interpretation is made even more pertinent when comparing the wording of the right to autonomy and selfgovernance in the original formulation of Article 31 with the later wording in Article 4. Article 31 sees it ‘as a specific form of exercising their right to self-determination’, while Article 4 provides ‘in exercising their right to self-determination’. The first formulation, if read in the context of Article 3, appears to indicate that autonomy or self-governance are possible avenues for implementing the right to self-determination of indigenous peoples, whereas the new Article 4 gives more force to the argument that the right to autonomy or self-governance constitutes a way in which indigenous peoples’ self-determination may be realised. Even with this change in the ordering of the provisions, the process of finally adopting the UN Declaration came to a halt when a no-action resolution by the Namibian Delegation was supported by the majority in the 33 See the version adopted by the Human Rights Council, A/HRC/1/L.1030 (2006), 56, available at . See the explanatory paper by Canada after voting against the Declaration, and also outlining the reasons why other countries abstained from the vote, many of them having problems with Art 3 on self-determination (Canada’s Position: United Nations Draft Declaration on the Rights of Indigenous Peoples, 29 June 2006), at .

118 Timo Koivurova 3rd Committee of the UN General Assembly.34 One likely reason for this is Article 3. Despite the change in order, Article 3 was still there, stating that indigenous peoples have a right freely to determine their political status. It is not difficult to imagine that such a text would be troublesome for a State representative in the 3rd Committee, especially an African State. The matter finally came before the General Assembly in September 2007, where the Declaration was adopted by 143 States voting in favour, four States against (New Zealand, Australia, the USA and Canada)35 and 11 abstaining (including Russia).36 There were some important changes to the text from the version adopted by the Human Rights Council, most importantly from the perspective of the right to self-determination of indigenous peoples in order to further limit the interpretation of Article 3. This was achieved by a significant amendment to Article 46(1). As adopted by the Human Rights Council the provision read as follows: Nothing in this Declaration may be interpreted as implying for any State, people, group or person any right to engage in any activity or to perform any act contrary to the Charter of the United Nations.

This was changed to ensure that indigenous peoples’ self-determination may encompass at the most internal self-determination within existing States: Nothing in this Declaration may be interpreted as implying for any State, people, group or person any right to engage in any activity or to perform any act contrary to the Charter of the United Nations or construed as authorizing or encouraging any action which would dismember or impair, totally or in part, the territorial integrity or political unity of sovereign and independent States.37

The compromise, thus, consists of three moves. The right to self-determination of indigenous peoples is recognised in Article 3, but its practical content

34 See the press release from the 3rd Committee at , noting that ‘an initiative led by Namibia, co-sponsored by a number of African countries, resulted in the draft being amended. In its new form, the draft would have the Assembly decide “to defer consideration and action on the United Nations Declaration on the Rights of Indigenous Peoples to allow time for further consultations thereon” … The amendments were adopted by a vote of 82 in favour to 67 against, with 25 abstentions (annex II) … Prior to the vote, the representative of Peru—recalling that it had taken 24 years for the Declaration to be hammered out—said the original draft had been revised to address the concerns of many delegations, particularly regarding the principle of self-determination of peoples and respect for national sovereignty … However, his counterpart from Namibia, explaining the proposed amendments, said that some provisions ran counter to the national constitutions of a number of African countries and that the Declaration was of such critical importance that it was only “fair and reasonable” to defer its adoption by the Assembly to allow for more consultations.’ 35 All four of these States have by now come to endorse the UN Declaration, albeit with some reservations. 36 See generally . 37 UN General Assembly, United Nations Declaration on the Rights of Indigenous Peoples, 2 October 2007, A/RES/61/295.

Can Saami Exercise Their Self-determination? 119 is defined in Article 4 and its outermost scope is limited in Article 46. But this compromise cannot be the final word on the matter, since indigenous peoples may always rely on common Article 1 of the two Covenants and general international law as justifying their self-determination, which may even lead to secession in extreme cases. It is also clear that the UN Declaration is very much based on selfdetermination of indigenous peoples within the established Nation States. It does not promise much for transnational indigenous peoples, even if it contains one article focusing on this particular issue, Article 36: 1. Indigenous peoples, in particular those divided by international borders, have the right to maintain and develop contacts, relations and cooperation, including activities for spiritual, cultural, political, economic and social purposes, with their own members as well as other peoples across borders. 2. States, in consultation and cooperation with indigenous peoples, shall take effective measures to facilitate the exercise and ensure the implementation of this right.

The provision upholds a view of indigenous communities living on various sides of the border, with a right to develop their contacts, relations and cooperation with communities on the other side of the border, and has not changed much from the 1994 UN draft Declaration.38 It is also very much in line with International Labour Organisation Convention No 169, the only modern international convention focusing on the rights of indigenous peoples,39 which provides that indigenous peoples’ selfdetermination means the right to autonomy or self-governance in their internal or local affairs within the broader Nation State. In other words, neither document encourages the segments of transnational people to unite and find a common identity; instead, the primary point of reference is to each Nation State.

38 Art 35 of the draft (1994) provided: ‘Indigenous peoples, in particular those divided by international borders, have the right to maintain and develop contacts, relations and cooperation, including activities for spiritual, cultural, political, economic and social purposes, with other peoples across borders. States shall take effective measures to ensure the exercise and implementation of this right.’ See . 39 International Labour Organization (ILO), Indigenous and Tribal Peoples Convention, C169 (1989), Art 32 provides: ‘Governments shall take appropriate measures, including by means of international agreements, to facilitate contacts and cooperation between indigenous and tribal peoples across borders, including activities in the economic, social, cultural, spiritual and environmental fields.’ See the Convention on the Rights of Indigenous and Tribal Peoples in Independent Countries, at . Even the International Law Association’s Indigenous Rights Committee perceives Art 36 in generally positive terms, as one element of ‘external self-determination’, see ILA 2010 Committee Report, Rights of Indigenous Peoples, at (at 10 and, more generally, at 15).

120 Timo Koivurova IV. SELF-DETERMINATION OF SAAMI TRANSNATIONAL PEOPLE

The Saami live in four States—in the northernmost parts of Scandinavia (in Norway, Sweden and Finland) and in Russia.40 Despite this, the process leading to the draft Nordic Saami Convention did not seriously attempt to include Russia as one of the Contracting States.41 This was due to many factors, most importantly because Russia primarily wants to regulate the rights and status of its numerous indigenous peoples itself.42 The draft was developed under the auspices of the Nordic Council, the Nordic parliamentary cooperative body, the three States with Saami inhabitants—Norway, Sweden and Finland—as its members. After many stages, an Expert Group, with unique composition (three members from each State and each Saami parliament), was established and presented its proposal for a Nordic Saami Convention in November 2005.43

40 The Saami are an indigenous people living in the northern parts of three Nordic States— Norway, Sweden and Finland—and on the Kola Peninsula in the Russian Federation. They arrived in the region well before the present majority populations of those States, and are ethnically and linguistically distinct as a people from the mainstream societies. At present, there are approximately 90,000 Saami living in the northernmost regions of the North Calotte and the Kola Peninsula. Of these, the Norwegian Saami constitute the largest group, numbering approximately 50,000–65,000 persons, followed by the Saami in Sweden (20,000), Finland (8,000) and Russia (2,000). These figures are at best rough estimates, as there is no clear definition of who constitute the Saami. See U-M Kulonen, I Seurujärvi-Kari and R Pulkkinen, ‘Introduction to the Saami’ in The Saami: A Cultural Encyclopedia (Helsinki, The Finnish Literary Society, 2005) 5. The Saami are now a minority in most parts of their traditional areas. 41 This was despite the Saami Council calling for Russians to be included in their Honningsvåg conference: ‘Consider the ongoing work on a Nordic Saami Convention an important step in the effort to reduce the negative implications of state borders to the Saami society and likewise an important contribution in the acceptance of basic Saami rights regardless of the state border; In this context emphasised the importance that Finland, Norway and Sweden also make effort to incorporate Russia in the development of a Saami convention to ensure that the entire Saami nation acquires legal protection through a treaty of this character.’ See the Preamble to the Saami Council ‘Honningsvåg Declaration’ (adopted by the 19th Saami Conference in 2004), available at . 42 There are also many other considerations. Since the Saami are only one of the indigenous groups in its territory, it might be viewed as discriminatory if Russia were to enter into an international treaty over one very small indigenous group (approximately 2,000 members). In addition, the Nordic countries have very close contacts with each other, as have the three Saami communities. The Russian Saami, are, however, active participants in the Saami Council. 43 See the Report on the Draft Saami Convention, ‘Pohjoismainen saamelaissopimus: Suomalais-norjalais-ruotsalais-saamelaisen asiantuntijatyöryhmän’ 27. lokakuuta 2005 luovuttama luonnos (Finnish Ministry of Justice Publication No. H-2183 F, 90-96. The extensive document (hereafter ‘the Report’) consists of nine sections and four annexes totalling 340 pages. See pp 151–246. The other parts of the Report consist of the following: how the Committee was appointed and its terms of reference (s 2, pp 44–46); a summary of the content of the proposed text for a Convention (s 3, pp 47–56); an explanation of the process leading to the appointment of the Committee and how the Committee has fulfilled its task (s 4, pp 57–62); a discussion of some of the general issues related to the Convention (s 5, pp 63–64): a review of the legal and factual situation of Sámi in Finland, Norway, Sweden and the Russian Federation (s 6, pp 65–103); an extensive analysis of the international treaties and other international instruments relevant from the viewpoint of Saami rights (s 7, pp 104–47); and a

Can Saami Exercise Their Self-determination? 121 The draft advances a very ambitious formulation of the Saami right of self-determination, particularly in its Article 3: As a people, the Saami has the right of self-determination in accordance with the rules and provisions of international law and of this Convention. In so far as it follows from these rules and provisions, the Saami people has the right to determine its own economic, social and cultural development and to dispose, to their own benefit, over its own natural resources.44

There are two parts to this article. The first part provides that the Saami ‘has a right to self-determination in accordance with the rules and provisions of international law’. This is further explained in the Commentary to the draft. The Expert Group clarifies that, even though Saami as a people have a right to self-determination, this does not mean that they have a right to secede from existing States. As the Commentary notes: The Saami as a people and as the indigenous people of Scandinavia are not in such a position that they could claim the establishment of their own state on the basis of international law. The Saami and the contracting States must, on the basis of international law, develop such ways of organizing the exercising of Saami self-determination that the present borders of the States are not challenged.45

However, the Commentary also clarifies that the reference to the rules of international law in Article 3 means that the content of Saami selfdetermination develops in accordance with the evolution of international law, thereby making it clear that the self-determination of indigenous peoples may come to have a broader content than it does today. The legal status of the Saami is fleshed out in the draft in a very innovative manner. Even though the Saami parliaments are not envisaged as Contracting Parties to the Nordic Saami Convention, an issue that was discussed extensively by the Expert Group, they do have a very strong role in all aspects of the operation of the Convention (if adopted in its current form). They have a power to reject its ratification, as well as any amendment to the Convention, and have an equal representation in the Committee that steers the development of the Convention. The second part of Article 3 provides that, as a people, the Saami ‘has the right to self-determination in accordance with the rules and

discussion of the status of Saami in the Convention (s 8, pp 148–50). The Annexes consist of a review of a study of whether Saami could be parties to the proposed Convention (Annex I, pp 247–50), a discussion of the legal status of the Russian Saami (Annex II, pp 251–62), an article by three members of the Expert Committee on the right to self-determination of the Sámi (Annex III, pp 263–318) and the draft United Nations Declaration on the Rights of Indigenous Peoples, together with suggestions from the Nordic countries, New Zealand and Switzerland (Annex IV, pp 319–40). The unofficial English version of the draft Convention may be found on the Sámi Council website, at . 44 45

Ibid, Art 3. The author’s translation of the Report.

122 Timo Koivurova provisions of … this Convention’. This provision is further clarified in Article 14(3): The Saami parliaments shall have such a mandate that enables them to contribute effectively to the realization of the Saami people’s right of self-determination pursuant to the rules and provisions of international law and of this Convention. Further regulations concerning the mandate of the Saami parliaments shall be prescribed by law.

The second part of Article 3 expresses the goal of the Convention as being further to integrate the Saami communities in the three States through the existing democratically-elected Saami parliaments assuming more powers and cooperating further with each other. The vision of the draft is a joint Nordic Saami parliament, as expressed in the Report and, more cautiously, in Article 20: The [Saami] parliaments may form joint organizations. In consultation with the [Saami] parliaments, the states shall strive to transfer public authority to such joint organizations as needed.

The draft Convention also provides the Saami parliaments with extensive powers in relation to the participation in international affairs in Article 19: The [Saami] parliaments shall represent the [Saami] in intergovernmental matters. The states shall promote [Saami] representation in international institutions and [Saami] participation in international meetings.

The draft Saami Convention has not progressed as envisaged. When it was handed down in October 2005, it was foreseen that negotiations would commence in November 2007. However, problems experienced in Finland—and to some extent in Sweden—have postponed the process. The negotiations finally commenced at the beginning of 2011, with each of the Saami parliaments nominating delegates to country negotiating teams. The Inter-Ministerial Committees in the Nordic States, which studied the draft, advanced various challenges in it, including to Article 3 of the draft, which all perceived as going beyond what is now required in international and national law.46 In all three countries, the Inter-Ministerial Committees

46 This comes across in all three reports, but most clearly from the Finnish Inter-Ministerial Committee Report. This is not a surprise since Finland expressed its reservations to Art 3 and some other articles during the Expert Group’s work. These reservations were expressed in the Commentary to the draft Nordic Saami Convention. The Inter-ministerial Committee noted that while Art 2 deems Saami an indigenous people, draft Art 3 uses the much broader notion of people and their right to self-determination. According to the Committee, Art 3 thus does not follow the status given to the Saami under Art 2 and is also, from the viewpoint of its scope of application, broader than the indigenous status as recognised in the UN Declaration. For this reason, it is in contradiction to the Finnish Constitution (the Committee points to the Constitution’s emphasis on s 2.1 (the powers of the State in Finland are vested in the people, who are represented by the Parliament)) and goes further than what Finland has committed itself to under international law and policy (because, according to the Committee, the UN

Can Saami Exercise Their Self-determination? 123 (with Saami representation) found Article 3 to be more ambitious than the present state of international law, while the Saami members of those committees were of a different opinion. It remains to be seen how Saami selfdetermination will be realised in the possible Nordic Saami Convention.

V. CONCLUDING OBSERVATIONS

The international law of States has been able to accommodate the right of peoples to self-determination in general, and of indigenous peoples in particular. Yet self-determination has clear limitations, which were clarified when decolonisation was implemented. It was not the African and Asian peoples, in any ethnographic sense, who were entitled to exercise their right to self-determination, but populations of the territories that happened to fall within the borders drawn by the colonists. The decolonisation created transnational peoples by erecting State borders, thereby placing peoples on both sides of those borders. The same applies to the current law of self-determination. The selfdetermination of peoples always takes place within the frame of sovereign Nation States, which hinders possibilities for transnational peoples to exercise their ‘joint’ self-determination, given that each people must address its concerns toward the sovereign in whose territory it is located. The provision that addresses the special situation of transnational indigenous peoples, Article 36, is very much built on these premises. Indigenous peoples may have internal self-determination within existing States (and even external self-determination in very exceptional circumstances), but transnational indigenous peoples only have rights to maintain and develop contacts, relations and cooperation with each other across the border. The UN Declaration does not attempt to bridge the gap between these segments of people divided by State borders to encourage them to unite; there is only the encouragement to develop contacts between separate indigenous communities. This contrasts with the attempts made by the Saami and the Nordic States to build a more ambitious approach based on the whole people’s selfdetermination. Even though the draft—for political reasons—cannot ensure

Declaration’s Art 3 is restricted by Art 4, which together mean that indigenous peoples are guaranteed self-governance and autonomy in their internal and local affairs). The Committee also complains that the article does not deal with how this article relates to the self-governance of municipalities, which is protected in s 121 of the Constitution (there are three municipalities and a segment of one additional municipality within the Saami homeland region, and these wield a wide range of self-governance powers in their regions, whereas the Saami have only cultural and linguistic self-government under s 121(4) in their homeland). See Inter-Ministerial Committee statements in Finland, Sweden and Norway, as translated by the Nordic representatives to the Indigenous Property Rights project (on file with the author).

124 Timo Koivurova full rights to the Russian Saami, an attempt is made to include them as far as possible. If they live in any of the three Scandinavian States, they are entitled to all the rights in the draft, and the institutional cooperation provisions of the draft envisage involving Russian Saami even more. The self-determination of the whole people calls for their international standing to be developed. This is very clear in the draft, as the Saami parliaments may almost be regarded as parties to the envisaged Convention. They participate in the development of the Convention and its supervision (by appointing half of the members in the supervisory committee), and may block the ratification of the Convention and any amendments to it. Individual Saami parliaments are also guaranteed strong participation in inter-governmental affairs. The draft Nordic Saami Convention does not refer to Article 36 of the UN Declaration, but the Draft may be seen as an ideal manner of implementing this provision. However, the draft goes further. It aims to create a gradual process whereby the Saami and the three Nordic nations may develop their relationship in such a manner that we might perceive four nations, coexisting in the same physical space, composed of the territories of three States. From this perspective, the draft Nordic Saami Convention should probably be regarded as a form of ‘social contract’ between the Saami and the three Nordic States, rather than as a typical international treaty.47 Moreover, the goal is ultimately to unite the three Nordic Saami communities, rather than to have them cooperate more with each other. Even though general international law does not give much politico-legal space for peoples divided by borders, particularly transnational indigenous peoples, it is possible for these peoples to exercise their right of selfdetermination if the political will for such action can be found. In the draft, the Saami exercise their right of self-determination together and against their home States. This does provide an inspiring example of the possibility of transnational indigenous peoples exercising self-determination in a very constructive and effective manner. This is not to say that it is certain that there will be a Nordic Saami Convention, but it does mean that the transnationality of these peoples has not died out, and that it will likely also serve as a future check on State action.

47 This has been argued by one of the members of the Expert Committee producing the draft Nordic Saami Convention, M Scheinin, ‘The Right of a People to Enjoy Its Culture: Towards a Nordic Sámi Rights Convention’ in F Francioni and M Scheinin (eds), Cultural Human Rights (Leiden, Martinus Nijhoff Publishers, 2008) 151.

5 The Nordic Saami Convention: The Right of a People to Control Issues of Importance to Them LEENA HEINÄMÄKI

I. INTRODUCTION

T

HE AIM OF this chapter is to look at the right of the Saami to have control over the issues that are important to them as a people, including preservation of their culture and traditional way of life, in light of the draft Nordic Saami Convention. The chapter analyses key provisions relating to the self-determination of the Saami people, with the aim of examining the challenges that these provisions may pose to current Finnish legislation. The draft Convention has been developed with the idea that the level of self-determination and self-governing power accorded to the Saami people should depend on how important the question at hand is to the Saami people themselves. Thus, the more crucial an issue, the more influence Saami people should have over that issue. The right to control may vary from the right to engage in negotiations and consultation, to the requirement of consent.1 The objective of this chapter is to identify possible gaps and contradictions between the draft Convention and the national and international commitments of Finland, and to discuss the necessary legislative changes suggested by Finnish legal authorities before Finland can accept the draft Convention.2 In November 2002, the Governments of Finland, Norway and Sweden— together with their respective Saami parliaments—appointed an Expert Group with the task of drafting a Nordic Saami Convention. The Expert 1 M Åhren in M Åhren, M Scheinin and JB Henriksen, ‘The Nordic Sami Convention: International Human Rights, Self-Determination and other Central Provisions’ (2007) 3 Gáldu Cˇ ála—Journal of Indigenous Peoples Rights 8, 16. Available at . 2 The Ministry of Justice of Finland nominated a Committee to evaluate the relationship between the draft and the Finnish Constitution, other legislation and the international commitments of Finland on 8 January 2009.

126 Leena Heinämäki Group presented a proposed Convention text, including an extensive commentary, to the three Governments and the three Saami parliaments late in 2005.3 Although the objective of the draft Convention is to affirm and strengthen the rights of the Saami people,4 the foundation of the Convention, as agreed by the Expert Group, is an equal partnership between the four peoples involved: the Finnish, Norwegian, Swedish and Saami people.5 The composition of the Expert Group reflected the idea of equal partnership. Hence, the Group consisted of one member appointed by each of the three Governments, as well as one representative nominated by each of the Saami parliaments. With equality between peoples as a foundational principle, the draft Convention is not satisfied with regarding the Saami people merely as an object in need of protection; on the contrary, it aims higher, and by making the Saami of Finland, Norway and Sweden a legal subject, endorses an historical shift in the status of an indigenous people.6 This shift is established by the draft Convention’s recognition of the Saami people’s right to self-determination, an absolute requirement of the Saami parliaments at the outset of the drafting process.7 In line with the demands of the world’s indigenous peoples, Saami representatives regard the right to self-determination as a precondition for the effective exercise of all other human rights. The acknowledgement of this right is significant, not only for the preservation of their culture and the safeguarding of their lands, but also because it fundamentally changes the status of indigenous peoples by making them active participants, alongside States, at least in matters that directly concern them. For the Saami, as well as for other indigenous peoples, the endorsement of the right to self-determination, perhaps more than anything else, is attached to the process of decolonisation—abandoning and repairing historical inequities, and enabling indigenous peoples to articulate, determine and control their own priorities as peoples. For this reason alone, the 3 See generally T Koivurova, ‘The Draft for a Nordic Saami Convention’ (2006/7) 6 European Yearbook of Minority Issues 103; T Koivurova, ‘The Draft Nordic Saami Convention: Nations Working Together’ (2008) 10 International Community Law Review 279; M Fitzmaurice, ‘The New Developments Regarding the Saami People of the North’ (2009) 16 Journal on Minority and Group Rights 67. 4 Art 1 states: ‘The objective of this Convention is to affirm and strengthen such rights of the Sámi people that are necessary to secure and develop its language, its culture, its livelihoods and society, with the smallest possible interference of the national borders.’ 5 Åhren in Åhren et al, above n 1, 13. 6 According to the Convention, the Saami people are the indigenous people of Finland, Norway and Sweden. The Saami thus constitute one people, living across national borders. The Expert Group had researched the possibility of including the Russian Federation and Saami people that live in Russia, but regrettably concluded that it would be too complicated to agree on a strong and effective Saami Convention if the negotiations should also include the Russian Federation. See ibid, 13. 7 Ibid, 15.

Right of a People to Control Issues of Importance 127 draft Convention, if accepted, would become a historically remarkable international convention. Once ratified by the Nordic countries and the three Saami parliaments, an additional, unique aspect of the Convention,8 the Convention would reinforce the recently adopted UN Declaration on the Rights of Indigenous Peoples,9 which also recognises indigenous peoples’ right to self-determination.10 The attempt of the draft Convention to establish an equal partnership between Saami people and governments is also visible in the provisions concerning Saami governance. The rights pertaining to Saami governance may be regarded as an inherent part of actualising the right of self-determination in a territorial and national context. The same may also be said of the provisions concerning participation in different State institutions and the use of natural resources in the traditional lands of the Saami. Given that today’s Saami population shares its territory with the colonising peoples, the question, according to the lawyers of the Expert Group, is how to construct a model for the right to self-determination which allows two peoples in one country that share the same land and water base to exercise their respective rights to self-determination.11 However, from the perspective of Finnish legal authorities, the question of self-determination, including the right to have control over the natural resources and other crucial issues for Saami, is not easy. Despite Finnish endorsement of an equal partnership with the Saami population, there are many challenges ahead, prior to the acceptance of the draft Convention. As will be discussed in the following sections, the articles relating to the question of self-determination would seem to require many changes in domestic law, at least when interpreted along the lines suggested by the Committee on the draft Convention nominated by the Ministry of Justice. The following sections aim to analyse relevant provisions of the draft Convention, together with the related Finnish legislation and international commitments, and to identify questions that must be resolved prior to its ratification in Finland. They will also argue that some provisions do not necessarily conflict with 8 In the beginning, the Expert Group was investigating whether the Saami parliaments could be parties to the treaty. It concluded, however, that in that case, it could not be certain that the Convention would be regarded as an international instrument. See Åhren, ibid, 12. See generally A Tahvanainen, ‘The treaty-making capacity of indigenous peoples’ (2005) 12 International Journal on Minority and Group Rights 397; A Tahvanainen, ‘Pohjoismainen saamelaissopimus. Suomalais-norjalais-ruotsalais-saamelaisen asiantuntijatyöryhmän 27. Lokakuuta 2005 luovuttama luonnos’ [Nordic Saami Convention. Finnish-Norwegian-Swedish-Saami Expert group: Draft of 27 October 2005] 247–50. Available at: . 9 The United Nations Declaration on the Rights of Indigenous Peoples (adopted 13 September 2007), 61st Session, A/61/ L. 67. 10 Compared to the UN Declaration on the Rights of Indigenous Peoples, the draft Declaration differs by recognising the right to self-determination of a transnational indigenous people—the Saami people in three Nordic countries. 11 Åhren in Åhren et al, above n 1, 16.

128 Leena Heinämäki present legal commitments of the Finnish State, contrary to the view of the Finnish Committee.

II. THE RIGHT OF THE SAAMI PEOPLE TO SELF-DETERMINATION

The fundamental question of the general right of indigenous peoples to self-determination in international law falls beyond the scope of this chapter but has been discussed extensively in the legal literature.12 In addition, the legal experts of the Expert Group on the draft Convention thoroughly elaborated on this particular issue as a backdrop to the Convention.13 Hence, the aim here is to look at the right to self-determination of a Saami people in the light of the draft Convention. However, as the Finnish legal authorities have taken the UN Declaration on the Rights of Indigenous Peoples as a basis for the present international standards concerning Saami people in Finland, the relevant provisions of the UN Declaration, relating to the question of self-determination, will be analysed as well. Additionally, since Finland is a party to the widely ratified International Covenant on Civil and Political Rights (ICCPR), the recent legal practice of the UN Human Rights Committee must also be examined in relation to the question of cultural protection, self-determination, and the related right to have control over lands and natural resources. These sources illustrate the present international legal commitments of Finland towards the Saami people.

12 See generally J Anaya, Indigenous Peoples in International Law, 2nd edn (Oxford, Oxford University Press, 2004); E-IA Daes, ‘The Right of Indigenous Peoples to “Self-Determination” in the Contemporary World Order’ in D Clark and R Williamson (eds), Self-Determination: International Perspectives (Houndmills, MacMillan Press, 1996) 47; M Davis, ‘Indigenous Struggles in Standard-Setting: The United Nations Declaration on the Rights of Indigenous Peoples’ (2008) 9 Melbourne Journal of International Law 1; T Koivurova, ‘From high hopes to disillusionment: Indigenous peoples’ struggle to (re)gain their right to self-determination’ (2008) 15 International Journal on Minority and Group Rights 1; T Koivurova, ‘Alkuperäiskansojen itsemääräämisoikeus kansainvälisessä oikeudessa’ [‘The right of selfdetermination of indigenous peoples in international law’] in M Aarto and M Vartiainen (eds), Oikeus kansainvälisessä maailmassa [Law in a changing world] (Edita Publishing Oy, Lapin yliopiston oikeustieteiden tiedekunta (Faculty of Law at the University of Lapland), 2008) 249; LS Vars, The Sámi People’s Right to Self-determination (University of Tromsö, 2009); GS Alfredsson, ‘The Greenlanders and their human rights choices’ in M Bergsmo (ed), Human Rights and Criminal Justice for the Downtrodden (Leiden, Martinus Nijhoff Publishers, 2003) 453; GS Alfredsson, ‘Minorities, Indigenous and Tribal Peoples, and Peoples: Definitions of Terms as a Matter of International Law’ in N Ghanea and A Xanthaki (eds), Minorities, Peoples and Self-Determination (Leiden, Martinus Nijhoff Publishers, 2005) 163; M Åhren, The Saami traditional dress and beauty pageants: Indigenous peoples’ rights of ownership and self-determination over their cultures, Avhandling leverert for graden Philosophiae Doctor I rettsvitenskap (Thesis supplied for the degree of Philosophiae Doctor of Law) (2010) (unpublished). 13 M Åhren, ‘The Saami People’s Right to Self-Determination’ in M Åhren et al, above n 1, 52, available at .

Right of a People to Control Issues of Importance 129 Article 3 of the draft Convention states: As a people, the Saami has the right of self-determination in accordance with the rules and provisions of international law and of this Convention. In so far as it follows from these rules and provisions, the Saami people has the right to determine its own economic, social and cultural development and to dispose, to its own benefit, of its own natural resources.14

According to Åhren—a member of the Expert Group on the draft Convention, a lawyer and a member of Saami society—Article 3 is formulated in a manner that makes it impossible to claim that the right to self-determination, enshrined in the draft Convention, is a sui generis right and not the general right to self-determination held by all peoples under international law.15 He refers to the fact that some States have claimed that the right of indigenous peoples to self-determination, under the UN Declaration on the Rights of Indigenous Peoples, is a sui generis right, not guaranteeing the full right to self-determination of peoples as understood in international law.16 The background material to the draft Convention also states that the Saami do not accept a limited right to self-determination, since it is difficult to decide on behalf of future Saami generations, especially when there is no guarantee that the current national political regime and system will be maintained indefinitely.17 In a different context, the Expert Group has also noted that the general resistance of indigenous peoples to accepting a distinction between colonised and other peoples in relation to the external aspect of the right to self-determination, is ‘due to the opinion that this classification is contrary to the principle of equality between peoples under international law’.18 In comparison to common Article 1 of the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR),19 the draft Convention is different in its failure to refer to ‘the right of a people to freely determine their political

14 Draft Nordic Saami Convention, unofficial English version, Art 3, available at . 15 Åhren in Åhren et al, above n 1, 15–16. 16 Ibid. 17 Ibid. 18 Ibid, 84. Reference has been made by the Committee to the Reports from the Human Rights Committee’s Working Group on the Draft UN Declaration on the Rights of Indigenous Peoples: E/CN4/1996/84; E/CN4/1997/102; E/CN4/1998/106; E/CN4/1999/82; E/ CN4/2000/84. 19 International Covenant on Civil and Political Rights (entered into force 23 March 1976) GA Res 2200A (XXI), 21 UN GAOR Supp (No 16), 52, UN Doc A/6316 (1966), 999 UNTS 171 (hereafter ‘ICCPR’); International Covenant on Economic, Social and Cultural Rights (adopted 16 December 1966, entered into force 3 January 1976), GA Res 2200A (XXI), 21 UN GAOR Supp (No 16), 49, UN Doc A/6316 (1966), 993 UNTS 3 (hereafter ‘ICESCR’).

130 Leena Heinämäki status,’ along with ‘the right to freely pursue their economic, social and cultural development’. On the other hand, the draft Convention does, in line with the two international Covenants, express the right of ‘all peoples to freely dispose of their natural wealth and resources’.20 The formulation of Article 3 displays how it proposes to seek a compromise between State governments, on the one hand, and Saami people, on the other. While expressing that the Saami, as a people, have the right to self-determination in accordance with the rules and provisions of international law, the article abstains from expressing the right of Saami people to determine their political status, clearly indicating that the Saami do not intend to secede from existing States but, on the contrary, practise their right to self-determination together with the peoples of Finland, Norway and Sweden, and within those three States. This compromise, however, did not completely address the concerns of the Finnish Committee, nominated by the Ministry of Justice to examine the draft Convention in light of Finnish law. The Committee notes that, while the Finnish Constitution recognises the Saami as an indigenous people, and is hence aligned with Article 2 of the draft Convention (the recognition of the Saami as an indigenous people of Finland, Norway and Sweden), Article 3 uses a much broader notion of the Saami by recognising them as a people in international law, and guarantees peoples’ rights to them, thus contradicting the Finnish Constitution.21 The Finnish Committee refers to section 2.1 of the Finnish Constitution, which provides that the powers of the State in Finland are vested in the people who are represented by Parliament. The concept of a people, under the Constitution, means the total population, of which Saami people are a part. The Saami, as an indigenous people, have the constitutional right to their own language and culture (section 17), as well as the right to cultural and linguistic autonomy (section 121).22 The Committee considers that there is no generally-accepted definition of a people or an indigenous people in international law.23 According to the 20

See generally Åhren et al, above n 1. Inter-Ministerial Committee statements in Finland, Sweden and Norway, as translated by the Nordic representatives to the Indigenous Property Rights project (on file with the author), 17–18. 22 The Constitution of Finland 731/1991. 23 The Finnish Committee is correct in stating that there are no legally-accepted definitions, but some working definitions are available. For instance, there is the so-called ‘Kirby definition’, which was used by the UNESCO International Meeting of Experts on Further Study of the Concept of the Rights of Peoples, UNESCO HQ, Paris, 27–30 November 1989. According to the Kirby definition, a people are ‘1. a group of individual human beings who enjoy some or all of the following common features: a. a common historical tradition; b. racial or ethnic identity; c. cultural homogeneity; d. linguistic unity; e. religious or ideological affinity; f. territorial connection; g. common economic life. 2. the group must be of a certain number which need not be large but which must be more that a mere association of individuals within a State; 3. the group as a whole must have the will to be identified as a people or the consciousness of being a people—allowing that group or some members of such groups, through sharing the forgoing characteristics, may not have that will or consciousness; and possibly; 4. the 21

Right of a People to Control Issues of Importance 131 Committee’s report, the historical background of the ICCPR is closely associated with the independence of colonies and the emergence of new national States, and thus does not apply to the Saami.24 The Committee thus implicitly maintains that, although the Finnish Constitution recognises the Saami as an indigenous people, they are not a people under international law. The Committee’s view, according to which the Saami are only a part of the total population, is surprisingly ‘traditional’. The Government and the Supreme Court of Canada, for instance, accept that although ‘selfdetermination’ or ‘peoples’ are concepts traditionally linked to the right of colonised peoples to statehood, according to the present international State practice, there may be different ‘peoples’ living in one State, such as indigenous peoples or the people of Quebec, who have the right to selfdetermination ‘which respects the political, constitutional and territorial integrity of democratic states’.25 The Finnish Constitution does, however, recognise the Saami people’s right to culture, as does Article 27—the right of minorities to culture—of the ICCPR. The UN Human Rights Committee considers this article applicable to indigenous peoples whose ‘way of life is closely connected to a territory and the use of its resources’.26 Due to the connection between the use of natural resources and the traditional way of life of indigenous peoples, the UN Human Rights Committee has also established a link between Article 27 and Article 1 (self-determination). The Finnish Committee fails to mention the practice of the UN Human Rights Committee in relation group must have institutions or other means of expressing its common characteristics and will for identity.’ United Nations Special Rapporteur Martinez Cobo adopted a so-called ‘working definition’ of indigenous peoples two decades ago in his study on discrimination against indigenous peoples. His definition, still widely used today, provided as follows: ‘Indigenous communities, peoples and nations are those with a historical continuity with pre-invasion and pre-colonial societies that developed on their territories, consider themselves distinct from other sectors of the societies now prevailing in those territories, or parts of them. They form, at present, non-dominant sectors of societies and are determined to preserve, develop and transmit ancestral territories, and their ethnic identity to future generations as the basis of their continued existence as peoples, in accordance with their cultural patterns, social institutions and legal systems. This historical continuity may consist of the continuation, for an extended period reaching into the present, of one or more of the following factors: a. occupation of ancestral lands, or at least of part of them; b. common ancestry with the original occupants of these lands; c. culture in general, or in specific manifestations (such as religion, living under a tribal system, membership of an indigenous community, dress, means of livelihood, lifestyle, etc); d. language (whether used as the only language, as mother-tongue, as the habitual means of communication at home or in the family, or as the main, preferred habitual, general or normal language); e. residence in certain parts of the country, or in certain regions of the world; f. other relevant factors.’ See UN Doc E/CN.4/Sub.2/1986/7/Add 4, paras 379–80. 24

Above n 21, 16–17. UN Doc/E/CN.4/1997/102, para 332. See also the Report of the 1999 Session, E/CN.4/ 2000/84, para 50. See Reference Re Secession of Quebec, 20 August 1998, Reprinted in (1998) 37 International Legal Materials 1340, 1373. 26 Human Rights Committee, General Comment No 23: The Rights of Minorities (Art 27), UN Doc CCPR/C/21/Rev.1/Add.5, 8 April 1994, para 7. 25

132 Leena Heinämäki to States’ reports, according to which it applies Article 1 (the right to self-determination) to Saami (as well as other) indigenous peoples, taking particularly into account the need for indigenous peoples to exercise control over the natural resources that relate to their traditional lifestyles.27 For instance, in 2004, the UN Human Rights Committee stated that it regrets that it has not received a clear answer concerning the rights of the [Saami] as an indigenous people (Constitution, sect. 17, subsect. 3) in light of Article 1 of the Covenant. It reiterate[d] its concern over the failure to settle the question of Saami rights to land ownership and the various public and private uses of land that affect the Saami’s traditional means of subsistence—in particular reindeer breeding—thus endangering their traditional culture and way of life, and hence their identity.28

The Finnish Committee concludes that the draft Convention, in relation to the right to self-determination, goes beyond Finland’s commitments under international law and policy. The report references ILO Convention No 169,29 noting that although it uses the term ‘a people’, it clearly states in Article 1.3 that this term has to be interpreted in a manner which has no implications in international law.30 Despite the fact that Finland, notwithstanding many proposals, has yet to ratify ILO Convention No 169, the Finnish Committee makes constant references to this document. In addition to the ILO Convention, the Committee focuses on the interpretation of the right to self-determination under the UN Declaration on the Rights of Indigenous Peoples. The report notes that, according to Article 3 of the Declaration, indigenous peoples have a right to self-determination, and accordingly have a right to determine their political status and freely pursue their economic, social and cultural development. The Committee, however, points out that Article 4 of the Declaration refers to Article 3 which defines the right to self-determination within the context of the internal and local affairs of the indigenous people in question.31 Furthermore, the report of the Finnish Committee refers to Article 5 of the UN Declaration, according to which indigenous peoples have the right

27 See Concluding Observations of the Human Rights Committee in Canada UN doc CCPR/C/79/Add.105 (1999); Mexico, UN doc CCPR/C/79/Add.109 (1999); Norway, UN doc CCPR/C/79/Add.112 (1999); Australia, UN doc CCPR/CO/69/Aus (2000); Denmark, UN doc CCPR/CO/70/DNK (2000); Sweden, UN doc CCPR/CO/74/SWE (2002); Finland, UN doc CCPR/CO/82/FIN (2004); Canada , UN doc CCPR/C/CAN/CO/5 (2005); The United States, UN doc CCPR/C/USA/CO/3 (2006). 28 UN Human Rights Committee, Concluding Observations on Finland, CCPR/CO/82/FIN (2 December 2004), para 17. 29 International Labour Organisation Convention (No 169) Concerning Indigenous and Tribal Peoples in Independent Countries, Geneva (adopted 25 June 1989 and entered into force 5 September 1991), (1989) 28 International Legal Materials 1382. 30 Above n 21, 17. 31 Some legal scholars have also argued this kind of interpretation. See, for instance, Koivurova, ‘From high hopes to disillusionment’, above n 12, 10.

Right of a People to Control Issues of Importance 133 to maintain and strengthen their distinct political, legal, economic, social and cultural institutions, while retaining their right fully to participate, if they so choose, in the political, economic, social and cultural life of the State. Lastly, the Committee refers to Article 46.1 of the UN Declaration, which limits the external aspect of the right of indigenous peoples to selfdetermination, while protecting the integrity of the State.32 The Committee’s conclusion is, thus, that the right to self-determination, as guaranteed under the UN Declaration, is different (sui generis) from peoples’ right to self-determination under general international law. Hence, the Committee views the Saami right to self-determination, as it stands in the draft, as going beyond the UN Declaration. Due to its wide application, the Committee also considers that it contradicts the Finnish Constitution.33 The draft Saami Convention raises similar interpretive difficulties. As mentioned, Article 3 guarantees the Saami people the right of selfdetermination, ‘in accordance with the rules and provisions of international law and of this Convention’. Undoubtedly, this is a concern for the Nordic States, but the following clause should lessen this concern when read carefully, since it provides that ‘in so far as it follows from these rules and provisions, the Saami people has the right to determine its own economic, social and cultural development and to dispose, to its own benefit, of its own natural resources’. As noted, unlike common Article 1 of the International Covenants and the UN Declaration on the Rights of Indigenous Peoples, the Convention does not mention the right of the Saami to ‘freely determine their political status’. This compromise, however, leads us to question whether it is acceptable for the drafting group’s legal experts, who clearly advocate for the Saami people, to claim that this right is not a sui generis right but actually guarantees the full-scale right to external self-determination? Accordingly, one may doubt whether the draft Convention goes beyond the UN Declaration. An additional question is whether it even should. As with most of the world’s indigenous peoples, the Saami people do not seek independence, 32 This statement reflects a common view among international lawyers that, in non-colonial territories, the right to self-determination does not amount to the right of a part of the population to secede from an existing State. In relation to this view, an additional argument has been raised, as expressed by the Supreme Court of Canada in proceedings arising from the secession of Quebec, according to which there might be exceptional circumstances in which a group may have a legally and politically tenable right to secession due to its demonstrable inability to achieve the established rights of self-determination guaranteed by law. Reference Re Secession of Quebec, 20 August 1998, Supreme Court of Canada, (1998) 2 SCR 217, reprinted in (1998) 35 International Legal Materials 1340, 1373, para 138. 33 Above n 21, 17–18. According to the report of the Finnish Committee, an additional problem is that Art 3 does not relate the article’s applicability to the self-governance of municipalities, protected in section 121 of the Finnish Constitution. The Saami homeland region contains three municipalities and a segment of another, which wield self-governance, whereas the Saami have the right to cultural and linguistic self-government only under section 121(4); ibid, 16.

134 Leena Heinämäki either now or in the future. Instead, they seek the well-being of their culture, livelihoods, lives and societies, both as a people and as individuals, by establishing meaningful and effective legislative, as well as administrative, tools to guarantee positive developments. Examples of these tools include self-government arrangements, as well as effective participation—even to the extent of consent—in all national and international decision-making concerning issues that directly affect the Saami. As maintained in the background material to the draft Convention, international law places the principle of States’ territorial integrity above the right to self-determination of non-State people.34 Accordingly, conditions for secession can be fulfilled, even in a purely colonial context, only where the State is fundamentally and consistently undemocratic or suppresses its people.35 Therefore, the fear of Saami secession from their respective Nation States, resulting from the recognition of the Saami right to self-determination, appears unfounded.36 One means of moving forward the acceptance of self-determination in the draft Convention in Finland, would be to reformulate Article 3 along the lines of the UN Declaration. Despite the reasons, stated earlier by Åhren, why the Saami parliaments are not satisfied with the language of the Declaration, the examination of the background material to the draft Convention makes it rather clear that it does not, in practice, intend to go any further than the UN Declaration with respect to the right to self-determination.

III. ACTUALISING SAAMI SELF-DETERMINATION: CONSULTATION OR CONSENT?

The right of the Saami people to self-determination is primarily exercised through the Saami parliaments or other representative bodies, as determined by the Saami. The right to maintain and develop their own decision-making institutions constitutes a central element of indigenous peoples’ right to 34 JB Henriksen in Åhren et al, above n 1, 86. See UN General Assembly’s Resolution No 2625: ‘Nothing in the foregoing paragraphs shall be construed as authorizing or encouraging any action which would dismember or impair, totally or in part, the territorial integrity or political unity of sovereign and independent States conducting themselves in compliance with the principles of equal rights and self-determination of peoples as described above.’ 35 See, eg, Reference Re Secession of Quebec (1998) 2 SCR 217, para 138, which states: ‘In summary, the international law right to self-determination only generates, at best, a right to external self-determination in situations of former colonies; where a people is oppressed, as for example under foreign military occupation; or where a definable group is denied meaningful access to government to pursue their political, economic, social and cultural development. In all three situations, the people in question are entitled to a right to external self-determination because they have been denied the ability to exert internally their right to self-determination.’ 36 Henriksen in Åhren et al, above n 1, 86.

Right of a People to Control Issues of Importance 135 self-determination.37 Therefore, from the view of the Finnish Government and Saami people themselves, it may be more important to examine the powers allocated to the Saami parliaments, the representative bodies of the Saami people in the three Nordic countries, rather than the right to self-determination in its abstract form. The aim of this section is to examine the actualisation of the right of self-determination through the selfgoverning power of the Saami, including their control over matters of major importance to them. According to Article 14 of the draft Convention, in each of the three countries there shall be a Saami parliament, the highest representative body of the Saami people in the country. Saami parliaments shall, according to Article 14, have a mandate that enables them to contribute effectively to the realisation of Saami peoples’ right to self-determination, ‘pursuant to the rules and provisions of international law and of this Convention’. Furthermore, Saami parliaments should take initiatives and voice their opinions on all matters that are relevant to them. Section 1 of the Finnish Act on the Saami parliament38 states: The Saami, as an indigenous people, have linguistic and cultural autonomy in the Saami homeland as provided in this Act and in other legislation. For the tasks relating to cultural autonomy the Saami shall elect from among themselves a Saami Parliament.

Section 5 outlines the mandate of the Saami parliament: The task of the Saami Parliament is to look after the Saami language and culture, as well as to take care of matters relating to their status as an indigenous people. In matters pertaining to its tasks, the Saami Parliament may make initiatives and proposals to the authorities, as well as issue statements. In the pursuance of these matters the Saami Parliament shall furthermore use the powers prescribed in this Act or elsewhere in the law.

Furthermore, section 6 states that ‘in matters pertaining to its task, the Saami Parliament shall represent Saami in national and international connections’. Additionally, section 9 gives more specific instructions on the Government’s obligation to negotiate with the Saami parliament in all far-reaching and important measures which may directly and in a specific way affect the status of the Saami as an indigenous people and which concern matters in the Saami homeland. In order to fulfil its obligation to negotiate, the relevant authority shall provide the Saami parliament with the opportunity to be heard and

37 38

Ibid, 96. Sámi Parliament Act, 974/1995 (amendments up to 1026/2003 included).

136 Leena Heinämäki discuss matters. Failure to use this opportunity, however, in no way prevents the authority from proceeding.39 According to the Finnish Committee, the first part of Article 14 is in line with the Finnish Constitution and other legislation. The Committee, however, recalls an earlier concern relating to the reference to self-determination. The last part of Article 14, according to the Committee, is problematic. Whereas the Act on the Saami parliament allows the Saami parliament to undertake initiatives and make proposals to officials ‘about the matters that belong to its task’, Article 14 contemplates that the Saami parliaments may comment on ‘all matters where they find a reason to do so’. According to the Committee, this would require a legislative change. In this regard, one must wonder about the reasoning behind the formulation of the last paragraph of Article 14. Although the Saami parliament should retain the power to make initiatives and proposals to officials, this could have been connected to those ‘matters that directly affect the Saami people’. This would appear to be in line with ILO Convention No 169 and the UN Declaration, which guarantee the effective participation of indigenous peoples in all matters that directly affect them.40 Article 15 of the draft Convention focuses on independent decision-making by Saami parliaments. They may make independent decisions in all matters where they have the mandate to do so under national or international law. Saami parliaments may conclude agreements with national, regional and local entities concerning cooperation with regard to the strengthening of Saami culture and society. The Finnish Committee notes that section 5 of the Act on the Saami parliament recognises the responsibility of the Saami parliament to take care of issues concerning Saami language and culture, as well as other issues concerning the Saami as an indigenous people. According to the Finnish Act on Saami language,41 the Saami parliament monitors the implementation of the Act, provides recommendations and makes proposals, particularly when it has recognised deficiencies. The Committee does not regard the first part of Article 15 as problematic and considers that it is also in line with Finland’s international commitments. The Committee refers to both ILO Convention No 169 and the UN Declaration. Only paragraph 2 may, according to the Committee, require novel regulation concerning the competence of different entities to conclude agreements, although the Committee does not specify what kind of regulation is needed. 39 Relevant matters include community planning; the management, use, leasing and assignment of State lands, conservation areas and wilderness areas; applications for licences to stake mineral claims or file mining patents; legislative or administrative changes to the occupations belonging to the Saami form of culture; the development of the teaching and use of the Saami language in schools, as well as in the social and health services; or any other matters affecting the Saami language and culture, or the status of the Saami as an indigenous people. 40 ILO Convention (No 169), above n 29, Arts 6, 7, 18 and 19. 41 The Act on Sámi Language, 1086/2003.

Right of a People to Control Issues of Importance 137 Article 16 of the draft Convention states that, in matters of major importance to the Saami, negotiations shall be held with Saami parliaments before decisions in relation to such matters are made by a public authority. These negotiations must take place in advance in order to enable the Saami parliaments to have a real influence over the proceedings and outcome. Lastly, States shall not adopt nor permit measures that may significantly damage the basic conditions of Saami culture, Saami livelihoods or society, unless consented to by the Saami parliament concerned. The Finnish Committee notes that the requirement to negotiate with the Saami parliament is regulated in section 9 of the Act on the Saami parliament, which was formulated in light of Article 6 of the ILO Convention No 169. The ILO provision requires consultation with indigenous peoples whenever consideration is being given to legislative or administrative measures which may affect them directly. Such consultations shall be undertaken in good faith, with the objective of achieving agreement or consent to the proposed measures. The Committee noted that the content and scope of the draft’s negotiation requirements are formulated in a loose and unclear manner which could prove to be problematic. Additionally, unlike section 9 of the Finnish Act, Article 16 of the draft Convention does confine itself to matters concerning the Saami home region. Furthermore, the reference to ‘public authorities’ is problematic, since it could be interpreted to include the courts. Such an interpretation would contradict the Constitutional provisions on the independence of the courts (sections 3 and 21).42 According to the Committee, the second part of Article 16 also contradicts the Finnish Constitution as it requires the consent of the Saami parliament. The Committee recognises the ability of the Constitution itself to guarantee that public authorities cannot take measures that cause significant harm to Saami culture, traditional livelihoods or community life. Thus, the consent of the Saami parliament is not necessary to protect Saami interests. The Committee also refers to Article 19 of the UN Declaration, stating that it cannot be interpreted as a veto right of indigenous peoples, although Article 19 requires that ‘states shall consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free, prior and informed consent before adopting and implementing legislative or administrative measures that may affect them’. The Committee notes that the ILO Convention similarly only requires an attempt to reach an agreement. Therefore, the Committee concludes that Article 16, paragraph 2 of the draft Convention would establish a new international commitment for Finland.43

42 43

Above n 21, 36–37. Ibid.

138 Leena Heinämäki The Finnish authorities interpret Article 19 of the UN Declaration modestly as requiring a firm attempt at reaching an agreement rather than full consent. In the view of the present author, this is questionable, as it would mean that the UN Declaration does not go beyond the ILO Convention. If this is so, it is particularly interesting to examine why this issue was so fiercely debated throughout the drafting and adoption of the Declaration. The significance of the language of Articles 19 and 32 (required consent) led Canada, one of the States originally voting against the Declaration but later endorsing it, to cite these Articles as the most objectionable.44 New Zealand similarly interpreted these Articles as implying that ‘indigenous peoples have a right of veto over the democratic legislature and natural resource management’, and therefore concluded that New Zealand ‘must disassociate itself from this text’.45 The language of Article 16 of the draft Convention is clearer than that of the UN Declaration in stating that in cases where activities may be significantly harmful to the Saami, the consent of the Saami parliament is needed. As will be discussed shortly, both the Inter-American Court of Human Rights and the UN Human Rights Committee have now recognised that the consent of indigenous peoples is required in the case of significant harm to, large-scale exploitation of or interference with indigenous peoples’ lands. As mentioned in the Finnish Committee’s report, the final aspect of Article 3, the right to natural resources, is connected to Section IV of the draft Convention (Saami people’s rights to land and water).46 Article 36 of the draft Convention regulates the right to utilise natural resources. It states that before public authorities, based on law, grant a permit for prospecting or extraction of minerals or other sub-surface resources, or make decisions concerning utilization of other natural resources within such land or water areas that are owned or used by the Saami, negotiations shall be held with the affected Saami, as well as with the Saami Parliament, when the matter is such that it falls within Article 16.

Additionally, Article 36 notes: Permits for prospecting or extraction of natural resources shall not be granted if the activity would make it impossible or substantially more difficult for the Saami to continue to utilise the areas concerned, and this utilization is essential to the Saami culture, unless so consented by the Saami Parliament and the affected Saami. 44 United Nations Permanent Forum on Indigenous Issues (UNPFII), The UN declaration on the rights of indigenous peoples, treaties and the right to free, prior and informed consent: The framework for a new mechanism for reparations, restitution and redress, UNPFII 7th session, New York, 21 April–2 May 2008 E/C.19/2008/CPR.12, at 7. 45 New Zealand’s view may be heard on the webcast of the 61st session of the General Assembly (13 September 2007) (UNGA 2007). New Zealand also later endorsed the UN Declaration. 46 Above n 21, 17.

Right of a People to Control Issues of Importance 139 The Finnish Committee believes that Article 36 would have an extensive impact on Finnish legislation and require amendments to many laws, including mining, land use and construction legislation. The Committee was particularly concerned with the creation of full-scale consultation rights for Saami groups that are loosely defined (‘the affected Saami’) and could even refer to individual Saami persons. According to the Committee, the proposal may be inconsistent with the non-discrimination provision of Article 6 of the Finnish Constitution.47 Paragraph 3 of Article 36, as read by the Finnish Committee, provides a new procedure that is to be included in various permitting processes. The paragraph contemplates that a permit might be granted—even in the case of harmful impacts—if the Saami parliament, the affected Saami or even one affected Saami person gives their consent. The Committee fears that such a permitting process could afford even an individual Saami a veto power over a proposal, especially since the provision lacks the usual stipulations which provide guidance on resolving issues between competing interests.48 However, it is not clear that Article 36 of the draft is any more demanding than the relevant provisions in the UN Declaration. Thus, Article 19 of the UN Declaration requires the consent of indigenous peoples before adopting and implementing legislative or administrative measures that may affect them. This too could refer to many forms of legislation. Furthermore, Article 32 of the UN Declaration requires the consent of indigenous peoples prior to the approval of any project affecting their lands, territories and other resources, particularly in connection with the development, utilisation or exploitation of mineral, water or other resources. In the Saami homeland region, when interpreted literally, this would require legislative changes to, for instance, the mining legislation, where Saami people have the right to be consulted but certainly no veto right.49 Although the wording of the UN Declaration—‘states shall consult in order to obtain the free, prior and informed consent’ (emphasis added)—gives States the possibility of interpreting this as a best-efforts requirement, the Inter-American Court of Human Rights in Saramaka People v Suriname (2007)50 went beyond this, and concluded that large-scale exploitation of and interference with the lands of indigenous people require the free, prior and informed consent of the community in question. Additionally, for the first time and shortly after the adoption of the UN Declaration on the Rights of Indigenous Peoples, the UN Human Rights Committee in Poma Poma v Peru (2009)51 47

Ibid, 82. Ibid, 80. 49 The Finnish Mining Act, 621/2011, s 38 (in force as of 1 July 2011). 50 Saramaka People v Suriname (Judgment of 28 November 2007) Inter-American Court of Human Rights. 51 Poma Poma v Peru [27 March 2009] UN Human Rights Committee, Communication No 1457/2006, Doc CCPR/C/95/D/1457/2006. 48

140 Leena Heinämäki stated that free, informed and prior consent is required where the resource exploitation has substantial negative impacts on indigenous peoples’ right to enjoy their culture.52 Taking this new and important development into account, one might argue that the requirement of the consent of the Saami community does not necessarily exceed the present international commitments of the Finnish State. It is, however, true that the language of Article 36, regarding the ‘affected Saami’, is vague and leaves room for confusion. Additionally, questions concerning natural resources are linked to the right of selfdetermination and, hence, to the rights of the collective. On the other hand, control over natural resources is also linked to the right to culture covered by Article 27 ICCPR, which protects the rights of individual Saami persons. In this context, it is also important to note that Article 36 requires the consent of the Saami parliament, or affected Saami, only if the activity would make it substantially more difficult for Saami peoples to continue utilising areas that are essential to Saami culture. It is unclear as to who defines what ‘impossible’ or ‘substantially more difficult’ might mean. However, a series of decisions of the UN Human Rights Committee clarifies this question in relation to the Saami peoples in Finland. In none of those cases did the Committee find that the scale of activity in the traditional lands of the Saami had caused significant or substantial harm to Saami reindeer herders amounting to a violation of Article 27 ICCPR.53 On the other hand, according to the UN Human Rights Committee, when significant harm is done, the prior State duty of consulting with the indigenous community in question in good faith is no longer sufficient. Therefore, one might argue that the Government of Finland is already committed to obtaining the consent of the Saami parliament, or potentially even Saami individuals, if the activity in the traditional lands of the Saami would make it impossible or substantially more difficult for them to continue to utilise the areas concerned. In this light, Article 36 of the draft Convention appears to be in line with the present international legal commitments of Finland.

52 Para 7.5 of the Considerations of the Merits of the Poma Poma v Peru, above n 52, 10. Available at . 53 See O Sara, A Äärelä et al v Finland, Case No 431/1990, UN Doc CCPR/C/50/D/431/ 1990 (1994); I Länsman et al v Finland, Case No 511/1992, UN Doc CCPR/C/52/D/511/1992 (1994); J Länsman, E Länsman et al v Finland, Case No 671/1995; UN Doc CCPR/C/58/ D/671/1995 (1996); J Länsman, E Länsman et al v Finland, Case No 1023/2001, UN Doc CCPR/C/83D/1023/2001 (2005); A Äärelä and J Näkkäläjärvi v Finland, Case No 779/1997, UN Doc CCPR//C/73/D/779/1997 (2001).

Right of a People to Control Issues of Importance 141 IV. THE SAAMI PEOPLE’S RIGHT TO PARTICIPATE IN NATIONAL AND INTERNATIONAL DECISION-MAKING

The Saami people’s right to make representations and participate in national and international decision-making of the State concerning issues which are significant for Saami, closely relates to the question of selfdetermination. This section of the chapter examines the key provisions of the draft Convention in light of Finland’s current legal commitments. Article 17 of the draft Convention establishes the right of the Saami parliaments to be represented on public councils and committees when dealing with matters that concern the interests of the Saami, and before public authorities make a decision. The Finnish Committee has raised many questions and concerns regarding the vagueness of this provision. What is meant by the right of Saami parliaments to be represented? Does this refer to their right to be present at, to speak at or to appoint a member to such committees? Does the article refer to national or municipal organs? It is also unclear how the public authority should proceed if the Saami parliament’s request to be represented remains unacknowledged. The Committee believes that Article 17 would require many changes in national legislation, such as legislation concerning the self-governance of municipalities, and that it goes beyond the international commitments of Finland.54 As has been discussed, ILO Convention No 169 guarantees the general right to participate when legislative or administrative decisions directly affect indigenous peoples. However, ILO Convention No 169 does not provide an absolute right to a chosen representative when such legislative or administrative measures are adopted. The language of the ILO Convention—‘to at least the same extent as other sectors of the population’—indicates a possibility for special treatment, ie affirmative action.55 As mentioned, Article 5 of the UN Declaration accords the right of indigenous peoples to participate in the political, economic, social and cultural life of the State, while Article 19 of the Declaration also guarantees the right to participate in the relevant decision-making, even to the extent of free, prior and informed consent. However, neither the ILO Convention nor the UN Declaration contains a specific right to representation of an indigenous people in any particular public council or committee. Therefore, as the Finnish Committee suggests, Article 17 may go beyond international commitments.

54

Above n 21, 38–39. L Swepston, ‘Economic, social and cultural rights under the 1989 ILO Convention’ in F Horn (ed), Economic, social and cultural rights of the Sami, international and national aspects (Rovaniemi, University of Lapland, Northern Institute for Environmental and Minority Law, 1998) 38, 42. 55

142 Leena Heinämäki The Finnish Committee also appears to be correct in criticising the vagueness of Article 17 of the draft, since that provision does not clearly express the mode of representation. For instance, it might be suggested that the Saami parliament has the right to be informed and the right to express its opinion when different public councils and committees deal with matters directly concerning the interests of the Saami, before a decision is made by a public authority. Article 18 of the draft Convention establishes the relationship between Saami parliaments and national assemblies. It states that national State assemblies, committees and other bodies shall, upon request, receive representatives of the Saami parliaments in order to enable them to report on matters of importance to the Saami. Saami parliaments shall be given the opportunity to be heard in national assemblies on matters that particularly concern the Saami people. Furthermore, Article 18 continues by noting that national assemblies of individual States shall issue further regulations concerning these matters and the procedures to be followed. The Committee identifies a clear contradiction with the Constitution if the right of a Saami parliament representative to speak is directly tied to plenary sessions of the Parliament of Finland, or if Article 18 aims to establish a right to make an initiative. The Committee notes that section 37 of the Working Order of the Parliament of Finland does not include an absolute right to be heard, as suggested by paragraph 2 of Article 18. Thus, a change in the Working Order would be required. Other parts of Article 18, according to the Committee, are in line with the Constitution and other legislation, as well as with Finland’s international obligations.56 A change in the Working Order might be necessary, but need not be impossible to achieve. The representation of the Saami people in the national Parliament would enable the people in question to get their message across to Parliamentary decision-makers. In this respect, the Lund Recommendations on the Effective Participation of National Minorities in Public Life advise that ‘states should ensure that opportunities exist for minorities to have an effective voice at the level of the central government, including through special arrangements as necessary’.57 Such opportunities are context dependent and may, for instance, include ‘special representation of national minorities, for example, through a reserved number of seats in one or both chambers of Parliament or in Parliamentary committees; and other forms of guaranteed participation in the legislative process’.58 Article 19 of the draft Convention focuses on the international participation of the Saami people. It states that Saami parliaments shall represent 56

Above n 21, 41. The Lund Recommendations on the Effective Participation of National Minorities in Public Life and Explanatory Note (September 1999) 6, 8. 58 Ibid. 57

Right of a People to Control Issues of Importance 143 the Saami in intergovernmental matters. Furthermore, States shall promote Saami representation in international institutions and Saami participation in international meetings. The Finnish Committee states that section 93 of the Finnish Constitution requires foreign policy to be led by the President together with the State Government, and that paragraph 1 of Article 19 of the draft contradicts the Constitution since the latter defines the responsible actors inclusively. Thus, Article 19 would, according to the Committee, establish a new international obligation.59 The Finnish Constitution makes it possible for Saami people to have representatives in national delegations and in international meetings regarding the matters concerning them. It is unclear whether the Saami could have a representative in working groups that prepare international documents, and whether they would have the right to make statements regarding international agreements. There are existing cases, in countries such as Canada, where some indigenous groups may participate in making international agreements. The Tlicho Land Claims and Self-Government Agreement in Canada provides that prior to consenting to be bound by an international treaty that may affect a right of the Tlicho First Nation or a Tlicho Citizen, flowing from the Agreement, the Government of Canada shall provide an opportunity for the Tlicho Government to make its views known with respect to the international treaty either separately or through a forum.60

Similarly, the Nunavut Land Claims Agreement prescribes that the Government of Canada shall include Inuit representation in discussions leading to the formulation of [a] government position in relation to an international agreement relating to Inuit wildlife harvesting rights in the Nunavut Settlement Area, which discussions shall extend beyond those discussions generally available to non-governmental organizations.61

According to the legal expert group on the draft Convention, Article 19 has been formulated in a manner that treats the international representation of the Saami parliaments as an external part of self-determination.62 The group refers to UNESCO’s Conference of Experts which also regards peoples’ participatory rights, in decisions at the international level, as an

59

Above n 21, 42. Land Claims and Self-Government Agreement among The Tlicho and the Government of the Northwest Territories and the Government of Canada, para 7.13.2. Available at . 61 Nunavut Land Claims Agreement (Agreement between the Inuit of the Nunavut Settlement Area and Her Majesty the Queen in the Right of Canada), Iqaluit, 25 May 1993, Pt 9, 54–55 (5.9.2). Available at . 62 Åhren et al, above n 1, 82. 60

144 Leena Heinämäki important dimension of the external part of the right to self-determination.63 Legal experts also refer to section 6 of the Finnish Act on the Saami parliament as an example of such an ‘external dimension’.64 It is, indeed, surprising that the Finnish Committee regards Article 19 as radical in setting a new international obligation. The wording of the article does not appear to accord an absolute right for the Saami parliament to participate in all international institutions and meetings. It only notes that ‘states shall promote Saami representation in international institutions and Saami participation in international meetings’. Therefore, it should not be interpreted in a manner that is much different from the present Finnish Act on the Saami parliament, which notes that the ‘Saami Parliament represents Saami people in the matters that concern it, in national and international connections’. However, Article 19 could be less ambiguous in stating that the Saami parliament may represent Saami in international institutions and meetings, ‘in the matters that concern the Saami people’. Neither ILO Convention No 169 nor the UN Declaration on the Rights of Indigenous Peoples directly recognises the representation of indigenous peoples in international meetings. Both of them, however, do recognise the right to participate through indigenous peoples’ own representative institutions. As mentioned in the earlier context, ILO Convention No 169 states that governments shall ‘consult the peoples concerned, through appropriate procedures and in particular through their representative institutions, whenever consideration is being given to legislative or administrative measures which may affect them directly’(emphasis added).65 States shall establish means by which Indigenous peoples can freely participate, to at least the same extent as other sectors of the population, at all levels of decision-making in elective institutions and administrative and other bodies responsible for policies and programmes which concern them.66

This might also be applicable in international institutions and meetings, in so far as the issues at stake directly affect indigenous peoples. The UN Declaration goes further than the ILO Convention by stating that indigenous peoples have the right to participate in decision-making in matters which would affect their rights, through representatives chosen by themselves in accordance with their own procedures, as well as to maintain and develop their own indigenous decision-making institutions.67

63 Report of the International Conference of Experts on the Implementation of the Right to Self-determination as a Contribution to Conflict Prevention (21–27 November 1998) UNESCO (Division of Human Rights), 29. 64 Åhren et al, above n 1, 82. 65 ILO Convention (No 169), above n 29, Art 6a. 66 Ibid, Art 6b. 67 UN Declaration, above n 9, Art 18.

Right of a People to Control Issues of Importance 145 Additionally, as noted earlier, States shall consult and cooperate, in good faith, with the indigenous peoples concerned through their own representative institutions in order to obtain their free, prior and informed consent before adopting and implementing legislative or administrative measures that may affect them.68

These provisions may also be applicable in an international context. They do not guarantee any explicit right to participate in all international decision-making, but they certainly support the argument that the Saami parliaments of the Nordic States should be represented in international meetings, when the issues are of major importance to the Saami as a people. Although Article 19 of the draft Convention does not limit the participation of the Saami parliaments to issues that are relevant to Saami people, on the other hand, it cannot be expected that Saami parliaments would be interested in being represented in international institutions or at meetings that deal with issues irrelevant to them.

V. CONCLUSIONS

It would be inaccurate to claim that the provisions of the draft Convention relating to the self-determination powers of Saami people will not face challenges in Finland. However, as argued in this chapter, the situation is not as problematic as the Finnish Committee suggests. As discussed, the Finnish Committee believes that the provisions of the draft Convention relating to Saami people’s right of self-determination powers go beyond the right to self-determination articulated under the UN Declaration on the Rights of Indigenous Peoples, and thus exceed the international commitments of the Finnish Government. My examination of the relevant provisions of these two instruments makes it evident that they reflect the uneasy compromise between States and indigenous peoples. In effect, both instruments state the following: ‘We, the world’s governments, guarantee indigenous peoples the right to self-determination, but do not really mean it, at least in the fullest sense.’ Although such a statement may appear provocative, it is difficult to conclude otherwise in light of the texts and the comments of States who have accepted them. It may therefore be more realistic and honest to speak of the right to selfgovernment and effective participation in relation to indigenous peoples rather than the right to a falsely promised self-determination. This is the approach taken in the Lund Recommendation on the Effective Participation of National Minorities. However, indigenous peoples have obtained international recognition of their rights and status that goes beyond that accorded 68

Ibid, Art 19 (emphasis added).

146 Leena Heinämäki to minorities. This recognition is due to their persistence in protecting their rights without compromising the language of self-determination, and by drawing on the simple moral claim that indigenous peoples’ self-determination must be recognised by the world community as they are peoples equal to all other peoples of the world. Both the UN Declaration and the draft Convention illustrate that the governments of the world may no longer override the voice of indigenous peoples. The UN Declaration represented the first time that indigenous peoples had participated in the drafting of an international text on an equal footing with governments. In the draft Convention, the role of the Saami parliaments is unique and historically remarkable in the development of an international treaty. This shows that the status of indigenous peoples is shifting, slowly but surely, from objects to subjects. The draft Convention, when accepted by the Nordic countries, celebrates equal partnership, and indicates a true step toward equality and justice. Despite the fact that some of the articles may require legislative changes from the three Nordic States, Nordic governments, including that of Finland, should show their commitment to proceed with the draft Convention. In the author’s opinion, the Finnish Committee’s conclusions as to the negotiation powers of the Saami parliament are disproportionate and unrealistic; while the Committee’s opinion that the requirement to obtain the consent of the Saami parliament in cases where the extraction of natural resources would make it impossible or substantially more difficult for the Saami to continue to utilise the areas concerned for reindeer herding, would require extensive changes in national legislation, and might even be discriminatory to the rest of the population according to the Constitution, can hardly be correct in light of the existing jurisprudence. The UN Declaration on the Rights of Indigenous Peoples already requires the consent of indigenous peoples in cases of ‘significant harm’, and the UN Human Rights Committee’s recent legal practice concerning Article 27 ICCPR proves that Finland’s present level of international commitments already guarantees the free, prior and informed consent of Saami peoples in cases of ‘significant harm’ to their livelihood. Furthermore, the Human Rights Committee has already expressed its view as to the interpretation of ‘significant harm’. Similarly, Article 16 of the draft Convention, concerning the obligation to negotiate with the Saami parliament, is not necessarily as problematic as the Finnish Committee believes it to be. The obligation to negotiate with the Saami parliament is already regulated in section 9 of the Finnish Act on the Saami parliament, and while it does not include the right to consent, it does require negotiations in good faith with the objective of achieving agreement. Taking into account recent developments in international law— the UN Declaration as well as the recent jurisprudence of the UN Human Rights Committee—it appears that this must mean consent in cases of absolute importance. This may be regarded as a very important development,

Right of a People to Control Issues of Importance 147 establishing the right of the Saami people to have control over the issues that are important to them. It is also appropriate that Article 16 extends the negotiation requirement beyond matters taking place in the Saami home region, since increasingly significant issues are taking place outside the home region as a result of globalisation and global environmental changes. Article 19 of the draft Declaration, guaranteeing the Saami participation in an international context, is also important. It does not give the Saami parliament an absolute right to participate in all international bodies or meetings, but it does encourage Nordic governments to take Saami parliaments into account and allows for representation in matters that Saami parliaments regard as important. Some of the articles considered here may require some clarification and fine-tuning, and it is possible that some legislative changes will be required. But that is normal; some legislative changes will also be necessary before Finland ratifies ILO Convention No 169 to which the Finnish Committee repeatedly referred as providing important guidance. Over the past years, several Finnish governments have committed to ratify this Convention, and further delays become increasingly difficult. This chapter has argued that the only real hindrance in proceeding with the draft Convention is too much hesitation, an extremely cautious reading of some articles and the lack of a political will. Finland, together with other Nordic countries, has an historic opportunity to realise this unique agreement and set a global precedent on how to treat indigenous peoples as a truly equal partner—not only in rhetoric, but also in reality.

6 Cross-border Reindeer Husbandry: Between Ancient Usage Rights and State Sovereignty ELSE GRETE BRODERSTAD

I. INTRODUCTION

C

ROSS-BORDER REINDEER HUSBANDRY has been an issue in negotiations between Norway and Sweden for more than a century. Successive treaties and conventions have dealt with the issue. After many years the current round of negotiations concluded in 2009, and in October of that same year the resulting Convention was signed by the Minister for Norwegian Agriculture and Food and the Swedish Minister for Agriculture. But after hearings, and, on the Norwegian side, consultations with the Sameting (the Norwegian Saami parliament) and the Saami Reindeer Herders’ Association of Norway (NRL), this Convention has yet to be ratified. This chapter focuses on these negotiations, and the questions of national sovereignty and recognition of legal rights which provide the framework for the negotiations. My primary focus is on the 2003–05 period, but I shall also consider historical conditions and the events that led to the final negotiations in 2009. During 2005, the media reported on the difficult negotiations between Norway and Sweden of the previous two years. Conflict in the grazing areas was clearly a problem. Once the Joint Norwegian–Swedish Commission for a new Reindeer Grazing Convention of 1997 (RGC) had published its proposal in May 2001, it was clear that a great deal remained to be resolved before Norway and Sweden could reach an agreement. The 1972 Convention, which was still in force and regulated cross-border reindeer grazing, was extended until 30 April 2005,1 without the parties being able

1 Ot. proposition No 75 (2004–2005) on amendments to the Act of 9 June 1972 No 31 on reindeer grazing in accordance with the Convention of 9 February 1972 between Norway and Sweden.

150 Else Grete Broderstad to establish a common platform or reach an agreement before the deadline expired. The negotiations were reconvened in December 2005, and concluded in February 2009 with a draft Convention after the two countries agreed on a common mandate for further negotiations. Why did it take so long for this to happen? As Norway celebrated its centenary as an independent State in 2005, the issue once again caused international conflict, as it had during the Karlstad negotiations of 1905.2 Those negotiations confirmed the validity of the Lapp Codicil, an appendix to the 1751 Strömstad border treaty between Denmark/Norway and Sweden/Finland.3 The Lapp Codicil provided that national borders should not impinge upon the established rights of the Saami4 beyond what was strictly necessary to protect national sovereignty. The Saami should be allowed to carry out seasonal movements and traverse national boundaries to reach grazing areas. This right of movement has an international law character since it was authorised in a treaty between States.5 The relevance of the Lapp Codicil as an international instrument has been a recurrent theme in negotiations between Norway and Sweden since the mid-1800s, and up to and including the current negotiations for the new reindeer-grazing Convention. The period between the mid-1800s and the 1972 Convention is also characterised by Norwegian resistance to the Codicil. How and why is that the case? The continued difference of view shows that cross-border reindeer husbandry and management are of interest in both historic and current terms. The problem is complex and involves such varied issues as habitual/ traditional use, historical interpretation, and State regulation of Saami rights and public policy, on both sides of the national boundary. Reindeer husbandry has its own unique rights established through traditional, ancestral and ancient use, respectively in both Norway and Sweden. The Norwegian Supreme Court has affirmed the independent legal nature of the

2 Negotiations in September 1905 between Norway and Sweden on the dissolution of the union led to agreement on (i) resolving disputes by arbitration, (ii) a neutral zone and the closure of fortresses, (iii) the Saami rights to cross-border grazing, (iv) transit traffic, and (v) shared lakes and rivers (Store Norske Leksikon). 3 Treaty for the Definition of Boundaries between Denmark and Sweden, Strömstad, 21 September 1751, Parry’s Consolidated Treaty Series, vol 39, 213. For an English translation of this important document, see on the website of the Arctic Centre at . 4 Although the term ‘Saami’ is a generic term for the Saami population as a whole, the term in this chapter relates to Saami concerned with cross-border reindeer management, both in the discussion of the historical conditions and as a collective term in the on-going political processes. 5 LI Hansen and B Olsen, Samenes historie fram til 1750 (Oslo, Cappelen Akademisk Forlag, 2004) 283.

Cross-border Reindeer Husbandry 151 reindeer-herding right and usufruct based on ancient usage,6 while reindeer law in Sweden is founded on traditional use.7 Taking this as a starting point this chapter asks: How can we explain why it has been so difficult to reach agreement on cross-border reindeer management? There are clearly conflicting interests, but the problems are not of recent origin and demand consideration of the background to the conflict. State sovereignty also has its role to play. Thus, the chapter draws an historical thread connecting the Lapp Codicil, through the developments of 1905 and on to the 1972 Convention. How have these documents been interpreted? While the Saami were recognised as rights-holders in the Lapp Codicil, the 1905 Convention weakened this recognition, and the subsequent Conventions led to further restrictions of Swedish grazing areas in Norway, thus disregarding the Saami as right-holders. How should we weigh the recognition of historical rights based on ancestral and ancient land use against the purely political interests in resolving the conflict? In their 2001 proposal for a new reindeer-grazing convention, the RGC made these concerns topical, but the RGC also proposed cross-border management and dispute mechanisms. Does the current conflict teach us anything about the relationship between fights over interests versus conflicting norms? This discussion draws on historical and juridical research on the Lapp Codicil and public documents relating to the Convention negotiations. Section II., adopting both interest-based and normative approaches, provides a theoretical framework. A political interest model helps illuminate the parties’ behaviour and the appropriate solutions within the negotiating framework. On the other hand, the normative approach stresses legal norms and procedures for political dialogue and legal regulation. As outlined in section III., the RGC’s proposal for new cross-border management and dispute mechanisms, is founded on the recognition of the Lapp Codicil, allowing us to discuss the negotiations in the light of a normative-driven political understanding. How significant is it that perceptions of the historical legal interpretation of the Lapp Codicil have changed over time? It may be assumed, as indicated in section IV., that the lack of clarity regarding the legal conditions forms a significant part of the causes of these problems due to conflicting civil legal concerns between Swedish and Norwegian reindeerherding Saami. At the same time, sovereignty and territorial issues also play their part. Tension between the considerations of sovereignty, legality and interests requires that we focus on procedures and institutional frameworks to consider how conflicting norms and interests are to be balanced. This is the subject of section V. The fact that there have not been any mechanisms 6

Brekken-case (Rt 1968, s 394), Altevann-case (Rt 1968, s 429), Selbu-case (Rt 2001, s 769). The Swedish basis of acquisition by way of ‘ancient usage’ is similar to ‘traditional usage’. Both cases deal with rights formation, based on traditional and long-term use. 7

152 Else Grete Broderstad other than the negotiation arrangements illuminates a general problem discussed in the last section, namely, the failure to institutionalise human rights.8 The chapter aims to illuminate the lack of recognition of reindeer husbandry as a legal cross-border cooperative.

II. NORM-DRIVEN VERSUS INTEREST POLITICS

For analytical purposes, the response of the States to cross-border reindeer husbandry may be conceived as being based on ‘interest-considerations’ or ‘rights-considerations’. The first is the interest politics model, where inter-State negotiation is characterised by a strategic mode of negotiation expressed through common negotiations between States, and where these States are regarded as the rights-holders and sovereignty concerns are paramount. In the second, policy is norm-driven, with a corresponding interpretation-orientated approach to negotiation. Deliberative procedures are presented as a mechanism to explain public policy,9 and legal procedure compensates for fallibility and uncertainty over decision making.10 Actors are rationally communicative to the degree that they maintain their goals in those areas where this will receive a qualified acceptance in others.11 But institutional structures are often required to ensure legitimate deliberation and decision-making processes. Are the negotiation arrangements able to assist the parties in achieving mutual understanding in cross-border reindeer husbandry? Whilst the model for norm-driven policy discusses arguments distinct from the negotiation situation, an empirical analysis of the problem’s complexity will be undertaken in light of the interest politics model and negotiation approach.

A. Norm Collision and the Application Discourse The interpretation-orientated negotiating concept in a model for normdriven policy presupposes that justifications for public policy are made by reference to an understanding of what is good for an actual community 8 Cf EO Eriksen, Why a Charter of Fundamental Human Rights in the EU? (Oxford, Blackwell Publishing, Ratio Juris, Vol 16 No 3 September 2003) 352–73. 9 Deliberative politics refers to the role that mutual considerations play in achieving common opinion and making collective decisions. The focus is on the procedural aspects of policy deliberations, and the forms of community and unity to establish stable a form of government: EO Eriksen and J Weigård, Kommunikativ handling og deliberativt demokrati. Jürgen Habermas’ teori om politikk og samfunn (Bergen, Fagboklaget, 1999) 153. Deliberative politics depends on an understanding of the institutionalisation of procedures in which the formation of political opinion is at the centre. 10 J Habermas, Between Facts and Norms. Contributions to a Discourse Theory of Law and Democracy (Cambridge, Mass, The MIT Press, 1996) 234. 11 Cf Eriksen and Weigård, above n 9, 68.

Cross-border Reindeer Husbandry 153 and what is normatively relevant for the circle of both parties. First of all, policy may be legitimated by reference to the group’s self-understanding of what it represents. Citizens of a Nation State make a legal community localised in time and space. The integrity of the members is protected by their status as rights-holders.12 As members of a citizens’ legal community, we are protected as individuals in the Nation State and also as members of diverse communities within that Nation State. However, cross-border reindeer husbandry raises questions, which cannot be resolved by reference to rights, and duties that are part and parcel of national citizenship. A legal community, understood as a community that transcends national borders as opposed to national citizenship, requires that rights apply not only to the citizens of a Nation State, but also to the ‘foreign’ Saami use of an area, based on traditional and ancient usage. To what degree have such rights been protected against national pressures, and what might be considered to be reasonable interferences with such rights? What is right and fair with regard to the development of land and water, which affects people other than a nation’s own citizens? Policy is legitimised through principles, which may be accepted as fair for all parties, independent of special interests, attaining a good life and cultural identity. Such moral norms require a discourse on justification, demanding that all interests are taken into account and judged impartially.13 But are equal rights and respect for every citizen based on one’s individual status as a legal persona, or rather, are they based on that person’s membership status within a particular political community? Might someone other than the State’s own citizens be regarded as a concerned party?14 The problem of cross-border reindeer husbandry illustrates the problem of norm collision and the difficulty of balancing values. In a norm-driven policy model, policy is legitimised by the notion of what is good for a particular community, but also by what is normatively valid for the circle of affected parties. These concerned parties are identified by reference to historical recognition, but we must also question the importance, as well as the currency and consistency, of this recognition. Arguments based on contextual values with reference to Saami communities, as well as communities of citizenship and universal rights-based norms, require us to ask which norms are relevant and appropriate in each particular situation. But we must also recognise that justified norms may be on a collision course. How should we resolve this? Here, deliberation as a mechanism for coordinating action may help clarify justified norms and their implementation. Using

12 J Habermas, ’Om den interne forbindelsen mellom rettsstat og demokrati’ in EO Eriksen (ed), Den politiske orden (Oslo, Tano, 1994) 192. 13 Eriksen and Weigård, above n 9, 187. 14 Cf JL Cohen, ‘Changing Paradigms of Citizenship and the Exclusivenss of the Demos’ (1999) 14 International Sociology 245.

154 Else Grete Broderstad an application discourse,15 one might ask which norms are relevant and appropriate in the particular situation. One takes into account the empirical facts, the available information, current power relationships, the values at stake and the balance of non-generalised interests.16 One is also concerned with the consequences, and how the implementation of the justified norms works. The application discourse notion ‘throws light on the structure of legal arguments’, so that an understanding of the legal community and the institutional framework needed for the argument about what norms are appropriate to a given subject matter can unfold freely.17 Examination of the institutional framework for the cross-border reindeer husbandry discourse shows that it lacks the framework and procedures required to resolve the problem of justified limits that are on a collision course.

B. Questions of Sovereignty and Negotiations Ever since the Peace of Westphalia (1648), national sovereignty has been the foundation for international politics. The sovereign status of Nation States demands that they are autonomous and are able to choose whether they will enter into an agreement that may restrict their freedom of action. In a given territory only one State has sovereignty, and the State may submit to, or choose to disregard, its obligations under international law without affecting its formal sovereignty.18 States are the primary subjects of international law, and create most of the law through international negotiations, treaties and real practice. Nevertheless, States should be understood as limited rational actors without a complete overview of all information and alternatives.19 In the interest policy model, relations between States are taken up through diplomacy and intergovernmental negotiations at the executive government level by authorities responsible for national and sector-based interests. The actors in the negotiations have a strategic mode of action and make decisions taking into account the ability of other actors to make rational choices.20 As a form of decision, strategic negotiations may be discussed using the concept of ‘bargaining’ as a means of engaging in negotiations in which the goal is to coerce or persuade opponents into accepting the other side’s

15 K Günther, ‘A Normative Conception of Coherence for a Discursive Theory of Legal Justification’ (1989) 2 Ratio Juris 155. 16 Eriksen and Weigård, above n 9, 187–88. 17 Ibid; Habermas, above n 10, 234. 18 Cf O Wæver, Introduktion til Studiet af International Politikk (København, Forlaget Politiske Studier, Institut for Statskundskab, 1992) 54. 19 AS Herbert, Administrative Behavior (New York, Free Press 1945, 1997). 20 EO Eriksen, ‘Den politiske diskurs—fra konsensus til modus vivendi?’ in Eriksen (ed), above n 12, 99.

Cross-border Reindeer Husbandry 155 demands by employing threats and promises, not through the strength of a good argument.21 The result of this ‘bargaining’ depends upon the credibility of these threats and promises. A threat is credible if it is possible to believe that the threat-maker is serious.22 In a situation where an agreement requires decisions from both parties, the party that refuses to accept a proposed agreement has a strong base of power. A threat to withdraw from negotiations becomes credible if it can be shown that the party will be in a better position without an agreement than with the agreement, something that may be described as an objective external factor.23 Negotiations may collapse or an agreement be broken or terminated if one party sees that it will be better off without the agreement.24 A standoff might also arise, in which it is beneficial for one State to resist until the opponent gives in. It is useful to think of the interest policy model as a zero-sum game, where the best possible result for each party is where one loses the pastures at the expense of the other. An optimal result for Norwegian reindeer Saami would be a reduction of the grazing areas available to Swedish reindeer herders, and the best solution for Swedish reindeer Saami would be the opposite. From this perspective the reindeer-grazing areas are the subject of ‘distributive bargaining’,25 rather than ‘integrative bargaining’ in which the negotiations lead to mutually beneficial solutions, or at least a solution in which victory by one party does not bring with it a corresponding sacrifice from the other party.26 Negotiators must reach a result that may be accepted both by the other State and also by key groups in their own country. These domestic groups may be decisive in determining whether negotiations will be launched, broken off or ultimately successful.27 The organisations of the reindeer-herding industry are important players in reindeer-grazing convention negotiations, and relations between the State and its ‘own’ interest groups will be critical.

21 J Elster, ‘Arguing and Bargaining in the Federal Convention and the Assemblee Constituante’ in R Malnes and A Underdal, Rationality and Institutions (ed) (Oslo, Universitetsforlaget, 1992) 15. 22 J Elster, Explaining Social Behavior, More Nuts and Bolts for the Social Sciences (New York, Cambridge University Press, 2007) 419. 23 Ibid, 420. 24 Eriksen, above n 20, 100. 25 The term refers to the activity of sharing limited resources, resulting in a situation where one party wins at the expense of the other. This is a process in which every party aims to maximise its own investments. Integrative bargaining is a process in which the parties try to increase the size of the joint gain without regard to the size of their merit. RE Walton and RB McKersie, A Behavioral Theory of Labor Negotiations. An Analysis of a Social Interaction System (New York, McGraw-Hill Book Company, 1965) 11, 13. 26 See ibid, 4, 5. 27 RD Putnam, ‘Diplomacy and Domestic Politics: The Logic of Two-level Games’ (1988) 42 International Organizations 427; B Hekland, Kampen om Kaspiahavet 1991–2004 (Tromsø, Hovudfagsoppgåve i statsvitenskap, Universitetet i Tromsø, 2005) 15.

156 Else Grete Broderstad In the interest model, negotiations are based on resources and goal-agent rationality, rather than on arguments. Each party seeks to secure the largest possible slice of the cake for itself. However, one problem is that solutions based on self-interest are essentially unstable. Breakdowns may occur because, in practice, dissatisfaction or suspicions are easily nurtured in a situation where one party believes that the other does not contribute as much as it itself does. Is it possible to explain the breakdown in negotiations in 2005 on the grounds that the result did not satisfy the interests of the respective national State-based groups? Before this and other questions about interest-based negotiations are examined, I shall discuss arguments for the recognition of the rights of those engaged in cross-border reindeer husbandry.

III. IS THE HISTORICAL RECOGNITION OF RIGHTS RELEVANT TODAY?

A. Historical Recognition The aim of the Lapp Codicil was to respect Saamis’ customary movements and to avoid future disputes and misconceptions.28 ‘The Lappish nation should maintain,’ and the investigations produced during the State border negotiations state that ‘... [t]his Transition from the contents of the one Realm to the other is quite necessary to the Conservation of the Lappish Nation’.29 According to the legal analysis of that time, all peoples had certain natural and inalienable rights.30 Boundary Commissioner Schnitler, who conducted a series of interviews between 1742 and 1745, as a basis for the boundary negotiations, said: ‘The Lappish Nation has since ancient times been a free people, that is until their Neighbours, the Norwegian, Swedish and Novgorod Russians have forced them to become Taxable.’31 There is good reason to emphasise the Codicil’s normative aspect since, without it, it is difficult to explain why the States chose (without any Saami participation in the process) to assume the ‘encumbrance’ that the Codicil represented. The Border Treaty affected the Saami in a large continuous area from Femunden/Jämtland all the way to the Barents Sea. Areas on both sides of Kjølen were common interest areas for all States and were almost exclusively inhabited by Saami. As a result of the boundary, Saami on both the Swedish and Norwegian sides risked losing time-honoured historic grazing

28 29 30 31

‘

NOU 1984: 18 Om samenes rettsstilling 169. Hansen and Olsen, above n 5, 278. Ibid. Ibid, 279.

Cross-border Reindeer Husbandry 157 rights in the countries where they were not regarded as citizens. Article 10 of the Codicil32 permitted cross-border grazing in order to meet the needs of the Saami where such movements accorded with ancient custom. The Codicil also established rules for determining the citizenship of individual Saami.33 Thus, in southern areas, where Saami had summer taxable lands34 on both sides of the border, the Saami had to make an election. A person with winter-tax lands in one country ‘belonged’ to that country. From Salten and north to the edge of Kautokeino, a person could choose citizenship if he had summer-taxable lands on the Norwegian side and wintertaxable land on the Swedish side.35 The Codicil also established firm rules on the citizenship of spouses based upon the location of taxable land and the number of reindeer owned by each spouse.36 The regulation of citizenship, linked to possession of the taxable land, bears witness to the fact that possession of taxable land was understood as an individual and collective right in which the Saami, as individuals in a legal community, were assured certain rights. The Codicil contains a comprehensive set of regulations, which in practice afforded the Saami a measure of autonomy,37 and the operating rules of the Codicil generally followed Saami customary law.38 An expert working group for the Saami Rights Commission points out ‘that the Codicil did not deprive [Saami] of rights, or restrict the exercise of them beyond what was strictly necessary as a result of border definition between Norway, Sweden and Finland.’39

32 ‘Saasom Lapperne behøve begge Rigers Land, skal det efter gammel Sædvane være dennem tilladt, Høst og Vaar, at flytte med deres Rehn-Hiorder over Grendsen ind i det andet Rige.’ [’Should the Lapps require the land of both realms, they shall in accordance with ancient custom be allowed, autumn and spring, to move with their reindeer herds across the border and into the other realm.’] ‘Og herefter som tilforn, lige med Landets Undersaatter, undtagen paa saadanne Steder, som her neden meldes, at betiene sig af Land og Strand til Underholdning for deres Dyr og sig selv, da de venligen skal imodtages, beskyttes og hielpes til Rette …’ [‘And hereafter, consistent with citizens of the country, and with the exception of certain sites, as here below reported, make use of land and beach, as sustenance for their animals and themselves, as they shall be accepted, protected and aided …’] 33 NOU 1997: 5 Urfolks landrettigheter etter folkerett og utenlandsk rett, 5. 34 For a detailed account of taxable country institution, see Hansen and Olsen, above n 5, 284–97, 298–305. 35 Above n 28, 170. 36 If a man had a wife from another country and she had her own taxable lands or more reindeer than he, he could without hindrance or charge be a citizen in her country. But if that man had more reindeer than his wife, then the wife should join the husband. See ibid. 37 C Smith, ‘The Development of Sami Rights since 1980’ in T Brantenberg, J Hansen and H Minde (eds), Becoming Visible (Tromsø, Centre for Sami Studies, University of Tromsø, 1995). 38 Above, n 28, 168, 169. Each ‘district’ that moved across the border had to appoint a patch sheriff and two jurors who were, in practice, Saami, and rules were established for the Saami justice system called ‘Lappe-Ret’ (Lapp-Law). 39 Above n 33, 5.

158 Else Grete Broderstad The expert working group concluded that the Lapp Codicil was based upon the same basic legal principle that many other countries adhered to at that time, namely, that the acquisition of sovereignty over an area did not abolish private, individual or collective rights that had previously existed, even where such rights were not yet recorded or specified. Consequently, the Codicil may be compared with the ‘Magna Carta’ because it acknowledged prescriptive grazing rights for the Saami people in a country where they were not defined as citizens.40 Thus, ever since the border was drawn in 1751, there have been international legal obligations between the two States, which ensure the rights of Saami from Sweden on Norwegian territory and vice versa. Thus, the ‘foreign Saami’ are affected parties and rights-holders, even if they are no longer citizens of the other State.

B. The Current Relevance of the Principles of the Codicil The Preamble to the 2009 Convention begins by recognising the Saami right to cross-border reindeer husbandry, based on usage through the ages, taking into account the recognition of the historical rights of the Lapp Codicil and Protocol 3 of Sweden’s accession to the EU. All three Saami parliaments have, on various occasions, also pointed to the relevance of the Lapp Codicil and its recognition of the Saami as a cross-border people. The Codicil is also referred to as a central framework in the commentary to Article 43 of the 2005 draft Nordic Saami Convention. The RGC argues that the implementation of a bilateral convention can best be addressed by intergovernmental agencies with clear decision-making authority.41 Rights considerations may be used to justify the proposals for establishing new intergovernmental bodies for the management and settlement of disputes. Article 5 of the Convention creates two permanent organs common to both countries: a management agency—the Norwegian–Swedish Reindeer Grazing Committee—and a review body—the Norwegian–Swedish Review Committee—for cross-border reindeer husbandry. The starting principle of the Convention is that those engaged in reindeer herding in the other countries should enjoy the same rights and obligations as the country’s own reindeer herders. National boundaries as

40 In Norges nuværende Statsforfatning (1875), TH Aschehoug stated that even though Norway would be entitled to terminate the Lapp Codicil, this would not give Norway the right to close the border for Swedish reindeer husbandry, because before the Codicil was adopted, a customary right to grazing was established, which emerged from the Lapps’ mode of living and the nature of where they resided—‘udsprungen av Lapp Ernes Leveviis og Naturen i de Egne, hvor de oppholde sig.’ (NOU 2007: 13, Bind A og B Den nye sameretten. Utredning fra Samerettsutvalget, 309). 41 Recommendation of the Norwegian–Swedish Reindeer Commission of 1997, at 125 (hereafter referred to as ‘the Recommendation’).

Cross-border Reindeer Husbandry 159 administrative hurdles should be removed, as far as possible.42 A transfer of legal competences from the State to the two committees involves enhanced rights for reindeer herding. The Convention also recognises an enhanced role for those engaged in reindeer husbandry. Thus, Article 7 of the Convention affords Saami villages and grazing districts the right to enter into cooperative agreements on grazing, beyond what appears in the Area Protocols.43 The Reindeer Grazing Committee must approve such agreements. This enhanced role is also contemplated in Article 43 of the draft Nordic Saami Convention, which encourages herding groups on both sides of the border to enter into local agreements. This development is in keeping with a perspective that argues that we should define the State’s proper form, scope and limitations with respect to processes and opportunities in civil society. State competencies and capacities will be reconstructed and restructured, rather than just weakened.44 Sovereignty may be seen as a relational concept, and not simply as selfreferring.45 Legitimate authority is bound with moral and legal terms for the safeguarding of human rights and democratic standards.46 Law and politics are in a complementary relationship with each other; the policy should achieve collective goals, while the law legitimises and authorises the policy.47 Article 8 of the Convention, which states that customary rights to grazing in the other countries shall not be affected by the Convention, should be viewed in this context. The draft Nordic Saami Convention also states that an intergovernmental agreement cannot interfere with a grazing right based on customary rights. Hence, the scope of customary rights will be determined by the courts on the basis of the private law of Norway concerning ancient usage and the laws on traditional usage in Sweden.48 Both the Norwegian and Swedish Saami parliaments support the idea of grazing and review committees: ‘An international organization provides a sound basis for both monitoring of current regulations and also for taking

42 See commentary on the Convention text in the Recommendation, at 137. In accordance with art 3, reindeer herding is conducted in accordance with the rights and obligations arising from national legislation in the country where the reindeer husbandry is exercised, unless stated otherwise in the Convention. 43 The Convention Area Protocol is attached to the Convention and describes the boundaries of Convention areas and limits to grazing land to be established in Norway and Sweden. 44 D Held, ‘Law of States, Law of Peoples: Three Models of Sovereignty’ in Legal Theory (Cambridge, Cambridge University Press, 2002) 8, 14. 45 S Benhabib, The Rights of Others. Aliens, Residents and Citizens (Cambridge, Cambridge University Press, 2004) 21. 46 Held, above n 44, 17. 47 Cf Eriksen and Weigård, above n 9, 192. 48 See Art 43(3) of the draft Nordic Saami Convention.

160 Else Grete Broderstad a position regarding any future need for changes in the Convention.’49 The Saami parliament in Norway supports the approach, in part, because the boards will increase the legal protection of reindeer herders in the two countries, and it notes that the committees are court-like bodies.50 The parliament is concerned that any weakening of the right to cross-border reindeer husbandry will result in a weakening of reindeer herding in general. The interpretation of the Lapp Codicil by the Sami parliaments as an instrument acknowledging Saami rights is in opposition to the earlier understanding of the Nation States. From around 1850 onwards the Codicil was, in fact, treated as a rights instrument for ‘the citizens of a foreign country’. Norwegian authorities wanted to terminate the Lapp Codicil and limit reindeer herders from Sweden, while Swedish authorities took the view that it was not terminable.

IV. CONFLICTING INTERESTS IN GRAZING AREAS

A. National Sovereignty and Trading Skills State legislation and regulations weakened the legal community of reindeerherding Saami across national borders during the late nineteenth and early twentieth centuries.51 The importance of national boundaries was amplified,52 which meant that many reindeer herders lost important seasonal grazing in the ‘other countries’. Following demands from Sweden, the Saami right to continue crossing the border became an issue in the Karlstad negotiations.53 During these negotiations and after 1905, Norway wanted to terminate the Lapp Codicil and limit reindeer herders from the Swedish

49 Hearing given by the Swedish Saami Parliament, 20.12.01—Høringsuttalelse av 20.12.01 til Regeringskansliet, Jordbruksdepartementet: Betänkande avgivet av svensk-norska renbeteskommissionen av år 1997. The RGC justifies the proposals on efficiency grounds, and points out that the 1972 Convention did not promote cooperation across State borders, because it called for the involvement of the two national parliaments for minor changes (see the comments in the Recommendation, at 137). Due to rapid social changes, it is important that there exists ‘an intergovernmental authority that coordinates occurring divergent interests and can take quick decisions, at the initiative of the parties involved or on its own initiative’ (at 125). It is suggested that governments jointly cooperate to expand and restrict the jurisdiction of the committees which thus relieves the State governments (comment to the Convention text, at 147). 50 Cf Norwegian Saami Parliament: Minutes, plenary case 22/10—Møtebok 02/02, sak 18/02: Innstilling fra Norsk-svensk reinbeitekommisjon av 1997. 51 The Lapp Codicil was valid and unchanged until 1883, when the so-called Common Lapp Law superseded the Codicil. The bilateral law restricted Saami rights to cross-border grazing in Norway and Sweden respectively. See KS Bull, ‘Lappekodisillen og 1905’ in O Mestad and D Michalsen (eds), Rett, nasjon, union. Den svensk-norske unionens rettslige historie 1814–1905 (Oslo, Universitetsforlaget, 2005) 426. 52 Border treaties with Finland and Russia were also significant for the Saami people, but these conditions will not be discussed here. 53 Bull, above n 51, 430.

Cross-border Reindeer Husbandry 161 side,54 based on the idea that the State could choose to take concerns of international law into account. However, that argument failed. Norway also sought to move attention away from legal principles and favoured the adoption of ‘appropriate solutions’.55 In particular, it aimed to increase the agricultural population in Troms.56 While Norway had to accept Sweden’s demand that the Lapp Codicil not be terminated, Norway was initially successful in demanding that crossings would not occur prior to 15 June, unless the weather made it necessary. However, a later arbitration in 190957 invalidated that. Norway continued to try to reduce the importance of conventions and customary and habitual use in its subsequent negotiations. One Norwegian complaint was that the Lapp Codicil and Karlstad Convention declared ‘the right of a foreign country’s citizens to the use of Norwegian resources’.58 Later regulations led to further restrictions upon grazing rights. The 1919 Convention was modified in 1949.59 The practical limitations were significant, but the legal relationship was not affected, ‘so that “the highly complicated dispute issues of a legal and historical nature” from 1919 and 1905 remained unresolved between the states even after 1949’.60 During this period, the Norwegian Government generally endeavoured to reinforce its sovereign role and its ability to maintain and secure its own interests. Norway’s decision not to terminate the Codicil during the Karlstad Convention was heavily criticised in Norway in the following years, but this question was not addressed during the 1949 negotiations. This was because it was assumed that nomadic reindeer herding in Sweden would die out within 10 to 15 years, which would mean that the Codicil and Article 1 of the Karlstad Convention would have lost all practical significance by

54 This conclusion that Norway should terminate the Lapp Codicil was promoted by the by Lapp Commission of 1897. The Commission was appointed to consider new laws after the Joint Lapp Law of 1883 had expired. See ibid, 427–30. 55 E Lae, Karlstadkonvensjon til reinbeitekonvensjon, Diedut Nr 4 (Kautokeino, Nordisk Samisk Institutt, 2003). 56 R Berg, Norsk utenrikspolitikks historie, Bd 2. Norge på egen hånd 1905–1920 (Oslo, 1995). 57 Lae, above n 55, above gives a thorough account of the occasion, negotiations and breaches of negotiations, the reasoning and the arbitration case that was divided into two parts. The first part encompassed the method for gathering the necessary information, the second part related to the case itself. The case never reached the second part. 58 Ibid, 90. 59 The Karlstad Convention was superseded in 1919 by a new grazing Convention, which was implemented in 1923. This was updated in 1949 by a new Convention which led to further restrictions of Swedish grazing areas in Norway. From the Norwegian side, it was claimed that the interests of agriculture, cattle raising, sheep farming and partly also Norwegian reindeer husbandry were the reason for this (see above n 28, 195). For the 1949 treaty, see Norway and Sweden, Convention for the amendment of the Convention of 5 February 1919 between the two countries in regard to the access of the nomadic Lapps to reindeer pastures, Oslo, 14 December 1949, UNTS No 2618. 60 Above, n 28, 195.

162 Else Grete Broderstad the end of the period.61 In the new negotiations, which took place at the beginning of the 1960s, the Norwegian side wanted the additional curtailment of grazing areas used by the Swedish side in Norway, and the abolition of the Karlstad Convention. At first Sweden rejected this,62 and instead presented a draft Convention which maintained that the Lapp Codicil was irrevocable, which Norway in turn rejected. The Norwegian side wanted to achieve [the e]asing of the substantive provisions governing Swedish reindeer grazing in Norway. A more important request however was the implementation of a fundamental change that would liberate Norway from the then unlimited access, as described above, to Swedish reindeer grazing in Norway. It was alleged that the right of Swedish Saami to let their reindeer graze in Norway had to be based on the voluntary consent of the Norwegian authorities, and not on an old provision that no longer fit into the relationship between two independent states. The Norwegian view received little sympathy from the Swedish negotiators, however.63

That statement reflected Norway’s need to assert its sovereignty as a new nation. The Lapp Codicil was seen as something of an old inheritance from a time when Norway was under foreign control. A new, mixed Norwegian– Swedish Reindeer Commission was appointed with a mandate of a technical and practical nature. The Commission was not to concern itself with legal issues.64 In 1967, the Commission presented a unanimous report that was considered beneficial for Norway and laid the foundation for new negotiations on the 1972 Convention. The package provided that the Karlstad Convention would be repealed, but not the Lapp Codicil.65 Prior to the establishment of the Norwegian–Swedish Commission, a condition of the Norwegian side was that the process should account for Norwegian interests, ‘partly because it opened access to transfer from Finnmark to the Swedish grazing in Troms for some Saami families who could not find satisfactory resources for their reindeer in Finnmark’.66 In the 1950s and 1960s there was, in fact, a change in use in some summer grazing areas on the Norwegian side. Several areas that had been used by the Swedish Saami stood empty and were adopted by Norwegian Saami reindeer herders, partly because the authorities wanted the Norwegian Saami to move to summer grazing areas in Troms, thereby decreasing pressure on the grazing

61 St prp nr 136 (1962–63), Om samtykke til inngåelse av visse avtaler med Sverige vedrørende Reinbeitespørsmålet, Tilrådning fra Utenriksdepartementet av 31. mai 1963, godkjent ved kongelig resolusjon samme dag, 1, 2. 62 On Norwegian initiative talks were started in 1959 and continued until 1963, without reaching an accord (see above n 28, 196). 63 Above n 61, 2 (emphasis added). 64 Ibid, 5. 65 Above n 28, 196. 66 Above n 61, 3.

Cross-border Reindeer Husbandry 163 in Finnmark.67 Swedish authorities were obliged to accept the immediate occupation of 2,000 reindeer from Finnmark to Troms, although it was at the expense of Swedish grazing Convention areas in Norway.68 At about the same time as this development, which restricted the Swedish reindeer-herding Saami’s use of Norwegian summer ranges, the Supreme Court rendered a decision in 1968, which granted compensation to two Swedish Saami villages—Saarivuoma and Talma—for the substantial loss of grazing land connected with dam-building in Lake Altevann in Troms. 69 The Court stated that Saami right to use the area rested on ancient usage.70 The Norwegian Water and Electricity Authority had reached a compensation agreement for lost grazing, settlements and fishing, but the Ministry of Foreign Affairs, supported by the Ministry of Agriculture, would not approve the proposed agreement. This position was based on the view that the grazing Convention of 1919 did not give rights to Saami in the other country, and that the only entities with rights under the Convention were the States themselves and, thus, the issue of compensation was a matter which concerned only the two Nation States.71 The case first went to the Court of Valuation Appeals (1965) and then to the Supreme Court (1968). The Supreme Court concluded that Saami use of the area was ‘an ancient established custom’ protected by expropriation law as a private legal right that was not created by national legislation.72 The judgment was directly relevant to cross-border reindeer husbandry, and one might expect that it played a significant role in negotiations for the 1972 Convention. Certainly, the Swedish Saami saw this as a useful tool in negotiations with Norway,73 but the Swedish Government was reluctant to address the Lake Altevann verdict in the negotiations since it did not want to ‘offend the

67 Linder (Svenska samers rätt i Norge, En studie av svenska renskötande samers rätt i Altevatnområdet. Examensarbete. 20 poäeng. Umeå universitet. Juridiska institutionen, 2004) refers to a note to the Foreign Minister of 18 February 1963. and to PM (short report) from the Foreign Ministry, 2 September 1970. 68 OK Sara, ‘Norske reindriftsmyndigheters syn på kodisillen og ny reinbeitekonvensjon’ i Lappekodisillen. Den første nordiske samekonvensjon? Diedut nr 3 (Kautokeino, Sámi Instituhtta, 1998) 215. 69 KS Bull, Studier i reindrifsrett (Oslo, Tano Aschehoug, 1997) 42, 43. 70 The first voting judge states that: ‘When it comes to the subject matter, I add, as did the Court of Valuation Appeals, that generation after generation in the district where the villages are located, at least for a century before the border was established in 1751, have had settlements at Altevann with storehouses, corrals, boats and other equipment they needed, and that the Lapps in recent times have used the area for pasture and fishing annually. One must then, as the Court of Valuation Appeals did, determine that from ancient times, the Lapps in this area established a necessary use in the industry.’ The Supreme Court did not dissent in this case; see Linder, above n 67, 16. 71 Cf BA Berg, Den samiske retten til reindrift ved overgangen til et nytt århundre (Prøveforelesning for doctor artium-graden ved Det samfunnsvitenskapelige fakultet, Universitetet i Tromsø, 1999). 72 Linder, above n 67, 15. 73 Ibid, 20.

164 Else Grete Broderstad Norwegians’.74 Instead, the Swedish Government’s handling of cross-border pastoralism until the 1972 Convention followed an established pattern, in which Norwegian demands were accepted in order to avoid dealing with questions of legal entitlement.75 The negotiating delegations assumed that the Convention, once a part of domestic law, would provide a principled and conclusive regulation of reindeer grazing in the other country. National reindeer law, as contemplated by the Convention text, would govern other matters.76 The new grazing Convention of 1972, between Norway and Sweden, reduced the rights of Saami to summer grazing in Norway from 13,760 to 3,940 km2.77 The areas in Nordland were reduced by 67 per cent and by 70 per cent78 in Troms. Norberg, who was the Swedish chair of negotiations in 2003, describes this as a great diplomatic victory [for Norway] and an equally significant defeat for Sweden. In one fell swoop the Norwegians had persuaded the Swedish Government, without any claim for compensation, to give away the bulk of Swedish Saami grazing rights in Norway.79

As to the future of reindeer husbandry across State borders, the Norwegian position was that: Neither the exchange of notes nor the proposal for the mixed commission involves any legal obligation for the parties to let the reindeer grazing across national borders continue after the expiry of the new Convention. Both parties will thus be free to consider the complex issue again when the 30 years period of validity had passed.80

In making this claim, the Norwegian Government seemed to be assuming that no other international legal obligations existed other than reindeergrazing Conventions, that nomadic Saami access to reindeer grazing in the Karlstad Convention would be repealed and that the clause precluding the unilateral termination of the Lapp Codicil would be removed.81 From the Swedish side there were ‘strong indications’ that they continued to

74 NJ Päiviö, ‘Gränsöverskridande renskötsel. Historisk belysning’ I NOU 2007: 14 Samisk naturbruk og rettssituasjon fra Hedmark til Troms. Bakgrunnsmateriale for Samerettsutvalget. 75 Cf L Norberg, Begrav mitt hjärta vid Udtjajaure (Stockholm, Emma Publishing, 2007) 70–71. 76 St prp nr 106 (1971–72) Om samtykke til ratifikasjon av en konvensjon av 9. februar 1972, med tilhørende protokoll og noteveksling, mellom Norge og Sverige om reinbeite, Tilrådning fra Utenriksdepartementet av 10. mars 1972, godkjent ved kongelig resolusjon samme dag, 5 and 24. 77 See n 41, and Agreement on the grazing of reindeer, Oslo, 9 February 1972, 969 UNTS 44. 78 Above n 76, 1. 79 Norberg, above n 75, 85. 80 Above n 76, 8. 81 Ibid, 1.

Cross-border Reindeer Husbandry 165 maintain the position that the States had a mutual international legal obligation to keep the borders open for as long as Saami reindeer herders wished to cross, but there was no desire to accentuate this. The Swedish standpoint was that the Lapp Codicil was no longer a workable regulatory framework and that the 1972 Convention provided the necessary assurance that the interests of Saami reindeer husbandry would be safeguarded, even after 2002 and the expiry of the Convention.82

B. State, Organisations and the Understanding of the Obligation to Consult While the post-war era has seen reduced grazing rights for the Swedish Saami, it has also been a period during which Norwegian reindeer-herding Saami organised themselves, gradually strengthening their influence on Norwegian reindeer policy. The Saami Reindeer Herders’ Association of Norway (NRL) was established in 1948, and since 1976 has negotiated directly with the State. As an interest organisation, the NRL is a part of the institutionalised authority structure. This is typical of the Scandinavian countries, where organised interests in society are associated with decision-making structures in the State, which may be described as societal cooperativism.83 The NRL maintains an important role as spokesperson for reindeer-herding Saami’s civil rights, and thus plays a central role in negotiations on cross-border reindeer husbandry. Even though these are matters to be addressed through inter-governmental negotiations at the executive level, the NRL is included in sector-based interests. Both governmental and non-State actors operate across State borders. While a new grazing Convention was to replace the 1972 Convention in 2002, the decision was made to extend it by three years until 30 April 2005. The RGC suggested specific allocations of border grazing (Convention areas) to grazing districts and Saami villages in the other country, based on operating conditions, grazing and experience with the 1972 Convention.84 The reindeer husbandry interests on the Norwegian side opposed the proposals, claiming that the Norwegian reindeer herders would receive worse framework conditions. In response, the NRL recommended a new basis for final negotiations with Sweden which the Swedish side largely accepted,85 although the Swedish Samerna Riksförbund (SSR) and some Saami villages

82

Above n 28, 197–98. Cf EO Eriksen and H-K Hernes, ‘Korporativisme og demokrati’ in Norsk Statsvitenskapelig Tidsskrift (Oslo, Universitetsforlaget, 1989) 251, 253. 84 Cf Recommendation, above n 41, 105–23. 85 Ot prp nr 75 (2004–2005) Om lov om endringer i lov 9. juni 1972 nr.31 om reinbeiting i henhold til konvensjon av 9. februar 1972 mellom Norge og Sverige om reinbeite, 2–3. 83

166 Else Grete Broderstad objected to some proposed area restrictions.86 It was already clear from an early stage of negotiations that the parties ‘differ in material respects, first of all regarding the extent of the grazing areas. An agreement on the content of a new convention would therefore appear not to be imminent.’87 Against a background of criticism in Norway, the Norwegian negotiating delegation would not accept a settlement of reindeer-grazing areas based on the RGC’s proposal. Negotiations recommenced in December 2005 and were finalised in February 2009. In the industry committee of the Norwegian Parliament meeting to make a recommendation to the Odelsting (Upper Chamber) about the new law for the temporary regulation of Swedish reindeer grazing (see below), the Norwegian reindeer-herding community’s negative attitude was marked.88 The main problem was access to, or reduction in, grazing areas. Just as in the Karlstad negotiations, one of Norway’s goals was to restrict Swedish reindeer grazing, while Sweden’s goal ‘was to secure the Swedish reindeer herding Saami people as much elbow room as possible in Norway’.89 The RGC’s recommendations for resolving the grazing issues were seen as optimal by respective national interests and organisations. In a statement to Parliament,90 the Swedish Government pointed out that it is difficult to predict the function of the Lapp Codicil in practice, and that this, in itself, should support calls ‘for an extension of the 1972 Convention until this can be replaced by a new agreement between the two countries’.91 However, the SSR argued that Saami villages would not be well served by an extension of the 1972 Convention.92 This scepticism is understandable in light of the preparatory comments of the Norwegian Government prior to the adoption of the 1972 Convention (see above). Accepting a prolongation of a Convention that had deprived Swedish reindeer-herding Saami of huge grazing areas might suggest that the Swedes had a less favourable negotiating situation, and might even lead to additional impairments of customary rights. In October 2004, the Swedish Saami parliament promoted the same view and argued that an extension would constitute a risk to

86 Regeringens skrivelse 2004/05:79 ‘Upphörande av 1972 års svensk-norska renbeteskonvention’ av 03.02.2005 til Riksdagen. 87 Ibid. 88 Innst O nr 98 (2004–2005) Innstilling fra næringskomiteen om lov om endringer i lov 9. juni 1972 nr 31. om reinbeiting i henhold til konvensjon av 9. februar 1972 mellom Norge og Sverige om reinbeite. 89 Lae, above n 55, 15. 90 See Swedish Environment and Agriculture Committee Report 2004/05: MJU12 of 15 March 2005. 91 Ibid. 92 In the spring and summer of 2004, the Swedish negotiating delegation mets with all the Saami villages concerned. Everyone wished to invalidate the 1972 Convention. At the SSR congress in Vilhelmina, it was agreed that an extension should be opposed, and a letter was handed over to the Swedish Minister of Agriculture. See Norberg, above n 75, 94–96.

Cross-border Reindeer Husbandry 167 Saami villages from ‘a civil-legal perspective’, because a prolongation might be regarded as an acceptance of the 1972 Convention as current law. The Swedish Government adopted that position in a note to the Norwegian Ministry of Foreign Affairs of 21 January 2005 and declined to extend the 1972 Convention further after its expiration on 1 May 2005,93 preferring to rely instead on the Codicil as a basis for cross-border grazing from that date. The Norwegian Government disagreed and wanted to extend the 1972 Convention for three further years until a new Convention was in place. To clarify the legal situation, the Norwegian Government proposed a new law to Parliament, which would temporarily regulate Swedish reindeer grazing in Norway.94 The bill was passed by the Odelsting on 14 June 2005,95 in the course of which Minister of Agriculture Sponheim argued that ‘it is necessary to make this decision, so that we retain the legal conditions we have had in Norway since 1972, which form the basis for the negotiations that must now start as soon as possible.’96 The spokesman in this case Ryan stated as follows: We have a problem when the Swedish parliament makes a decision in which they state that they will practise a set of rules from 1751, which gives the Swedish reindeer herding Saami more land in Norway, while the Norwegian parliament approves the practise of the 1972 regulations, which then means something else.97

Both the spokesman of the case and the Minister of Agriculture underlined the seriousness of the difference of opinion between the two countries and the need for negotiations to get ‘back on the required track’. The law was adopted after consultations with the Norwegian Saami parliament and the NRL, after which the Ministry concluded as follows: The Ministry of Agriculture and Food has, in accordance with ILO Convention Article 6, carried out consultations with the Saami Parliament and the Norwegian Reindeer Herders’ Association. The NRL is in accord in that the proposal made was the best solution to the current situation. The Saami Parliament recognises the need for a regulation, in addition to the Lapp Codicil, but emphasises that they do not want some new state of the law, which can obstruct future solutions and that may change the situation of international law.98

Two aspects deserve to be highlighted. First, the Norwegian Saami parliament recognised that the law was a unilateral Norwegian regulation of Swedish Saami grazing rights on the Norwegian side of the border. The president of the Norwegian Saami parliament and the chairman of the 93

See above, n 86. Above n 85. 95 Above n 88. 96 Ibid. 97 Odelstinget: Referat fra møte 14.06.05 (Minutes from the Upper Chamber of the Norwegian Parliament). 98 Ibid. 94

168 Else Grete Broderstad Swedish Saami parliament pointed out this one-sidedness in a joint letter to the Norwegian and Swedish Prime Ministers.99 They were concerned that unilateral action is initiated because unilateral action by one party could trigger unilateral action by the other party. This may impair a future climate of negotiation and thus the possibility of a solution.100

The Saami parliament pointed out that it is of fundamental political importance that both ‘the Saami parliaments and those affected by the cross-border reindeer grazing will be able to reach a solution’.101 The letter indicates that the Norwegian Saami parliament was dissatisfied with the consultations. Secondly, one might ask who was consulted, given the Ministry’s attention to the consultation provisions of the ILO Convention No 169 (ILO 169). ILO 169 requires those who are directly affected to be consulted. The 2005 Act, adopted by the Norwegian Parliament, is mainly concerned with Swedish reindeer herding in Norway, and changes in the Act will have a direct impact on those herders. The right to be consulted in accordance with ILO 169 does not require citizenship of the specific State for the impacted indigenous group in question. This means that representatives of Swedish Saami villages with grazing rights in Norway should have been consulted in accordance with ILO 169, Article 6, but were not.102 Given that ILO 169 deals with indigenous peoples, not States, and that States ratifying the Convention are required to take special measures to safeguard the persons, institutions, property, labour, cultures and environment of indigenous peoples, the lack of consultation appears to be even more obvious. A new and temporary Act for regulating Swedish reindeer herding in Norway may be seen as an attempt to achieve a functional solution that forces Swedish reindeer grazing to follow the 1972 regulations. But this conflicts with Norway’s obligations under international law. First, the Act is a breach of the Lapp Codicil, which remains valid in the absence of the new Convention. Both the Norwegian and Swedish Saami parliaments responded, and the Swedish Foreign Minister complained that the Act was ‘not in accordance with Norway’s international legal obligations under the Codicil’.103 Secondly, the decision is a breach of Norway’s duty to consult the Swedish Saami under Article 6 of ILO 169.

99 Letter of 28.04.05 to Prime Minister Kjell Magne Bondevik, Norway, and Prime Minister Goran Persson, Sweden. 100 Ibid. 101 In the aftermath of the letter from the Saami parliaments, the NRL stated that they did not want strong involvement from the Saami parliaments in the new negotiations. (Statement from the former head of NRL, Aslak J Eira to NRK Sámi Radio 02.05.05.) 102 NOU 2007, above n 40, 13: 876. 103 Letter from Foreign Minister Laila Freivald to the Norwegian Foreign Minister on 11.05.05, above n 75, 106.

Cross-border Reindeer Husbandry 169 Unlike the SSR, which worked as a team with the Swedish Saami parliament,104 the NRL pursued its own strategy in light of its many years of experience as a party in ordinary negotiations on reindeer-herding husbandry. It marked out a salient position, defining and interpreting the need and claims of the Norwegian reindeer herders. By contrast, the Saami parliaments became new actors in this old conflict, emphasising international law as a guide for State policy on indigenous peoples, and criticising States for non-compliance with international legal requirements and minimum standards. The Lapp Codicil recognises that ‘the foreign Saami’ have rights on the other land, based on traditional and ancient use. Furthermore the indigenous status of the Saami is justified by the use and possession of areas prior to the formation of the Nation States.105 Therefore, one might have expected that the Norwegian Saami parliament would have pointed out the Norwegian breach of consultation obligations to the Swedish Saami, prior to the Norwegian Parliament’s adopting a temporary law that regulates Swedish reindeer grazing in Norway.106

V. WHY IS THE NEGOTIATION MECHANISM INSUFFICIENT?

This review demonstrates that negotiations leading up to 2005 were characterised by ‘appropriate solutions’ in which the parties, including the Saami, appeared to function as State-based groups. The close institutional relationship between the NRL and the management system is important in order to assure the reindeer herders’ opportunities for initiatives, influence and impact on decision-making. One obvious objective of such an organisation is to protect the interests of its members. At the same time, this close relationship between government and organisations leads to an expanding State with specific interest constellations, goal-means relationships, horizons to understanding, predictable problem definitions and solutions.107 The link between government and private organisations leads to a limited framework for negotiations, which seems to be one of the principal reasons

104 The close relationship between the SSR and the Swedish Saami parliament is confirmed by the leader of the SSR Per Gustav Idivuoma in personal communication 02.06.05. 105 See art 1(1)(b) of the International Labour Organisation Convention (No 169) Concerning Indigenous and Tribal Peoples in Independent Countries (adopted 25 June 1989 and entered into force 5 September 1991) (1989) 28 International Legal Materials 1382, available at . 106 This is a fair assumption given the role of the Saami parliament in providing main premises during the consultations on the Finnmark Act. EG Broderstad and HK Hernes, ‘Gjennombrudd ved konsultasjoner? Finnmarksloven og konsultasjonsordningen i Stortinget’ in H-K Hernes and N Oskal (eds), Finnmarksloven (Oslo, Cappelen Akademisk, 2008). 107 Eriksen and Hernes, above n 83, 262.

170 Else Grete Broderstad why no agreement was reached before the 2005 deadline. This impression is confirmed by the following: In particular, there are two questions where distances were the greatest. One issue is the distribution of grazing areas, and the other is a Swedish desire to include a broader interpretation of the legal situation regarding private legal grazing rights in the Convention. Behind both of these conditions is a perception, on the Swedish side, that the ancient Swedish Saami villages have had a right to reindeer grazing areas in Norway, which have ‘falsely’ been taken from them by the different grazing conventions, most recently by grazing Convention of 1972. The Norwegian side could simply not accept such an interpretation of the legal situation as the Swedish side had proposed. It is for the courts to take a position on which civil rights exist and what consequences the previous grazing Conventions may have had in that regard.108

A narrow framework causes the negotiations to focus on the question of increases and decreases in grazing areas, and on a process of ‘distributive bargaining’ in which one party wins at the expense of the other. The unresolved rights situation makes it difficult to find solutions, and reinforces the instability of the relationship marked by suspicion and possible breakdowns, since negotiated solutions in one round may appear to be unfair and unacceptable in the next round. One of the reasons for establishing new intergovernmental bodies for the management and settlement of disputes is to help resolve the prevailing distrust between administrative authorities in one country and reindeer herders in the other, and to some extent also between the administrative authorities of each country.109 My review of the reactions of key players to the Commission’s Recommendations strengthens the impression of distrust between the Norwegian and Swedish sides. This suggests that the basis of legitimacy between the parties in their interactions was rather thin. This was not improved when Norway adopted a biased law in 2005. Sweden’s handling of the matter does not seem to have contributed to increased confidence either. Norway perceived ‘that Sweden has broken the negotiations by annulling the agreement’.110 From this perspective, Norway acted strategically and rationally. The Swedish reindeer herders claimed rights by referring to the principle of ancient use and customary rights, as recognised in the Lapp Codicil. Saami from the Norwegian side argued in rebuttal that customary rights are acquired by the fact that reindeer-herding rights are, in themselves, collective. If you leave an area, your rights may be assumed by other herders in the

108 109 110

Above n 88. Cf comments to the Convention in the Recommendation, at 137. Reindriftsnytt—Boazodoallo oddasat Nr 1—mars 2005, 39. årgang.

Cross-border Reindeer Husbandry 171 abandoned area.111 Kjell Eliassen, head of the Norwegian delegation, took the following position in the negotiations: On the Norwegian side we think that large grazing areas in Norway that were previously used by Swedish Saami villages, were given voluntarily. ... And our view is—inasmuch as I understand, in line with the prevailing opinion in reindeer herding—that when a reindeer unit withdraws from a grazing area and the area is left unused, then other reindeer herding Saami have the right to take it into use.112

Lars Norberg,113 on the other hand, argues that the 1972 Convention stripped Swedish Saami of most of their grazing grounds on the Norwegian side, without the Saami giving consent and without their receiving compensation for loss of grazing areas. According to Norberg, this is an assault on civil rights in violation of national laws and international human rights norms. While the Swedish side refers to traditional and ancestral usage—in accordance with Article 43 of the draft Nordic Saami Convention, which states that the Saami right to cross-border reindeer grazing rests on customary use—the Norwegian side invokes the collective rights of reindeer herders generally. How should overlapping collective rights claims be treated? Conditions such as continuity in the use of areas, breaks in use, when the use was discontinued and the reason for termination of use, are questions that can hardly be resolved through international negotiations, because questions of possession and loss of rights require legal clarification. Furthermore, the loss of civil and legal rights raises the issue of compensation. Negotiations may help reach compromises in relation to grazing use, but will not serve to clarify the question of the right to graze. To the extent that both interpretations of customary use may claim to be justified, one must ask how such a collision of legal norms should be handled. The discourse requires a procedure in which all relevant aspects of the situation are accorded equal treatment.114 Seen in this light, legal procedures and the Review Committee offer an opportunity to clarify customary rights. The group of concerned parties able to claim justified norms extends beyond the State community, and recognition of rights applies to more than

111 Cf notices in the Saami newspaper Sagat, 14.05.05, on different grazing interests between Saarivuoma Saami village Upper Soppero and Hjerttind/Altevatn grazing in Troms. See also KRD’s news listings: ‘Saami news—May 10th 2005: Fighting back against Swedish Saami’. In a statement from Per Mathias Oskal it says, among other things: ‘The fact is that they have rights in an area, as long as they keep reindeer there. But reindeer law is in itself collective. If one moves to other areas, the rights are transferred to another reindeer owner.’ 112 K Eliassen, ‘De norsk-svenske reinbeiteforhandlinger 2003–2005. Hva består problemene i?’ in E G Broderstad, E Niemi and I Sommerseth (eds), Grenseoverskridende reindrift før og etter 1905, Skriftserie, Senter for samiske studier, nr 14 (Universitetet i Tromsø, 2007), 168. 113 Norberg, above n 75. 114 Eriksen and Weigård, above n 9, 187.

172 Else Grete Broderstad a single domestic group of Saami. Thus, State-to-State negotiations do not offer a suitable mechanism for clarifying rights. How should original rights, that were recognised before State boundaries existed, be secured when set against other rights, which also derive their legitimacy from the same legal norms? How do we determine what the relevant standards are when collisions occur concerning rights and norms and disagreements about the empirical facts? The new Convention’s Grazing and Review Committee and the arrangement of the agreement appears to present new opportunities for institutional solutions on which the parties can agree, and which may potentially be perceived as fair and appear to be stable. The Reindeer Grazing Committee is to make decisions concerning grazing areas, grazing times and maximum numbers of reindeer. The body is also able to make decisions on the movement and permanence of cooperative partners. Central, regional and local authorities in each country have to obtain a ruling from the Committee before a decision is made that might affect cross-border reindeer husbandry. Decisions of the Reindeer Grazing Committee can be re-examined by the Review Committee. This decision-making and re-examination authority implies a transfer of legal competences and a decentralisation of power to those directly affected. This should contribute to the assumption of increased responsibilities and duties for reindeer-herding issues by those who are most concerned. Furthermore, groups with conflicting interests will have to deliberate with each other instead of being ‘beside each other’ in the sense of being a part of governmental delegations in intergovernmental negotiations. The Convention contemplates local agreements between herders, into which some Swedish and Norwegian Saami grazing districts have already entered and with which they have had good experiences.115 The Convention will not affect customary rights to grazing, and any persons who think that they have customary rights beyond the areas set out in the protocol may take legal action. However, it is conceivable that local agreements and the arrangement of cross-border committees may help reduce the need for legal clarifications. This assumption is further enhanced by Article 43 of the draft Nordic Saami Convention on reindeer husbandry across State borders, which contemplates the creation of an arbitration committee. The commentary on the article emphasises that intergovernmental agreements shall not hamper the establishment of local agreements. The role of local Saami units as right-holders is further amplified by Article 21 of the draft, which provides that Nation States shall respect and consult Saami villages, siidas and other local units. According to the commentary on that article, local Saami institutions execute management tasks that must be maintained, and in some cases they are also the rights-holders concerning resource use. 115 Eg, with the Saami villages Tuorpon in Sweden and Storskog/Sjunkfjell grazing on the Norwegian side, see Samefolket No 1/2008.

Cross-border Reindeer Husbandry 173 VI. NEW COOPERATIVE APPROACHES TO RESOLVING CROSS-BORDER GRAZING ISSUES

Over time, the legal principles underlying the Lapp Codicil have been ignored or not fully applied in the treatment of cross-border reindeer husbandry. States wanted more ‘appropriate’ solutions. The rising tension between ‘rights considerations’ based on Saami transnational self-regulation of reindeer herding and ‘interest considerations’ was not present in 1751. These considerations eventually collided as a result of national State interests, the Norwegian settlement of the Inner Troms county and the later development of competition for grazing land. The tensions between ‘rights considerations’ and ‘interest considerations’ were reinforced through new legislation and regulations. The Norwegian side succeeded in keeping issues of customary use and rights issues off the agenda. Norwegian resistance to the Lapp Codicil may be understood as an objection to an on-going Swedish encumbrance over Norwegian territory, which limits Norwegian sovereignty in favour of Sweden. The Saami Rights Commission (1984) notes that: It is not so much the commitment to the Saami reindeer herders that has been undesirable, but that the Swedish state should have a treaty access for an indefinite time to have a say in the exercise of authority over Norwegian territory. It is the sovereignty relationship between states that has been focused on, not the question of a mutual, joint obligation of the states towards the Saami reindeer herders in both countries. It is not simply a given that Norway has rejected a commitment of this nature, based on local traditional international law.116

In 1972, the Norwegian authorities described this as follows: ‘The lack of real reciprocity with respect to the benefits of cross-border reindeer grazing meant however that the Lapp Codicil in particular rested on Norway, as a perpetual servitude.’117 The Swedish Government in turn had not pressed the point, as is illustrated by Sweden’s decision not to use the Altevann judgment during negotiations of the 1972 Convention: ‘The Swedish delegation had no interest in using this decision in the negotiations, nor was this done.’118 Moreover, in the negotiations, which collapsed in 2005, there is clearly a link between governments and interest groups. The suggested negotiating solutions do not serve either of the parties. Interest policy highlights the controversy on grazing access where one party loses at the expense of the other. This factor may explain the lengthy process of putting in place a new Convention text. 116

Above n 28, 199. Above n 76, 2. 118 These arguments might backfire against Sweden and the Saami’s right there: Päiviö, above n 74. 117

174 Else Grete Broderstad But questions of rights have always been a part of the debate, and this gives new relevance to the Lapp Codicil. Demands for rights express conflicting interests, but whether these demands deserve recognition cannot be decided in negotiations based on relative power and resources. The assumption that rights issues have not been a weighty consideration of the States also helps shed light on the controversy. Unless rights are taken into account, temporary solutions will continue to appear unstable. The failure to identify and recognise rights was a salient Saami critique of the 2003 bill on the rights to natural resources in Finnmark prior to the adoption of the Finnmark Act in 2005. The Finnmark Act, as adopted by the Storting, provides for the identification and recognition of land rights. The crossborder reindeer husbandry case illustrates that legal norms can conflict with one another, while these norms may be valid for the relevant community at the same time. Procedures need to be developed in order to deal with this collision, which ensures deliberation on the basis of the complex validity of those norms. This should contribute to a mutual understanding of each other’s situation. Solutions arrived at through these deliberative procedures must be critically appraised and retested. The frameworks for such a legal debate must be determined through a political discourse. The procedures do not guarantee correct answers but provide the opportunity for the results to be tested again if there is reason to doubt the correctness of the answers.119 The focus must be on procedures and institutional frameworks for balancing conflicting norms. Relevant procedures included the proposed procedures for cross-border management and dispute committees. The process of cross-border reindeer-herding husbandry requires a discourse on political solutions and practical questions, as well as a legal discourse on the protection and regulation of civil and private law matters. Cross-border reindeer husbandry management must be open to the possibility that political decisions may be made and rights regulated at a level different from that of the national government. Both the new Convention and the draft Nordic Saami Convention (2005) provide this by proposing local agreements between herding groups across State borders. More generally, these issues highlight how sub-State and trans-State groups can challenge government action and State sovereignty. The Lapp Codicil was ahead of its time. It reflects the dilemma between rights recognition and the principle of citizenship and belonging to a particular political community. The Codicil was a tool to remedy this. Thus, there is a direct line running from the Codicil to current cross-border solutions and proposals for institutional mechanisms to regulate conflicting considerations and to safeguard the legal rights of cross-border reindeer grazers.

119

Cf Eriksen and Weigård, above n 9, 14.

7 The Draft Nordic Saami Convention and the Assessment of Evidence of Saami Use of Land ØYVIND RAVNA

I. INTRODUCTION1

A. Some Characteristics of Indigenous Cultures Significant for this Analysis

T

RADITIONALLY, INDIGENOUS PEOPLE have a close relationship with lands and waters, basing their livelihood on a non-monetary economy and the sustainable use of renewable natural resources. Such use of land and resources does not leave many visible traces in the landscape, unlike activities such as forestry and farming. This makes it particularly challenging to assess evidence for recognising land rights and titles. The situation, common to all indigenous people, is shared by the Saami who live on their traditional territories in Fenno-Scandinavia and North-West Russia.2 In addition, the Saami, like most indigenous peoples, celebrate an oral culture and, until quite recently, have not had a written language. This means that there are few written sources in the archives, but also that what exist have originated with outsiders such as Norwegian, Danish and Swedish officials, traders and missionaries. Thirdly, until recently, traditional indigenous livelihood activities, such as hunting, fishing and migratory grazing, were not considered to form the

1 Thanks to my good colleagues, Professor Nigel Bankes, Professor Timo Koivurova and Researcher Mattias Åhrén, for thorough reading and useful comments. 2 The Saami territories (in Saami language: Sápmi or Samiid eanan) cover the northern and middle parts of Finland, Sweden and Norway, as well as the Kola Peninsula in Russia. The Saami totally consist of 50,000–80,000 persons, of whom approximately 40,000 live in Norway (Harald Gaski in Store Norske leksikon, see ). Of these 13,890 are registered voters in the Saami parliament in Norway (2009), see .

178 Øyvind Ravna basis for the recognition of title and rights of use, since such use of land was not deemed to be sufficiently intensive and continuous to prove land rights or titles. During the twentieth century, this had a significant influence on Norwegian case law. Lastly, the Saami, at least in Norway, had to confront the self-declared State ownership of land in the Saami territories based on a doctrine of State original title. This approach has made it difficult for the indigenous Saami, and other locals, to obtain legal protection by registering rights to land and natural resources. In sum, these factors make it challenging both for Saami to prove rights to land use and titles, and for the courts and others to assess evidence of Saami usage.

B. The Problems to Be Addressed This chapter examines the assessment of evidence, proof and documentation for traditional Saami areas, where the Saami may have acquired titles and rights of use. Other sources have discussed this problem,3 which is also addressed in Article 34(3) of the draft Nordic Saami Convention. Paragraphs (1) and (3) of Article 34, headed ‘Traditional use of land and water’, provide as follows: Protracted traditional use of land or water areas constitutes the basis for individual or collective ownership right to these areas for the Saami in accordance with national or international norms concerning protracted usage.4 Assessment of whether traditional use exists pursuant to this provision shall be made on the basis of what constitutes traditional Saami use of land and water and bear in mind that Saami land and water usage often does not leave permanent traces in the environment. 3 See eg the Saami Right Committee in NOU 1997: 4 Naturgrunnlage for Samisk Kultur 53–64 and Ot prp nr 53 (2004–2005), Om lov om rettsforhold og forvaltning av grunn og naturressurser i Finnmark fylke (Finnmarksloven), 36, which reads: ‘Traditional Saami use in an area over the course of time will leave few tangible traces for posterity. This may mean that information is lost, and that the source situation is so deficient that it may form the basis for wrong conclusions or at least considerable doubt. On the other hand, the government’s actions often leave written clues to which it is easier to relate. In considering the material that exists today, it is important to be aware that the surviving sources taken as a whole may result in an unintended imbalance.’ This and all other translations (except for the draft Nordic Saami Convention (see below n 4) are the author’s. The topic is also discussed in M Ahrén, M Scheinin and JB Henriksen, ‘The Nordic Sami Convention: International Human Rights, Self-Determination and other Central Provisions’ (2007) 3 Gáldu Cˇ ála—Journal of Indigenous Peoples Rights, see www.galdu.org and in G Eriksen Alders tids bruk (Bergen, Fagbokforlaget, 2008) 314–48. 4 Nordisk samekonvensjon: Utkast fra finsk-norsk-svensk-samisk ekspertgruppe (Oslo, Finnisk-Norwegian-Swedish-Saami Expert Group, 2005), see . The English translation of the draft Nordic Saami Convention is taken from the annex to Ahrén et al, above n 3.

Assessment of Evidence of Saami Use of Land 179 The problem to be addressed is how to assess evidence and documentation of usage based on traditional Saami use of land and natural resources, when determining whether Saami claims for recognition of land rights and titles may prevail in conflicts with landowners, land developers and other interests outside the Sami reindeer-herding community. The problem is closely connected to the procedure prescribed in the draft Nordic Saami Convention, Article 34. Beyond the specific significance of this discussion for the draft Nordic Saami Convention, this issue is also important in relation to the international obligation to identify Saami traditional territories and land rights under the ILO Convention No 169 concerning Indigenous and Tribal Peoples in Independent Countries (1989), Article 14. This article served as a model for the draft Article 34,5 even if it is likely that the draft reaches further than the ILO Convention in protecting the rights of individuals. Article 14 is currently particularly significant for Norway as the only country with an indigenous Saami population that has ratified the ILO Convention. Norway is implementing its commitments through the Finnmark Act clarification process.6 In drafting the third paragraph, The Finnish-Norwegian-Swedish-Saami Expert Committee drew attention to the problematic nature of older case law.7 Consequently, this chapter begins with a brief historical review of that case law (in section II.). The concept of immemorial usage is central to the acquisition and recognition of rights based on traditional Saami use of land, especially in Norway. It is also significant in relation to the draft Saami Convention, since traditional use is to be assessed in accordance with national norms concerning protracted usage. Therefore, section III discusses this concept, along with other important legislative provisions dealing with the assessment, more particularly the rules on assessment of evidence in the Norwegian Reindeer Husbandry Act.

5

Nordisk samekonvensjon, above n 4, 250. See also Ahrén et al, above n 3, 8, 27. The Finnmark Act (Act of 17 June 2005 No 85) (Lov om rettsforhold og forvaltning av grunn og naturressurser i Finnmark fylke). An English translation of the Act may be found at . For more reading, see Ø Ravna, ‘The Process of Identifying Land Rights in Parts of Northern Norway: Does the Finnmark Act Prescribe an Adequate Procedure within the National Law?’ (2011) 3 Yearbook of Polar Law 423; and Ø Ravna, ‘The Finnmark Act 2005 Clarification Process and Trial “Within a Reasonable Time”’ (2011) 29 Nordic Journal of Human Rights 184. 7 Nordisk samekonvensjon, above n 4, 254. See also Åhrén et al, above n 3, 28. They state that ‘[i]t has proved extremely difficult for the Saami population to succeed in domestic court proceedings against competing non-Saami claims to land’. 6

180 Øyvind Ravna Section IV. of the chapter examines the assessment of evidence in the case law from Norway, where most of such case law is to be found,8 and section V. reviews Saami customs, traditions and legal opinions relating to the assessment of the examination of evidence for land rights. These traditions and customary laws are elaborated from internal traditions among the reindeer-herding Saami, but they may also be significant in resolving legal disputes with interests outside the Sami reindeer-herding community. In addition to summing up, section VI. offers brief comments in relation to Sweden and Finland. The chapter draws upon legislation, preparatory works, case law and Saami custom emphasising Saami use of land, and legal literature.9

II. HISTORICAL REVIEW OF THE ASSESSMENT OF SAAMI USE OF LAND

A. Nomadic Communities Cannot Acquire Property Rights Protracted, undisputed use of land or water areas will, in the legal systems of many States, form a basis for the acquisition of ownership and rights of use. In parts of the Saami areas, this has not been the case. In what are currently Norwegian parts of Sápmi, a legal doctrine developed during the nineteenth century that differed from that which applied in other parts of the country. That development may be explained by the fact that the Saami did not leave visible traces in the landscape by cultivating it for farming, which, historically, was a prerequisite for claiming title and acquiring rights to land. It may also be explained as a result of the nineteenth-century cultural stage theories that favoured the Norse over the Saami when it came to rights to acquire land. This implied that the King, or the State, could easily take the land into possession based on the doctrine of State original title.10

8 The Nordmaling Case (NJA 2011, 109) is a substantial contribution in Swedish case law. There will be some reflections on that case in section VI. of this chapter. 9 The rules for the assessment of evidence differ as between common law and civil law systems. See S Geeroms, Foreign Law in Civil Litigation. A Comparative and Functional Analysis (Oxford, Oxford University Press, 2004) 14–21, 26–28. In brief, common law countries apply separate processes to determine fact and law, while civil law countries (including the FennoScandinavian countries) practise a freer assessment of the evidence, using the same process to determine both fact and law. 10 The doctrine said that land to which individuals could not prove title was considered to be State property. S Brækhus and A Hærem, Norsk tingsrett (Oslo, Universitetsforlaget, 1964) 525, write that ‘in older theory, one considered the state to have title to all real property that was not privately owned. This opinion had its origin in Roman law, which in the sixteenth and seventeenth century penetrated in the Nordic countries with its doctrine of state (Emperor) supremacy title.’ H Scheel, Forelæsninger over Norsk tingsret (Kristiania, TO Brøgger, 1912)

Assessment of Evidence of Saami Use of Land 181 This doctrine afforded the Norwegian State title to so-called ‘ownerless’ lands, but also underpinned unwritten norms that precluded Saami from acquiring land rights, or set up a standard of proof for the use of land that the Saami were not able to meet. Such norms, opinions or assessments may be traced far back, not only in relation to the Saami but also in relation to indigenous people generally. As early as 1690, the philosopher John Locke argued for such an interpretation when it came to the Europeans’ right to acquire land in America without agreements with the indigenous people who owned the lands there.11 He declared that nomadic communities had no title to their lands because such a right was established through bodily cultivation of the land. His arguments were designed to give legitimacy to English efforts to acquire land from the First Nations of America in the years after The Mayflower had brought the first colonists across the seas. Similar opinions appeared in a discussion in the Swedish Parliament in 1828, after iron ore was found in Saami areas at Gällivare.12 In examining Finnmark, the most central part of the Saami territory, the requirement that land had to be cultivated before ownership could be established appears as the basis for the position put forward in a bill of 1848 to prepare an act for the sale of commons, church property and other State lands. The bill stated that the land of Finnmark was the property of the King or the Government, because ‘it originally was settled just by a Nomadic People, the Lapps without permanent dwellings’.13 A natural consequence of this was that the Saami were not eligible to own land and that the State could take it in possession. The legal scholar Fr Brandt emphasised the importance of the preparatory works of the 1848 bill when he argued that the State, through the ages, had been the owner

464, writes, with regard to real estate, ‘it is ordinarily recognised that it must be considered as the State Property where no other owner can be detected’. 11 J Locke (ed Rod Hay), Two Treatises of Government (Hamilton, Ont, McMaster University, 2000). See also N Oskal, ‘Det moralske grunnlaget for diskvalifiseringen av urfolks eiendomsrett til land og politisk suverenitet’ in NOU 2001:34 Samiske sedvaner og rettsoppfatninger (a Norwegian public investigation / a white paper) 256. See also J Youngblood Henderson, First Nations Jurisprudence and Aboriginal Rights. Defining the Just Society (Saskatoon, University of Saskatchewan, 2006) 8–9, with further references, who shows how distinctions between ‘primitive and civilized’ were used to deprive American First Nations from land rights in common law. 12 See L Lundmark, ‘Lappen är ombytlig, ostadig och obekväm’, Svenska statens samepolitik i rasismens tidevarv (Umeå, Norrlands universitetsforlag, 2002) 29, who also shows that in the debate, it was assumed that the Saami had occupied the whole of Scandinavia in the past, but had been forced north due to immigration of Germanic peoples. 13 [Ot Prp] No 21 (1848), Angaaende naadigst Proposition til Norges Riges Storthing om Udfærdigelse af en Lov om Ophævelse af § 38 i Lov af 20 de. august 1821 om det beneficerede og Statens Gods, 23. ‘Lapp’ is an old term for ‘Saami’.

182 Øyvind Ravna of the unsold land in Finnmark. In his property law monograph of 1867 he remarked: Finnmark has from time immemorial been regarded as the property of the Norwegian State. Only late in the historical time has this district been settled by immigrants, but these are not considered as owners.14

At this time, the interpretation of law was mixed with biological ‘stage theories’,15 dividing nations between ‘primitive and civilised’,16 taken to the point where it did not need any further documentation. In 1911, one of Norway’s most outstanding legal scholars, Fredrik Stang, explained the rise of such theories of ownership as follows: As long as people live as nomads, as long as the land is wide enough to give all the space they need, the land is not subject to property. Only when a tribal people settle down and start with agriculture does ownership arise in the land.17

In Finland, Kaisa Korpijaakko-Labba, has shown that Axel Liljenstrand’s nineteenth-century writings explained the assumed lack of Saami title to land in a way similar to that of Stang and others.18 Liljenstrand wrote that as long as people lived in the first stage of their social development, as hunters and fishermen, they could not acquire title to land. Neither could this take place in the second stage, the nomadic stage. Cultivation of land was the first stage at which property rights could be established. Liljenstrand explained the cultural differences between Finns and Saami (who Liljenstrand assumed had a common origin), on the basis that Finnish tribes had received fresh inputs from the outside world, including the farming culture. This was not the case for the Saami, who roamed around in the inner parts of the country’s nearly inaccessible wilderness; they lacked in all respects sufficient inspiration for progress and remained

14 Fr Brand, Tingsretten fremstillet efter den norske lovgivning (Kristiania, J Chr Abelsteds forlag, 1867) 194. 15 C Darwin, On the Origin of Species by Means of Natural Selection, or the Preservation of Favoured Races in the Struggle for Life (London, J Murray, 1859); this was further developed the by the philosopher Herbert Spencer and others, who applied Darwin’s thesis to humans, society and economy, thereby providing a ‘scientific’ cover to the theory referred to as ‘social Darwinism’. The treatise was first time published in a Nordic language in 1872, see C Darwin, Om Arternes Oprindelse ved Kvalitetsvalg, eller Ved de heldigst stillede Formers Sejr i Kampen for Tilværelsen (Kjøbenhavn, Gyldendal, 1872). 16 See eg Youngblood Henderson, above n 11. 17 F Stang, Norsk formueret. Indledning til formueretten (Kristiania, Aschehoug, 1911) 3. 18 K Korpijaakko-Labba, Om samernas rättsliga ställning i Sverige-Finland (Helsingfors, Juristförbundets förlag, 1994) 21–34. AW Liljenstrand (1821–95) was a Finnish professor of jurisprudence and philosophy, doing research on economics, property law and cultural history. Korpijaakko-Labba uses this example to show the prevailing opinion at that time. She concludes, in contrast to the position taken by Liljenstrand, that the Sami tribute lands (lappskatte land) were considered as property.

Assessment of Evidence of Saami Use of Land 183 fishermen and nomads. They were satisfied with feeding themselves ... with wild herbs rather than using the land for agriculture as did their tribal kinsmen.19

The next section examines case law from the middle of the twentieth century.

B. Twentieth-century Case Law As pointed out by Mattias Åhrén,20 it has been difficult for the Saami to succeed in domestic court proceedings against competing non-Saami claims to land. Going back to the mid-1900s, there are two notorious cases in which the Norwegian Supreme Court found that Saami reindeer husbandry and other traditional Saami use of land and waters, such as fishing, had to give way to Norwegian agricultural settlement. Evidence of traditional land use was accorded no significance. In the first of these cases, the Dergafjeld Case from 1931,21 the Court held that the Saami Jakob Dergafjeld had no rights to set up a Saami tent and storehouse on private property, even the Saami use of land was recognised to be much older than that of the Norwegian farmers who held title to the land. Similarly, in the second case, the Marsfjell Case,22 the Court held that the defendant, the Saami Jonas Marsfjell,23 had no rights to fish in lakes, even though there was no doubt that Marsfjell and previous generations had been fishing there for centuries. The first voting judge24 stated that it was irrelevant that the Saami had used the area long before the farmers, and thus rejected the claims of Marsfjell based on immemorial usage. The judgment may be explained by the fact that Saami use of land did not establish legal rights, nor prove such rights. In contrast, the Supreme Court found that reindeer husbandry, exercised by non-Saami in the southern mountain areas of Norway in two comparable cases, did count as evidence or proof of existing property rights. In the Vang Case,25 the Supreme Court unanimously found that local farmers and not the State held the title to the disputed mountain area. The first voting judge stated that the way the ‘wild mountain areas has been used—I am referring especially to reindeer husbandry—in my opinion supports the notion that the mountain belongs to the owners of the neighboring pasture 19 A Liljenstrand, Finlands jordnaturer och äldre skattväsende, jemte ett blad ur dess kulturhistoria, (Helsingfors, JC Frenckell & Son, 1879) 42–43. 20 See Åhrén, above n 3. 21 The judgment is published in Norwegian court reports Norsk Retstidende (NRt 1931) 57. 22 NRt 1955, 361 (Marsfjell). 23 Marsfjell died during the trial, and in the Supreme Court the case was continued by his widow, Maria Marsfjell. 24 In the Norwegian Supreme Court the first voting judge is the judge who pronounces the first vote/proposal for judgment. In a case where he or she represents the majority, or if the court is unanimous, this is the judgment, which was the situation in the Marsfjell Case. 25 NRt 1951, 417 (Vang). The case started in the Mountain Commission, a special tribunal which was awarded investigative power and authority by the Ministry of Justice; see the Mountain Commission Act (adopted 8 August 1908 No 6), s 3.

184 Øyvind Ravna land’.26 Although reindeer herding had not been continuous everywhere, the judge emphasised that herding was a livelihood, and this supported the conclusion that non-Saami herders had acquired property rights. In another case from 1954, which also concerned a land claim in the southern mountain areas, the first voting judge, representing the majority, underlined the significance of reindeer herding by local Norwegian farmers: For those mountain areas considered here, in my opinion the use of areas for reindeer pastures or leasing of land for reindeer husbandry, are factors that must be considered when determining how the boundaries between private property and state common land should be settled.27

The discriminatory application of the law, or the assessment of the evidence, clearly appears less than half a year later when the same judge participated in the above mentioned Marsfjell Case. Here he agreed in the results with the first voting judge, who found that the Saami reindeer herders’ use of ‘foreign property’ was ‘a harmless, beneficial use which could not cause the owner any positive detriment’.28 Such a use could certainly not count as evidence or proof of ownership or usufructuary rights, or provide any basis for acquiring such rights in favour of the Saami. Even as late as 1966, the prevailing judicial opinion excluded Saami reindeer herders from acquiring rights. The Frostating Court of Appeal stated: The century-old exercise of use, even when it comes to fishing, trapping and hunting, which the Saami undisputedly have exercised, does not go beyond the ‘harmless beneficial usage’ that the Saami at any time have been allowed to exercise. This kind of use cannot by prescription or immemorial usage create a distinct, separate legal basis that later legislation is not free to regulate.29

Given this line of reasoning, it is clearly difficult not only to succeed in proving a claim based on prescription or immemorial usage, but also even to consider submitting such a claim. The judgment quoted above was overruled by the Supreme Court in the later Brekken Case, where the Court found that the Saami use ‘for a long time seems to have been so attached to the area and so established that it cannot be compared with the exercise of an innocent right of use or a right of public access’.30 This led the Court to confirm Saami rights to hunt and fish in their traditional areas on the private property owned by others. Together with the

26

NRt 1951, 417 (Vang) at 423. NRt 1954, 1055 (Urevassbotn og Lungsdalen) at 1060. This case also started in the Mountain Commission. 28 NRt 1955, 361 at 363. 29 Frostating lagmannsrett (Judgment of 14 November 1966), Appeal 83/1964. 30 NRt 1968, 394 (Brekken) at 401. See also Nordisk samekonvensjon, above n 4, 250. 27

Assessment of Evidence of Saami Use of Land 185 Altevann Case,31 pronounced 14 days later, this was a milestone in the recognition of the Saami rights to use and harvest traditional Saami lands, first and foremost because it set aside the doctrine saying that the Saami use of land only resulted in the acquisition of land rights that the legislature or other State authorities could override without any duty to pay compensation. In the Brekken Case, the first Supreme Court Case that Saami right-holders won since a case settled on 21 June 1862, the Saami made use of written sources to document their long-term use of land.32 Although Saami won the Brekken and the Altevann Cases, it was not easy for them to acquire land rights based on prescription and immemorial usage in subsequent cases. For reindeer herders, the main reason for this was simply that the use of land was not considered to be regular and intensive enough to acquire rights according to the rules on prescription or immemorial usage. The Trollheim, Korssjøfjell and Aursund Cases all stand as examples of this.33 In the Trollheim Case, the first voting judge who represented an unanimous stated: Although in earlier times Saami would have been in Trollheimen to a greater extent than can be documented through historical and archaeological source material, I must presume from the extensive evidences presented in the case, that the Saami have not used this area to such an extent and over such a long period of time that it can provide a basis for historically acquired rights.34

The first voting judge also stated that the fact that, ‘the reindeer just occasionally have come into an area’ was not an adequate basis for acquiring pastoral rights; there ‘must be a more regular use’.35 This legal statement was further elaborated in the Korssjøfjell and Aursund Cases, which also dealt with pastoral rights in the South Saami areas of Norway. Here, the requirements for intensive and regular use by the Saami reindeer herders were assessed against the standard established by the manner in which farmers used the outlying fields. The statement of the first voting judge in the Aursund Case, rejecting the contention of the Saami party, was characteristic. He concluded that: 31 NRt 1967, 429 (Altevann). The case established that interference in traditional Saami lands for the purpose of compulsory purchase implies a right to economic compensation for expropriation. 32 See NRt 1968, 394, where the linguist Knut Bergsland was employed to document the Saami presence in the past and to set aside the still prevailing immigration theory advanced by Y Nielsen, ‘Lappernes fremrykning mod syd i Throndhjems stift og Hedemarkens amt’, Det Norske Geografiske Selskabs Aarbog, bind 1, Kristiana, 1891, 18–52. The 1862 Case is referred in NOU 1984: 18 Om samers rettsstilling, 654 et seq. 33 Published respectively in NRt 1981, 1215 (Trollheim), NRt 1988, 1217 (Korssjøfjell) and NRt 1997, 1608 (Aursund). The plaintiffs in all the three cases were the farming landowners. Nordisk samekonvensjon, p 254, also mentioned the Tysfjord Case in NRt 1996, 1232, which I do not find it necessary to go into here. 34 NRt 1981, 1215 (Trollheim) at 1223. 35 Ibid at 1225.

186 Øyvind Ravna [T]he distinctive character of reindeer husbandry, the nature of the reindeer, migration and topography impact requires that it be afforded substantially more lenient requirements for acquisition of right by immemorial usage here than elsewhere in the property law.36

In these cases, though, the Supreme Court did not take into account the special characteristics of reindeer husbandry and the Saami use of the landscape. Instead, the Court applied rules for intensive and continuous use of land, derived from farming and agricultural use of land, to reindeer husbandry. Rules that, in other circumstances, might have allowed the Saami claimant to acquire rights instead became an obstacle to obtaining pastoral rights. The doctrine was invoked on such a scale that it threatened the entire existence of the South Saami reindeer husbandry and, thus, the Saami culture in the middle part of Norway. Therefore, when a new dispute on the same issue was brought before the Supreme Court in 2001, the Supreme Court decided that the case should be heard by the Court in plenary session.37

III. LEGISLATIVE FRAMEWORK FOR ASSESSING EVIDENCE RELATED TO TRADITIONAL SAAMI USE OF LAND

A. The Draft Nordic Saami Convention and the Selbu Case Article 34 of the draft Nordic Saami Convention on ‘Traditional use of land and water’ provides the basis for the discussion in this chapter. Article 34(1) says that protracted or long-term traditional use of land or water areas constitutes the basis for individual or collective ownership rights for the Saami in accordance with national or international norms concerning such usage. Pointing to both national and international norms, the provision draws on domestic rules on immemorial usage, but also on the norms of international law, including ILO Convention No 169. The third paragraph is of particular interest, stating that: Assessment of whether traditional use exists pursuant to this provision shall be made on the basis of what constitutes traditional Saami use of land and water and bear in mind that Saami land and water usage often does not leave permanent traces in the environment. (emphasis added)

36

NRt 1997, 1608 at 1617. In the Norwegian Civil Procedure, The Supreme Court might sit as a full plenary court in special circumstances, see Act 25 June 1926 No 2 (lov om forandring i lovgivningen om Høiesterett), s 3, where it is stated that when ‘special circumstances make it desirable ... a doubtful question of law has to be decided ... by a united Supreme Court’. The provision is now repealed and replaced by Act 13 August 1915 on the courts [Domstolloven], s 5 (amended by Act No 3/2007). On the particular decision, see NRt 2001, s 769 at 779. 37

Assessment of Evidence of Saami Use of Land 187 The draft provision thus implies and requires that a Saami title or right of use: (a)

must be determined on the basis of traditional Saami use of land; and (b) that usage rarely leaves permanent traces in the landscape.38 We have already seen that the draft provision, to a large extent, follows Article 14 of the ILO Convention 169, even if the draft provision probably goes further in protecting individual land usage. The idea underlying paragraph 3 also draws on the Selbu Case,39 since the Expert Committee, after referring to the case, noted that, ‘it is among others, the points of view in these two [sic] cases that is the basis for the provision in the third paragraph’.40 This suggests that an assessment of the evidence based on the principles of the Selbu Case will comply with the proposed standard. Another important reason to rely heavily on the Selbu Case is simply that the judgment is a plenary decision of the Norwegian Supreme Court and, as such, a substantial source of law. Lastly, it should be noted that that the Norwegian Parliamentary Standing Committee of Justice, at the time of drafting and adopting the Finnmark Act, stated: The assessment of evidence in recent case law has been satisfactory. Recent Norwegian case law, particularly the Selbu and Svartskog Cases, has given instruction on how traditional Saami land use shall be considered as a basis for the acquisition of a legal right. These would be important sources of law for the Commission and the Court.41

The Selbu Case judgment has also had some influence in recent developments in Swedish law, a point to which I return briefly in the last section of this chapter.

B. The Concept of Immemorial Usage in Norwegian Law In Norway, the concept or doctrine of immemorial usage is central in relation to Saami land rights, both in terms of its general legal basis42 and when it comes to rules of acquisition of pastoral rights and titles. As such it requires a brief introduction. The concept is grounded in unwritten law or, 38

Åhrén, above n 3, 28, also calls for a wider use of Saami law. See NRt 2001, 759 (Selbu). An English translation may be found at . 40 Nordisk samekonvensjon, above n 4, 250. As far as I can see, the Expert Committee refers only to the Selbu Case. The wording suggests that they also intended to rely on another case, presumably the Svartskog Case in NRt 2001, 1229, which is discussed in section IV.E below. 41 Inst O nr 80 (2004–2005), Innstilling fra justiskomiteen om lov om rettsforhold og forvaltning av grunn og naturressurser i Finnmark fylke, 36. 42 See eg Act of 15 June 2007 No 40 lov om reindrift (on reindeer husbandry), s 4 and the Finnmark Act s 5. 39

188 Øyvind Ravna more precisely, customary law developed through centuries in the agrarian societies.43 Immemorial usage is based upon the same concepts as prescriptive titles or rights.44 Although the acquisition time is longer, there is also greater flexibility as to the conditions, since a defect in one of the three necessary conditions may be repaired through a stronger claim based on one of the other conditions. The Selbu Case described the three conditions as: (a) a certain amount of use; (b) over a long period of time; and (c) in good faith as to the legitimacy of the use.45 Acquisition by immemorial usage may afford rights to natural resources or titles to land.46 Legitimate use of land, based on renting, commonage use, permissions or licences, cannot establish the basis of a stronger independent right of title or use as part of immemorial usage. There are some analogies to be drawn between immemorial usage and the rules of aboriginal title in common law.47 One difference lies in the requirement of good faith as to the legitimacy of the use, which is not required in common law aboriginal title claims.

C. The Rule of Presumption in the Reindeer Husbandry Act The burden of proof in the ordinary civil procedure in Norwegian law lies with the party claiming to establish a right or a right-altering event.48 Most commentators have praised the Norwegian Supreme Court’s decision in the Selbu Case for the innovative way in which it assessed the evidence, including the way in which it placed the burden of proof on the landowners. This praise is deserved, but it should also be recalled that the judgment is based on the terms of the Reindeer Husbandry Act, which was amended to create a presumption to the effect that pastoral

43 Brækhus and Hærem, above n 10, 613, express the distinction between immemorial usage and local customary law as being that the former determines the rights to a particular property, while the latter regulates the conditions of property rights for that district. 44 See Act 9 of December 1966 No 1 lov om hevd (on prescription), ss 2 and 4; cf ss 8 and 9. 45 Ntr 2001, 769 at 788–89. 46 For more reading about the concept, see C Allard, ‘The Nordic countries’ law on Sámi territorial rights’ (2011) 2 Arctic Review on Law and Politics 159; and in Norwegian, Eriksen, above n 3, 314, and Ø Ravna, ‘Alders tids bruk og hevd som ervervsgrunnlag i Samiske områder’ (2010) 123 Tidsskrift for Rettsvitenskap 464. 47 See Delgamuukw v British Columbia [1997] 3 SCR 1010 (SCC). See also JJ Borrows and LI Rotman, Aboriginal Legal Issues (Canada, LexisNexis, 2007) 258–63; Youngblood Henderson, above n 11, 116–29; and K McNeil, Common Law Aboriginal Title (Oxford, Clarendon Press, 1989) 193–306. 48 JEA Skoghøy, Tvistemål, 2nd edn (Oslo, Universitetsforlaget, 2001) 677.

Assessment of Evidence of Saami Use of Land 189 rights exist in reindeer husbandry, if no other legal situation is proven. The amendment was a result of several Supreme Court judgments which fail to recognise the claims of the reindeer herders, and especially the strict evaluation of the Saami reindeer herders’ use of land as a basis for the acquisition of rights in the Korssjøfjell Case.49 The amendment is considered to reverse the burden of proof,50 although some might question whether a determination of reindeer husbandry rights is a right-altering event. The amendment requires landowners to show that their lands are not burdened by a reindeer husbandry right.51 The Supreme Court analysed the scope of the rule in the Selbu Case. Given that the Selbu Case represents a paradigm shift,52 it is important to examine both the development in legislation and the development in case law. This shows the clear connection between the legislative and judicial branches in developing policy related to Saami in Norway. In discussing the rules on assessment of the evidence in relation to the draft Nordic Saami Convention, it is relevant to examine the Norwegian legislative process, both because it shows the described development and also because this amendment may influence the development of legislation in other Nordic countries, bearing in mind that the amendment, and not just the case law, calls for a change in assessment of the evidence. In the Korssjøfjell Case, raised by the landowners, the Supreme Court unanimously found that the boundaries of grazing rights had to be determined by customary use on the basis of civil law rules (ie the rules on immemorial usage) and not on the basis of the boundaries for reindeer husbandry districts as determined by the State Reindeer Administration under the Reindeer Husbandry Act. The first voting judge referred to the recommendation of the so-called ‘Lapp Commission’ of 1889, and stated that the Commission did not intend to make such changes in established civil law relations as the reindeer owners’ principal argument implies. The Ministry of Agriculture’s viewpoint ... that reindeer husbandry legislation up to the present is based on the principle that all uncultivated lands within a reindeer husbandry district are areas where reindeer grazing has been going on since olden times, must have been given on a wrong basis.53

49

NRt 1988, 1217. See also section II.B. above. Skoghøy, above n 48, 678. 51 Åhrén, above n 3, 28, states that ‘Article 34(3) obliges non-Saami courts to accustom the burden of proof on Saami parties to the Saami traditional land use, in cases concerning whether the Saami have traditionally used a particular land area’. In this context one might say that the provision of the Reindeer Husbandry Act was ahead of its time. 52 G Eriksen, ‘Samiske sedvaner og bruk av naturressurser før og etter Selbu- og Svartskogdommene’ (2004) 30 Kritisk Juss 289, 298; repeated in Eriksen, above n 3, 324. 53 NRt 1988, 1217 at 1224. 50

190 Øyvind Ravna The Case set aside the established notion, according to the Ministry, that ‘the Saami right to reindeer herding as a general viewpoint applies everywhere in the mountains and the outlying fields within the existing reindeer husbandry areas’.54 This was the state of the law that the Ministry of Agriculture supposed had been established through the Reindeer Husbandry Act of 1978, and which was practised in the State Reindeer Administration. The Ministry responded to the Supreme Court’s decision as follows: The Constitution and international law to which Norway is bound, assume that the Saami reindeer herders in Norway have effective legal protection for the livelihood activity they are currently carrying out. The Supreme Court of Norway has found that the current legislation does not provide such legal protection.55

The Ministry further stated that this situation was unacceptable, both on the basis of Norway’s international law obligations, and because of the need to have clear rules governing reindeer husbandry. Hence, ‘as soon as possible clarity must be brought to reindeer husbandry’s legal basis’.56Accordingly, the Ministry of Agriculture proposed an amendment to the law, ‘that directly states that the Saami reindeer herders’ rights and duties, as defined in the Act, apply inside the currently applicable boundaries of the Saami reindeer husbandry areas’.57 When the bill was presented in Proposition No 28 (1994–95), the Ministry of Agriculture, which until then had been careful not to recognise that the legal basis of right to reindeer husbandry was immemorial usage, stated that reindeer husbandry had its own legal basis which it was unnecessary to specify in the law: This is a circumstance that is largely established in case law. The legal basis is also older than the law. It is therefore not the Reindeer Husbandry Act that constitutes the rights of reindeer husbandry. The Reindeer Husbandry Act, does, however, give a more detailed definition of the content of these rights, and provides as well for regulation and control of the exercise of those rights.58

Based on this, the Ministry proposed a change in the Reindeer Husbandry Act, stating that ‘the landowner will have the burden of proof that the land is not subject to a reindeer husbandry right’.59 The majority of the Standing Parliamentary Committee of Agriculture expressed the same view as the Ministry as the legal basis of the reindeer

54

St meld nr 28 (1991–92), En bærekraftig reindrift, 84. Ibid. 56 Ibid. 57 Ibid, 85. 58 Ot prp nr 28 (1994–95), Om lov om endringer i reindriftsloven, jordskifteloven og viltloven, 28. 59 Ibid, 31 and 39. 55

Assessment of Evidence of Saami Use of Land 191 husbandry right. The majority also endorsed the proposed amendments.60 The new section provides: The outlying fields that are included in the reindeer husbandry areas are to be regarded as legitimate herding areas with such rights and obligations as are stated in the first sentence, unless otherwise provided by special legal relations.

This language serves to place the burden of proof on the landowner. This was rather brave, given the risk that the provision might be construed as an interference with the property rights of the landowner in such way that it might violate the European Convention on Human Rights, Protocol 1, Article 1, or the Norwegian Constitution, section 105. The proposal was met with significant opposition. At that time, new laws had to pass both Houses of the legislature. In the Lagting,61 the provision was adopted by 14 votes to 13. The review above shows that the amendment of the Constitution by the addition of Article 110a in 1988, which protects Saami culture and livelihood, led directly to the Selbu Case 13 years later. Although the Aursunden Case (in NRt 1997, 1608) was decided against the Saami many years after the constitutional amendment, my claim still stands precisely because the Constitutional amendment contributed to forcing the legislature to change the Reindeer Husbandry Act as a result of the Korssjøfjell Case (in NRt 1988, 1217)62 which in turn led to the Selbu decision. I am unable to examine the parliamentary proceedings here, but it is important to note that, in the Selbu Case, the Supreme Court indicated that ‘if the wording of the Act is read in isolation, it indicates that there must be proof of a specific legal basis which says that there is no right to reindeer herding in the outlying field within a reindeer husbandry area’.63 However, in light of the parliamentary statements on the interpretation of the section, the Court concluded that the provision must be given a more limited scope. It must be understood to mean

60 Although the Saami lost their pasture rights in the Korssjøfjell Case, the case showed that the right to reindeer herding was not based on legislation but established through immemorial usage. This must have informed the Ministry of Agriculture’s decision to acknowledge that reindeer husbandry was based on immemorial usage. 61 Lagtinget was one of the houses in the Norwegian Parliament; Odelstinget was the other. The Norwegian Parliament voted on 20 February 2007 (with effect from 1 October 2009) to abolish the system of Odelsting and Lagting. A bill must instead be reviewed twice by Parliament in plenary session before a law is adopted, see . 62 The new rule of assessment of evidence was adopted by amendment to the Reindeer Husbandry Act of 1978, s 2, 23 February 1996 No 8 (effective July 1 of that year). The amendment came into force July 1 1996, too late to affect the Aursunden Case (NRt 1997, 1608) already on its way to the final level of appeal. 63 NRt 2001, 769 at 788.

192 Øyvind Ravna that it imposes on landowners a burden of proof in the reindeer husbandry areas. The standard of proof is not stricter than that it requires a preponderance of evidence showing that the [reindeer husbandry] use has not had a sufficient extent that the land is lawful reindeer husbandry area.64

In practice, this means that the landowner must prove that the reindeer herder’s usage has not been as comprehensive as the pastoral rights established on these particular lands. IV. ASSESSING THE EVIDENCE OF SAAMI USE OF LAND IN CASE LAW

A. Problems in Tracing the Use of Land In the ‘Introduction’ to this chapter, I indicated that use of land by indigenous peoples does not leave many visible traces on the landscape, unlike activities such as forestry and farming. As we have seen, this was also emphasised by the Expert Committee when it proposed Article 34(3), stating that ‘Saami land and water usage often does not leave permanent traces in the environment’.65 In the Norwegian Act on prescription, a permanent, visible arrangement is a condition for the acquisition of rights of use during the ordinary acquisition period of 20 years.66 This condition is imposed that the real owner gets some notice of illegitimate use. In the Selbu Case, the first voting judge was concerned that Saami use of land often does not leave such visible traces in the landscape, pointing out that, in matters of this nature, one faces a particular question of method. He continued, referring to the fact that the Saami were nomads and mostly used organic material, that decay and returns to nature make it difficult to find physical evidence of pastoral use of the land. This means that one should be cautious about drawing conclusions about Saami use of a particular territory from that lack of concrete information.67 The Supreme Court also emphasised that topography may be used as evidence of use, a topic I return to in section V. below, but the Court did not provide more particular guidance as how to assess that evidence other than what has already been mentioned. However, the Supreme Court did refer to Leif Pareli and Anne Severinsen, who have suggested that it may be possible to rely on certain types of archaeological material and place names as ways to document the presence of the Saami in the past.68

64

Ibid. The draft article is referred in section I.B. above. 66 Lov [Act] 9 Dec 1966 no 1 om hevd [on prescription], s 8. 67 NRt 2001, 769 at 792–93. See also Nordisk samekonvensjon, above n 4, 255. 68 L Pareli and A Severinsen, ‘Noen metodeproblemer i sørsamisk historieforskning’ (1979) 116–117 Ottar 29, 33 and 35. 65

Assessment of Evidence of Saami Use of Land 193 B. The Use of Oral Sources as Evidence The other particular methodological problem referred to by the Supreme Court, also drawing on research by Pareli and Severinsen,69 relates to the fact that Saami reindeer herders’ economic adaptation and social structure implied that there was no specific need to make use of a written language. The Saami culture has therefore, to a large extent, been based on oral traditions: On the other hand, the Saami, like the locals, had oral traditions. Such transfer of knowledge handovers have to be considered carefully, but cannot generally be rejected. And if they are supported by other information, they may have increased weight.70

Similarly, in the Tydal Case, the Frostating Court of Appeal also relied on Saami testimony on fishing, as the basis for determining whether rights had been acquired.71 The case law points out that oral evidence, or sources, may have greater significance in cases where the Saami are parties than in cases that do not involve the Saami. In the Selbu Case, it was further emphasised that language difficulties between Saami and Norwegian authorities may have contributed to misunderstandings. Here, the Court stated: It must also be taken into account that the communication between the Norwegians and the Saami can cause misunderstandings since the linguistic and cultural differences may mean that they view each other in an improper manner.72

C. Requirements for the Intensity and Continuity of the Use Although not directly indicated by the Expert Group, perhaps one of the greatest advances of the Selbu Case relates to the manner in which the Court assesses the evidence, or applies the rules of assessing evidence.73 In Selbu, the Supreme Court assessed the evidence of use in a new way in relation to disputes over Saami land use. The Court achieved this by emphasising the significance of Saami cultural features—reindeer husbandry characteristics, migration patterns and land use—and concluded that this could provide solid evidence for acquiring pastoral rights. This way of assessing the evidence placed reindeer herders and landowners on a more equal footing, and implied that the reindeer husbandry districts

69

Ibid, 30. NRt 2001, 769 at 792. See also Nordisk samekonvensjon, above n 4, 255. 71 Judgment 4 Dec 2008 (LF-2008-50209) (Tydal). 72 NRt 2001, 769 at 793. 73 Since the concept of immemorial usage is based on customary, and not statutory, law, one might ask whether the adaptation of the concept to Saami customs and traditions is an adaptation of the assessment of the evidence or an adaptation of the (customary) rule of law. Given the problem addressed in this chapter, it is not necessary to go deeper into that discussion. 70

194 Øyvind Ravna of Essand and Riast-Hylling obtained recognition for their grazing rights within specified areas of the municipality of Selbu based on the concept of immemorial usage.74 In assessing the existence of pastoral rights, the Supreme Court stated that the special conditions, with regard to reindeer husbandry, had to be taken into consideration. Thus, the terms of acquisition may be adapted to Saami use of the area. But what are the implications of the Saami way of using the land for assessing the evidence? An implication that seems obvious today, but remains of great significance, is that terms of acquisition, developed in the context of agrarian domesticated grazing animals, were not necessarily transferable to reindeer husbandry.75 The first voting judge highlighted that reindeer husbandry demands huge areas, and that land use varies from year to year depending on weather, wind and quality of the pastures. As a result, he suggested: It cannot be demanded that the reindeers have to graze in a specific area every year. Both for this reason and because of the Saami nomadic way of life, interruption of use cannot hinder acquisition of rights even though it is of considerable length.76

He also indicated: The consequence of that particular feature of the reindeer husbandry … is that the way of using pastures must be emphasised. The reindeers use large areas, where the environment, topography, nutrient conditions, weather, wind, etc determine the particular use to which the areas are to be put.77

These statements show that the Supreme Court has adapted the rules on immemorial usage, or the assessment of evidence, so that the requirements for intensity and continuity of use in Saami areas must be assessed in light of the characteristics of the particular use.78 The Tydal Case,

74 The lawsuit was raised by 229 landowners in Midt-Trøndelag District Court in 1995, since Selbu Municipality had given reindeer herders the opportunity to be heard in land matters under the Planning and Building Act. In the writ it was alleged that Essand and Riast-Hylling reindeer husbandry district had no right to reindeer grazing on the plaintiffs’ properties. The landowners lost the District Court case. There was a dissent in the Frostating Court of Appeal which concluded that grazing rights were acquired by immemorial use in the disputed area. The Supreme Court in plenary session came to the same conclusion but was not unanimous (9:6). However, the dissent was not concerned with the acquisition of grazing rights but with the question of where the boundaries for the grazing rights should be drawn; the minority would have drawn the boundaries somewhat more narrowly for the Essand reindeer husbandry district. 75 See also Åhrén, above n 3, 28, who states that ‘another important factor [that makes it extremely difficult for the Saami to succeed in domestic court proceedings] is that the rules of evidence in the countries within which the Saami population resides are modelled after nonnomadic, non-Saami use of lands’. 76 NRt 2001, s 769 at 789. See also Nordisk samekonvensjon, above n 4, 255. 77 Ibid. 78 See also Eriksen, above n 3, 331–36, where the question is elaborated.

Assessment of Evidence of Saami Use of Land 195 where Saami reindeer herders established fishing rights in their herding areas based on immemorial usage, illustrates that this has now become the norm.79

D. Correction of Evidence From Older Sources The Selbu Case identified one other important norm in relation to the evaluation of evidence. In its decision, the Supreme Court stated that older Norwegian written sources, such as the report of the ‘Lapp Commission’ from the 1890s, must be evaluated in light of the culturally specific attitudes prevailing in relation to Saami at the time.80 This surely had an influence on the evaluation of the Saami rights to land. For example, the majority of the Court referred to the Commission’s infamous statement about Lappish laziness, and dissociated themselves from the statement on the grounds that it represented a cultural view of the Saami that they could not support.81 However, this assessment was controversial, even in 2001.82

E. The Assessment of a Good Faith Entitlement to Use the Land It is a condition for acquiring rights according to the rules of prescription and immemorial usage that the claimant is acting in ‘good faith’. The concept of good faith implies that the claimant must be acting in good 79 In the Tydal Case raised by landowners affiliated with the Tydal landowner association, the Frostating Court of Appeal found that the reindeer-herding Saami in Essand reindeer husbandry district had acquired fishing rights in privately-owned lakes in South-Trøndelag based on immemorial usage. The Court emphasised, inter alia, use in earlier times, the Saami history and special way of life. The Court also stated that when assessing whether the fishing rights were acquired (in association with reindeer herding), regard must also be had to the manner in which reindeer husbandry was traditionally exercised. 80 Compare the statement of the Norwegian Government in Ot prp nr 53 (2002–2003), above n 3, where it points out such possible imbalances in older written sources. 81 See NRt 2001, 769 at 791–92. The statement of the Lapp Commission may be found in Indberetning fra den ved kongelig Resolution af 12te Juli 1889 til Undersøgelse af Lappeforholdende i Hedmarkens, Søndre- og Nordre Trondhjems Amter (Kristiania, anordnede Kommission, 1892) 33–34: ‘One must respect the rights of the Lapps. But when weighing the Lapp and the settled farmers’ mutual rights and obligations towards each other, one cannot forget the different conditions of their way of life, and that farmers, undertaking the hard and laborious work of cultivation, often incur heavy burdens. The Lapp, for whom life alternates between hardships and laziness, usually lives free of such impositions. From the state’s economic point of view the Lapp livelihood is of little significance. Although he, for his reindeer husbandry, makes free use of significant pastures and much wood, it is nevertheless rare for the Lapp to accumulate wealth for any length of time.’ 82 The minority, consisting of six of the 15 judges, stated that they could ‘not see that there is evidence to suggest that the contemporary view of the Saami reindeer herders has had an impact on the Commission’s assessment of the factual evidence’; see NRt 2001, 769 at 820.

196 Øyvind Ravna faith as to the legitimacy of the use (eg that he or she is entitled to use the land). In other words, if you know that the land is not yours, you cannot acquire ownership according to the rules of immemorial usage. It may be open to question whether the ‘good faith’ condition is truly an assessment of evidence, but the importance of the term, and the absence of a clear distinction between assessment of evidence and the adaptation of legislation, makes it significant to examine the ‘concept of good faith’ in relation to acquiring land rights. In considering this question in relation to Saami land claims, the Svartskog Case is relevant.83 Like the Selbu Case, it involved a dispute concerning land rights. However, in contrast to Selbu, this case involved a dispute regarding ownership rights between the State and a local community in Manndalen in the municipality of Kåfjord in Troms County. The dispute dealt with 116 square kilometers of outlying fields, registered as State property but used as a type of commonage by the local community of which the majority was of Saami origin. In this case, the Court sustained the claim of ownership by the local community even though the land in question was registered with a title to the State in the land register. Perhaps surprisingly, the Supreme Court suggested that the fact that possession of property by the State was not marked by any visible delineation, since a planned fence was never erected, was a reason why it was not necessary to examine the land register.84 Such examination is usually required to disprove or confirm the use of land in ‘good faith’ when claiming rights to a disputed area by prescription or immemorial usage in Norwegian law.85 The fact that State authorities raised an out-ofcourt dispute, and even threatened the inhabitants of Manndalen with legal action, was not enough to rebut the claimants’ good faith of legitimate use of the disputed area. The decision may not be out of line with other cases on the requirement of good faith in relation to acquiring property rights, even if the reasons for judgment may give the impression that the Supreme Court seems to have gone out of its way to show that good faith was present.86 On the other hand, the decision may be understood as an attempt to recognise and honor the oral Saami tradition, and to compensate for lack of fluency in the Norwegian language, legislation and legal culture.87

83

See NRt 2001, 1229. The verdict is analysed and criticised by B Høgetveit Berg, Hevd. Lov om hevd 9. Desember 1966 nr 1 med kommentarar (Oslo, Cappelen Akademisk forlag, 2005) 236–38, 261, 274. 85 See Lov om hevd av. 9. Desember 1966 nr 1 (Act on prescription), s 4, para 1; and NRt 2001, 769 at 788–89. 86 Berg, above n 84, 274; and Eriksen, above n 3, 345–47. 87 I do not here go into the question of the relevance of a requirement of good faith in cases where the entitlement of use is not controlled in a land register. See instead Eriksen, above n 3, 245; and Ravna, above n 46, 464–504. 84

Assessment of Evidence of Saami Use of Land 197 The manner in which Saami characterise land rights is closely connected to the linguistic and cultural differences between Saami and non-Saami. In Saami tradition, a person is careful to use the term ‘title’ or ‘property rights’, regardless of the extent of use, as in the case of locals living in Manndalen, where the court of first instance concluded that there was no legal basis to award more than logging and grazing rights.88 The Supreme Court rejected the conclusion of the first instance court, emphasising that all-inclusive usage of land and natural resources must have more far-reaching legal consequences: Had similar usage been practised by those of another origin, it would have indicated that they believed they owned the area. The Saami, who constitute the majority of the inhabitants of Manndalen, with their collective and shared use of resources do not have a tradition of thinking about ownership or exclusive rights to property ... Should acquisition of property rights by immemorial usage be stopped because there are many examples where they have spoken about rights to use instead of property rights, their disposal practices, which correspond to the exercise of property rights, would be put to disadvantage compared to the general population.89

V. ASSESSING THE EVIDENCE OF SAAMI USE OF LAND ACCORDING TO CUSTOMS AND TRADITIONS

A. Traditional Use as Proof of Land Rights As we have seen in the Selbu Case, the Norwegian Supreme Court emphasised that Saami usage often does not leave visible traces in the landscape. However, the Court did not provide much specific guidance as how to assess such evidence. At the same time, as a party to the ILO Convention No 169, Norway (or more precisely the Norwegian courts) is (are) committed to considering Saami custom and customary laws when assessing evidence and proof to determine boundaries, titles and rights of use in traditional Saami areas, according to Article 8 (1) of the Convention. That article has also inspired Article 9 of the draft Nordic Saami Convention, which may further draw upon Article 40(2) of the UN Declaration on Indigenous People’s Rights of 2007. That article provides that (court) decisions ‘shall give due consideration to the customs, traditions, rules and legal systems of the indigenous peoples concerned and international human rights’.90

88 The first instance was a special land tribunal called ‘The Uncultivated Land Commission’, established by Lov (Act) 7. Juni 1985 nr 51 om utmarkskommisjon for Nordland og Troms (repealed). 89 NRt 2001, s 1229 at 1252. The interpretation of both the Selbu and Svartskog Cases is developed by Eriksen, above n 3, 314–48; and Eriksen, above n 52. 90 While this is a declaration and not a treaty, it still carries some normative weight, especially in Norway since the Cabinet Minister in charge has stated that the ‘UN Declaration on

198 Øyvind Ravna In this context, the work of Mikkel Nils Sara for the Reindeer Pasture Committee for East-Finnmark is of great significance. Sara pulls together the internal Saami traditions and legal opinions obtained from reindeer herding. Even though this work is entirely based upon internal Saami customs and opinions, those internal rules and traditions may contribute in resolving legal claims and disputes with interests outside the Saami reindeer-herding society. Sara’s work describes and evaluates traditional rules of grazing use in relation to reindeer husbandry.91 These rules aim to determine reindeer herders’ access and rights based on traditional knowledge, including how to assess evidence of traditional Saami usage. Sara’s work distinguishes between different forms of entitlements. First he deals with the evidence or proof of establishing rights to pasture inside the Saami reindeer husbandry areas, where there is competition between reindeer-herding siidas in relation to winter pastures. The situation is legally complicated as the legal position is unclear, and there might be several parties and conflicts. As we have already seen from the Selbu Case, the reindeer herder’s use of land demands flexibility because of variations in weather and, thus, the condition of the pastures, eg warm weather in winter followed by ice may lock the pastures and make them unavailable, requiring the herders to search for other areas. This also means that the same areas are not necessarily used annually. Flexibility with respect to variations in weather has been taken care of by varying the timing of in-and-out migration to and from the different seasonal pastures. However, Sara emphasises that this need for flexibility cannot be a reason for one siida ‘to exceed its own pasture borders without an agreement with the affected siida, except in unusually extreme and rare cases. The siida must be presumed to know its own ordinary room for flexibility.’92 Sara distinguishes between normal pasturage, which the Saami call guod-oheapmi, and other reindeer grazing activities.93 The grazing that occurs when the reindeer have just arrived in the autumn or winter pastures and are roaming extensively for mushrooms, for example, is called Vistin or visttiheapmi. This is a form of stray or roaming grazing, where the reindeer are difficult to control. In the Selbu Case, which also involved peripheral areas of the reindeer husbandry district, the Supreme Court assumed that ‘roaming or stray grazing’ may establish rights. Although the Supreme

the Rights of Indigenous Peoples is in line with government policy towards the Sámi people’; see . 91 Reinbeiterettsutvalget for Øst-Finnmark, Utredning om reinbeiterettigheter på vinterbeitene i Karasjok (Alta, Reindriftsforvaltningen, 2008) 15–22. See also MN Sara, ‘Land Usage and Siida Autonomy’ (2011) 2 Arctic Review on Law and Politics 138. 92 Reinbeiterettsutvalget for Øst-Finnmark, above n 91, 16. 93 Ibid.

Assessment of Evidence of Saami Use of Land 199 Court did not make a final decision on the point, it did suggest that this form of use could provide a basis for pastoral rights in these areas.94 In relation to other reindeer-herding siidas, Sara assumes that ‘vistin grazing’, where reindeer use will probably exceed the long-term capacity limits, cannot provide a basis to claim grazing rights but may perhaps support a ‘vistin right’ (roaming pastoral right).95

B. Evidence for siida Boundaries Winter grazing areas may be divided according to their seasonal suitability: skábmaguohtun (dark-time pastures) and gid˜d˜adálveguohtun (late winter pastures). They may also be divided into guovddáš dálveorohat (core area) and orohatravda (peripheral area).96 Sara points out that the core area, in this context, is an area in which the herd of a siida will not come in to contact with those of other siidas. In peripheral or border areas, herders must expect contact with neighbouring herds in their operations, and there will, therefore, be a need to communicate with neighbouring siida on the use of the site to maintain siidagaska, ie the distance between the herds to prevent mixing of reindeer.97 In the Selbu decision, we saw that the Supreme Court emphasised that pasture boundaries had to follow natural borders or separations in the terrain, such as the Selbu Lake.98 This is consistent with Sara’s analysis, but it is more difficult to apply in relation to winter pastures, when rivers and lakes are frozen. Sara particularly acknowledges that the ability to comply with the siida boundaries must be supported by the landscape conditions. Boundaries can naturally have significance where movements across the boundary will be readily visible. A boundary should be confirmed by a visible formation in the terrain: ‘A boundary through dense forests is not possible to observe in practice and thus unlikely as a traditionally established border.’99 Sara points out that natural boundaries, in Saami named oazit, will be found in winter pastures, although they will not be marked as definitively as the summer pastures.100 In sum, the ‘natural boundaries’ of the landscape may be used as evidence of the existence of boundaries between the pastoral lands of different siidas.

94 95

Ntr 2001, 769 at 816. Reinbeiterettsutvalget for Øst-Finnmark, above n 91, 16. See also Sara, above n 91,

151. 96 97 98 99 100

Reinbeiterettsutvalget for Øst-Finnmark, above n 91, 16. Ibid, 17. NRt 2001, 769 at 816. Reinbeiterettsutvalget for Øst-Finnmark, above n 91, 17. Ibid, 18.

200 Øyvind Ravna This means that terrain and topography become a kind of evidence for usage, and thus may contribute towards recognising of the rights.

C. Traditional Rules Support Evidence of Use Traditional rules within the siida system may also support evidence of siida boundaries and create an understanding of what is meant by such boundaries, or siidarádji or siidagaska. Sara offers several examples.101 Unacceptable or illegitimate behaviour naturally cannot serve as evidence. Such behaviour may be interpreted in light of the landscape, snow situation and weather conditions. For example, if the terrain conditions, such as elevations or hollows, create an enhanced or stronger movement of a herd in a particular direction, which may be further enhanced by the wind (reindeer generally run towards both hills and the wind), a neighbouring siida is not allowed to move into the area to which the herd is heading. Sara also points out that there ‘may exist customs that are very locally designed and reasoned’.102 Sara concludes that the mixing of animals can be avoided if siida boundaries are completed by applying customary rules toward the relationship between siidas for peripheral areas, supplemented by locally-crafted rules and agreements between the siidas involved. It may ‘still be relevant to enter into agreements on setting up artificial barriers, áideoazit, where this is justified by changes in the husbandry conditions, eg due to external interferences, interventions or climate changes’.103

D. Opinions among Reindeer Herders on What Counts as Evidence This section draws on the results of an interview survey of Saami customary law, focusing on rules and opinions on land use, conducted by the author and Jan Josef Olli.104 In the survey, reindeer owners were asked what

101 Ibid, 18, where he points out: i) Reindeers that go into a neighbouring siida’s area must be retrieved immediately. In such a case, the crossing is not considered a violation of the boundary. ii) Reindeers that go into a neighbouring siida’s area should not be retrieved if it means that reindeer from the first siida (which are on their ‘home’ area) will follow. iii) One cannot drive or otherwise move a neighbouring siida’s ‘edge reindeer’ if those reindeer are in the neighbour’s own area. iv) In cases where herds have been in contact with each other in the border areas, each siida has a right immediately, or as soon as possible, to access the other siida herd to search for animals that may have been included in the neighboring herd. The rule of access is now enshrined in s 29 of the Reindeer Husbandry Act. 102 Reinbeiterettsutvalget for Øst-Finnmark, above n 91, 18. 103 Ibid, 19. 104 See Ø Ravna and JJ Olli, Sedvanerettslige oppfatninger om arealbruk blant reindriftsutøvere (Kautokeino, Diedut 2, 2011).

Assessment of Evidence of Saami Use of Land 201 principles or evidence should be used to determine boundaries between siidas. Even though these responses are primarily based on legal opinions within the reindeer herding societies, they may, at least to a certain extent, also have value in assessing evidence to settle disputes in relation to outsiders. A large number of respondents answered that such determinations of boundaries for winter grazing land should be based on customary rights acquired from long-term usage: see Table 1105 below. Table 1: Principles for determining boundaries for winter pastures No

Determining the boundaries for winter grazing land should be based on

Numbers

%

1

Customary acquired rights based on long-term use (the one that came first in time is best in law)

43

53.8

2

Prescription

17

21.3

3

Operational and natural conditions, ie natural boundaries (oazit).

9

11.2

4

Appropriateness based on an overall rational use of pastures for the siidas/ summer pasture districts that have pastoral rights in the winter pasture area.

10

12.5

5

Other

1 80

1.2 100

Source: Ravna and Olli, Sedvanerettslige oppfatninger om arealbruk blant reindriftsutøvere, at 36, Table 24.

The interviewees were also asked what factors should be applied to prove or document the acquisition of customary rights based on long-term use. The responses in Table 2 below show that oral traditions, written sources and pastoral uses documented in other ways should be accorded significantly more weight than other possible sources as evidence or as a source of determining boundaries. Other questions in the survey may also be relevant for assessing evidence concerning customary rules of land use. For example, a large majority

105 The table is based on the number and percentage of respondents who marked the particular category as priority 1.

Oral traditions (eg stories of older, trustworthy people)

Written sources (eg documentary literature, reports or records of the reindeer administration, etc)

Use of pastures that is documented in other ways

Traces in the landscape (eg turf huts, cottages, fences, etc)

Operational and natural conditions, ie natural boundaries (oazit)

Traditional size of the heard (historical figures for the herd)

That one has prevented others from using an area and where they have respected this

Other things, please explain

1

2

3

4

5

6

7

8 204

3

6

16

100

1.5

2.9

7.8

13.7

15.2

31 28

18.6

19.6

20.7

38

40

42

115

3

2

4

11

16

28

26

25

Numbers of all % of all answers Numbers of priority answers 1 and non-priority answers

100

2.6

1.7

3.5

9.6

13.9

24.3

22.6

21.8

% of priority 1 and non-priority answers

Source: Ravna and Olli, Sedvanerettslige oppfatninger om arealbruk blant reindriftsutøvere, at 38 and 39, Tables 26 and 27.

The determination of boundaries of winter pastures based on

No

Table 2: Distribution with respect to factors that should be emphasised in order to document rights based on customary use and prescription

202 Øyvind Ravna

Assessment of Evidence of Saami Use of Land 203 (95%) of respondents were of the opinion that a reindeer herder family or a siida has a particular right to use a specific area in preference to other herders (eg that there are specific, subjective pastoral rights for certain group of people). The survey also shows that the reindeer herders consider knowledge about reindeer husbandry, Saami society, traditions and legal culture to be very important for judges and others who will clarify the legal issues, including assessing evidence from the Saami reindeer herders.106 Available space does not permit a more comprehensive review of this.

VI. SOME CONCLUSIONS

The Norwegian Selbu Case is a landmark decision in redefining the rules on assessing evidence in cases where traditional Saami use of land conflicts with the claims of farmers or other landowners, including defining what is ‘traditional Saami land’. In that case the Supreme Court emphasised that while the Saami use of land does not leave as many traces on the landscape as does traditional agricultural use, this fact cannot be used to deny the existence of a Saami presence. Certain types of archaeological material and place names may be relevant sources to help establish such a presence. The Selbu Case also establishes norms to the effect that the cultural characteristics of Saami reindeer husbandry and particular use of such pastures are significant when the use of land is assessed as evidence of immemorial usage (eg Saami reindeer husbandry use of land cannot be assessed according to the way farmers with domestic animals use the pastures). It also shows that older written sources must be corrected for the negative view of the Saami culture that prevailed in the nineteenth and twentieth centuries, and that oral evidence is to be accorded greater weight in cases involving Saami parties than in non-Saami cases. Although the Supreme Court generally receives credit for achieving progress in these evidentiary areas, this chapter shows that these advances should also be attributed to developments in the State’s Saami policy, as reflected in the amendments to the legislation. I have primarily referred to the changes to the Reindeer Husbandry Act in 1996, where the burden of proof was reversed and placed on landowners. It is also relevant to refer to the preparatory work of the Finnmark Act, where the Standing Parliamentary Committee of Justice expressed its satisfaction with the assessment of the evidence in recent case law, which gives ‘instructions on how traditional Saami land use shall be considered as a basis for the right acquisition’.107 106

Ravna and Olli, above n 104, 49–50. Inst O nr 80 (2004–2005), Innstilling fra justiskomiteen om lov om rettsforhold og forvaltning av grunn og naturressurser i Finnmark fylke, 36. 107

204 Øyvind Ravna Since the Selbu Case is used as a ‘model’ by the Expert Group in formulating Article 34(3) of the draft Nordic Saami Convention, it is not much use to ask if the Selbu Case complies with that text. It makes more sense to evaluate whether Norwegian (and other Nordic States’) laws and evidentiary rules, more specifically in Saami cases, comply with the draft Article 34. At this stage we can say that the Tydal Case, heard by Frostating Court of Appeal, seems to confirm the standards that were established in the Selbu Case, but it is hard to go beyond this at this stage of the development of the law. Further clarification will likely come as a result of the implementation of the Finnmark Act.108 In this review, I have not specifically examined the state of the law in other Nordic countries. However, in Sweden, the recent Nordmaling Case of the Swedish Supreme Court109 to some extent shows the influence of the Norwegian case law. For example, in the Court’s examination of principles for assessment of the evidence, it states that [t]he principle of free assessment of proofs, which is to be applied, means that particular characteristics of the reindeer husbandry and other factors which the Saami villages have relied on should be considered when the evidence is evaluated.110

The influence or similarity is even clearer in the reasons of the Supreme Court which draw on the principles derived from the Selbu Case (and here compare the quotations in section IV.C. above): When the reindeer herding areas should be determined … it must be noted that reindeer husbandry has particular characteristics that define the areas which need to be used. The investigation in this part shows that winter pasture requires large areas ... in that the pasture availability varies from year to year. Changing weather conditions imply that areas used during one winter, may not be available for grazing the next winter. When an area is grazed down, it will take a long time before the lichen has grown up again, and in the meantime the reindeer have to move to other areas. The reindeer herding area must therefore be broad and not limited to the areas where reindeer have been observed in a particular year.111

In my view, this suggests that the Swedish case law is developing along the lines of Norwegian case law, taking into account Saami traditional use of

108 Another question is whether one can say that a general open-ended provision of an international convention is so precise as to enable one to verify whether the internal legislation in this respect fully complies with the convention. 109 See Case no T 4028-07 (Nordmaling) (Judgment 27 April 2011). See also C Allard, ‘The Swedish Nordmaling case’ (2011) 2 Arctic Review on Law and Politics 225. 110 See Nordmaling, above n 109, para 19. 111 Ibid, para 56.

Assessment of Evidence of Saami Use of Land 205 land in assessing evidence of acquired land use rights.112 In contrast, this development has yet to be picked up by the Finnish courts.113 The internal legal conflicts within the Saami communities may, in some places, be more demanding than conflicts relating to State infringements or other impacts of the majority society. Examples include conflicts within the winter pastures in Finnmark and cross-border pasture conflict between Saami reindeer herders in Norway and Sweden. Although Article 43 of the draft Nordic Saami Convention has rules on how disputes between the Saami villages, siidas or reindeer husbandry units are to be resolved in case of border crossing conflicts, the draft Convention does not provide advice on how other such disputes within the Saami community are to be resolved. This may be regarded as a shortfall in the draft, but on the other hand, it is presumably not the aim of an international convention to go this far. Even if Article 43 deals with such issues, the long-term, ongoing, crossborder pasture conflict, which has generally been devastating for the Saami community, offers a good argument for thinking that this issue needs to be addressed to a greater extent. In this area Mikkel Nils Sara’s work might be helpful in showing how traditional use may assist in establishing evidence for land rights. In particular, he shows how the different use of pastures, by the reindeer, may be used to determine boundaries for pastoral rights between the Saami siidas. Natural terrain boundaries and topographic features, like rivers, lakes and watersheds, may also help determine the boundaries between siidas, where traditional rules support evidence of use. The direct opinions of reindeer herders through interviews also suggest that customary acquired rights, based on long-term use, are of the greatest importance in determining grazing boundaries, especially on winter pastures in Finnmark. The crucial evidence or sources for determining boundaries are oral traditions, written sources and actual pastoral use. Taking this knowledge into consideration, and applying the law and assessment of evidence as adapted to Saami customs and use of natural resources, including the rules on immemorial usage, means that the Saami do not need to be on ‘foreign fields’ when facing the Norwegian courts and land claims from other interests. When this can be achieved throughout the Nordic countries, one of the purposes of the Nordic Saami Convention, which, it is hoped, will soon be adopted, is on its way to being fulfilled.

112 One should however be careful not to place too much emphasis on the importance of Norwegian law for the outcome, since the general trend in international law points in the same direction. 113 Nordisk samekonvensjon, above n 4, 252. For a short general description of the situation in Finland, see Allard, above n 46, 178–80.

8 Who Holds the Reindeer-herding Right in Sweden? A Key Issue in Legislation CHRISTINA ALLARD

I. INTRODUCTION1

I

N MANY RESPECTS, the definition and comprehension of the Saami reindeer-herding right in Swedish law is under-developed. Indeed, even though the reindeer-herding right is the only specific Saami territorial right recognised in Swedish law,2 its nature remains vague and indistinct.3 There are several reasons for this. One is that the nature of the reindeerherding right has never been properly investigated by the State, and there have been few modern cases on the matter. Another reason is that Saami rights claims, in general, have attracted scant interest from the legislature and legal scholars. Nevertheless, some basic characteristics of the reindeer-herding right may be discerned. The right is a civil law-based right4 that imposes a burden upon private- and State-owned lands, allowing reindeer husbandry to be carried out regardless of the ownership of the land.5 As a result, there are

1 This chapter is a revised and developed version of a smaller part in my doctoral thesis, Two sides of the coin: rights and duties—The interface between environmental law and Saami law based on a comparison with Aoteoaroa/New Zealand and Canada (Luleå, Luleå University of Technology, 2006). Thanks to LL Lic Juha Joona, the Northern Institute for Environmental and Minority Law at the University of Lapland, for comments on an earlier draft. All translations in the article are by the author. 2 Over the years various government commissions have discussed other Saami livelihoods, such as fishing and handicraft, but these discussions have not led to legislation. 3 Eg one of the bills dealing with Saami issues declared that ‘[t]he extent and character of the customary rights of the reindeer herding Saami within the reindeer herding area is a long contested matter’. See prop 1992/93:32, 89. This picture has not changed in recent years. 4 See the Supreme Court cases NJA 1981 s 1 (Taxed Mountains case) and NJA 2011 s 109 (Nordmaling case). 5 There is, however, no record of the right’s existence in the Land Register. See generally E Torp, ‘Renskötselrätt bör inskrivas i fastighetsregistret’ (2005) Svensk Juristtidning 514.

208 Christina Allard not only competing land uses over vast areas subject to reindeer husbandry (some 40 per cent of Swedish territory), but there are also competing rights, where the relationship between ownership rights, other use rights and reindeer-herding rights is surprisingly unclear.6 The current Reindeer Husbandry Act of 1971 codifies the content of the reindeer-herding right.7 This right comprises different elements, acknowledging a range of husbandry-connected activities and measures, such as the right to move reindeer between different pastures, the right to construct buildings and structures necessary for reindeer husbandry (cots, storehouses, fences, etc), and the right to take timber for such buildings and structures, as well as hunting and fishing rights. The basic element of the reindeer-herding right allows a Saami to use land and water for subsistence for himself (or herself) and the reindeer.8 The content of this right has, in principle, been the same since the first statute of 1886.9 Reindeer-herding rights must be exercised within the pasture areas of a Saami village. Membership in the community is mandatory in order to be able to exercise these rights.10 The pasture is divided into two main types of land: the year-round areas, and the winter-pasture areas.11 In these latter areas, which commonly are located closer to populated areas in coastal regions, herding is permitted only from October until 30 April. Different husbandry rights apply on these two main types of land. Rights generally remain the strongest in year-round areas. In the winter-pasture areas of some Saami villages, depending on geographical location, the elements in the reindeer-herding right are largely restricted to the right to pasture and do not include, for instance, hunting rights.12 The geographical borders of pasture areas are defined in a general manner in the statute, but Saami villages’ borders, especially of winter-pasture areas, remain poorly defined, thus resulting in several disputes where private landowners go to court.13 Apart from these general characteristics, there are fundamental issues yet to be discussed and solved, including one key issue regarding the right’s collective character.14 The incomplete understanding of the legal subject hampers an adequate recognition of the reindeer-herding right and has important implications for how other provisions in the reindeer husbandry 6

See B Bengtsson, Samerätt. En översikt (Stockholm, Norstedts Juridik, 2004) 11 and 21. Reindeer Husbandry Act (1971:437). See ss 15–25 of the Act. 8 Ibid, s 1, para 1. 9 In the Taxed Mountains case the Supreme Court concluded that the right, with a few exceptions, was exhaustively codified in the legislation. See also Allard, above n 1, 329–32. 10 Reindeer Husbandry Act, ss 6, 8–9. 11 Ibid, s 3. 12 See generally Allard, above n 1, 338–40. 13 A government commission has investigated the borders of winter-pasture. Its conclusion was that most of northern Sweden is pasture areas. So far, this has not led to any government action. See SOU 2006:14. 14 See also Bengtsson, above n 6, 15 and 70–71. 7

Who Holds the Reindeer-herding Right in Sweden? 209 legislation are to be interpreted, such as matters of compensation. This chapter aims to discuss the divergent understanding of the right-holder of the reindeer-herding right, whether that refers to the Saami population, single Saami villages, or even defined groups within Saami villages. A fundamental problem is that the Reindeer Husbandry Act is very clear in stipulating that the right-holder—the legal subject of the right—is the Saami people as a whole.15 This provision is the result of an amendment to the Act in 1993. Previously, the right was similarly regarded as held collectively, but its collective nature was hidden in travaux préparatoires and subject to other restrictions in legislation. As a result, the 1993 amendment has strengthened what this chapter terms ‘the collectivist feature’ in Swedish legislation. This has implications for further revisions of the reindeer husbandry legislation in the near future. In practice, however, each Saami village is still responsible for the management of the reindeer husbandry within the village pasture areas. With or without this 1993 amendment, the basic problem with viewing the reindeer-herding right as fully collective has been present since the first enactment in 1886. This chapter challenges the collectivist understanding of the right-holder, as stipulated in the amended section 1 of the Reindeer Husbandry Act. At least four arguments against this view may be presented. First, this provision corresponds poorly with basic property law. Secondly, it leads to an absurd and unjust legal application. Thirdly, it does not correspond with customary reindeer-herding livelihood and the reindeer-herding siida, the traditional unit for managing reindeer husbandry. The siida is not mentioned or acknowledged in current legislation. Lastly, and linked to the previous argument, Norwegian law has evolved to embrace the importance of the siida and no longer regards the reindeer-herding right as a fully collective right attributed to an undefined and broad collective—despite an almost identical provision in the corresponding Norwegian legislation. The question is thus: Should we understand and interpret the first section of the Swedish Reindeer Husbandry Act literally? How we envisage and understand property rights, in this instance the reindeer-herding right, influences legal discussions and policy-making, as well as the drafting of legislation and the resolution of concrete cases. However, it is also important to note what is brushed aside.16 Mindful of this, I argue that the implementation of the draft Nordic Saami Convention could be complicated, especially Chapters IV and V with articles relating to Saami rights to land and water and the protection of reindeer husbandry as livelihood, where the actual right-holder under reindeer husbandry legislation in Sweden and Norway seem to be drifting apart. If one country

15 16

Reindeer Husbandry Act, s 1, para 2. See I Ikdahl, ‘Concepts of property and property rights’ (2011) 1 Retfærd 49, 51.

210 Christina Allard comprehends husbandry right as a right for all Saami equally without any form of individual protection, while another country regards the right as a more typical private property right, it must have consequences, above all, for cross-border reindeer husbandry. Therefore, an understanding of who holds the reindeer-herding right is a key issue in domestic legislation. This chapter is structured around the four arguments outlined above. I begin by discussing the evolution of the current reindeer husbandry legislation and provide a summary of the limited case law.

II. STRENGTHENING THE COLLECTIVIST FEATURE OF SAAMI HUSBANDRY RIGHTS

Over time, there has been a shift in the legislation detailing which Saami are entitled to carry out reindeer husbandry, but the terminology has not always been clear. The travaux préparatoires17 for the reindeer husbandry legislation have always contained statements as to who might exercise the right of reindeer husbandry. Legislation includes two conditions of eligibility, even though, beginning with the first enactment in 1886, the travaux préparatoires simply mention that the right is held collectively.18 Today, there is a distinction to be made between those persons of Saami descent who have the right to the reindeer husbandry as a traditional livelihood or business, and the Saami who have rights to exercise husbandry rights, which is subject to a membership criterion (the Saami village). It should be noted that, prior to the 1993 amendment (which opened reindeer husbandry to all persons of Saami descent), a third condition of eligibility existed, which was that of association with reindeer-herding families. This condition was removed and replaced by an explicit stipulation of membership in a Saami village.

A. Amendments with Respect to Who is Entitled to Carry Out Reindeer Husbandry i. Historical Ties to Reindeer-herding Families As we shall see, the practice of reindeer husbandry has long since been closely tied to a succession of reindeer-herding families, even if the right

17

This is an important legal source in Swedish law, and in the other Nordic countries. The membership criterion was not as evident in the Acts of 1886 and 1898, but it is beyond doubt that reindeer husbandry had to be carried out though a Lapp village (the former name of the Saami village). Later, the Act of 1928 definitely distinguished between Saami engaged in reindeer husbandry and other Saami who were left without any specific rights. 18

Who Holds the Reindeer-herding Right in Sweden? 211 in the travaux préparatoires has always has been regarded as a collective right. Despite the vagueness in the terminology and the emphasis on an undefined collective as the right-holder, the link to reindeer-herding families as the ‘actual’ holders of the right has historical roots dating back to the Act of 1886.19 At the time the first Act was drafted, concerns were raised that the model of a collective reindeer-herding right, with a corresponding ‘joint and several’ obligation for reindeer herdsmen in the Lapp village to pay compensation for damages to a settler’s property, did not fit within the ordinary principles of Swedish property law at the time.20 This is still the case. It is also important to understand that the first Swedish reindeer husbandry legislation was drafted at a time when State economic interests, as well as social Darwinism, played a significant role. Expressions that referred to the Saami as ‘freely roaming’ with their reindeer were frequent, and helped justify regulating the livelihood in order to limit conflicts with the settled population and to ensure that nomadic land use did not provide the basis for an ownership claim but only a collective right of usufruct.21 Clearly, agriculture was the norm against which all other activities were measured. The collective character of the reindeer-herding right is still evident in the current legislation. In particular, section 1 of the present Reindeer Husbandry Act of 1971 retained the link to Saami with parents or grandparents actively involved in the reindeer husbandry. As originally drafted, section 1 of the 1971 Act provided: Subject to this Act a person who is of Saami descent has a right to make use of land and water for sustenance needs for himself and his reindeer (the reindeer herding right), if his father or mother or any of his grandparents have had reindeer husbandry as regular occupation. … If specific reasons apply, the County Administrative Board may grant a reindeer herding right to a person of Saami descent in other circumstances …22

According to this provision, historical ties to the livelihood were essential and reindeer husbandry was not open to all Saami. However, at the same time, the travaux préparatoires to the 1971 Act state that ‘the reindeer 19 Act (1886:38) on the Swedish Lapp’s right to reindeer pasture in Sweden and on ear marks. 20 See N-J Päiviö, Från skattemannarätt till nyttjanderätt. En rättshistorisk studie av utvecklingen av samernas rättigheter från slutet av 1500-talet till 1886 års renbeteslag (Uppsala, Uppsala Universitet, 2011) 13, 211, 255, 236. 21 See ibid, 14, 39–40, 215–16, 221–22, 224–25 and 251. The view of the Saami land use as collective can most likely be traced back to the Lapp tax reform in 1695, where the tax for the first time was imposed collectively on the old Lapp village. See ibid, 244. 22 Para 2 omitted here. For the Swedish text, see eg prop 1971:51, 2.

212 Christina Allard herding right belongs to the Saami generally as one collective right for the people and not only for a particular Saami village or its members’.23 The right-holder is, accordingly, the Saami people, despite the limitation as to who might make use of this right and the fact that this is connected to and carried out through the Saami village (the former Lapp village). Furthermore, with the Act of 1971 the Saami village becomes a legal person, capable of representing itself in legal and other matters.24 Following the original text of section 1, the reindeer-herding right was subject to two criteria. First, a person had to be of Saami descent. This requirement was relatively easy to meet.25 Secondly, the person had to be a member of a family that, over the previous two generations, was regularly engaged in reindeer husbandry.26 Only persons who met both criteria could possess a reindeer herding right. Saami with reindeer-herding rights were termed ‘entitled to reindeer husbandry’ (renskötselberättigad), a central concept in the Act. These two criteria also applied in the previous Reindeer Husbandry Act of 1928,27 but in the two preceding statutes of 1898 and 1886, each ‘Lapp’28 had, in principle, the right to carry out reindeer husbandry. Nevertheless, birth or marriage was still the main rule for membership of the Lapp village when the partition of pasture areas for each Lapp village, initiated in 1886, was finalised.29 The travaux préparatoires to the Act of 1898 make it evident that the legislature intended that membership of a Lapp village would be inherited, thereby establishing a link to reindeer herding families.30 The understanding that the right is held collectively has long-standing roots and may be traced back to the so-called Lapp Committee Report in 1883. The basic notion was that traditional nomadic livelihood was communal, and as the pasture was shared, reindeer-herding rights were correspondingly viewed as collective.31

23 Prop 1971:51, 147. This statement was made in relation to the issue of compensation for infringements, but as a statement it highlights the general understanding of the nature of the right at the time the Act was drafted. 24 Following the Act of 1886 the Lapp village was not a legal person (and thus not a legal subject) and was administered by a system of State officials (lappväsendet) in a very paternalistic manner. 25 See prop 1971:51, 154 (which refer to prop 1928:43, 54–65). 26 Ibid. 27 See Act (1928:309) on the Swedish Lapps’ right to reindeer pasture in Sweden, s 1, and prop 1971:51, 151–52. 28 Former term for Saami. 29 In short, those Lapps who had a physical connection with the area of a Lapp village had a primary right to become a part of the Lapp village. Cp Act of 1886, s 5, para 1 and T Cramér and G Prawitz, Studier i renbeteslagstiftning (Stockholm, PA Norstedt & söners förlag, 1970) 41. 30 See Cramér and Prawitz, above n 29, 40–42. 31 See Förslag till förordning angående de svenska lapparne och de bofaste i Sverige samt till förordning angående renmärken (Stockholm, 1883) 72.

Who Holds the Reindeer-herding Right in Sweden? 213 In my view, this understanding of the collective reindeer-herding right is built on misconceptions and, above all, on the idea that the reindeer herdsmen were roaming around vast pasture areas with little organisation and without any internal division of pasture based on the customary uses of certain family groups. The relationship between the collective of the Lapp village/Saami village and the full collective right of all Saami was not analysed in the legislative process of the first Act of 1886 or concerning the Act of 1971. The most natural right-holder would primarily be the Saami villages, an understanding that has also been highlighted by other legal scholars.32 ii. The 1993 Amendment The current legislation makes it explicit that the reindeer-herding right is a collective right held by the Saami people, but with the restriction that the enjoyment of the right is credited to members of a Saami village. The first section of the Swedish Reindeer Herding Act of 1971 has now been amended to state that: A person of Saami descent (a Saami) may according to the provisions in this Act make use of land and water for sustenance needs for himself and his reindeer. The right following from paragraph one (the reindeer herding right) is held by the Saami people and is founded on immemorial prescription. The reindeer herding right may be exercised by a member in a Saami village.

This principal amendment was enacted without proper analysis of its legal consequences, but that notwithstanding, governmental officials and the courts must apply the legislation even if the results are incongruous.33 One consequence of the declaration that the reindeer-herding right belongs to the Saami people is that the concept ‘entitled to reindeer husbandry’ (renskötselberättigad) was removed and all Saami may now carry out reindeer husbandry.34 A limitation still applies with respect to the right to exercise husbandry rights: the membership condition. At the same time the new second paragraph stated that the reindeer herding rights are based on ‘immemorial prescription’.35 This understanding is drawn from the Supreme

32 See eg G Hafström, ‘Urminnes hävd till skattefjällen i Jämtland och Härjedalen’ in Samernas Vita Bok III:2 (Stockholm, Svenska samernas riksförbund, 1975) 45; and Bengtsson, above n 6, 83. Cp Allard, above n 1, 346, fn 2691. Historical case law proves that the Saami involved in disputes were seen as legal subjects with respect to the land area used. See Päiviö, above n 20, 142, 144, 146 and 174–75. 33 The Supreme Court in the Nordmaling case hinted that the regulation was not entirely satisfactory, as did the Saami parliament which, since 2007, has been the competent authority for administering much of the reindeer husbandry. 34 See prop 1992/93:32, 92 and 182–83. This amendment is based on SOU 1989:41 and prop 1992/93:32. 35 Ibid.

214 Christina Allard Court’s decision in the 1981 Taxed Mountains case, where the Supreme Court held that the reindeer-herding right rested upon immemorial prescription and not on the reindeer husbandry legislation.36 A paradox of the 1993 amendment is that the legislature declared that the reference to immemorial prescription was to replace previous vagueness regarding the nature and source of Saami rights, which was said to have had negative effects on reindeer husbandry.37 To a certain degree this is unproblematic—the difficulty arises when the sentence couples the proprietary concept with the statement of the Saami people as the right-holder. While the reindeer-herding right had always been regarded as a collective right, the 1993 amendment dramatically broadened the scope of the collective, with consequences that we will see. I have already mentioned that the travaux préparatoires do not provide a close analysis of the legal consequences of the 1993 amendment, or of the practical implications of that amendment for reindeer husbandry in relation to such matters as legal standing, infringements of the exercise of husbandry rights and compensation matters, but neither did the travaux préparatoires for previous amendments or the various commissions charged with overhauling different aspects of the present Reindeer Husbandry Act.38 A 2009 public report, suggesting new amendments to the Act of 1971, doubts that a Saami village would be able to claim immemorial prescription to a certain pasture area as against another Saami village. The report agrees that rights may be established by protracted use in line with general property law principles, but say that the claim lacks support in case law.39 It is the second paragraph (see above) that diverges from normal real property law by vesting the right in the Saami people as a whole. It is legitimate to question whether the provision should be interpreted literally, since on a strict interpretation the amendment has not clarified the nature of the reindeer-herding right as it was supposed to. The differentiation between the holder of the reindeer-herding right (the Saami people) and the Saami allowed to exercise the right (the members of a Saami village) makes it difficult to regulate the exercise of the reindeer-herding right clearly. Paragraph two works together with other provisions in the Act, and given its place and weight as part of the paramount first section, guides the 36

NJA 1981 s 1, at 233–34 and 248. See section II.B.i. Prop 1992/93:32, 90 and 182. 38 In particular, the Commission set up to investigate the contemporary reindeer husbandry legislation (Rennäringspolitiska kommittén) did not reflect on the matter and its proposed legislation includes exactly the same reference to immemorial prescription as the 1993 amendment—without any assessments of the validity and legal consequences thereof. See SOU 2001:101, 71 and 161–62. This was despite the fact that the Commission acknowledged that one of its most important undertakings was to clarify the meaning and regulation of the reindeer-herding right as a civil law-based right. See ibid, 102. 39 Ds 2009:40, 76–77. The matter regarded the reform ‘open Saami village’. See further below n 41. 37

Who Holds the Reindeer-herding Right in Sweden? 215 interpretation of other sections. The present Act includes several ambiguous provisions with respect to the Saami village and its relationship with the larger collective, particularly regarding some vague provisions referring to ‘the reindeer husbandry’ (renskötseln).40 To what does this refer? Does it refer to a particular Saami village, to a group therein, or is it a reference to reindeer husbandry in general? The outcome in, for instance, matters of infringement and compensation will be different depending on the meaning given to these words. So far we have not seen many consequences flowing from the 1993 amendment. There have been only a few cases on the issue, leaving continued uncertainty. However, there have been a couple of recent disputes over reindeer-herding rights post-1993, questioning the legal standing of the Saami village, putting a new spotlight on the relationship between the whole Saami collective and members of the Saami village. I discuss these cases in the following section. There have also been a few cases concerning the division of village areas, which I discuss briefly in section IV.A below. Additionally, there is a proposal for a new amendment which suggests that the Saami village should be opened to Saami not engaged in reindeer husbandry, as a way of strengthening links to ancestors and lands.41 It is only possible to implement this reform after the amendment of section 1 of the Act of 1993, which removed the link to reindeer-herding families and allowed all Saami to become holders of husbandry rights.

B. The Right-holder in Case Law i. Two Precedent Cases As already noted, there are very few Supreme Court cases concerning the nature of the reindeer-herding right, and none of them explicitly focuses on the right-holder to the reindeer-herding right. However, two cases, the Taxed Mountains case from 1981 and the Nordmaling case from 2011, are still relevant in understanding the right.42

40 Reindeer Husbandry Act, ss 28, 30, 32 and 34. See generally Allard, above n 1, para 7.3.2.2. 41 See Ds 2009:40. The suggested reform, ‘an open Saami village’, would make it possible for Saami outside the reindeer husbandry to apply for membership in the Saami village, but the new members would not be given any specific rights. Hunting and fishing is to be reserved for Saami involved in reindeer husbandry. The report was ‘withdrawn’ because of severe criticism, but the basic idea of the reform has not been abandoned. 42 In Swedish law, cases from the supreme courts are not formally binding for lower courts but are persuasive.

216 Christina Allard The Taxed Mountains case43 was the first modern case to examine Saami land rights, and is still the biggest case in modern history.44 The case, initiated by the Saami in 1966, was a disappointment as the Saami lost at all three court levels. Although the main part of the case dealt with Saami claims to ownership of the so-called taxed mountains, the Supreme Court made important statements on the nature of the reindeer-herding right. During the twentieth century the State’s main position was that legislation had created the right, referred to as ‘the Lapp privilege’ (lapprivilegiet), and gave the Saami a monopoly, but the Supreme Court clarified that the right had an independent legal basis. The right rested on immemorial prescription, a civil law-based right, and was shielded by the Constitution against takings and infringements without compensation. This led, as we have already noted, to the 1993 amendment of the Reindeer Husbandry Act. The case itself was silent on the question of the right-holder, but the Court implicitly accepted the plaintiff Saami villages as competent parties to the case and as possible owners of the taxed mountains.45 The next Supreme Court case analysing the reindeer herding right occurred in spring 2011. The Nordmaling case46 originated when approximately 100 private landowners in Nordmaling Municipality sued three Saami villages, claiming that the Saami had no right to winter-pasture on their properties. The Court maintained the civil law basis of the right and concluded that the right to winter-pasture did exist.47 There are differences between the two Supreme Court cases: the Nordmaling case dealt only with winter-pasture areas, whereas the Taxed Mountains case concerned year-round areas; and in the Taxed Mountains case, the other party was the Swedish State, as opposed to the private land owners in Nordmaling. The Nordmaling case does offer some discussion of the collective feature of the reindeer herding right, as there was an initial procedural issue regarding whether, according to the legislation, the three Saami villages 43

NJA 1981 s 1. For a summary in English, see B Bengtsson, ‘The Decision of the Supreme Court’ in B Jahreskog (ed), The Sami National Minority in Sweden (Stockholm, Rättsfonden, 1982). Bengtsson was one of the judges. See also Allard, above n 1, 258–62. 45 See also NJA 1981 s 1, 167–70. 46 NJA 2011 s 109. For an analysis in English, see my case review ‘The Swedish Nordmaling case’ (2011) Arctic Review on Law and Politics 225, and in Swedish see B Bengtsson, ‘Nordmalingdomen—en kort kommentar’ (2011) Svensk Juristtidning 527; C Allard, ‘Nordmalingsmålet: Urminnes hävd överspelad för renskötselrätten?’ (2011–12) Juridisk Tidskrift 117. 47 NJA 2011 s 109, 230, paras 9–10. However, the Court did not rely on immemorial prescription because it established that the rules on immemorial prescription in the old Property Code (from 1734) ‘do not fit well with the recognition of nomadic reindeer herding rights of the Saami’. See at 230, para 9. Instead, the Court used customary law as the basis for the claim. There is no room to go into the details of this difference, so I refer to my review of this case in Arctic Review on Law and Politics, above n 46. 44

Who Holds the Reindeer-herding Right in Sweden? 217 had standing in this case as the right vests in the Saami collectively. The Court concluded that the Saami villages could be a party to the case on the basis of a provision in the Reindeer Husbandry Act which states that a Saami village may answer on behalf of the village and its pasture area.48 However, later the Court supported the collective nature of the right, stating that there was no need to investigate which Saami, from time to time, utilised the particular pasture areas, and that Saami from different villages could cooperate to establish and uphold the customary right.49 This suggests that the Court does not understand the three Saami villages to be the right-holders of the winter-pasture areas, while simultaneously concluding that the reindeer-herding right has a civil law basis.50 This is not logically coherent, but does follow the legislation. ii. An Upcoming Case An important case, the Girjas case, has been initiated at the local court of Gällivare. As in the Taxed Mountains case, the National Union of Swedish Saami (SSR) stands behind this case, which has the potential to go to the Supreme Court. The case concerns the hunting and fishing right encompassed in the reindeer-herding right, and will possibly clarify the collective nature of the right. The case is also interesting as the Swedish State (through the Chancellor of Justice) is emphasising the collectivist feature of the right enshrined in section 1 of the Act. The case began in 2009, when the Girjas Saami village filed a suit against the State, claiming that the Saami village has exclusive hunting and fishing rights on Crown lands (kronomark). The Girjas Saami village is located in the far north of Sweden and the village’s year-round areas are situated above the cultivation boundary (odlingsgränsen), where the reindeer-herding right is generally regarded as very strong.51 The Swedish State has disputed the exclusive character of the village’s hunting and fishing rights, as well as the legal standing of the Saami village. The Girjas case is pending at the local court, but the Saami village won a preliminary procedural ruling in February 2011.52 The State contends that 48

NJA 2011 s 109, 229, para 3. Ibid, 230, para 10. 50 Ibid, 231–32, para 14. 51 This cultivation boundary has legal relevance: it is mentioned in the Act of 1971, and the land use here has been more undisturbed and shielded. This creates better conditions for claims based on immemorial prescription or other concepts. One purpose of the cultivation boundary was to reserve land above the boundary for traditional Saami livelihoods. It was established in the late 1860s. At the time disputes between Saami and settlers were intense, even in the mountain areas. Newcomers had settled themselves so high up in the mountain region that cultivation was hardly possible. See eg SOU 2006:14, 130–32, with references. 52 Gällivare local court case no T 323-09, decided 17 February 2011. The court held, in line with the Nordmaling case, that the Saami village represents its members in matters that involve 49

218 Christina Allard the Saami village alone cannot have standing as the claim is based on the collective reindeer-herding right of the Saami, even though the claim falls within a delimited area, such as the Saami village’s own pasture area. The State also questions the Saami village’s right to represent individual members’ hunting and fishing rights. It is, according to the State, inappropriate that a Saami village, via court proceedings, should eliminate the rights of members in case of defeat. Thus, the State’s view, in this case, is quite paternalistic with respect to the Saami villages.

III. SOME PROPERTY LAW ASPECTS

This section of the chapter addresses my first challenge to the collectivist feature of the reindeer-herding right. It provides a short discussion of some central property law issues that are relevant for understanding that right. I discuss the relationship between the object and subject in the modern understanding of ownership and lesser forms of property right, and I also discuss this relationship in terms of different categorisations of land-based rights.53

A. Establishing Land Rights by Protracted Possession and Use It is quite rare in present-day society to acquire ownership and usufruct rights based solely on long-term possession and/or use. One might say that it is a remnant from olden days, when the factual possession of a piece of land was the main element in determining how a right became individualised.54 Nevertheless, in relation to indigenous peoples and their traditional livelihoods, rights based on protracted use of land and natural resources are still evident and in many cases unresolved. One central question is how such rights become legally established. Each property law system has its own set of doctrines and legal concepts explaining this recognition, ranging from occupation to various prescriptive rules, and other proprietary doctrines and concepts. As a general rule of thumb, land use in a certain area must have been sufficiently intensive, continuous and exclusive in order to establish a right,

the reindeer-herding right or common interests of the members, and that the Saami village is free to state the facts it sees fit to anchor its claim. The State has appealed. 53 There are other more detailed aspects related to Swedish property law principles, but these are of less interest for the purposes of this chapter. See generally B Bengtsson, ‘Om kollektiv renskötselrätt’ in B Bengtsson, 21 uppsatser (Lund, Juristförlaget i Lund, 2003). 54 See eg M Ågren, Att hävda sin rätt. Synen på jordägandet i 1600-talets Sverige, speglad i institutet urminnes hävd (Stockholm, Nerenius & Santérus Förlag, 1997) 148 and 154.

Who Holds the Reindeer-herding Right in Sweden? 219 whether a usufruct right or ownership.55 The condition of exclusive possession and/or use denotes a certain sphere of authority over the lands and resources used, and may be applied in the context of ownership and exclusive usufruct rights, such as the exclusive right to fish in a specific lake. A common denominator for doctrines and concepts related to real property is that they imply a correlation between the land area utilised and the person/group utilising the area. In other words, the link between the legal object and the legal subject is implicit. In many cases, it is unnecessary to specify that link as it is simply self-evident (eg in the case of ownership).56 In general in property law there is tension between two distinct questions: first, who is entitled to use a ‘thing’; and, secondly, how is this person or group entitled to use the ‘thing’.57 The first question focuses directly on the right-holder of the ‘thing’, and thereby establishes this crucial link between the object and subject. In our case the ‘thing’ is a specific land area, real property. The physical location of land is always distinct and all plots of land are in some sense unique.58 The second question concerns the content of the right: how may the piece of land be used? For instance, are there any limits to ownership, and is the legal subject the only person/group entitled to hunt on the land? This basic element of property law must still be clarified in Sweden in relation to the reindeer husbandry right. As with other land-based rights, a limited right of this kind must be held by a person or a definable group of people. If we take the notion seriously that the reindeer-herding right is based on civil law, it will not suffice to regard the Saami population, in its entirety, as the right-holder. If that is the case, the reindeer-herding right is merely a right to a certain livelihood (näringsrätt) which, among other things, would afford no legal protection to particular Saami villages that typically compete for grazing areas; it would also afford the State a large area of discretion in the decision-making of authorities in relation to reindeer husbandry matters.59

55 Cp, eg, the doctrine of aboriginal rights in Canadian law and immemorial prescription/ immemorial usage applied in Saami matters in Scandinavian law. Cp also the common law doctrine of adverse possession, which like the Scandinavian doctrines stem from the Roman law usucapio. See also GK Eriksen, Alders tids bruk (Bergen, Fagbokforlaget, 2008) 50 and 136–37; WC Morey, Outlines of Roman law: comprising its historical growth and general principle, 2nd edn (New York, GP Putnam & Sons, 1914) 303. 56 This relationship was also evident in Roman law which influences many western legal systems. In relation to the law of property, a legal system must determine who may be the subjects as well as what may be the object of a right. See eg Morey, above n 55, 269. 57 See B McFarlane, The Structure of Property Law (Oxford, Hart Publishing, 2008) 4–5. 58 Ibid, 7. 59 Eivind Torp has also concluded that this feature of the reindeer husbandry has been strengthened in recent years. See E Torp, Renskötselrätten och rätten till naturresurserna. Om rättslig reglering av mark- och resursanvändningen på renbetesmarken i Sverige (Tromsö, Universitetet i Tromsö, 2008) 328.

220 Christina Allard B. Categories of Indigenous Peoples’ Land Rights Another way of distinguishing different types of rights is to categorise them according to their basic attributes. This section draws upon some useful concepts developed by Brian Slattery in the context of Canadian law on aboriginal rights.60 Slattery’s categorisation may provide a useful platform for discussing these issues within other legal systems, such as the Swedish, although we must recall that Sweden has one indigenous people, the Saami, whereas Canada has three classes of indigenous peoples.61 Nevertheless, the Saami are by no means homogeneous, and there have been, and still are, different forms of Saami livelihoods. Slattery first distinguishes between generic and specific rights.62 If Saami ownership is ever to be recognised by the courts, it will be as a generic right in the sense that it is a right of standardised character, applied consistently to different Saami groups.63 Hence, if reindeer husbandry and subsequent customs related to livelihood qualify as ownership of a specific area, the Saami group will have established ownership as generally understood in Swedish law. If the claim does not meet this standard, it might establish a lesser right—a reindeer-herding right as found in the Taxed Mountains case referred to above. The lesser reindeer-herding right may be characterised as a specific right.64 The right is unique and distinct vis-à-vis other limited property law-based rights in Sweden. It would also be unique to that group. Even the reindeer-herding right may not have the same content over the vast pasture area due to differing land use. In fact, legislation recognises that the content of the right varies in certain regions (although for other reasons).65 A specific right is therefore a right that is ‘determined by the historical practises, customs and traditions of the particular group in question and so differ from group to group’.66

60 See B Slattery, ‘Making sense of aboriginal and treaty rights’ (2000) 79 Canadian Bar Review 809. Cp also with the more recent article, B Slattery, ‘The generative structure of aboriginal rights’ (2007) 38 Supreme Court Law Review 595. 61 The Indian, Inuit and Métis peoples of Canada, see Constitution Act 1982, s 35(2). 62 Slattery, ‘Making sense’, above n 60, 815; Slattery, ‘The generative structure’, above n 60, 598. 63 Cp ibid. Even if Saami ownership has so far been denied in Swedish courts, nothing suggests that Saami ownership should have another content and meaning if ever accepted. Noteworthy is that the Norwegian Supreme Court has on one occasion upheld a claim based on collective use by a community consisting of a Saami majority. See Rt 2001 s 1229 (Svartskogen case). It was tried using the standard of Norwegian property law, immemorial usage (alders tids bruk), although with some modifications. 64 Cp Slattery, ‘Making sense’, above n 60, 816. 65 See above n 12. 66 Slattery, ‘Making sense’, above n 60, 816.

Who Holds the Reindeer-herding Right in Sweden? 221 Slattery also refers to sub-groups of rights: site-specific rights and floating rights, depending basically on the degree of connection to the land.67 Both Saami ownership and the reindeer-herding right are site-specific in the sense that the right is connected to a specific land area. The reindeer-herding right consists of a bundle of different rights, which are also site-specific.68 Similarly, an independent claim to Saami fishing rights in a certain lake or river would be regarded as a specific and site-specific right, if upheld by the courts. A specific right denotes a right that is not held by all Saami and the content of which is determined by actual and traditional land use. By contrast, if the Saami people, as a whole, are understood to be the right-holder, the reindeer-herding right could only be characterised as a generic right. It cannot then be a specific or a site-specific right. The Swedish reindeer-herding area is approximately 40 per cent of the country’s territory, and the Saami people, as a whole, cannot establish any links to specific tracts within this vast area. The borders of the Saami villages are then merely understood as administrative borders where the competent authority—nowadays the Saami parliament—may at any time make adjustments without having regard to customary use by specific groups of herdsmen.69 Whether the reindeer-herding right may be classified as a floating right will be discussed next. The Swedish reindeer-herding right is, on occasion, compared to the relatively harmless ‘public right of access’ (allemansrätten), usually by those with competing rights and interests. The public right of access also comprises a bundle of entitlements, such as rights of passage, camping, picking berries and mushrooms, as well as others, which apply to everyone residing in Sweden and to all lands, subject to certain restrictions.70 This is also a collective right and may be exercised individually (hiking in the mountains) or in groups (eg organised horse-riding with a guide). The public right of access is best characterised as a floating right as it is not tied to a particular land area. Thus, floating rights are not site-specific; the right applies on any lands to which members of the group have access, for example, for gathering wild plants for medicinal purposes.71 It follows that it will be difficult to maintain a claim for compensation for infringement of the public right of access, such as a new road through a popular recreation area, because the collective is undefined and the impairment is minor with respect to the Swedish territory and the entire 67

Ibid. On the bundle of rights, see generally eg Allard, above n 1, 329–32. 69 A view upheld by case law from the Supreme Administrative Court, see RÅ 2001 not 183; RÅ 2000 not 82; RÅ 1999 not 76. See further below. 70 See generally B Bengtsson, Allemansrätt och markägarskydd , 2nd edn (Stockholm, Norstedts Förlag, 1966); Å Åslund, Allemansrätten och marknyttjande: studier av ett rättsinstitut (Linköping, Linköpings universitet, 2008). 71 Slattery, ‘Making sense’, above n 60, 816. 68

222 Christina Allard population. In Swedish law, the public right of access does not confer legal standing.72 If the collectivist approach is maintained, the reindeer-herding right is akin to the public right of access, a kind of ‘Saami public right of access’, which may be characterised as a floating right. Such a comprehension would, for instance, affect compensation matters and the borders of pasture areas between villages. Saami villages today, consisting of many private enterprises, are competing with respect to available pastures and the outlet of reindeer meat on the market. They risk adjustments of the villages’ available pasture area by way of administrative decisions by the Saami parliament, but without compensation for losses of pasture to other villages since the pasture belongs communally to all Saami. All possible pastures are occupied by Saami villages, and even relatively small modifications of pasture areas may have significant effects on the reindeer husbandry of a particular village. In this sense there is no legal protection of the pasture areas of particular Saami villages. Moreover, compensation for infringements and takings would be difficult to maintain, or would logically not apply to those reindeer herders affected but to a larger collective. In fact, the present legislation gives half of any compensation to a Saami fund and the other half to the affected Saami village.73 To conclude, as established in the current legislation, the reindeerherding right resembles a floating right.

IV. CONSEQUENCES OF A COLLECTIVIST APPROACH

Apart from general property law arguments discussed above, there are other reasons why the collectivist approach has negative impacts for the reindeer-herding Saami. In sum, I shall argue that the understanding that the reindeer-herding right is held collectively (i) leads to an absurd and unjust legal application, (ii) does not correspond with the customary reindeer-herding livelihood and the siida structure, and (iii) does not follow legal developments in Norway.

A. An Absurd and Unjust Legal Application One of the clearest examples of the legal consequences that flow from the reindeer-herding right being held collectively by all Saami relates to the

72

Environmental Code (1998:808) c 16, s 12; prop 1997/98:45, 478. Reindeer Husbandry Act, s 28, para 2 and s 34; prop 1971:51, 146–48. The Ombudsmen for Justice had earlier argued that the whole compensation should go to the affected Saami village. See ibid, 146. 73

Who Holds the Reindeer-herding Right in Sweden? 223 borders of the Saami villages.74 Section 7 of the Reindeer Husbandry Act of 1971 mandates the competent authority (now the Saami parliament) to divide village areas so that the areas become ‘suitable’ for their purpose.75 The provision is broad and the case law confirms that the decision-maker has a large margin of discretion.76 In these cases section 1 of the Act has been interpreted literally. Two things stand out in case law. First, a Saami village that loses pasture areas (to the benefit of another village) does not obtain compensation and, secondly, the legislation does not restrain the decision-making authority of the Saami parliament (previously that of the County Administrative Board), as the borders are administrative in nature and the decision-maker has a broad discretion under section 7 in fixing those boundaries. In other words, Saami villages have no rights based on the protracted use of ‘their’ pasture area. An additional problem is that disputes must be resolved in the administrative courts, which cannot address property law matters, and the few cases, mainly from lower courts, do not serve as precedents according to Swedish law.77 A common denominator in these cases is that the Saami villages claim customary rights to ‘their’ village areas; but such issues can be resolved only by filing a suit in the civil courts. This has not happened yet, and as a result the property law matters are left unresolved. These rules with respect to the division of village areas are remarkable since they may result in the reallocation of pasture areas between Saami villages. According to legislation, each Saami village is a legal person, responsible for the husbandry carried out by its members, but the Saami villages are still subject to the discretion of a public authority, even if it now happens to be the Saami parliament.

B. Traditional Reindeer Herding and the Siida Reindeer-herding Saami have long carried out their livelihood through a traditional organisation, the siida, which, especially in northern Sweden, is still

74 Bengtsson has also briefly acknowledged the problem. The diversion from property law principles may be understood as discriminatory. See Bengtsson, above n 53, 282. For a detailed analysis, see Allard, above n 1, paras 7.3.2.1 and 8.3.2. 75 Section 7, para 2: ‘The division shall be done so that each area becomes suitable for its purpose with regard to pasture availability and other circumstances.’ 76 See eg RÅ 2001 not 183; and see generally on compensation, Allard, above n 1, 317–21. 77 Cp n 42. These cases involve two or more Saami villages, at the same time acting as plaintiffs and respondents, and with the competent authority at either side. Even though some Saami villages have been successful in a case, others have lost. For a record of all of the cases, see Allard, above n 1, para 7.3.2.1. Since the Saami parliament became the competent authority in 2007, there has, to my knowledge, been only one case, which was decided in December 2009 by the local administrative court in the County of Norrbotten. The case was dismissed due to procedural errors and sent back to the Saami parliament.

224 Christina Allard an active institutional form for the management of reindeer and pasture.78 The siida is based on kinship and possesses great flexibility, which allows a large degree of autonomy for the individual reindeer herder. Crucial decisions with larger implications are traditionally based on consensus among the reindeer herders. A characteristic feature of the reindeer-herding siida is the understanding of the interrelationship between ecological and social linkages.79 The siida structure builds on a customary division of kinship groups and specific pasture areas. This also explains why Saami villages commonly refer to customary rights to certain areas in disputes with other villages, as we have seen above. Yet under the present reindeer-herding legislation, the Saami village is considered to be an administrative body established to manage reindeer husbandry, rather than a self-reliant unit that, according to Saami custom and Swedish proprietary concepts, establishes and maintains rights to specific areas. Neither the former nor the current legislation acknowledges the siida and its role in maintaining the reindeer-herding livelihood and Saami property rights.

C. Norwegian Legal Developments The history and traditions of reindeer herding livelihood are largely the same in Sweden and Norway, and so comparison is natural.80 The first legislation on reindeer husbandry in 1883 was common to both countries, and reindeer husbandry has, since then, been carried out across the national borders of Sweden and Norway, just as before any borders were established.81 The newly-revised Norwegian Reindeer Husbandry Act82 is built on the reindeer-herding culture and traditions.83 Several provisions highlight the importance of the siida. One reason for the revision was the fact that the old legislation did not recognise that a particular group (typically a siida) had protected reindeer-herding rights, and that, by ignoring the reality of a

78 See N Kuhmunen, Renskötseln i Sverige förr och nu (Umeå, Svenska samers riksförbund, 2000) 53–54 and 153. See generally C Allard and K Labba-Oskal, ’Samebyns interna organisation’ (2011) Förvaltningsrättslig tidskrift 197. 79 See K Bull et al, Reindriften i Finnmark. Rettshistorie 1852–1960 (Oslo, Cappelen akademisk, 2001) 299–303, 320–21 and 328–29; E Solem, Lappiske rettsstudier (Oslo, Novus, 1933) 184; NOU 2001:35, 27–28. 80 See eg O Jebens, Om eiendomsretten til grunnen i Indre Finnmark (Oslo, Cappelen akademisk forlag, 1999) 26–27, where the author recognises the common ground of Norwegian and Swedish legislation. 81 Cp with Broderstad, ch 6 of this volume. 82 Reindeer Husbandry Act, 15 June 2007 no 40. Hereafter ‘the Norwegian Act’. 83 NOU 2001:35, 10; Ot prp no 25 (2006–2007) 5. See generally MN Sara, ‘Land usage and siida autonomy’ (2011) 2 Arctic Review on Law and Politics 138.

Who Holds the Reindeer-herding Right in Sweden? 225 group’s rights based on protracted use, expanded the margin of discretion in decision-making of competent authorities.84 The former Norwegian law also viewed the reindeer-herding right merely as a right to a certain livelihood.85 This view has recently changed,86 even though the Norwegian Reindeer Husbandry Act contains a provision that is nearly identical to section 1 of the Swedish Act of 1971. It states that ‘[t]he Saami people have on the basis of immemorial usage rights to conduct reindeer husbandry’.87 The difference is that the Norwegian courts do not interpret this provision literally. At a general level, the reindeer-herding right is understood as a collective right reserved for the Saami, but the exercise of that is in principle restricted by the need to show a connection to a reindeer-herding family that is actively, or has actively been, pursuing reindeer husbandry.88 This is similar to the position which prevailed in Swedish law until 1993. Moreover, the comprehension in Norwegian law is that the right-holder will vary according to the customary land use in the area—at times, it may be the district and in other circumstances it will be the siida.89

V. CONCLUSION

It should now be obvious that the official understanding of the Swedish reindeer herding right, as a collective right in its widest sense, is subject to several objections from both a legal perspective and in light of the customary norms of the traditional reindeer-herding livelihood—the Saami siida. The official understanding does not follow other civil law-based rights or the general property law principles of Swedish law. Perhaps, not all property law principles must be followed, but any divergence should not result in the unfair treatment of those affected.

84 NOU 2001:35, 89. See also KS Bull, Studier i reindriftsrett (Oslo, Tano Aschehoug, 1997) 97–99, where the author critiques the former Norwegian legislation and the mandate of the authorities to rather freely amend the borders of the district (Saami village in Sweden). 85 See Bull, above n 84, 52; NOU 2001:35, 93. 86 The public commission overhauling the reindeer husbandry legislation discusses the previous and present understanding of the right-holder in NOU 2001:35, 71–74 and 93–94. See also Rt 2000 s 1578 (the Seiland case), where the Supreme Court ruled that a siida within a district must use its own traditional areas for pasture and cannot count on using another siida’s traditional areas. The case dealt with compensation for loss of pasture due to regulation of water levels of a lake. 87 Norwegian Act, s 4, para 1. Immemorial usage (alders tids bruk) is the common Norwegian proprietary concept recognising the reindeer-herding right. 88 Norwegian Act, ss 9 and 32. The right to own reindeers has a connection to the right to an individual reindeer mark (the traditional way of indicating ownership of a reindeer by marking it in the ear). 89 NOU 2001:35, 71–72 and 93; Rt 2001 s 1578; SF Skogvang, Samerett, 2nd edn (Oslo, Universitetsforlaget, 2009) 269–70.

226 Christina Allard In this chapter I have emphasised one of the most apparent shortcomings of the understanding of the reindeer-herding right in Sweden, the comprehension of the right-holder. As a result of the amendment of section 1 in 1993, the collectivist feature was strengthened by opening up reindeer husbandry to all persons of Saami descent. However, the basic understanding of the right, as attributed to a wide Saami collective, has nevertheless been evident from the Act of 1886 and onward. I have here stressed four arguments against such a conception of the basic right, ranging from central property law aspects to recent Norwegian legal developments. Still, the recent amendment of 1993 is important. First, courts have interpreted the section by further emphasising the collective feature of some other provisions of the Act. Those cases primarily relate to the legal standing of Saami villages and the division of pasture areas of the Saami villages. Secondly, this case law and the interpretation of section 1 pave the way for new legislation. There have already been a few commissions overhauling different aspects of the present legislation, but none has addressed the problems put forward in this chapter. As legislation is seldom drafted in a vacuum, there is undeniable ‘path dependence’ with respect to basic and principal considerations. How we envisage and understand the nature of the collective reindeer-herding right will likely impact the drafting of the new reindeer husbandry legislation, unless the Supreme Court offers different guidance. As declared initially, the primary legal subject of the reindeer-herding right is naturally and logically attributed to the Saami village, and this collective is defined via its membership. In other words, section 1 is not to be interpreted literally. The right might best be classified as a site-specific right in which the entitlements associated with the reindeer-herding right are held by and for the group. The members of a Saami village, usually with a core of ancestral reindeer-herding families, have through protracted possession and/or uses maintained the relationship with their pasture areas, and have, thus, secured the crucial link between the object and themselves as the legal subjects. This understanding of the right-holder would also serve to restrict competent authorities in making decisions concerning such matters as the division of village areas. However, what the reindeer-herding right means as a civil law-based right in different situations still needs to be canvassed and analysed in depth. As in Norwegian law, the right-holder may not always be the Saami village but a smaller group within a village (typically a siida), depending on how the reindeer are managed, customary norms and the matter in question. To conclude, the official Swedish attitude concerning the right-holder of the reindeer herding right likely has implications for a Nordic Saami Convention. Reindeer husbandry is an essential part of Saami culture and

Who Holds the Reindeer-herding Right in Sweden? 227 capable of establishing land rights. The question is how to understand, apply and protect this collective land right when there is no agreement between the countries as to the basic issue of the right-holder. As demonstrated, legislation and case law on reindeer husbandry in Norway and Sweden continue to drift apart, despite their common origins. The situation in Finland is, however, different, as it does not even officially recognise a specific Saami reindeer-herding right.90 Even though Article 8 of the draft Nordic Saami Convention recognises minimum rights,91 the result is, and continues to be, a different application of national reindeer husbandry laws, for instance regarding which collective is entitled to compensation for loss of rights (a general fund, Saami villages or siidas). For cross-border reindeer husbandry, such differences may be quite disturbing while managing reindeer in everyday life. On the other hand, it is possible gradually to overcome these differences between and gaps in reindeer-herding legislation in the three countries, and there is a great need for a common, supranational and normative framework to protect the Saami as an indigenous people. This is especially important for as long as the civil law character of the reindeer-herding right remains solely a national matter. In time, a Nordic Saami Convention offers the potential for a slow, but necessary, harmonisation of basic principles in the three countries’ legislation. After all, the Saami are one and the same people in all three States.

90 See eg C Allard, ‘The Nordic countries’ law on Sámi territorial rights’ (2011) 2 Arctic Review on Law and Politics 159, para 3.4, with references. 91 See Nordisk samekonvensjon: Utkast fra finsk-norsk-svensk-samisk ekspertgruppe (Oslo, Kopi og distribusjonsservice, 2005).

9 The Draft Nordic Saami Convention and the Indigenous Population in Finland JUHA JOONA

I. INTRODUCTION

I

N 2005, THE draft Nordic Saami Convention, comprising 51 articles, was submitted to the ministers of Finland, Norway and Sweden responsible for Saami issues, and to the three Saami parliaments. The draft articles were part of a more comprehensive commentary developed by the Expert Group1 on a wide variety of questions relating to the rights and status of the Saami. Among other issues, the draft and the commentary touch on Saami history, politics, livelihoods, rights associated with land and water, and international human rights agreements concerning minorities and indigenous peoples. The draft states that the Saami are an indigenous people with their own culture and a society that is associated with Saami history, traditions, language, livelihoods and visions for the future. The draft is based on the concept of a single indigenous people who reside in more than one nation. Some of the objectives underlying the draft have been expressed with more care, while others have received less consideration. Some, and in particular the inter-ministerial working groups of the three Nordic countries, have expressed the concern that some of the Expert Committee’s most important work was insufficiently justified from a legal perspective.2 This 1 See the Report on the Draft for a Nordic Saami Convention, ‘Pohjoismainen saamelaissopimus: Suomalais-norjalais-ruotsalais-saamelaisen asiantuntijatyöryhmän’ 27. lokakuuta 2005 luovuttama luonnos (Finnish Ministry of Justice Publication No H-2183 F, 90-96). This extensive document (hereinafter ‘the Report’) consists of nine sections and four annexes, totalling 340 pages. 2 Inter-ministerial committee statements in Finland, Sweden and Norway, the Finnish report (translation prepared by Timo Koivurova, Leena Heinämäki and Tanja Joona); the Norwegian report (translation of Final Remarks prepared by Susann Skogvang); a summary of the Swedish report (translation provided by Christina Allard) (on file with the author).

230 Juha Joona chapter focuses on the legal and historical background to Article 4 of the draft Convention within the context of the Finnish experience. In comparison to Sweden and Norway, the Finnish situation is, in many ways, the most challenging. The main reason for this is that in Finland, the investigation of indigenous peoples’ status and their rights began much later than in the two other Nordic States. In Norway and Sweden, legislation on the rights of the indigenous people has been in place since the nineteenth century. These two States also have an established legislative tradition relating to the rights belonging to indigenous people and the criteria for determining eligibility, as well as special land and water rights. These issues are addressed in the reindeer husbandry legislation and in related case law, as well as other legal praxis. Although Finland was part of Sweden until 1809, its subsequent development took a different course. In Finland, there was an awareness of the development of both Swedish and Norwegian legislation, but Finnish law-makers lacked the motivation to establish similar legislation. Unlike Sweden and Norway, Finland’s judicial system has not accepted the premise that a person belonging to the indigenous population could have exclusive rights to certain livelihoods or to the use of particular land and water areas. Since positive State law does not recognise that such rights exist, there was no need to enquire into who might be the rights-holders, or to examine the content of those rights. In Finland, there is little discussion of these issues despite the fact that, arguably, in the areas of the former Kemi and Tornio Lapplands, which are today part of northern Finland, the Lapps had strong land-use rights which are comparable to land ownership. Draft Article 4 lists the categories of individuals to whom the draft applies, but it does not properly examine the backgound reasons for these categories. The draft states that, in Finland, it primarily applies to Saami who meet the Saami parliament’s3 language conditions. However, in Norway and Sweden it also applies to individuals who have the right to practise Saami reindeer husbandry. There is no parallel provision for Finland. The draft refers at several points to ‘the Saami people’s historical homeland’ where, based on the draft, the Saami people have rights to land and water areas, as well as to natural resources.4 However, the Convention also speaks of ‘traditional Saami areas’.5 In neither case does the Convention identify these areas. In Sweden, the Saami area is usually understood as the reindeer husbandry region, covering approximately one-third of the entire country. In Finland, the homeland area comprises only the northernmost area of the Province of Lapland. 3

Act on the Saami Parliament 17.7.1995/974. Draft Nordic Saami Convention, unofficial English version, available at , Arts 34–43. 5 Ibid, eg art 35. 4

Convention and Indigenous Population in Finland 231 According to the draft, throughout history the Saami have not been treated as a Nordic people who are of equal value. They ‘have thus been subjected to injustice’.6 The purpose of the draft Convention is to rectify these past mistakes, but it can do so only if it is built on solid foundations. This chapter argues that such a solid foundation is lacking, at least in the case of the Finnish Saami, since the rules for determining Saami status in Finland are fundamentally flawed. In order to demonstrate this, the chapter proceeds as follows. Section II. provides a legal and historical account of Lapp village areas in Northern Finland and Sweden. Section III. offers an account of the settlement of Lapland following the Settlement Decree of 1673. Section IV. describes a subsequent wave of settlement comprising nomadic reindeer-herding Lapps who moved into some areas of Northern Finland in the middle of the nineteenth century. Section V. of the chapter changes course and examines the way in which the Finnish Government, through Saami parliamentary legislation and practice, has defined Saami status. The analysis here suggests that the definition evolved quite arbitrarily and that, by emphasising Saami language capacity at a particular point in time (the early 1960s), the definitional criteria favour the nomadic reindeer-herding Lapps who arrived in the area later, and serves in many cases to exclude persons who are descendants of the original Saami occupying the Lappish villages of northern Finland (the Forest Lapps) at the time of the first wave of settlement. Sweden and Finland were once a single State sharing legislative and property rights rules and traditions. Thus the chapter also compares the approaches taken by these two States.

II. THE SETTLEMENT AREAS OF FINLAND’S INDIGENOUS PEOPLE IN THE SEVENTEENTH CENTURY AND EARLY EIGHTEENTH CENTURY

In the seventeenth and eighteenth centuries, the present-day regions of Northern Finland and Northern Sweden were separated from the areas settled by Finnish and Swedish peasants by the so-called Lapland border. The latter lived on the shores of the Gulf of Bothnia, while the Lapps, the indigenous peoples, resided north of this border.7 This so-called ‘historical

6

Ibid, Preamble. Lapps also lived south of the Lapland border from the 17th century to the 20th century, in, for instance, the forest district between the River Kemi-Ounasjoki and River TornioMuonionjoki. However, this chapter concentrates on the legal historical events occurring in Lappish village regions located north of the Lapland border, and Lapp reindeer herders in the Tornionjoki and Kemijoki river valleys. See, eg, J Juhani Korteselmi, Poronhoidon synty ja kehitys Suomessa (Tampere, SKS, 2007) 113–17. 7

232 Juha Joona Lapland’ was divided into six administrative areas: Ångermanland, Uumaja, Piitime, Luulaja, Tornio and Kemi Laplands. Kemi Lapland, in its entirety, and Tornio Lapland, in part, were within the area that today is part of northern Finland. See Figure 1 below.

Figure 1: Lapp villages in Fenno-Scandinavia. Source: The Saami—A Cultural Encyclopaedia, (Vammala, SKS 2005) 186–87. Probable Lapp village/siida borders. Picture drawn by Johanna Roto. The map is based on Samuli Aikio’s map of Lapp villages in Fennoscandia. See also Kyösti Julku, Kemin pitäjän ja Kemin lapin raja (Kemi, 1968), 16.

Each Lapland was divided into Lapp village areas. The Tornio Lapland’s Lapp villages—which were either partly or entirely located in today’s Enontekiö—were Rounala, Suonttavaara and Peltojärvi. Teno and Utsjoki were located either partly or entirely in the current Utsjoki Municipality area. The Kemi Lapland’s villages were Maanselkä, Kitka, Kuolajärvi, Keminkylä, Sompio, Sodankylä, Kittilä and Inari. These Forest Lapp

Convention and Indigenous Population in Finland 233 villages are currently located in the municipal areas of Kuusamo, Posio, Salla, Savukoski, Sodankylä, Pelkosenniemi, Kittilä and Inari. In principle, the Lapps who belonged to a Lapp village had the exclusive right to exploit and use the village land and water areas. In practice, the actual custom of Lapp livelihoods includes hunting, fishing and reindeer husbandry. In some Lapp villages the areas were used for the common good, while in others the area was divided into inherited or tax lands held by individual families. The use of the Lapp village area for public or private good also depended on the livelihood practised. However, in both situations, according to administrative decisions and legal practices, Lapps living in the village had an exclusive right to the use of land and water areas located inside the border of the Lapp village.8 There are different understandings of the legal characterisation of land rights belonging to the Lapps prior to the mid-eighteenth century. The predominant understanding was that the areas that once belonged to the Crown are, today, owned by the Swedish and Finnish States. However, old court cases, published by Isak Fellman in 1912, show that district courts approved the legal confirmation of titles to land and water areas held by Lapps. Lapps were regarded as having so-called taxman’s rights (ie current proprietorship of the areas they held). According to Fellman, such court cases were common during the seventeenth century, but also occurred after that time.9 Ten years later, in a study concerning Lapptax lands, the Swedish legal historian Åke Holmbäck stated that as late as 1739, the district court of Kemi Lapland concluded that the Lapps had taxman’s rights to the areas

8 I Fellman, Handlingar och uppsatser angående Finska Lappmarken och lapparne III (Helsingfors, Suomalainen tiedeakatemia, 1912), lxii–lxiii; Å Holmbäck, Om lappskattelandinstitutet och dess historiska utvecklin (Uppsala, SOU1922:10, 1922) 40–52; Korpijaakko, Saamelaisten oikeusasemasta Ruotsi-Suomessa. Oikeushistoriallinen tutkimus Länsi-Pohjan Lapin maankäyttöoloista ja–oikeuksista (Helsinki, Lakimiesliiton kustannus, 1989) 308–51; and J Joona, Entisiin Tornion ja Kemin Lapinmaihin kuuluneiden alueiden maa- ja vesioikeuksista. 32 (Rovaniemi, Juridica Lapponica, 2006) 77–91. The courts justified this right by first referring to the special legislation of that time (eg a letter issued by King John III of Sweden in 1584 to the Lapps of the Suonttavaara Lapp village, and a letter issued by Duke Charles, crowned as Charles IX of Sweden, to the Lapps of Kemi Lapland in 1602). On the other hand, land and water rights were based on general national legislation. In many cases, there were references to the provisions relating to immemorial rights of the law of King Christopher of Bavaria, or chs 20 and 25 of the Buildings Act. However, this Lapp right to their areas was not unexceptional. Certain houses located in the downstream sections of the Tornionjoki and Kemijoki Rivers were regarded as having the right to fish on certain lakes located in Lapland. This right was seen as being based either on immemorial rights, or on the fact that the household in question had paid tax for the lake in question. The burden of proof, however, was with those who claimed their houses had fishing rights to some lakes located beyond the Lapland border. On the usufruct of wilderness lakes by Finnish peasants north of the Lapland border, see A Luukko, Pohjois-Pohjanmaan ja Lapin keskiaika sekä 1500-luku. Pohjois-Pohjanmaan ja Lapin historia II (Oulu, 1954), 136–51. 9 Fellman, above n 8, lxii–lxiii.

234 Juha Joona they used.10 In later studies, the areas used by Lapps in Kemi Lapland and a part of Tornio Lapland were considered to belong to Lapps with taxman’s rights until 1742, after which these areas were considered to be Crown land in legal praxis.11 Lapps residing in the Lapp village area also had to pay the so-called Lapptax, levied by the Crown’s tax bailiff from the mid-sixteenth century onwards. In the seventeenth and eighteenth centuries, every Lapp who resided in a Lapp village was obliged to pay a Lapptax and was listed in the taxation records.12 Therefore, these taxation records serve as a list of persons to whom land rights belonged. In sum, it may be said that the Lapps, living in Kemi and Tornio Lapland, had a strong right to those areas that they used. The courts understood that right as a right that is today understood as ownership. This was the case from the sixteenth century until the mid-seventeenth century. The holders of that right were, from the beginning, indigenous people of the area, called Lapps, and were entered into tax registers as liable to pay the so-called Lapp tax.

10 Holmbäck, above n 8, 48–49. For later studies, see Korpijaakko, above n 8, 303–405; Joona, above n 8, 122–77; and J Wirilander, ‘Lausunto maanomistusoloista ja niiden kehityksestä saamelaisten kotiseutualueella’, Moniste 8.8.2001, 62, according to which evidence exists that the Lapp village stakeholders had, either alone or with others, rights that may be compared to current proprietary possession (eg the right of ownership of its tax lands, which included fishing waters, hunting grounds and other areas used for special purposes). The conception of Lapp land ownership rights has also received some discussion in the statements issued by the Constitutional Law Committee of the Finnish Parliament. See PeVL 3/1990 vp., 2 and PeVL 29/2004 vp., 4 (PeVL are authoritative statements made by the Constitutional Law Committee). See also, Supreme Court case NJA 1981, s 1 (Taxed Mountains case), 191 and 196; this was the most wide-ranging procedure in Swedish legal history. The Saami people as claimant asserted that they had rights superior to those of the State to a certain mountain highland region located in North Jämtland. In this case, material associated with the current area of Northern Finland was also processed. In issuing its ruling, the Court saw that particularly in this area (in Tornio and Kemi Lapland), the Lapps’ rights corresponded with the peasants’ rights in the areas that they used; in other words, taxman’s rights. 11 Joona, above n 8, 122–60, according to Lundmark lapptax lands that are now located in Sweden were regarded as State lands until 1793, when important court case changed this view. See L Lundmark Samernas skatteland i Norr—och Västerbotten under 300 år (Stockholm, Institutet för Rättshistorisk Forskning, 2006) 100; See also N-J Päiviö, Från skattemannarätt till nyttjanderätt. En rätthistorisk studie av utvecklingen av samernas rättigheter från slutett 1500-talet till 1886 års renbeteslag (Västerås, Uppsala Universitet, 2011) 183. 12 These taxation lists are printed in a number of cases. See I Fellman, Handlingar och uppsatser angående Finska Lappmarken och lapparne IV (Helsingfors, Suomalainen tiedeakatemia,1915) 285–91, for the land register made in connection with the tax renewal in 1695. In addition to the Lapps, this register also includes the first Finnish settlers in the Lapp villages. For land title registers between 1739 and 1741, see Korpijaakko-Labba, Saamelaisten oikeusasemasta Suomessa—kehityksen pääpiirteet Ruortin vallan lopulta itsenäisyyden ajan alkuun (Rovaniemi, Pohjoismainen Saamelaisinstituutti, 2000) 45–66. See Joona, above n 8, 404–17 for the land title register of 1741. See S Onnela, Suur-Sodankylän historia 2 (Porvoo, Suur-Sodankylän historiatoimikunta, 2006) 26–33 for the tax list of the 1760s.

Convention and Indigenous Population in Finland 235 III. THE 1673 SETTLEMENT DECREE OF LAPLAND

It is established that the first individual Finns moved over the Lapland border in Enontekiö as early as the mid-1650s.13 However, at this time, administrative authorities and courts still upheld the principle that a person could not settle in a Lapp village area against the will of the Lapps. The Settlement Decree of 1673 altered this practice.14 The 1673 Settlement Decree of Lapland was a result of an initiative taken by County Governor Johan Graan. He wanted to find solutions to several problems that were developing in his adminstrative territory. The most crucial of these was the labour shortage in the mining industry, which was under the special protection of the State. This was particularly evident in problems relating to haulage of ore for Nasatunturi in Piteå, Lapland. An additional reason was the defence of the State’s northern regions, the deficiencies of which became evident in 1658 when the Norwegians destroyed the Nasatunturi silver mine. Hostility was also expected between Sweden and Russia.15 A third reason was the presence of unused agricultural and cattle farming lands in Lapland, the exploitation of which would increase the Crown’s tax revenues. The fourth reason was the abolition of paganism among the Lapps, who were regarded as idol worshippers. The Decree refers to unoccupied and unused areas that the Lapps were unable to use for their livelihoods. These areas, according to the Decree, would be improved if Finns and Swedes cleared them and changed them into functioning meadows and grazing lands. Persons moving north of Lapland’s border were promised a 15-year tax and levy exemption, 13 See Hiltunen, Norjan ja Norlannin välissä. Enontekiö 1550–1808. Asukkaat, elinkeinot ja maanhallinta. (Raahe, Acta Societatis Historiae Ouluensis, 2007) 131–38. Some of these settled in Lapland on the shores of fishing lakes and some married Lapp women. 14 For the Kalmar Decree and the reasons leading up to its issuing, see eg G Göthe, Om Umeå Lappmarks svenska kolonisation från mitten av 1500-talet omkr. 1750 (Uppsala, Almqvist & Wiksell, 1929) 127–208; SI Olofsson, Övre Norrlands historia under Carl IX ocg Gustaf II Adolf. Övre Norrlands Historia Del II. Tiden 1600–1721 (Umeå, Norrbottens och Västerbottens läns landsting, 1965) 333–37; V Mattsson, Vuoden 1673 Lapinmaiden asutusplakaatti (Oulu, Acta Societatis Historiae Ouluensis, 1977) 42–57; Korpijaakko, above n 8, 467–95; and Hiltunen, Maaherra Graanin erehdys, (Raahe, Acta Societatis Historiae Ouluensis, 2003), 63–86; and 2007, 139–49. Other researchers have investigated the Decree and its consequences, eg Holmbäck, above n 8, 11–12; H Tegengren, En utdöd lappkultur i Kemi Lappmark. Studier I Nordfinlands kolonisationshistoria (Turku, Acta Academiae Aboensis, 1952) 75; P Gunnar, Samernas rätt. Bilaga III. 14.3.1966 (unpublished) 9–12; P Virrankoski, Pohjois-Pohjanmaa ja Lappi 1600-luvulla. Pohjois-Pohjanmaan ja Lapin historia III (Oulu, Pohjois-Pohjanmaan maakuntaliiton historiatoimikunta, 1973) 83–97; N Arell, Rennomadismen i Torne Lappmark—markanvändning under kokonisationsepoken i fr. a. Enontekis socken. (Umeå, Umeå Unoversitet: Geografiska institutionen, 1977) 71–75; S Ervasti and Y Vasari, Kuusamon historia I (Kuusamo, Kuusamon kunta, 1978) 76–79; S Onnela, Suur-Sodankylän historia 1 (Jyväskylä, Suur-Sodankylän historiatoimikunta,1995) 152–55; J Vahtola, Ruotsin kruunun asutuspolitiikka lapimaassa 1600-luvulla. (Rovaniemi, Pohjois-Suomen historiallinen yhdistys, 1982) 123–27; and Lundmark, above n 11, 50–60. 15 Mattsson, above n 14, 42–43.

236 Juha Joona after which time their taxes would be no higher than those of the Lapps. Additionally, settlers were promised freedom from conscription at all times.16 The Decree provided settlers with the right to settle in Lapland and to take those settlement areas that they saw fit. Nevertheless, the settlers’ land use status was left open, since the Decree was founded on the avoidance of competition between two population groups who engaged in different livelihoods. Settlers were forced to concentrate on agriculture and cattle farming, while Lapps were to subsist on hunting, fishing and reindeer husbandry. The idea underlying the Decree was that different populations could live in parallel together and not cause harm to each other.17 Although it was said that Graan made his settlement decree proposal in good faith, he was seen to be unfamiliar with the Kemi Lapland conditions. In the areas with which he was familiar—Uumaja and Tornio Laplands— the Lapps were so-called ‘Reindeer Lapps’, while the Swedish peasants were primarily field farmers. However, the Finnish settlers who moved to Kemi Lapland were no more cattle farmers than the farmers who practised field husbandry; rather they were ‘burn-beaters’, whose way of life was transient and based on the burning of large forest areas. Another main difference was that reindeer herding was not the main livelihood in Kemi Lapland. Althought the Kemi Lapps practised some reindeer husbandry, they got most of their living from fishing, and from hunting wild deer and fur animals.18 Did Graan make a mistake, or was he aware of the potential consequences that would occur in Kemi Lapland after issuing the Decree? An article published by Mauno Hiltunen some years ago questioned Graan’s good faith, especially concerning the Forest Lapps. According to Hiltunen, Graan was aware of the Forest Lapps’ way of life. However, in the authorities’ eyes, this way of life was regarded as unproductive and difficult to control. The authorities desired to replace a lifestyle based on a poor hunting culture with the production economy of the settlers. On the other hand, the administration supported reindeer-herding culture in the mountain highland regions,19 and in practice the arrival of settlers in those areas had only a minimal impact on the practice of full nomadic reindeer husbandry in the mountain highland regions.

16 Kongl Plakat den 27 September 1673, angående lappmarkernas bebyggande. The Decree is printed in E Poignant, Samling af Författningar angående så kallade Lappmarksfriheterna (Stockholm, Samson & W, 1872) 20–21; and partly in Finnish by Ervasti, above n 14, 77–78. 17 The concepts underlying the Decree have also been termed ‘the parallel theory’. 18 Ervasti and Vasari, above n 14, 77–78. 19 Hiltunen, above n 14, 82.

Convention and Indigenous Population in Finland 237 The first Finn crossed the Lapland border in the following year,20 and a few years later settlers arrived in southern Lapp villages such as Maanselkä and Kitka. Several court cases discuss the ensuing conflict. Acting as claimants in district court proceedings in 1683, the Lapps stated that settlers had taken over Lake Kitkajärvi from the Lapps. The court ruled that fishing on Lake Kitkajärvi belonged to the Lapps and confirmed the fine imposed on the respondent.21 In court proceedings in 1685, the Lapps complained about Finns who had settled in their back country and who were interfering with their interests. The Finns engaged in slash-and-burn practices in areas that were too close to the Lapps settlements and homes. This led to the disappearance of animals and game, as they were unable to find grazing lands and food.22 In joint Lapp village court proceedings held in Sompio in 1687, desperate Lapps from Maanselkä and Kitka—with tears in their eyes (according to the court records)—complained that a group of Finns, violently and without permission, had entered their immemorial forests and lands. Using slash-and-burn techniques, these Finns had burned their best game woodlands and reindeer-grazing lands. This meant that the Lapps’ domesticated reindeer had left the area in search of other grazing lands.23 Lapps made the same allegations in 1690. The claimants stated that if the respondents were to be permitted to remain on their lands, the claimants would be doomed. The court ruled that the respondents should move from Lapp lands as intended in Chapter 28 of the King’s Laws.24 In 1707 the court further ruled that settler farmers were forbidden to harm Lapps’ fishing and hunting on their private tax lands, as this would lead to the ultimate eradication of the Lapps.25 The court established a penalty of 40 silver riksdaler. In his writings, the Governor describes the settlers as ‘steadfast and unyielding folk’. In many cases, those settlers refused to attend court proceedings despite being legally summoned. Thus, while the courts issued their rulings in an effort to safeguard the Lapps’ rights, in many cases these

20 This Finn, Paavali Pelkonen, had been deported from Lapland years earlier because Lapps of the Sompio Lapp village reported that he had caused damage to their lands and fishing waters. He now applied for settler status on the basis of the Decree. Sompio court case 25.2.1674, fos 839–40. See also Onnela, above n 14, 157–69. 21 Parish of Ii court case 16–18.7.1683. See Joona, above n 8, 44. 22 Parish of Ii court case 13–15.7.1685. Although the respondents were legally summoned, they did not attend the court proceedings. 23 See Erinäsiä poronhoitoa koskevia kysymyksiä selvittämään asetettu komitea. Kommittee raport 1929:8 (Helsinki, 1929) 9. 24 District court proceedings of Sompio, Kuolajärvi, Kitka and Maanselkä. 25.2.1690, fo 353v. 25 District court proceedings of Maanselkä and Kitka 14–15.1.1707, fos 401v–405.

238 Juha Joona rulings could not be implemented.26 In these conflicts, the local authorities, priests and bailiffs took the settlers’ side.27 At the beginning of the eighteenth century, the Lapps’ status was further weakened. Initially, settlers did not contribute to common fees and additional charges for the Lapp villages. In 1721, the Lapps of Sompio village requested that the court either order that settlers contribute to the village’s joint charges, or order them to leave the village. The village commenced this action because settlers had harmed the Lapps by settling on their lands and fishing waters.28 The court agreed with the village. In later district court proceedings in 1759, the Lapps stated that the catching of beavers, the area’s most important fur game, was nearly non-existent, since their poverty forced them to hunt both large and small beavers in order to survive.29 Sodankylä’s vicar, Henrik Wegelius, wrote contemporaneously that settlers who had arrived in the area had taken the best housing areas and were very wealthy. Lapps, on the other hand, were poverty-stricken.30 As noted in the previous section, Lapps paid taxes for the lands that they held. Each tax lands holder was entered into the land and taxation register as a payer of Lapptax. These tax registers listed persons who, at the time, had land and water rights, and also served as a list of Northern Finland’s indigenous population.31 However, the land register concerning Kemi Lapland changed in the 1760s. While the holders of Lapland tax lands were registered as Lapps in 1762, the following year the land register added them to the list of settlers. However, Inari was an exception. As is evident from the tax list entries, the change took place due to the large number of Forest Lapps who began practising some form of agriculture, or at least formally established a new holding.32 This was regarded

26 Court proceedings between the settlers and Lapps in the Lapp village areas of Kitka and Maanselkä, see Ervasti and Vasari, above n 14, 74–89. 27 Ervasti and Vasari, above n 14, 80–82. 28 Sompio court case 10.02.21, fos 299v–301. See Joona, above n 8, 121–22. 29 District court proceedings of Sompio, Kuolajärvi, Kitka and Maanselkä 6.3.1759, fos 874–90. See Joona, above n 8, 230. 30 Wegelius (1751), writes that many Lapp nationals (nationella lappar) who practised also land cultivation and cattle farming fared worse than the settlers. In regard to the actual Lapps (those who were only hunting and fishing), of which there were very many in this parish, their poverty and abjection was so great that he found it impossible to describe in words. See AJ Sjögren, Antecningar om Församlingarne i Kemi-Lappmark (Helsingfors, J Simelii Enka, 1928) 150–51. 31 In a few cases, even Finnish settlers were given the rights to Lapptax lands and were also listed as persons paying Lapptax. In one case a settler adopted an underage Lapp boy, who had rights to the taxland. Nevertheless, by marrying a Lapp woman, the settler’s son received rights of usufruct on the taxland. See Joona, above n 8, 114–20. However, there were only a few of these cases and it is possible to identify from the records those cases in which a Finnish settler gained possession of taxland and was listed as paying Lapptax. 32 For instance, the Lapp land register of 1762 of the Lapp village of Sompio included 24 persons, while there were eight settlers. All but one person, listed in the earlier register, were marked as settlers in the Land register. Anders Person Suak, who was entered into the register as a Lapp,

Convention and Indigenous Population in Finland 239 as necessary, since the income that could be earned from merely natural livelihoods was no longer adequate when Finnish settlers began competing for the same resources. In these changed circumstances, the only way to safeguard usufruct rights, at least to certain land and water areas, was to establish a new holding (an agricultural farm) in which the authorities would confirm that certain areas belonged to the person running the farm, but these areas were much smaller than the areas used before.33 While the change implemented in 1763 primarily related to amendments made in the taxation lists,34 a lifestyle based on natural livelihoods continued for many. In court proceedings in 1759, it was stated that, despite the Lapps’ new holdings, they did not concentrate on agriculture. Instead, they mainly spent their summers fishing and hunting.35 Although the Lapps of Kemi Lapland, with the exception of Inari, were now formally settlers, this did not mean that their way of life or culture had disappeared. Despite individual exceptions, many still obtained subsistence via hunting, fishing and increased reindeer husbandry. Thus, even by the end of the nineteenth century, persons belonging to the old Lapp families of Sompio and Keminkylä, for example, who were now living in houses, were still considered to be ‘semi-Lapps’, whose livelihood was based on reindeer husbandry in combination with cattle farming, hunting and fishing.36 Despite the fact that the Finnish settled the area beginning at the end of the seventeenth century, the language of Kemi Lapland’s Forest Lapps remained in use for a long time. This was the case even though there is evidence that authorities wanted to suppress the language. At the beginning of the eighteenth century, the priesthood of Kuusamo proposed that Lapps who were incapable of speaking the Finnish language correctly should be given corporal punishment. Although this was obviously practised in Kuusamo, this harsh penalty was not supported by the cathedral chapter (a religious authority with administrative decision-making powers).37 In its 1748 and 1751 parish report, the Kemijärvi chaplain stated that the use of the Lapp language in parish teachings was unnecessary. Most likely in

was marked as ‘Lapp, practices hunting’. The entry for Anders Pärsson Har from Kuolajärvi was marked as ‘is still a Lapp, without new holding’. See Joona, above n 8, 212–13. 33 Note that Forest Lapps were not called Forest Lapps in official documents after they began to live on the agricultural farms. They were called peasants after that, despite the fact that they were same persons and still practising fishing, hunting and reindeer herding. 34 The practical significance of this matter was raised only in modern times (see section V. below). 35 District court proceedings of Sodankylä, Sompio and Keminkylä 6.3.1759, fos 873–90 v. See Joona, above n 8, 230. 36 Enbuske, Vanhan Lapin valtamailla. (Helsinki, SKS, 2008) 440. 37 I Fellman, Handlingar och uppsatser angående Finska Lappmarken och lapparne II (Helsingfors, Suomalainen tiedeakatemia, 1910) 185 and 196. See also T Itkonen, Keminlapin apostolit, J Pictorius, E Fellman and G Tuderus, Piirteitä 1600-luvun lapinlähetyksestä (Helsinki, Lapin sivistusseuran julkaisuja, 1945) 175.

240 Juha Joona reference to information received from Kemi Lapland, the proposal issued in 1751 by the Härnosand cathedral chapter house stated that ‘the more the Lappish language diminishes, the more the people will improve in knowledge and habits’.38 The civil servants’ attitude was also apparent from the actions of the county dean, Vicar Zimmerman of Kemi. During a visit to Sompio in the 1760s, Zimmerman threatened to hit with a log of wood a local Lapp who had dared to speak the Lappish language to his children within earshot of the dean. The dean referred to the Lappish language as ‘the Devil’s tongue’.39 In spite all of this, the Kemi Lappish language was still spoken in the nineteenth century. According to a committee report issued in 1928, parts of southern Sodankylä, including Kierinki, Unari and Luusua, still used the language in the mid-nineteenth century40 and it continued to be known in the 1930s.41 It may be assumed that, as a result of the authorities’ behaviour, this language was used only in private or in the company of others who also spoke it.42 The Lappish costume gradually established itself as the reindeer owner’s outfit, which was specifically worn for reindeer husbandry tasks up to the 1970s. The gradual settlement of Lappish lands continued even longer in the northernmost regions of Lapland. The first settlers crossed the border of Lapland, at Enontekiö, before the Decree was issued. Following the 38

Fellman, above n 37, 303; Itkonen et al, above n 37, 123. J Fellman, Anteckningar under min vistelse i Lappmarken I (Helsingfors, Suomalainen tiedeakatemia, 1906) 245–46. 40 Committee Report, above n 23, 15. Referring to his trip to Sodankylä in 1890, Rosberg stated that two people (in Mutenia) were still proficient in the Kemi Lapland language: J. E. Rosberg, Anteckningar om lapparna i Finland. Helsingfors, Geografiskaföreningens tidskrift 1910, hft 1-2), 33. Although Finnish was more commonly used, the Lappish language was still understood in Salla in 1826: see J. Fellman, Anteckningar under min vistelse i Lappmarken III (Helsingfors Finska Litteratursällskap 1906), 479–80. In the villages of Kuosku and Nousu, located in today’s Savukoski Municipality, the disappearance of the Lappish language occurred rather late; one individual still spoke the language very well in the 1890s: see, Rosberg, 68. Even as late as 1900 it was known that one elderly person still knew a few phrases of the original Lapland language of Sompio, see F Äimä and T Itkonen, Jacob Fellmanin muistiinpanot Sompion ja Kuolajärven lapinmurteista (Helsinki, Eripainos Suomalais-ugrilaisen Seuran Aikalauskirjasta, 1918) 7. 41 Kulpakko, Saamensuvut Inarissa (1995, Sukuviesti-rewiev 2, Helsinki) writes that, in the 1930s, there were still a few old ladies—living in Saija, in the Salla Municipality, and in the village of Korja, which was conquered by Russia—who could speak old Kemi Lappish. In connection with the 1999 Saami parliament elections, some individuals who were applying for entry mentioned that one of their grandparents could speak the Lapp language, eg in the village of Jeesiö in the 1930s (B. 1884, Bombanen (Pumpanen) Lappish family) See Supreme Administrative Court (hereafter ‘KHO’) 27.9.1999, archive 3757. It seems astonishing that, on 3 January 2012, Lapin Kansa, a newspaper, published information claiming that one person, residing in Savukoski, could still speak the Lapp language today. Based on phonetics and vocabulary, the Forest Lapp language spoken in Kemi Lapland is said to be similar to the Inari and Skolt Lapp language. Äimä an Itkonen, above n 40, 90. 42 T Itkonen, Joitain huomioita Kemin-Lapin asukkaitten taloudesta ja tavoista. Jatuli XI. (1967, Kemin kotiseutu- ja museoyhdistys, Kemi) 175. 39

Convention and Indigenous Population in Finland 241 Decree, even more settlers moved to the area.43 The first Finnish holding was established in Inari in 1758.44 Settlers had already arrived on the shores of the Tenojoki River to practise agriculture a few years earlier.45 However, these settlers did not cultivate wheat or other crops, preferring instead to practise a cattle and meadow economy.46 In Utsjoki and Inari, it was mainly local Fishing Lapps who acquired their own new holdings. Prior to this, Enontekiö’s Forest Lapps became the official settlers. Those Lapps who had been registered as settlers were not any more mentionned as lapps in tax rolls, court protocols or other offisial documents.47 In sum, the pattern of settlement in the Kemi Lapland area differed from elsewhere, since Lapps and settlers followed similar lifestyles and were in competition for the same resources. During this period of settlement, the tax registers became less useful as a record of Lappish descent, since Lapps were added to the regular tax records as they acquired new holdings to protect their interests. State and church authorities actively tried to suppress the use of Lappish language throughout this period.

IV. THE ARRIVAL OF REINDEER HERDING NOMADISM IN THE CURRENT FINLAND REGION

The way of life of Kemi Lapland’s Lapps has been depicted as semi-nomadic and has been regarded as the original lifestyle of all Lapps since time immemorial. It emphasised hunting and fishing. Reindeer husbandry was a side business. People lived in the same areas throughout the year, but residencey changed according to annual cycles and the demands of the livelihoods practised. Commentators conclude that this lifestyle existed throughout the Fennoscandinavian area and remained with the Skolts for the longest period of time—until the mid-twentieth century.48 The origin of the fully nomadic lifestyle is unknown, but was regarded as the dominant form of livelihood in southern Lapland, located in today’s Sweden, until at least the sixteenth century.49 Full nomadism is based on continuous reindeer herding covering long distances. In the summer, herders

43

Hiltunen, above n 13, 149–56. T Nahkiaisoja, Asutus ja maankäyttö Inarissa ja Utsjoella 1700-luvun puolivälistä vuoteen 1925 (Helsinki, Oikeusministeriö, 2006) 86. 45 TI Itkonen, Suomen lapplaiset vuoteen 1945 (Porvoo, Ensimmäinen osa, 1948, 1984), 191. 46 See eg, a court case of 1729 in Teno and Utsjoki concerned conflict regarding haymaking and the milking of cows. See Joona, above n 8, 177. 47 See Nahkiaisoja, above n 44, 71. 48 F Hultblad, Övergång från nomadism till agrar bosättning i Jokkmokks socken (Lund, Nordiska museet: Acta Lapponica XIV, 1968) 55; Holmbäck, above n 8, 30. 49 Hultblad, above n 48, 55–58. The fully nomadic lifestyle is assumed to have started in the central region of Norway. 44

242 Juha Joona reached the shores of the Arctic Ocean. In the winter, they returned inland to the forest districts. Each year, the distance covered by these nomadic journeys could reach hundreds of kilometres. The new livelihood gradually spread both northwards and eastwards. By the beginning of the seventeenth century, it had reached the area that is now known as the ‘Arm of Finland’ in Enontekiö,50 and had spread further east in the direction of Utsjoki. In the mid-eighteenth century, Koutokeino was already an area that was largely known for reindeer husbandry. By the beginning of the eighteenth century, reindeer nomadism had even spread to Utsjoki.51 The increased tendency to participate in pasturage destroyed the mountain highland regions’ original village system and the traditional usufruct areas of the families.52 In the 1730s and 1740s, in the mountain highland regions of Enontekiö, the use of an area was still connected to private tax lands and nomadism was still associated with the possession of tax lands. As the number of reindeer increased, it was no longer possible to enforce the division of the area. Consequently, the whole Lapp village area began to be used collectively by the village district for the grazing of reindeer.53 In 1751, Sweden and Denmark divided the northern mountain highland regions with the Strömstad transboundary agreement.54 The agreement’s supplementary protocol (the Lapp Codicil) allowed Lapps to continue to accompany their reindeer across the national border in traditional nomadic fashion.55 In the early years after the Codicil, only a few reindeer-herding Lapps crossed the border.56 The southern parts of the Koutokeino and Aviovaara areas had forest land that was sufficient for the small herds of reindeer of the few Lapps that were living in the highland mountain districts, which meant that only a few trekked to the current Finnish area.57 Further east, the Utsjoki and Pulmanki Lapps traversed others’ areas, but the Inari Lapps seldom entered into what is now Norway.58 However, by the early nineteenth century there were significant changes. Finland’s connection with Sweden was broken, and by 1809 Finland was 50

Ibid, 61. Teno and Utsjoki district court proceedings 9–10.2.1737, fos 711–717v. 52 Ø Vorren, ‘Samisk bosetning på Nordkalotten, arealdisponering og ressursutnytting i historisk-økologisk belysning’ (1980, Umeå studies in the humanities Umeå). 253; Hultblad above n 48, 73. 53 Arell, above n 14, 239, 250–51 and 259. 54 Parry’s Consolidated Treaty Series, vol 39 (Oxford, Oxford University Press, 1969) 213. 55 1751 First Codicil and Supplement to the Frontier Treaty between the Kingdoms of Norway and Sweden Concerning the Lapps, unofficial English translation (on file with the author). The so-called Lapp Codicil is also referred to in the Preamble to the draft Convention, which views ‘a new Saami convention as a renewal and a development of Saami rights established through historical use of land that were codified in the Lapp Codicil of 1751’. 56 G Sarva, Suomen ja Norjan välisen rajan sulkeminen v. 1852 (Helsinki, Historiallinen aikakauskirja, 1920) 2. 57 Ibid. 58 Ibid. 51

Convention and Indigenous Population in Finland 243 an autonomous part of Russia. The northern population also grew, and the Lapps of Koutokeino and Karasjoki increased their reindeer herds until they no longer had sufficient grazing grounds within Norway. It was at this time that large numbers of Norwegian Lapps began to use the rights accorded to them by the Codicil.59 The Norwegian Lapps grazed large herds of reindeer on the Finnish side of the border in, for instance, the Inari forest districts.60 The reindeer herds of the nomadic Lapps, which now numbered tens of thousands, caused harm and damage to the Lapps living on the Finnish side of the border. The treaty did not permit grazing on the tax lands,61 but this rule had no practical impact. In 1834, 50,000–80,000 Norwegian reindeer were grazing on the Finnish side of the border, with that number increasing to 100,000 by 1840.62 The nomads extended south as well as to the northernmost Finnish Lapland. As early as approximately 1820, a Norwegian reindeer herder crossed the Kittilä border for the first time, and during the 1830s, nomadic trips reached as far south as Sodankylä.63 According to a report issued in 1844, 20 nomadic Norwegian Lapp households grazed 15,000 reindeer in Kittilä. In 1839 it was reported that the Norwegian reindeer had caused general destruction in the Utsjoki parish district.64 Every year, Norwegian Lapps took many loads of lichen and even gathered hay.65 The sources relate that in Enontekiö, in 1846, the gathering of wood was particularly difficult, as ‘the Norwegian Lapps had already destroyed the forests a long time ago’.66 The situation was most difficult in Inari where, in 1844, it was reported that the Norwegians had destroyed hundreds of wild deer traps, which belonged to the Forest Lapps of Inari.67 They also took the local reindeer

59

See above n 55. Sarva, above n 56, 2. H Tikkanen, ‘Suomen ja Norjan Lapin rajaneuvottelut 1829–52. Neuvottelut Suomen ja Norjan Lapin raja-alueiden vastavuoroisista käyttöoikeuksista v. 1829–1852’ (Jyväskylä Suomen historia. Laudaturtutkielma, 1964) 31. 61 Nevertheless, it was not always clear what was meant by ‘tax land’. Tikkanen, above n 60, 64. 62 Sarva, above n 56, 10; H Tikkanen, Lapin pohjoisrajan kysymyksiä 1800-luvulla. (Rovaniemi, Lapin tutkimusseuran vuosikirja VII, 1966) 71. 63 Tikkanen, above n 62, 69 and 100. 64 Letter from Vicar Stenbäck to the Governor dated 21 December 1839. Tikkanen, above n 60, 124. 65 Tikkanen above n 60, 135–36. In addition, in Inari and Utsjoki the hay and lichen stores were used, the meadows and Forest Lapp huts were burned, nets pulled, and property stolen and destroyed to the value of a few hundred ruplas. Those causing the damage were Norwegian Lapps—Tomma, Paune, Kedja, Utsi and Simma. The victims were Inari Lapps—Padar, Aikio, Musta, Sajets and Paltto. See also S Pedersen, ‘Lappekodisillen i Nord 1751–1859. Fra grenseavtale og sikring av samenes rettigheter til gransesperring og samisk ulykke’ (2008) 3 Diedut 228, 291–304, 310–15 and 426–27. 66 Enbuske, above n 36, 409. 67 Tikkanen above n 60, 136. In the court proceedings of 1843 in Utsjoki and Inari, it was stated that the Norwegian Mountain Lapps moved to Finnish Lapland with their reindeer herds, and destroyed grazing lands and forests. According to the Inari folk, they took 60

244 Juha Joona and deer,68 reducing deer populations throughout northern Lapland. The Muddusjärvi villagers in Inari claimed that Norwegian Lapps’ venturing onto their private deer lands, in the Petsikkotunturi and Muotkatunturi mountain highlands, had destroyed populations of large game, 120 to 150 of which were caught annually. The Lapps from Koutokeino, Karasjoki and Aviovaara had stopped hunting deer in the mountain highland areas of Marastitunturi, Skietsantunturi and the village of Paadari in Peltotunturi, as the annual catch had fallen to just 10.69 The arrival of large reindeer herds also led to the dramatic reduction of deer in Kittilä.70 In 1852, after 20 years of fruitless discussions, the border between Norway and Finland was closed by Finland (Russia). This meant that the Norwegian reindeer-herding nomads lost the grazing lands located on the Finnish side of the border. During the decades that followed, the inhabitants of Mountain Lapland moved further south to the current region of Northern Finland. (See Figure 2 below.) In 1865, 12 inhabitants of Mountain Lapland moved from Utsjoki to Inari. During 1880–1920, 63 Mountain Lapp inhabitants moved from and via Utsjoki.71 By the mideighteenth century, reindeer herders, especially from Jukkasjärvi in Sweden, moved to Sodankylä and Kittilä to herd local populations of reindeer.72 A larger migration occurred in 1870–99, when approximately 50 Mountain Lapp residents from Koutokeino and Enontekiö moved to Northern Sodankylä, the former regions of the Sompio Lapp village, with large herds of reindeer.73

over deer hunting ‘with ruthless impudence’, what could have been a feasible livelihood. See Nahkiaisoja, above n 44, 149. 68 Inari’s Forest Lapps used to have small reindeer herds in their living area. Once the Norwegian reindeer traversed the district, the Inari reindeer joined the herd and disappeared. The Norwegian reindeer were trapped in deer traps owned by Forest Lapps. These were destroyed by Reindeer Lapps. In 1842, it was recorded that the arrival of the Norwegian reindeer seriously disturbed deer hunting, which 20–30 years before could have yielded up to 80 deer, for a single hunter, at one time. Tikkanen above n 60, 42, 45, 55 and 72. In order to rectify the problem it was suggested that the Forest Lapps, living in the Inari area, should be protected. The migratory Lapps were to maintain a minimum distance of half a Scandinavian mile from the winter dwellings of the Forest Lapps (lake shore 3/4); Tikkanen above n 60, 107 and 137. See also Sarva, above n 56, 6. 69 Game, which was regarded as more productive, was reduced in the Muonio district with an annual catch of 200 deer. Thus, it was no longer feasible to practise hunting: Tikkanen above n 60, 139. 70 In 1834, the people of Kittilä complained that the introduction of large reindeer herds resulted in a dramatic reduction in deer catches. The tame reindeer forced the wild deer to leave the area. See Enbuske, above n 36, 394. 71 Nahkiaisoja, above n 44, 112. Nahkiaisoja states that, when moving from Utsjoki to Inari, Reindeer Lapps were Finnish citizens, despite the fact that, for many, the place of departure was Norway or Sweden. The migrants’ surnames were Panne, Högman, Vuolab, Länsman, Kitti, Pieski, West, Paut and Aikio. 72 Joona, above n 8, 259–71. 73 Onnela, above n 12, 69.

Convention and Indigenous Population in Finland 245

Figure 2: The migration of Reindeer Lapps to the current region of Northern Finland Source: Tegengren, En utdöd lappkultur i Kemi Lappmark. Studier I Nordfinlands kolonisationshistoria (Åbo, Acta Academiae Aboensis, 1952) 157. The broken line demarcates the Lapps who moved in order to become reindeer herders for the local people. The solid line particularly demarcates the Mountain Lapps who moved with their own reindeer herds after 1852.

246 Juha Joona It is believed that the arrival of the Mountain Lapps and their large reindeer herds in the former Lapp village areas of Forest Lapland led to the dramatic disappearance of deer populations.74 Although the number of deer had been reduced earlier as a result of intensive hunting by the peasantry, it was the arrival of large reindeer herds that put a stop to deer hunting. Timid wild deer disappeared from the areas that had been grazed by large reindeer herds. The wild deer found among the reindeer herds were usually slaughtered. Deer hunting, which used to be the most important livelihood of the Forest Lapps, ceased due to the arrival of reindeer nomads from Inari and the northern regions of Sodankylä, and Kittilä. In sum, any discussion of who is the indigenous population in certain areas of Northern Finland for the purposes of determining rights in accordance with national and international law, must take account of the arrival of reindeer nomadism. After the time of the Strömstad peace of 1751, the number of reindeer owned by nomadic Reindeer Lapps increased considerably and more pastoral areas were required. During the first decades of the early nineteenth century, reindeer nomads extended their migration further south. For the Forest Lapps and their descendants this meant serious problems for their deer hunting, which was a crucial basis for their livelihood. Furthermore, the arrival of these large reindeer herds also caused problems for the small-scale reindeer herding practised in the area. Eventually, Mountain Lapps moved to live permanently in the old areas of Forest Lapps. Even though they were also Lapps, they were not the indigenous population of their new home region.

V. FINLAND’S DEFINITION OF SAAMI

A process for determining who might qualify as Saami in Finland began in 1959, when the Finnish Division of the Nordic Saami Council passed a motion to conduct a study of Saami. The basic information was gathered in 1962 via interview. The aim was to interview each inhabitant of the northernmost Finnish Lapland whose parents or grandparents spoke or had spoken Saami as their first language.75 This task was directed by Karl

74 According to Enbuske, at the end of the 19th century, deer still wandered the wilderness in reasonably large herds. It was the quick expansion of reindeer husbandry that displaced the deer from the wilds of Sompio and led them to migrate eastward: Enbuske, above n 36, 440. See also Onnela, above n 12, 204. 75 E Nickul, ‘Suomen saamelaiset vuonna 1962. Selostus Pohjoismaisen saamelaisneuvoston suorittaamasta väestötutkimuksesta.’ (1968) Tilastotieteen pro gradu-tutkielma, Helsinki, 6. ‘The best persons for this task are those who know the district and its inhabitants. This is why around fifteen young Saami students were contacted to enquire whether they would like to become interviewers. Almost everyone was willing to take on the task.’: ibid, 6. In relation to this, see also ibid, 8–10 and 26–27. In respect of the reliability of the information, Nickul states that the interviewers should have been better trained for the task. According to Nickul, there were not only deficiencies with the language proficiencies of the parents and grandparents,

Convention and Indigenous Population in Finland 247 Nickul, who operated as the chairman of the Finland Division of the Nordic Saami Council. Interviews were conducted only in the municipalities of Enontekiö, Inari and Utsjoki, as well as in the northern parts of Kittilä and Sodankylä. According to the survey, there were 3,852 individuals who belonged to the specified group.76 The 1962 interview was seriously flawed methodologically if its intent was to identify those descended from original inhabitants of the area.77 The study did not utilise the usual criteria for defining or identifying indigenous people, and in particular did not use descent, the practise of natural livelihoods or inhabiting Lapp living areas as criteria.78 It is unclear why 1962 was regarded as decisive, and the emphasis on language favoured newcomers (the Norwegian or Mountain or Reindeer Lapps) rather than the original indigenous inhabitants. The combination of this date and the language criteria meant that numerous people who were not descendants of the area’s indigenous people were entered into the Saami register at the expense of the original inhabitants. In particular, it allowed for the inclusion of persons whose grandparents were Reindeer Lapps and had moved to the area merely a few decades prior to the interviews in Inari and Northern Sodankylä.79 The descendants of the Kemi Lapland Forest Lapps who had resided in the area from time immemorial were less likely to meet the language criteria, because the first wave of settlement, beginning in the 1670s, sought to eradicate the use of the Lapp language. In particular, only a small number of the descendants of Inari Fishing Lapps met the language criteria set at this late time. The matter of a definition was further discussed in a report submitted by the Saami Committee in 1973.80 The Committee stated that ‘the precise number of Saami is extremely difficult to estimate, as it depends how a Saami is defined’.81 According to the Committee, ‘during different periods and in different Nordic countries citizens have been classed as Saami in

but also with the language proficiency of the person who was interviewed. Nickul also found it odd that many interviewees did not even remember the names of their grandparents, even though this was precisely the information requested. He later revised the interview study in association with a statistical pro gradu dissertation. However, the Saami language proficiency of a few persons had to be ‘divined’. See ibid, 11–12, 22–27, 34–36 and 106–09. See also Joona, above n 8, 368–69. 76

Saami Census, Finland’s official statistics VI C:104 1970 Part XVII C, (Helsinki, 1974). It is important to acknowledge that the survey was never intended to provide the basis of a definition of indigenous people. It merely aimed at investigating how persons met the set criteria, as opposed to how they form the indigenous people, but this understanding is rarely acknowledged. Nickul, above n 75, passim. 78 According to the pro gradu dissertation of Erkki Nickul, Nickul intended to supplement the 1962 interview study so as to clarify the number of persons who lived in the south and met this criteria. However, this task was never implemented. See Nickul, above n 75, 24. 79 See section IV above. 80 The Saami Committee was established by the Finnish Government to deal with several kinds of Saami issues. The Committee included civil servants and individual Saami. 81 Saamelaiskomitean mietintö, Committee report 1973: 46 (1973) 3. 77

248 Juha Joona totally different ways,’ which has led to fluctuations and inconsistencies in the statistical data.82 The report conluded that, in defining Saami, Finland emphasised language, whereas in Sweden the definition of a Saami is based on the practice of reindeer husbandry.83 That same year (1973) the Finnish Saami Delegation decreed that a Saami is an individual ‘whose parents or grandparents (at least one of these) acquired Saami as their primary language, in accordance with the census conducted by the Finland Division of the Nordic Saami Council in 1962 or otherwise’.84 The 1995 Act on the Saami Parliament replaces this decree. This Act provided the first statutory definition of ‘Saami’ in Finland. Section 3 of the Act states that a Saami is a person who defines himself as a Saami, provided: (1) That he himself or at least one of his parents or grandparents has learnt Saami as his first language; (2) That he is a descendant of a person who has been entered in a land, taxation or population register as a mountain, forest or fishing Lapp; or (3) That at least one of his parents has or could have been registered as an elector for an election to the Saami Delegation or the Saami Parliament.

Section 3(2) allows a person to be treated as Saami if that person is descended from a person who is listed as a Lapp in registers kept by the authorities. However, as a practical matter, the Saami parliament has rejected all applications made on this ground, and the Supreme Administrative Court has also rejected nearly every appeal associated with these rulings. Only a handful of individuals have been approved as Saami based on this ground.85 In Saami Parliament elections, last held in 2011, language has been the principal means of getting on the electoral register (see section 3(1) above). However, according to the Act, the Saami parliament has the power to decide on entries to the electoral register.86 In making these decisions, the Saami parliament has considerable discretion. For instance, it has rejected 82

Ibid. Ibid. 84 Ibid. It was found that, in the same context, the Union of European National Minorities’ most crucial starting point concerning definition is the freedom to belong to a certain national minority. 85 It first became possible to apply for entry into the electoral registry of the Saami parliament at the 1999 Saami parliament elections. The Saami parliament rejected all applications made on these grounds. Over 600 people appealed. The Supreme Administrative Court (KHO) rejected almost all appeals based on this provision. However, the KHO ruled in favour of four Lapp-based appeals, as the appealing parties provided evidence that they were the descendants of Fishing Lapps listed in the population register of 1870. See KHO 22.9.1999 t. 3182–3188. See, for more details, Joona, above n 8, 371–72. Later, however, the KHO approved an individual to be entered into the register on the basis of the fact that the ancestors of this individual were listed in the Lapp register of 1825 and that the way of life in many ways represented a typical Saami way of life. See KHO 26.9.2011, archive 2711. 86 The electoral register was made by the Electoral Committee of the Saami parliament. See Act on the Saami Parliament, ss 23–26d. 83

Convention and Indigenous Population in Finland 249 an application which was verified by two signed testimonies of Saami language-speaking witnesses. According to the testimonies, the witnesses had spoken the Saami language numerous times with the father of the applicant. Furthermore, the Saami parliament regarded as unreliable the population register extract noting that the native language of the applicant’s grandmother was Saami. The applicant was unsuccessful in the appeal. Of the 10 siblings of the applicant’s father, four had been listed in the electoral register, but others were rejected. The Saami parliament was able to reject the application by a vote of 7:7, with the chair having the deciding vote, or approve the application with a vote of 8:7.87 The practice followed by the Saami parliament may be subject to three main criticisms: (a) entitlement based only on language in section 3(1) is subject to the limitations of the 1962 survey; (b) entitlement based on descent from persons entitled to vote in Saami elections is per se tied to the results of the 1962 survey; and (c) the Saami parliament faces an inherent conflict of interest in making decisions on eligibility. The following paragraphs expand on these points. First, as noted above, the emphasis on language going back to the time of the 1962 survey inevitably favours reindeer-herding Lapps who moved into the area after the 1850s, and disfavours the indegenous inhabitants ot the area, the Forest Lapps, who lost their language as a result of the policies of the church and the state. Secondly, section 23 of the Act on the Saami Parliament, at the time (the section has since been changed) provided that the right to vote is based on past electoral registers of the Saami delegation elections, which the Election Committee of the Saami parliament may supplement on the basis of the 1962 census or other similar information. To the extent that registration was based on the methodological flaws of that census, the undertaking to register the descendants of these registrants compounds the problems already identified. The new subsection 3 (added in the law in 1995) will also mean that entry into the electoral register is no longer formally related to Saami language proficiency of the two closest generations: the descendants of individuals listed in the electoral register now have the right to be in the register based 87 The KHO dismissed the appeals made on these rulings. Also, all demands issued in the appeals for the providing of evidence for an oral hearing were rejected as manifestly unnecessary. See KHO 27.9.1999 t. 3804; KHO 22.9.1999 t. 3182; KHO 27.9.1999 t. 3834; KHO 27.9.1999 t. 3821, 3804, 3835, 3821–25, 3830, 3831, 3833 and 3760; KHO 5.12.2001 t. 3050–55; KHO 27.9.1999 t. 3761; KHO 5.12.2001 t. 3049. See the subsequent rulings issued by the KHO 26.9.2011, archives 2710, 2712, 2713 and 2714, where the attitude towards the required evidence appears to have been moderated.

250 Juha Joona on their descent from a person who is already in the register. Thus, while the language criterion of section 3(1) of the Act focuses on the past, the descent criterion focuses on the future. In the future, an individual will have the right to be entered on the electoral register if his or her ancestors, regardless of the number of generations and how distant in the past, were entered on the electoral register (provided that the persons ‘in between’ were eligible to be registered).88 The operation of these provisions means, for example, that an individual whose family moved away from the area many generations earlier may still be entered onto the electoral register via a single family line, despite a lack of proficiency in the Saami language, while a Lappish reindeer herder, who is descended from four grandparents belonging to the indigenous population, may not be eligible.89 This raises important questions of equality. Thirdly, the cumulative effect of the above two criticisms suggests that the Saami parliament faces inevitable conflicts of interest in resolving applications—both applications from the descendants of the original Forest Lapps and applications from neighbours, family members and acquaintances based on the language criteria. This is quite different from State elections, where it is impossible for electoral candidates to decide the voting competence and eligibility of the electorate. Thus, while it understandable in terms of the right of self-determination that the State should defer to the Saami parliament in resolving eligibility issues, it must also be recognised that the current system is based on flawed foundations. This last point may be especially significant in the context of the draft Convention which raises the status of the three Saami parliaments. For example, Articles 14–18 of the draft Convention contemplate that State authorities shall negotiate with the respective Saami parliament since it has the right to approve measures that may have significant detrimental impacts on the preconditions for Saami livelihoods. The Saami parliament also has the right to be represented on public councils and committees, as well as in the State parliament. The select committees and other divisions of the State parliament shall also receive representatives of the Saami parliament on request. Lastly, the Saami parliament is represented in international matters relating to the Saami.90 The ratification and amendment of the envisaged Nordic Saami Convention may occur only with the approval of the Saami parliament.91

88 Note that it is sufficient if the person in question ‘could have been’ given the right to vote. Currently, there are approximately 9,000 persons who are registered as Saami. However, in 2008, only 1,778 persons announced that they speak Saami as their native language. Proficiency in the Saami language is thus not the deciding factor of whether someone is in the electoral register of the Saami parliament. 89 In law-drafting and legal practices, the practices of reindeer husbandry, hunting and fishing are regarded as a part of Saami culture. See Ks. HE 309/1993 [‘HE’ is the bill of the Government] vp. s. 65 and KKO 1995:117 [‘KKO’ is the Supreme Court]. 90 See draft Nordic Saami Convention, arts 14–19. 91 Draft Nordic Saami Convention, art 49.

Convention and Indigenous Population in Finland 251 I conclude with some comments on the definition of Saami in Swedish legislation. Sweden first included a language criterion in legislation in 1993 when the Swedish Saami Parliament was established.92 Prior to this, Sweden had utilised the definition used in the reindeer husbandry legislation. Based on the original Reindeer Husbandry Act of 1971, a Saami was a person of Saami descent and whose mother, father or one of whose grandparents had practised reindeer husbandry as their principal livelihood.93 The definition used in Swedish reindeer husbandry legislation is, in many ways, consistent with an understanding of those who are normally thought to belong to an indigenous people.94 An individual indigenous person is a descendant who still resides in the traditional living areas of indigenous ancestors and practises traditional livelihoods. The Saami definition in the Swedish reindeer husbandry legislation also meets the requirements of immemorial rights provided in Swedish national legislation for those land and water rights that are the legal rights of persons practising reindeer husbandry. Immemorial rights have been used so that people who meet the indigeneity criteria have specific rights to the use of land and water areas. According to the law, not all members of an indigenous people share these rights.95 The Finnish definition could draw on the same premises as the original definition in the Swedish Reindeer Husbandry Act, but also taking into account the reality that hunting and fishing were historically of even greater significance than reindeer herding in Kemi Lapland. The current definition of Saami in the Finnish legislation does not recognise this historical reality and creates an injustice. Indeed, the reliance on the language criterion is problematic, since it was the Government that caused Forest Lapps to lose their language. By endorsing the current definitional approach, Article 4 of the draft Convention is open to the criticism that it will sanction and perpetuate this injustice. The draft states that the Saami have rights to land and water areas that constitute the Saami people’s historical homeland. The historical record in Finland suggests that the indigenous peoples of Northern Finland were those who were entered into the land

92 See SOU 1989:41. The Norwegian Saami parliament was established in 1989 and the Swedish Saami parliament in 1993. The benchmark for these was the Finnish Saami Delegation, founded in 1973. The right to vote in the elections of the Saami parliament is based on the language definition. 93 Rennäringslag 1971: 437 (Act on Reindeer Herding Trade). See Prop 1992/93: 32, 289. 94 For further discussion of definitions of indigenous people, see T Joona, ch 10 of this volume. 95 See Allard, ch 8 of this volume. The premise that those entitled to indigenous peoples’ rights were the descendants of those living in the same area and in the same way as their ancestors, has been accepted in Finnish legislation: see Fishing Act, s 12; Joona Pohjois-Lapin erityiset kalastusoikeuskysymykset (Rovaniemi, Juridica Lapponica, 2011), 75–88; and, concerning the reindeer herding right, KM 1928:9, 50. However, the Finnish problem is that additional people— indeed all the people living permanently in the area and whose rights were not based on legal grounds and immemorial rights—were also permitted to use these land and water rights.

252 Juha Joona and tax registers of the Lapp villages during the seventeenth and eighteenth centuries. The land and water rights accruing to them are those contained in the land register of 1741. This was the last-kept register of those Lapps of Kemi and Tornio Lapland whose rights to land were consistent with full proprietary rights. Three years later, these areas were regarded as belonging to the Crown,96 and the Lapps’ land rights quickly began to lose significance in legal practices. Regardless of how this right is to be understood today, the 1741 land register list provides the last account of those people who held strong rights to those lands and waters. No report has ever been issued justifying the loss of those rights in legal terms.97 Taking all of this information together, it is possible to suggest that the subjects of the draft Convention in Finland should be those persons who are the descendants of the persons marked as Lapps in the register of 1741, who live in the area of the former Lapp villages (or maybe an even the larger area) and practise Saami traditional livelihoods. The Kemi Lapps suffered most from the actions of State authorities. During the first round of settlement, the Forest Lapps lost their home districts or what are now the areas of Central Lapland. This loss included their land and water rights, livelihoods based on traditional hunting and trapping, as well as their language. Further north, the introduction of the large reindeer herds of the Mountain Lapps caused the loss of deer hunting, important for the subsistence of the Forest Lapps. Now, centuries later, their desendants—even reindeer herders—are in danger of losing even the right to be accepted as indigenous people of that area, an area in which they have lived since time immemorial.

VI. CONCLUDING REMARKS

This chapter has been critical of Article 4 of the draft Convention, but the real focus of that criticism has been on the way that the present languagebased definition of Saami is used as the criteria of indigenous status in the draft. It is important to acknowledge that the survey on which the Finnish definition of Saami is based was never intended to provide the basis of a definition of indigenous people. It merely aimed at investigating how persons meet the set criteria, as opposed to how they form the indigenous people, but this understanding is rarely acknowledged. This definitional process has served to exclude those who suffered most from the process of colonisation. This needs to be rectified before the draft Convention is finalised.

96 97

See Joona, above n 8, 155–60. Draft Nordic Saami Convention, 10.

Convention and Indigenous Population in Finland 253 While some elements of the draft Nordic Saami Convention are deserving of criticism, taken as a whole the Convention should be considered as a positive step forward. This is particularly the case in so far as it recognises the human rights of the indigenous peoples of Northern Fennoscandinavia and proposes to harmonise legal rules relating to the Saami among the three Nordic countries. Discussion of ratification within Finland provides the Finnish State with the opportunity to clarify its stance on issues going back to the settler decree of Lapland, issued in 1673. This decree allowed the first settlers to cross the current border of Lapland, which runs through Northern Finland, to settle in the Lapp regions. Now that over 300 years have passed, there is an opportunity to rectify past mistakes and reinstate the rights of the indigenous population. However, in order to do so, any such recognition must be based on an accurate understanding of the historical events underlying the settlement of northern Finland that inform the status of Finland’s indigenous population today.

10 The Subjects of the Draft Nordic Saami Convention TANJA JOONA

I. INTRODUCTION

T

HE SAAMI ARE often described as the only indigenous peoples of the European Union. They inhabit an area now known as, and claimed by, Norway, Sweden, Finland and the Kola peninsula of Russia. Recent research recognises that the Saami in Sweden-Finland had a right to their lands and waters, comparable to ownership.1 This area occupied by the Saami was and still is known as Lapland. Previously, others referred to the Saami as Lapps.2 Some Saami still prefer this expression. In 1673 and 1695, King Carl XI approved the Settlement Bill of Lapland, which allowed non-Lapps to cross the border of Lapland3 to settle. This may be considered to be the beginning of colonisation, assimilation and integration. As is the case with other indigenous peoples around the globe, the Saami have been struggling for the recognition of their rights since colonisation.

1 T Joona and J Joona, ‘The Historical Basis of Saami Land Rights in Finland and the Application of ILO Convention’ (2011) 3 Yearbook of Polar Law 351. See also K Korpijaakko(-Labba), Saamaleisten oikeusasemasta Ruotsi-Suomessa. Oikeushistoriallinen tutkimus Länsi- Pohjan Lapin maankäyttöoloista ja –oikeuksista ennen 1700-luvun puoliväliä (Rovaniemi, Lakimiesliiton kustanus, 1989); JD Juhani Wirilander, ‘Lausunto maanommistusoloista ja niiden kehityksestä saamelaisten kotiseutualueella’ (2001), written on the request of the Ministry of Justice; J Joona, Entisiin Tornion ja Kemin Lapinmaihin kuuluneiden alueiden maa- ja vesioikeuksista (Rovaniemi, Juridica Lapponica 32, University of Lapland, 2006). 2 Indigenous peoples of Northern Fennoscandia were previously called Lapps. Lapp is an old exonym. Historically, it is closely associated with the term Lapland (Lapponia in Latin), used for the area. 3 The historical area of Lapland was separated from the area around the Gulf of Bothnia by the Lapland border. Historical Lapland was administratively divided into six separate areas: Ångermanland, Ume, Pite, Lule, Torne and Kemi Laplands. These were, in turn, divided into Lapp villages, which were further subdivided between clans and families into inherited lands, later known as Lapp tax lands.

256 Tanja Joona Over the years—from the mid-seventeenth century to late into the twentieth century—the State actively encouraged settlers and others to cultivate areas of which the Saami previously had exclusive use for reindeer herding, fishing and hunting. This led to competition for land and subsequent conflicts.4 Over 300 years later, the Nordic States began the reconciliation process with relatively small steps in the form of two Conventions, the ILO Convention No 169 Concerning Indigenous and Tribal Peoples in Independent Countries (hereafter ‘ILO Convention’)5 and the (draft) Nordic Saami Convention (hereafter ‘draft Convention’ or ‘draft’), the focus of this chapter.6 More broadly, there have been international developments leading to the recognition of indigenous peoples’ rights, which began in the 1970s and led to the establishment of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP).7 This is an important instrument, providing tools for future development of indigenous peoples’ rights. However, in the Nordic context, reconciliation comes too late in many cases: with the help of the Lutheran Church, the State has actively rooted out the languages, cultural heritage, livelihoods, lands and waters, and, most importantly, the identity of these people. The question of indigenous peoples’ rights to their traditionally occupied lands and water areas, as well as to other natural resources, is an important and controversial issue in contemporary international politics and law. There is a delicate balance between the sovereignty and territorial integrity of States, on the one hand, and the promotion and protection of minority cultures and identity on the other. A major trend in contemporary political systems is the proliferation of different kinds of governance structures that recognise the unique position of indigenous peoples. Indigenous peoples worldwide are fighting for land and rights to self-determination. Indigenous peoples aim to regulate their affairs in their own way in order to survive as culturally different peoples, mostly within Nation States. However, fundamental questions arise concerning the limits of State sovereignty and the content of the widely-discussed and emotional indigenous right to selfdetermination, also recognised by the UNDRIP.

4 See more SOU 1999:25, ‘Samerna—ett ursprungsfolk i Sverige, Frågan om Sveriges anslutning till ILO:s konvention nr 169. Betänkande av utredningen om ILO:s konvention nr 169’ (Stockholm, 1999) 23–33. 5 International Labour Organisation Convention (No 169) Concerning Indigenous and Tribal Peoples in Independent Countries, Geneva (adopted 25 June 1989 and entered into force 5 September 1991). Only Norway, of the three State parties to the proposed Nordic Saami Convention, is a party. 6 See eg M Åhren in M Åhren, M Scheinin and JB Henriksen, ‘The Nordic Sami Convention: International Human Rights, Self-Determination and other Central Provisions’ (2007) 3 Gáldu Cˇála—Journal of Indigenous Peoples Rights 8, 16 available at . 7 UN General Assembly, United Nations Declaration on the Rights of Indigenous Peoples, 2 October 2007, A/RES/61/295. See Koivurova, ch 4 of this volume, and Heinämäki, ch 5 of this volume.

The Subjects of the Draft Nordic Saami Convention 257 Article 1 of the draft Saami Convention spells out two main objectives. According to the article, the Convention’s first objective is to guarantee and safeguard the Saami people’s human and other rights, as well as fundamental freedoms. Secondly, the Saami Convention shall, to the largest extent possible, obliterate, or at least mitigate, the problems caused to the Saami by the fact that its traditional territory is today divided by national borders.8 This objective is also highlighted in the Preamble to the draft, which states that the Saami are the indigenous peoples of the three countries residing across national borders. The Preamble also highlights that the Saami have their own culture, history, traditions, language and livelihoods, and that the lands and waters constitute the foundation for the Saami culture; and further that during the course of history the Saami have not been treated as a people of equal value. In the context of the rights-holders of the Convention, it is especially interesting to notice that the Preamble emphasises that the national boundaries of the States shall not present an obstacle to the community of the Saami people and Saami individuals.9 However, the definition of a Saami individual differs in each Nordic country, and is strongly related to the right to vote in Saami parliamentary elections. This issue is considered in some detail in this chapter. This chapter examines the draft from the viewpoint of the rights-holder, focusing on what appears to be an inconsistency in its approach. On the one hand, the draft emphasises the unity and homogeneity of the people, the equal treatment of an individual and the principle that national boundaries should not present an obstacle to the community of the Saami people. On the other hand, the text defers to the different ways in which the three Nordic States define the Saami subjects. If the purpose of the draft is to harmonise the practices and legislation between the three Nordic countries concerning Saami rights, it would seem to follow that there should be a common understanding as to who qualifies as Saami. In the case of cultural, linguistic, welfare and other rights there is less concern, since these rights are well provided to all Saami citizens in the Nordic countries—although improvements are always necessary. However, property rights, land rights or use rights are more complicated. For example, there may be economic interests related to land rights, as well as other financial support, provided by the national States to enable the minorities to develop their functions. In the context of the Saami, the financial support is usually targeted to the respective national Saami parliament, the representative body of the Saami in each State. Inclusion on the electoral roll of the Saami parliament is therefore desirable and crucial. Sections IV. and V. of this chapter explore the connection between inclusion on the electoral 8

Åhren in Åhren et al, above n 6, 14. Preamble, draft Nordic Saami Convention, unofficial English version, available at . 9

258 Tanja Joona roll and beneficiary status under the draft Convention. Section II. examines different definitions of indigenous people in the scholarly literature and in relevant international instruments, and section III. examines Saami eligibility issues under Article 4 of the draft Convention and the related national legislation of the three Nordic States.

II. INDIGENOUS PEOPLE IN INTERNATIONAL LAW

At least 350 million people worldwide are considered to be indigenous. Most of them live in remote areas of the world. Indigenous peoples are divided into some 5,000 peoples, ranging from the forest peoples of the Amazon to the tribal peoples of India, and from the Inuit of the Arctic to the Aborigines in Australia. They often inhabit land that is rich in minerals and natural resources. Indigenous peoples face serious difficulties, such as the threat of territorial invasion and murder, the plundering of their resources, cultural and legal discrimination, as well as a lack of recognition of their own institutions.10 While the Saami way of life is now close to that of the dominant society and their basic human rights have been secured as for all Nordic citizens, Saami rights to traditionally occupied lands and waters lack legal recognition and protection. Despite the large number of indigenous peoples, there is no universally recognised definition of indigenous peoples in international law. However, some broad characteristics are generally accepted. Indigenous peoples are described as the disadvantaged descendants of those peoples who inhabited a territory prior to colonisation or the formation of the present State. The term ‘indigenous’ is defined by characteristics that relate to the identity of a particular people in a particular area, and that distinguish them culturally from other people or peoples. When, for example, immigrants from Europe settled in the Americas and Oceania, or when new States were created after decolonisation in Africa and Asia, certain peoples were marginalised and discriminated against because their language, their religion, their culture and entire way of life were different and perceived as inferior by the dominant society.11 Today, many indigenous peoples are still excluded from society, and in some cases even deprived of their rights as equal citizens of a State. Nevertheless, they are determined to preserve, develop and transmit their ancestral territories and their ethnic identity to future generations.

10 In addition, indigenous peoples are people, communities and nations who claim a historical continuity and cultural affinity with societies pre-dating contact with Western culture. These peoples consider their local cultures to be distinctly separate from contemporary Westernised cultures, and many continue to assert their sovereignty and right to self-determination. 11 See for a listing of indigenous peoples.

The Subjects of the Draft Nordic Saami Convention 259 Self-identification as an indigenous individual and acceptance as such by the group is an essential component of indigenous peoples’ sense of identity. Their continued existence as peoples is closely connected to any possibility that they may have to influence their own fate and to live in accordance with their own cultural patterns, social institutions and legal systems.12 Scholars differ as to the definition of indigenous people. Some distinguish between the indigenous people of the New World and the Old World. The Special Rapporteur to the UN Economic and Social Council SubCommission on Prevention of Discrimination and Protection of Minorities defined indigenous peoples as follows: Indigenous communities, peoples and nations are those which, having a historical continuity with pre-invasion and pre-colonial societies that have developed on their territories, consider themselves distinct from other sectors of the societies now prevailing in those territories, or parts of them. They form at present nondominant sectors of society and are determined to preserve, develop and transmit to future generations their ancestral territories, and their ethnic identity, as the basis of their continued existence as peoples, in accordance with their own cultural patterns, social institutions and legal systems.13

Instead of offering a definition, Article 33 of UNDRIP underlines the importance of self-identification: 1. Indigenous peoples have the right to determine their own identity or membership in accordance with their customs and traditions. This does not impair the right of indigenous individuals to obtain citizenship of the States in which they live. 2. Indigenous peoples have the right to determine the structures and to select the membership of their institutions in accordance with their own procedures.14

The Asian Development Bank (ADB) considered several aspects in developing its own working definition. A starting point was to define indigenous peoples on the basis of distinctive characteristics, in particular: (a)

descent from population groups present in a given area, most often before modern States or territories were created and before modern borders were defined; and (b) maintenance of cultural and social identities, and social, economic, cultural and political institutions separate from mainstream or dominant societies and cultures.

12

Ibid. JM Cobo, Study of the Problem of Discrimination Against Indigenous Populations, Final Report submitted by the Special Rapporteur (UN ECOSOC 1986); Definition of Indigenous Populations, E/CN.4/Sub.2/1982/2/Add.6. 14 UN General Assembly, above n 7, art 33. 13

260 Tanja Joona In some cases, and over recent centuries, tribal groups or cultural minorities have migrated into areas where they are not indigenous, where they have established a presence and continue to maintain a definite and separate social and cultural identity, and related social institutions. In such cases, the second identifying characteristic may carry greater weight.15 Some describe indigenous peoples by referencing their way of life. In many cases, indigenous peoples live in separate communities and cultural or ethnic groupings. Such communities and groupings are often located in areas that are geographically distant from urban centres, and function on the periphery of the political, social, cultural and economic systems of dominant or mainstream society. At the same time, it is not unusual to find indigenous communities living on the fringes of urban areas, comprised of indigenous peoples who have migrated but remain distinct from the mainstream. Indigenous communities in a given country may reflect varying degrees of acculturation and integration into the dominant or mainstream society.16 Erica-Irene A Daes, the Chairperson-Rapporteur of the Working Group on Indigenous Populations (WGIP) also addressed the definition of indigenous peoples. Her Working Paper provides a thorough overview of the concept of ‘indigenous people’ in the UN context.17 Indigenous representatives have expressed their views before the Working Group on several occasions. For example, the Aboriginal and Torres Strait Islander Social Justice Commissioner, Mr M Dodson, stated that any definition must provide ‘scope for self-identification as an individual and acceptance as such by the group. Above all and of crucial and fundamental importance is the historical and ancient connection with lands and territories.’18 The ILO Convention No 169 describes the peoples it aims to protect. According to Article 1, the Convention applies to: (a) tribal peoples in countries whose social cultural and economic conditions distinguish them from other sections of the national community, and whose

15 Additional characteristics often ascribed to indigenous peoples include: (i) self-identification and identification by others as being part of a distinct indigenous cultural group, and the display of desire to preserve that cultural identity; (ii) a linguistic identity different from that of the dominant society; (iii) social, cultural, economic, and political traditions and institutions distinct from the dominant culture; (iv) economic systems orientated more towards traditional systems of production than mainstream systems; and (v) unique ties and attachments to traditional habitats and ancestral territories, and natural resources in these habitats and territories. See ADB at . 16 See above, n 15. 17 EIA Daes, ‘Evolution of Standards concerning the Rights of Indigenous Peoples’, Working Paper by the Chairperson-Rapporteur on the concept of ‘Indigenous People’, E/CN.4/ Sub.2/AC.4/1996/2, 10 June 1996. 18 See the Report of the Working Group on Indigenous Populations, E/CN.4/Sub.2/1995/24, 41–51.

The Subjects of the Draft Nordic Saami Convention 261 status is regulated wholly or partially by their own customs or traditions or by special laws or regulations, and (b) peoples in countries who are regarded by themselves or others as indigenous on account of their descent from the populations that 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, spiritual cultural and political characteristics and institutions.19

Thus the definition applies to two peoples, tribal peoples and indigenous peoples. In sum, there are many complexities associated with the attempt to draw a universal definition of indigenous peoples. Many of the definitions presented above were developed for a particular purpose. Why, then, do we need a definition? Or do we need one at all? Article 4 of the draft Convention is central, as it articulates the beneficiaries of the Convention. For the purpose of the draft, the question is not so much about defining indigenous peoples but of ‘determining’ those peoples and individuals who have special human and other rights under the Convention. The same issue arose during the drafting of the UN Declaration on Indigenous Peoples.20 Mrs Daes took the view that the concept of ‘indigenous’ is incapable of a precise, inclusive definition that may be applied in the same manner to all regions of the world, but that greater agreement may be achieved with respect to identifying the principal factors that have distinguished ‘indigenous peoples’ from other groups in the system of the United Nations and those of regional intergovernmental organisations.21 Drawing on the above definitions, it appears that a contemporary working definition of ‘indigenous people’ would draw on criteria that include cultural groups (and their continuity or association with a given region, or parts of a region, and who formerly or currently inhabit the region): (a) either before or subsequent to their colonisation or annexation; or (b) alongside other cultural groups during the formation and/or reign of a colony or Nation State; or (c) independently or largely isolated from the influence of the claimed governance by a Nation State.22

19

ILO Convention (No 169), above n 5. ‘Several delegations of Member States maintained that it was essential to adopt a definition of the concept ‘indigenous’, before negotiating the substantive provisions of a declaration on the rights of these people.’ E/CN.4/Sub.2/AC.4/1996/2 10 June 1996, 19. 21 Fourteenth Session of the Working Group on Indigenous Populations, E/CN.4/Sub. 2/AC.4/1996/2, 10 June 1996. 22 Ibid. 20

262 Tanja Joona Furthermore, indigenous peoples are those peoples who have maintained, at least in part, their distinct cultural, social/organisational and/or linguistic characteristics, and in so doing remain differentiated from the surrounding populations and dominant culture of the Nation State to some degree.23 To the above, a criterion is usually added to include24 peoples who are selfidentified as indigenous, and/or those recognised as such by other groups. However, it should be noted that even if all of the above criteria are fulfilled, some people may either not consider themselves to be indigenous, or may not be considered as indigenous by governments, organisations or scholars. To conclude, it is important to define indigenous peoples in a manner that allows these peoples and persons the possibility to enjoy their inherent rights as the (descendants of the) original inhabitants of a particular territory. Paragraph 26.1 of Agenda 21 of the United Nations Conference on Environment and Development, adopted by a consensus of Member States, noted the inseparability of cultural distinctiveness and territory from the concept of ‘indigenous’: ‘Indigenous people and their communities have a historical relationship with their lands and are generally descendants of the original inhabitants of those lands.’25 The role of an individual within the indigenous group may also be problematic; some cases have been considered by the UN Human Rights Committee and are introduced here. The first case is Sandra Lovelace v Canada.26 Sandra Lovelace, a resident of Canada, was born and registered as a Maliseet Indian, but lost her Indian status upon her marriage to a nonIndian man based on provisions of the Canadian Indian Act, thereby losing the rights and benefits associated with Indian status in Canada, including the right to reside on reserve lands. An Indian man marrying a non-Indian woman, however, would not have lost his Indian status under these provisions. The Human Rights Committee did not express its views on discrimination on the basis of sex in this situation, because the marriage occurred before the International Covenant on Civil and Political Rights (ICCPR)27 came into effect in Canada. The Committee did, however, find that Canada was in violation of Article 27 of the Covenant (right of minority members to practise their culture) by continuing to deny Ms Lovelace the opportunity 23

Ibid. See ‘Frequently Asked Questions: Declaration on the Rights of Indigenous Peoples’, United Nations Permanent Forum on Indigenous Issues, available at . 25 Report of the United Nations Conference on Environment and Development (Rio de Janeiro, 3–4 June 1992), vol I, resolution 1, annex II, United Nations Publication, Sales No E.93.I.8. See also ch 26 of E/CN.4/Sub.2/AC.4/1996/2, 25, Agenda 21 on ‘Recognizing and strengthening the role of indigenous people and their communities’. 26 Human Rights Committee (HRC) Communication No 024/1977. 27 The Inernational Covenant on Civil and Political Rights (ICCPR) adopted and opened for signature, ratification and accession by General Assembly resolution 2200A (XXI) of 16 December 1966. Entry into force 23 March 1976, in accordance with Article 49. 24

The Subjects of the Draft Nordic Saami Convention 263 to live on the reserve, the only place where she could practise her culture in a community with other members of the group. This case illustrates the consequences of a State-imposed definition of an ‘Indian’. According to the Committee, persons normally considered to belong to a minority are persons born and brought up on the reserve who have kept ties with their community and wish to maintain these ties: ‘Since Sandra Lovelace is ethnically a Maliseet Indian, she is, according to the Committee, entitled to be regarded as belonging to this minority.’28 Unfortunately, according to Meijknecht, the Lovelace case did not resolve all the problems. In RL et al v Canada,29 the claimants challenged certain aspects of Bill C-31, inter alia, the legislation that was enacted by the Government of Canada in 1985 in response to the recommendations of the Human Rights Committee in its view in the Lovelace case.30 According to Meijknecht, these cases show that the criterion of ‘distinctiveness’ is rather rough and might lead to unintended results, notwithstanding the importance this criterion might have for outsiders who, for reasons of protection or legislation, want to categorise or define a group as a specific minority or as an indigenous people.31

Another case is Ivan Kitok v Sweden.32 Ivan Kitok was a Swedish citizen of Saami ethnic origin. He claimed to be the victim of violations by the Government of Sweden of Articles 1 and 27 of the ICCPR His family had been active in reindeer breeding for over 100 years. On this basis, the claimant claimed that he had inherited the ‘civil right’ to breed reindeer, as well as the rights to land and water, from his forefathers in Sorkaitum Saami Village. He claimed that he was denied the exercise of these rights since he had lost his membership in the Saami village (‘sameby’, formerly ‘lappby’). A non-member cannot exercise Saami rights to land and water.33 In an attempt to reduce the number of reindeer breeders, the Swedish Crown and the Lap bailiff had insisted that if a Saami engaged in any other profession for a period of three years, he lost his right to practise indigenous

28

Ibid. HRC Communication No 358/1989. 30 By virtue of Bill C-31, certain persons formerly deprived of ‘Indian’ status on the basis of sex, such as Sandra Lovelace, were reinstated, but at the same time, other persons who formerly enjoyed Indian status were deprived of it on the basis of a racial quota. The complaint was, inter alia, that whereas traditional Shuswap law regarded as Shuswap anyone who was born in the territory and raised as Shuswap, Bill C-31 requires that, in the future, both parents be ‘Indian’ as defined under Canadian law. Children born to a Shuswap mother or father and raised on Shuswap territory in the Shuswap culture would still be denied Indian status and Band membership. See further details in A Meijknecht, Towards International Personality: The Position of Minorities and Indigenous Peoples in International Law (Oxford, School of Human Rights Research, Intersentia, 2001) 82. See also Koshan, ch 14 of this volume. 31 Meijknecht, above n 30, 82. 32 HRC Communication No 197/1985. 33 Ibid. 29

264 Tanja Joona livelihoods such as reindeeer herding and his name would be removed from the rolls of the lappby, which he could not re-enter except with special permission. Such a person did not, however (by contrast with the position in Finland), lose his ‘Saamistatus’ when removed from the rolls of the lappby. He could still call himself a Saami and enjoy other Saami rights. Thus Kitok claimed that he was ‘arbitrarily denied immemorial rights granted to the Saami community’. The Committee rejected the argument that this was simply a dispute between members of the Saami community, since ‘the State party’s responsibility has been engaged, by virtue of the adoption of the Reindeer Husbandry Act of 1971’, which in sections 11 and 12 defined eligibility for membership in a Saami community. The Committee expressed ‘grave doubts’ as to whether these provisions were compatible with Article 27, but in the end must have concluded that the restriction that these provisions imposed on the right of an individual member of a minority had been ‘shown to have a reasonable and objective justification and to be necessary for the continued viability and welfare of the minority as a whole’.34 The next section analyses the concept of ‘Saami membership’ and therefore also examines questions relating to right-holder status under the draft Nordic Saami Convention.

III. ARTICLE 4 OF THE DRAFT NORDIC SAAMI CONVENTION

The draft Nordic Saami Convention contains far-reaching provisions dealing with indigenous peoples’ issues, ranging from education and linguistic and cultural rights, to rights concerning welfare, livelihoods and traditional knowledge. Article 2 of the draft recognises the status of the ‘Saami as an indigenous people of Finland, Norway and Sweden’. Article 3 goes even further by stating: As a people, the Saami has the right of self-determination in accordance with the rules and provisions of international law and of this Convention … (emphasis added)

The rights-holders of the Saami Convention (ie, this also means the rightsholders of the above-mentioned property rights under the Convention) are introduced in Article 4: The Convention applies to persons residing in Finland, Norway or Sweden that identify themselves as Saami and who 1. have Saami as their domestic language or have at least one parent or grandparent who has or has had Saami as his or her domestic language, or

34 Ibid (all quotations in this paragraph are from s 9 of the Committee’s Report). The Committee offers only limited reasons for its final conclusion.

The Subjects of the Draft Nordic Saami Convention 265 2. have a right to pursue Saami reindeer husbandry in Norway or Sweden, or 3. fulfil the requirements to be eligible to vote in elections to the Saami parliament in Finland, Norway or Sweden, or 4. are children of a person referred to in 1, 2 or 3.

As already mentioned, the Preamble describes the Saami people as having its own culture, its own society, etc. It describes the Saami as one people residing across national borders, and provides that the national boundaries of the States shall not pose an obstacle to the community of the Saami people and Saami individuals. However, each Nordic State defines Saami persons differently, and this leaves the peoples in the three Nordic countries in an unequal situation. The national legal systems of the Nordic countries provide fairly strong protection to the property rights of Saami and non-Saami residents. Rights that originated long ago may be evaluated and recognised on the basis of immemorial prescription (or urminnes hävd in Swedish). The criteria for immemorial prescription differ a little in each jurisdiction, but the basic idea is the same in each of the three national legal systems. In Norway and in Sweden there have been a few court cases involving Saami claimants,35 but there have been no such cases in Finland. Article 34 of the draft expresses respect for the national legal systems. It refers to protracted usage and states that the protracted traditional use of land or water areas constitutes the basis for individual or collective ownership right to the areas for the Saami in accordance with national or international norms concerning protracted usage.36

Thus, the Draft Saami Convention makes a new distinction. Not all Saami will be able to meet the national criteria of immemorial prescription; if they live, for example, in the capital cities of the Nordic States, their connection with the land may have been severed many generations ago. However, such persons will still be subjects of the draft Convention and its articles if they are eligible to be included in the electoral roll of the Saami parliament. The respective national legislation of Norway, Sweden and Finland uses different elements in defining who is Saami. The first criterion is based on the right to vote in the elections of the Saami parliament. This is regulated by the national legislation of the Nordic countries, but it should be recognised in the context of the draft Convention that the eligibility requirements vary in the three Nordic countries. For example, a problem

35 Cases in Sweden include: NJA 1981, s 1 (Taxed Mountains case) and NJA 2011, s 109 (Nordmaling case); cases in Norway include: Erik Andersson v The Norwegian State, Rt 2001, s 1229 (Svartskogen case). For further discussion, see Ravna, ch 7 of this volume and Allard, ch 8 of this volume. 36 Draft Nordic Saami Convention, above n 9, Art 34 (emphasis added).

266 Tanja Joona may arise in a situation where a person is not accepted in the electoral roll of the Saami parliament on the Finnish side, but may be accepted in Sweden if he or she moves across the border and becomes a Swedish citizen. There are cases of relatives living on both the Finnish and Swedish side of the border who may be accepted as Saami, while others are not. The Supreme Administrative Court of Finland has dealt with cases in which the Saami Parliament has rejected applications to enrol in 1999, 2003 and 2011. These cases are discussed in section V. of this chapter. The second criterion is the right to herd reindeer. Under the draft Nordic Saami Convention, only Swedish and Norwegian reindeer herders are counted as rights-holders. Within this context it should be emphasised that it is often stated that, in Norway and in Sweden, the right to vote in the Saami parliament elections comprises merely the right to vote and does not confer additional rights or determine a person’s identity. However, Finland takes the opposite approach; registration in the electoral roll defines that person’s official status as a Saami, and at the same time defines that person’s identity. Membership in the electoral roll was taken more seriously in the late 1990s in Finland, when discussion about the governance of Saami land rights became active. The definitions of Saami in each of the three Nordic countries are examined further below.

A. Norway The legislation concerning the Norwegian Saami parliament introduces the requirements to be eligible to vote in Saami parliamentary elections37: §2-6. A separate electoral roll has been established for the purposes of the Saami parliament elections. To register in the electoral roll, an individual must file a declaration stating that: (a) he/she considers him-/herself to be a Saami, and that (b) the Saami language is his/her home language, or that at least one of his/her parents, grandparents or great grandparents has or have spoken Sámi as their home language, or (c) he/she is the child of someone who is or has been registered in the electoral roll.

37

The Norwegian original can be found at .

The Subjects of the Draft Nordic Saami Convention 267 B. Sweden The Act on the Saami Parliament in Sweden takes a similar approach: 1. The Saami Parliament has been established for the purpose of dealing with issues especially concerning the Saami. 2. For the purposes of this law a Saami is a person who considers himself or herself a Saami, and it is required 1. that she or he has or has had Saami as her or his language at home, or 2. that someone, being one of his parents or grandparents, has or has had the Saami language spoken at home, or 3. that he or she has one ancestor who is or has been registered in the electoral roll of the Saami Parliament.38

C. Finland Section 3 of the Finnish Act on the Saami Parliament provides: Definition of a Saami For the purpose of this Act, a Saami means a person who considers himself a Sámi, provided: 1. That he himself or at least one of his parents or grandparents has learnt Saami as his first language; 2. That he is a descendent of a person who has been entered in a land, taxation or population register as a mountain, forest or fishing Lapp; or 3. That at least one of his parents has or could have been registered as an elector for an election to the Saami Delegation or the Saami Parliament.39

It is necessary to explain the concept of ‘Lapp’.40 During the period of Swedish and Russian rule, ‘Lapp’ was an administrative concept and is used in historical sources. Until the 1950s, the word was used to refer to the original inhabitants of the area, who were not farmers but made their living from fishing, hunting and reindeer herding. Nowadays the word ‘Saami’41 is used to refer to the indigenous people, but the word ‘Lapp’ still occurs in some situations, especially in connection with land ownership and property matters. Fifteen years ago the term ‘Lapp’ was used once again in Finnish legislation. As noted above, the 1995 Act on the Saami Parliament states that a

38 The Swedish original can be found at . 39 Act on Saami Parliament 17.7.1995/974. 40 The historical events related to Lapps and Saami are more closely examined in Juha Joona, ch 9 of this volume. 41 This comes from the word sápmelas and refers to how the Saami view themselves.

268 Tanja Joona person may be a Saami if that person is a descendant of a person who is entered as a ‘mountain, forest or fishing Lapp’ in registers held by Swedish or Finnish authorities.42 The practical consequences of this amendment were, however, very small. A decision of the Supreme Administrative Court in 1999 concluded that only a very limited number of people have the right to gain Saami status by this subsection.43 In its report on the draft Convention, the Finnish Inter-ministerial Committee begins with the position that a Saami person in Finland is a person included in the electoral roll of the Saami parliament, as ordinarily understood, but identifies a few problematic issues relating to Article 4. The Committee observes that the status of the right-holder in the draft is connected to living in a treaty country, and also to one subjective criterion (self-identification) and four objective requirements. The objective requirements are alternatives: a person is considered to be a Saami for the purposes of the draft if one of the four elements is fulfilled. Generally speaking, the objective and the subjective criteria are in harmony with the Finnish legislation and with Finland’s international obligations.44 The Inter-ministerial Committee further continues that the implementation of the draft is tied to living in a treaty country. According to the Committee, Article 3 of the draft does not clarify what it is meant by ‘living’. It seems reasonable to think that a person must live in a treaty country on a regular basis—for a considerable part of the year—in order to maintain his or her relationship to the Saami culture. Problems may arise in situations where a Saami, due to, for example, working conditions or studies, lives outside of Finland, Norway, or Sweden for long periods of time.45 According to section 3 of the Act of the Saami Parliament, a Saami, in the context of this law, is a person who considers himself or herself to be a Saami, provided that he or she, or at least one of his or her parents or grandparents, has learned Saami as his or her first language. The Inter-ministerial Committee referred to the opinion of the Saami parliament on the domestic language mentioned in the draft, which corresponds with the concept of first language, as used in the definition, for the purposes of the Saami Parliament Act, and concluded that the draft did not intend to change that.46

42

Act on Saami Parliament 17.7.1995/974, §3. Supreme Administrative Court, Korkein hallinto-oikeus 1999: 55. 44 Finland Report, unofficial English translation, . 45 Ibid. 46 Ibid. 43

The Subjects of the Draft Nordic Saami Convention 269 Section 21 of the Saami Parliament Act provides that the right to vote in elections to the Saami parliament shall belong to every Saami, regardless of locality of residence, who reaches the age of 18 years no later than the last election day, provided that he or she is a Finnish citizen, or that he or she is a foreign citizen domiciled in Finland. Several questions may be raised about this provision. How does it apply to children aged under 18? What does it say about the rights of children under the draft Convention? If the parents do not want to register, what are the implications for their children? Section 22 states that anyone with the right to vote in elections to the Saami parliament shall be eligible for office, provided that he or she has agreed to stand and does not lack legal capacity. A Saami who is permanently living abroad and outside of Norway and Sweden may vote and act as a candidate in the elections. However, for the purposes of the draft, such a person is not a Saami as he or she does not live in a treaty country.47 The Committee foresees that there will be some problems in clarifying those individuals to whom the treaty applies in practice, and who may, therefore, claim benefits under the treaty.48 Since the draft provides a number of different ways in which a person may qualify, a person does not have to inform anybody that he or she is a member of the Saami people in order to be a rights-holder under the Convention; it is enough that that person fulfils the requirements of being a Saami. A person may not wish to be registered but still consider himself or herself to be Saami. According to Article 3 of the Framework Convention for the Protection of National Minorities, every person belonging to a national minority shall have the right freely to choose to be treated or not to be treated as such and no disadvantage shall result from this choice or from the exercise of the rights which are connected to that choice.49

All Nordic States are party to this Convention. It may also be important to consider section 13 of the Finnish Constitution, which protects the freedom of association.50 However, if the starting point in Finland is that a person is a Saami only if he or she is registered on the voting registry of the Saami parliament, the issue is problematic, as section 13 has traditionally been interpreted as a negative freedom, which means that a person cannot be forced to belong to any association.51 Professor Alfredsson has also emphasised the

47

Ibid. Ibid. 49 Ibid. 50 ‘Freedom of association is the individual right to come together with other individuals and collectively express, promote, pursue and defend common interests.’ (emphasis added) 51 P Hallberg, ‘Yhdistymisvapaus’ in P Hallberg, H Karapuu, M Scheinin, K Tuori, V-P Viljanen (eds) Perusoikeudet (WSOY, Juva 1999) 49–50. 48

270 Tanja Joona importance of respect for the right to identity, which is essential for equality and dignity.52 In Finland, it is difficult to define yourself as a Saami if you are not on the electoral roll. According to General Recommendation (VIII) of the monitoring body (Committee) of the International Convention on the Elimination of All Forms of Racial Discrimination (CERD), the identification of an indigenous person shall be based upon self-identification by the individual concerned unless there is justification to the contrary. The Committee has also confirmed that discrimination against indigenous peoples falls within the scope of the application of the Convention (General Recommendation XXIII).53 The Finnish Inter- Ministerial Committee states that the objective criteria of the draft appear to be fairly well defined; however, the Committee considers that the definition is very broad, and as such it may be extremely challenging to resolve the subjective scope of the Convention in light of Article 4 and the reasoning of the Convention.54 Unfortunately, the Committee does not give any further explanation of its position on this point.

D. Conclusion Henriksen, Åhren and Scheinin55 acknowledge that the question of who is to be regarded as a Saami person, and hence as a rights-holder, under the Saami Convention, was one of the most difficult issues for the drafters to resolve. The Saami members seriously struggled to arrive at a definition, and Article 4 found its final form only at the very end of the three-year process, none of the Saami appointees being particularly happy with the final outcome. This illustrates how difficult it is to implement the right to self-determination in practice, especially after centuries of colonialism in which the State has arrogated to itself the right to define the ‘other’.56 Åhren suggests that, in the end, Article 4 begins with proficiency in the Saami language as the criterion used to determine who is eligible to vote in Saami parliamentary elections, but adds a second criterion; individuals who do not meet the language criterion, but who are active in Saami reindeer husbandry, shall be regarded as Saami under the Saami Convention.

52 G Alfredsson, ‘Minimum Requirements for a New Nordic Saami Convention’ (1999) 68 Nordic Journal of International Law 397–411. 53 The Committee on the Elimination of Racial Discrimination (CERD) General Recommendation No VIII, Identification with a particular racial or ethnic group (Art 1, paras 1 and 4), 22.08.1990; General Recommendation No XXIII, Indigenous Peoples, 18.08.1997; and Finland Report, above n 44. 54 Finland Report, above n 44. 55 Åhren in Åhren et al, above n 6. 56 Ibid, 14.

The Subjects of the Draft Nordic Saami Convention 271 Additionally, children who do not meet these criteria but have a parent who does, may also claim rights under the Saami Convention.57 In addition to these more general observations on Article 4, it is also important to examine some more precise questions in the next section of this chapter.

IV. THE DIVISION OF ARTICLE 4

The headings in this section follow the text of the chapeau and the subsections of Article 4.

A. Applies to Persons Residing in Finland, Norway or Sweden that Identify Themselves as Saami … Article 4 does not refer to ‘indigenousness’ as such. Indigenousness is defined in the Preamble: ‘[T]he Saami is the indigenous people of the three countries.’ Descent from the original inhabitants is the crucial element of indigenousness, together with the self-identification referred to in Article 4. Article 4 does not actually require descent from the original inhabitants of the Saami territory; descent is referred to only in Article 4.2, through the reference to the right to pursue Saami reindeer husbandry in Norway or Sweden. A person has to be of Saami descent in order to be able to practise reindeer husbandry in Sweden and Norway, though it has slightly changed in Sweden recently.58 1. Use Saami as Their Domestic Language or Have at Least one Parent or Grandparent who has or has had Saami as his or her Domestic Language. It may be argued that language, as the only element of ‘indigenousness’, is the least challenging. A language may be learned by anyone; but, on the other hand, language can also easily be lost. The history of the Nordic States in their relations with the Saami suggests that those who have been able to maintain their language skills may be privileged. Those who have lost the language as a consequence of State policy may have difficulties relating to their identity. However, what is controversial is that Article 4.1 does not require an individual to speak the Saami language himself or herself, nor even that his or her parent or grandparent speaks it habitually; the requirement is merely for Saami to be the ‘domestic language’ of one of

57 58

Ibid. Christina Allard examines this more precisely in ch 8 of this volume.

272 Tanja Joona those persons.. Article 4 also allows others to learn the Saami language and acquire the position of a voter in Saami parliamentary elections. The Saami language is taught in kindergartens, primary schools, secondary schools, senior highs schools and universities. It is also important to understand the bitter history of the Saami people, particularly in Norway, where the Lutheran Church and the State strongly encouraged—and even forced— people to change their language directly or indirectly. Many people have thus lost their language through State action, yet the States still establish language as a criterion for identity in national legislation and in this draft Nordic Saami Convention.59 2. Have a Right to Pursue Saami Reindeer Husbandry in Norway or Sweden. There are reindeer herders on the Finnish side of the border who are also of Saami origin, just as in Sweden and Norway. Unfortunately, many of them are not accepted on the electoral roll of the Finnish Saami parliament because they have lost the Saami language. The distinction that the draft Convention makes between reindeer herders in the three States is therefore problematic in terms of equality between the subjects of the draft—a value that the draft emphasises in the Preamble, just as it highlights the point that national borders should not obstruct the rights of individuals. As one people, Saami in one State may have relatives on the other side of the border who are not recognised as Saami under the draft because of this distinction. That said, the paragraph does highlight the important role of reindeer herding as a traditional livelihood and an integral part of Saami identity. However, within this context, it is reasonable to highlight that there are also other traditional Saami livelihoods: fishing, hunting and small-scale gathering. It would be interesting to examine how this paragraph applies to Coastal Saami in Norway and Forest Saami in Finland. 3. Fulfil the Requirements to be Eligible to Vote in Elections to the Saami Parliament in Finland, Norway or Sweden, or 4. are Children of a Person Referred to in 1, 2 or 3. The practices associated with the electoral rolls of the Saami parliament vary in the Nordic countries, as well as in the wording of the Acts on Saami Parliaments, as shown above. The possibility to appeal against decisions made by the electoral board of the Saami parliament also differs. It is also important to highlight the role of children—a question may be raised

59

For further discussion, see Juha Joona, ch 9 of this volume.

The Subjects of the Draft Nordic Saami Convention 273 within the context of Article 4.4. Does this paragraph refer to the third or the fourth generation, ie a child of a person whose grandfather or greatgrandfather spoke Saami as his domestic language? These matters all have to be resolved.

V. COMPARING NORWAY, SWEDEN AND FINLAND

There are statistics as to the numbers of indigenous peoples of the world. However, these statistics are contested, and the issue, at the individual and group level, is very complicated. Even where the peoples concerned are identified and ‘quantified’, they may be denied the use of the term ‘indigenous’, where such a description introduces ideas of priority and privilege or ‘a sort of snobbery’ into inter-communal or community–State relations. The dispute regarding figures is usually political as opposed to analytical, and is normative not cognitive. It may involve the State imposing its outside will upon peoples and contesting their self-description. The contentious issue of description and definition has become important in the context of the current political sphere. The growing respect for the principle of self-identification60 as an essential aspect of individual and group freedom, complicates mere numbers.61 It should be noted that even though selfidentification is generally used to refer to peoples, the term also includes the feelings of an individual. Without individuals there are no groups. Logically, the definition of a group and the definition of an individual cannot diverge significantly. According to Thornberry, people exercise their preferences and choose to identify with a group or not. Some legal systems are relatively liberal in this respect. In the related field of minority rights, the Hungarian legislation, for example, allows an individual to choose whether he or she belongs to a minority, or to more than one minority.62 Discrimination against a group may influence public declarations of group affiliation. Individuals change their minds. Groups may consist of cultural formations with a history, or represent the creations of State laws. Statistics abound, but they are not consistent.63 Many governments may undercount their indigenous

60 The principle is contained in Art 1.2 of ILO Convention No 169: ‘Self-identification as indigenous or tribal shall be regarded as a fundamental criterion for determining the groups to which the provisions of this Convention apply.’ 61 P Thornberry, Indigenous Peoples and Human Rights (Manchester, Manchester University Press, 2002) 15. 62 Report submitted by Hungary under the Council of Europe framework Convention for the Protection of National Minorities, ACFC/SR (99) 10, 33, in Thornberry, above n 61, 15. 63 Thornberry, above n 61, 15–16.

274 Tanja Joona population. ‘Statistical ethnocide’ is always a possibility. Thornberry, referring to a study of the Adivasi population of Bangladesh, noted: Many observers feel that undercounting has been done deliberately to emphasize the marginality of the Adivasi population. Lower numbers mean that their legitimate demands can be more easily dismissed or ignored by governments and thus excluded from relief aid or development programmes.64

An example from Australia helps make the point. In the 2006 Census, 458,520 people identified themselves as being of Aboriginal and/or Torres Strait Islander origin, comprising 2.3% of the total population.65 There were approximately 409,729 people of Aboriginal origin (90% of the total) and 29,239 of Torres Strait Islander origin (6%). A further 19,552 people (4%) self-identified themselves as being of both Aboriginal and Torres Strait Islander origin.66 Aboriginal people were first counted as citizens in the 1971 Census. Since then, censuses have shown a significant increase in the number of people identifying themselves as Aboriginal and/or as Torres Strait Islander peoples: — — —

Between the 1991 Census and 1996 Census there was a 33% increase recorded in the numbers of indigenous peoples. Between the 1996 Census and 2001 Census there was a 16% increase. Between the 2001 Census and 2006 Census there was an 11% increase.67

The increase in the indigenous population cannot be accounted for by birth rates alone. The Australian Bureau of Statistics (ABS) attributes the increase to a growing propensity of people to identify themselves as Aboriginal and/ or Torres Strait Islander, and the greater efforts made to record indigenous status in the censuses. Because of the recorded increases in the number of indigenous peoples, the ABS warns that comparisons between the two censuses must be made with caution. They recommend comparing percentages from two censuses, rather than directly comparing counts or numbers.68 Despite the increases in the numbers of people identifying as indigenous in censuses, however, the ABS believes that there is still significant undercounting. In the 2006 Census, indigenous status is unknown for 1,133,466

64

Ibid, 16–17. Australian Bureau of Statistics, Population Characteristics, Aboriginal and Torres Strait Islander Peoples 2006, ABS cat no 4713.0 (2008) 12. 66 Ibid, 19, table 2.2. 67 Ibid, 12. 68 Australian Bureau of Statistics and Australian Institute of Health and Welfare, The Health and Welfare of Australia’s Aboriginal and Torres Strait Islander Peoples 2003, ABS cat no 4704.0 (2003) 245. 65

The Subjects of the Draft Nordic Saami Convention 275 people, comprising 5.7% of the total number of people surveyed. Because some of these people will be indigenous, the ABS calculates what it refers to as ‘experimental estimates’ of the true number of indigenous peoples.69 The Swedish Inter-ministerial Committee addressed the connection between language and the eligibility to vote issue in the context of Article 4. It noted that Saami who have lost the language for three generations and who also do not practise reindeer husbandry are excluded by definition. However, the Committee considered that there would be few persons in this position. According to the Committee, the proposed reform—‘an open Saami village’—could accentuate the problem since, theoretically, the Saami village may receive new members who neither have the language nor take part in reindeer husbandry.70 The Committee does not explain its view more precisely, however. The difficulties relating to the rights-holders under the draft Nordic Saami Convention are similar to those that arise in the context of ILO Convention No 169.71 The latter Convention has been under consideration for longer than the draft Nordic Saami Convention in both Sweden and Finland, while Norway was the first country to ratify ILO Convention No 169 as long ago as 1990. The rights-holders under ILO Convention No 169 are articulated in Article 1 of the Convention and have already been examined in section II. above.72 A Swedish Committee Report from 1999 offers an important interpretation of rights-holder status in the Nordic context and in the context of ILO Convention No 169. There, the Swedish Rapporteur, Sven Heurgren, emphasised that the State is obliged to clarify the rights-holders for the purpose of ILO Convention No 169. According to him, the definition of a Saami in the Swedish Act on the Saami Parliament already contains many of the elements of Article 1 of Convention No 169. However, this cannot be conclusive, since the statutory definition was developed for the purposes of the Act and in order to define those persons who have the right to vote in the Saami parliament elections. Were Sweden to ratify ILO Convention No 169, it might be necessary to provide a different definition as to who might be regarded as the rights-holders for that Convention. According to Heurgren, the current Saami definition would be adequate for all purposes except the land rights articles73

69

ABS, above n 65, 15. Sweden Report, unofficial English translation. 71 ILO Convention (No 169), above n 5. 72 Text to n 19. 73 SOU 1999:25, 83–84, 120–40. It should be noted that unlike in Finland, the Swedish reindeer-herding legislation contains considerable additional rights relating to traditional livelihoods, eg the right to fish and hunt, the right to build with certain limitations, the right to take timber, etc. 70

276 Tanja Joona Kristian Myntti reaches a similar conclusion in the Finnish context.74 He questions the suitability of the Finnish Saami definition for the purposes of the land rights provisions of ILO Convention No 169, as does Timo Koivurova. Koivurova evaluates the reports submitted by the Committee on the Elimination of Racial Discrimination (CERD),75 where the Committee has constantly reminded Finland that its definition of Saami is too narrow.76 This should also be taken into account in the context of the draft Nordic Saami Convention. Similarly, a recent doctoral dissertation by Leena Heinämäki77 highlights the importance of the relationship of indigenous peoples to land, referring in this context to the environmental rights of indigenous peoples. She states: This dissertation, although acknowledging that culture is an evolving concept, focuses solely on the so-called traditional way of life of indigenous peoples. It is, in the end, the traditional, nature-based culture that makes indigenous peoples a special group benefiting from environmental rights intended to protect their traditional cultural practices.78

To conclude, the issues related to the questions of land rights and the beneficiaries of those rights are not clearly defined. There are many complexities. Estimates of the number of Nordic Saami vary from 75,000 up to 100,000.79 Obviously, there are several reasons for this. In Finland, the official figure used to describe the number of Saami comprises those persons in the electoral roll and their children, about 9,200 persons.80 In Sweden 7,80981 persons are registered in the electoral roll, as are about 13,890 in Norway. However, it may be assumed that more Saami exist in Norway (official estimates of 75,000–100,000). How, then, do we ensure that persons who are not ‘listed’ in the electoral rolls of the Saami parliaments are also regarded as the subjects of the draft Convention? And on the other

74 K Myntti, ‘Saamelaismääritelmä oikeudelliselta kannalta in Irja Seurujärvi-Kari’ in B Mánát (ed), Saamelaisten juuret ja nykyaika (Suomalaisen kirjallisuuden seura, 2000) 216–26. 75 All reports available at . 76 T Koivurova, ‘Alkuperäiskansojen asema ja oikeudet kansainvälisessä oikeudessa’ in KT Kokko (ed), Kysymyksiä saamelaisten oikeusasemasta. Lapin yliopiston oikeustieteellisiä julkaisuja (Rovaniemi, Sarja B, 2010) 26–49. 77 L Heinämäki, The Right to be a Part of Nature: Indigenous Peoples and the Environment (Rovaniemi, Acta Universitatis Lapponiensis 2010)180. 78 Ibid, 1. 79 Different estimations of Saami population can be found for example ; and . 80 In 2009. See . 81 See (accessed on 13 October 2010) 5,468 votes 9,300–4,568 = 4,732; under18.

The Subjects of the Draft Nordic Saami Convention 277 hand, if listing is regarded as the basic prerequisite for (any) indigenous rights, how do we ensure that every possible person has been ‘listed’? In this respect, the situation in Finland is exceptional. The Saami parliament’s electoral roll in Finland is based on interviews done for a Master’s Thesis in 1962 by a young student, Erkki Nickul.82 Nickul interviewed other students among local Lappish people, but acknowledges some deficiencies in his work: the interviews were made only in parts of Lapland; not every village was visited; interviewers should have been more educated; people did not remember their grandfathers’ names; and uncertainty existed in assessing language skills. In 1964, Nickul himself completed the work, at which time, in the case of six people from Inari, the language question was still open. Nickul subsequently answered the language question on their behalf, by guessing.83 These ‘first’ Saami persons formed the basis for the electoral roll. The roll might have been very different if the interviews had been carried out 10 years earlier or 10 years later. In the Finnish Saami parliament, an electoral board, consisting of five persons, makes a decision on membership, with the possibility of an appeal to the governmental body of the Saami parliament and to the Supreme Administrative Court.84 In Sweden, an appeal may be made to the Administrative Board of the County where the Saami parliament is situated.85 In 1999, 657 persons appealed to the Supreme Administrative Court of Finland, but only a few were accepted into the register. This ruling made it difficult to raise the issue again. One of the appellants in 1999 was Arto Enojärvi.86 His appeal was denied and he was not accepted to the electoral roll. Subsequently, Mr Enojärvi moved to Norway where he was accepted onto the electoral roll of the Saami parliament in Norway.87 This example suggests that while the draft Nordic Saami Convention seeks to harmonise the legislation concerning the Saami in all Nordic countries, this goal may be far removed from reality. A new case was brought to the Supreme Administrative Court in 2003.88 In this case the electoral board of the Saami parliament had concluded that

82

E Nickul, Tilastotieteen pro gradu-tutkielma (Helsinki, 1968). Ibid, 26–27; and for further discussion, see Juha Joona, ch 9 of this volume. 84 See more on the electoral board of the Saami parliament in Finland at . 85 The complaint should be made to the Administrative Board of the County where the Saami parliament is situated no later than 15th December on the year before the elections. The resolution for the complaint is given on 15th February in the year of the elections. Available at . 86 Decision by the Supreme Administrative Court, 27.9.1999 No 2475/1/99. 87 Personal permission given by Arto Enojärvi to use his name in this context. See also an unpublished dissertation by Erika Sarivaara on non-status Saami in Finland (Statuksettomat saamelaiset—paikantumisia saamelaisuuden rajoilla), to be defended on 15 June 2012 at the University of Lapland. 88 Decision by the High Administrative Court of Finland (KHO:n päätös) 2003:61. 83

278 Tanja Joona person B was mistakenly included in the register in 1999. Subsequently, person A, a descendant of person B, was added to the register. This led the Court to conclude that person B should also be included in the electoral roll.89 A 2011 decision of the Supreme Administrative Court of Finland dealt with an appeal of five persons who had not been accepted onto the register. The Court decided that four of the appellants should be added to the register. Three of them were accepted on the basis of the language criteria, even though they themselves did not speak the Saami language. However, their forefathers had been marked as Lapps in the land and taxation register of 1825.90 One of the claimants provided no evidence of his or his ancestors’ ability to speak the Saami language, but the Court emphasised his self-identification as Saami and other cultural characteristics that he was able to present. He is a fisherman from Inari-lake. In this respect, the Court changed its view in the context of one person. What is interesting is that the Court referred to Article 1 of ILO Convention No 169 in its reasoning, even though Finland has not ratified the Convention. It also referred to the statements given to Finland by CERD.91

VI. CONCLUSION

The draft Nordic Saami Convention is an ambitious attempt to harmonise legislation and practices in relation to the Saami people in the three Nordic States. It is a unique formulation of rights concerning the indigenous people of the Nordic countries. It recognises the rights of Saami people within almost every sector of life and seeks to dismantle any obstructions created by national borders in implementing these rights. However, there are some challenges that will have to be faced before the draft can be adopted. In particular, the current formulation of Article 4 is challenging since it leaves Saami persons in the three Nordic States in unequal positions, which should not be the intention of the Convention. The draft presents an important instrument dedicated to the Saami people in Sweden, Finland and Norway, and it is fundamentally important that the States are committed to improving the human rights situation of the Saami and to recognising their rights to land and water. However, the determination of the status of the right-holder in each country is a crucial starting point,

89 See J Joona, Entisiin Tornion ja Kemin Lapinmaihin kuuluneiden alueiden maa- ja vesioikeuksista. Juridica Lapponica (Rovaniemi, 2006) 367–93. 90 In the 1999 cases the Court had refused to look back any further than 1875. 91 Concluding observations of the Committee on the Elimination of Racial Discrimination: Finland, 10.12.2003, CERD/C/63/CO/5; Consideration of reports submitted by states parties under article 9 of the Convention: Finland, 5.3.2009, CERD/C/FIN/CO/19.

The Subjects of the Draft Nordic Saami Convention 279 and this requires open discussion and critical evaluation. As a contribution to that debate I offer the following revised text for Article 4: The Convention applies to persons residing in Finland, Norway or Sweden who identify themselves as Saami and who: 1. have Saami as their domestic language or have at least one parent or grandparent who has or has had Saami as his or her domestic language, or 2. is a reindeer herder in Finland of Saami origin or a person who has a right to pursue Saami reindeer husbandry in Norway or Sweden, or 3. is a person of Saami origin who practises another traditional Saami livelihood in Norway, Sweden or Finland, or 4. fulfils the requirements to be eligible to vote in elections to the Saami parliament in Finland, Norway or Sweden, or 5. are children of a person referred to in 1, 2, 3, or 4.

The draft needs to focus on those persons of Saami origin who actually still use the land in traditional ways, rather than focusing so much on the need to strengthen the role and economic situation of the national Saami parliaments. The interests of the Saami parliament may not conform to the interests of local reindeer herders, for example. Not many Saami who receive their income via traditional livelihoods are actually represented in the Saami parliament. It is also important to highlight the lifestyle of the coastal and fishing Saami, as well as those who get their income from other traditional livelihoods. These persons need to be brought within Article 4, along with reindeer herders of Saami origins in all three Nordic countries.

11 On Customary Law Among the Saami People ELINA HELANDER-RENVALL

I. INTRODUCTION

T

HE SAAMI RIGHTS Committee in Norway began looking at Saami rights in 1980, but after many years of work, the Committee admitted that, in some points, it had failed in its task. The Subcommission of the Saami Rights Committee, whose mandate was to investigate Saami customary law, admitted that such a study would have been very timeconsuming and difficult for the Committee’s legal section to conduct.1 However, toward the end of the 1990s, the Norwegian Ministry of Justice approached numerous independent researchers to conduct a study on customary law among the Saami people.2 This project took an interdisciplinary approach in which law and anthropology predominated.3 Various Saami activities and practices—reindeer herding, fishing, hunting and agriculture— were examined in Finnmark, Northern Norway. In this context I was invited by the University of Oslo to join the project group to undertake fieldwork in the municipality of Tana, in Eastern Finnmark, Northern Norway. Naturally, the topic ‘[Saami] customary law’ was challenging, which is why I accepted the request. Between 1988 and 1999 I collected material on Saami customs and legal perceptions within the Tana municipality, including the Tana fiord area4 and researching therefore both

1 NOU 1993:34. Norges offentlige utredninger. Rett til og forvaltning av land og vann i Finnmark. Bakgrunnsmateriale for Samerettsutvalget, 16–17. 2 See NOU 2001:34. Norges offentlige utredninger. Samiske sedvaner og rettsoppfatninger. Bakgrunnsmateriale for Samerettsutvalget. 3 See TG Svensson, ‘Introduction’ in TG Svensson (ed), On Customary Law and the Saami Rights Process in Norway. Proceedings from a Conference at the University of Tromsø (Tromsø, Senter for samiske studier: Universitetet i Tromsø, 1999) 1. 4 See E Helander, ‘Samiska rättsuppfattningar i Tana. Samiske sedvaner og rettsoppfatninger’ (2001a) Bakgrunnsmateriale for Samerettsutvalget. NOU 2001/34, 425; and E Helander, ‘Rätt i Deanodat. In: Samiske sedvaner og rettsoppfatninger’ (2001b) Bakgrunnsmateriale for Samerettsutvalget. NOU 2001/34, 459.

282 Elina Helander-Renvall inland Saami and Fiord Saami. I conducted two separate studies, one in the inland area of the Tana municipality in the villages of Sirma, Båteng, Horma and Hillagurra, and the second in the Tana fiord area among Sea Saami in Vestertana. The Saami in the former area are river and mountain Saami whose traditional way of living consists of reindeer herding, fishing and, to some extent, agricultural activities. Those living in the Tana fiord belong to the Sea Saami group whose traditional occupations are fishing and agriculture. Approximately half of the population of the Tana municipality are Saami. I decided to undertake an investigation among traditional knowledgeholders in Tana, as I knew that customary rules are strongly linked to certain social strands and traditional occupational activities. Generally speaking, customary law can regulate various aspects of community life. With this in mind, I specifically examined reindeer herding, ptarmigan trapping, fishing and the gathering of cloudberries, because they are central cultural and economic practices in Saami local society. I researched various customs and identified rules in relation to land use practices in contemporary society. In other words, the purpose of my study was to investigate Saami customs and legal perceptions in light of Saami traditions. My understanding was that customary law is, in some way, linked to peoples’ customs, practices and shared culturally-specific legal thinking. Methodologically it was also important to focus on various contexts in which customary rules may be present relating to land tenure and use, as well as the legal perceptions of the local Saami in their daily lives. I systematically interviewed 60 persons. Additionally, I spent a substantial amount of time discussing key issues that surfaced during interviews and from our initial contact with them. All 60 interviews were conducted in the Saami language. Furthermore, I discussed customary rules with 20 additional persons who included Norwegian authorities from Finnmark County. I used a questionnaire for the task, yet my approach was openended and provided the subjects with the opportunity freely to explain their own ideas and perceptions, even if the discussions’ themes were, in some cases, outside my field of research. However, in this way I was able to receive helpful background information.

II. CONCEPTS AND DEFINITIONS

As Tom G Svensson remarks, customary law is a part of culture.5 Saami customary law is traditionally oral and is expressed through the Saami language in the context of everyday life. Especially earlier, it was unnecessary

5 TG Svensson, ‘Indigenous Rights and Customary Law Discourse. Comparing the Nisga’a and the Sámi’ (2002) 47 Journal of Legal Pluralism 1.

On Customary Law Among the Saami People 283 to explain customary rules in a codified form. Instead, customary norms and rules were activated in concrete situations without any reference to existing paragraphs in a written form.6 Michael Asch, a respected Canadian anthropologist, explains that all societies have some form of laws, but ‘legal systems are often embedded in social life in such a way that they are not identified as legal regimes per se’.7 This statement is supported by texts by the founder of modern anthropology, Alfred R Radcliffe-Brown. He wrote that all societies have laws that concern ‘the formulation of rights over persons and things sufficiently precise in their general recognition as to avoid as far as possible unresolved conflicts’.8 Furthermore, Radcliffe-Brown explained that any human social life requires the establishment of a social structure consisting of a network of relations between individuals and groups of individuals. These relations all involve certain rights and duties which need to be defined in such a way that conflicts of rights can be resolved without destroying the structures.9

Customary law refers to ‘law consisting of customs that are accepted as legal requirements or obligatory rules of conduct; practices and beliefs that are so vital and intrinsic a part of a social and economic system that they are treated as if they were laws’.10 In my initial research, I took account of some definitions of rights and customary law developed by Norwegian lawyers who had been linked to State investigations regarding Saami rights or other similar projects. I found these definitions helpful. One such definition comes from Otto Jebens. Jebens defines the concept of rights (customary law) ‘in a general and unspecific way’ as ‘what people in a specific context think they have to conform to in their contact with other people’.11 In the most limited sense, a customary rule, according to Jebens, may also be defined as ‘a concept, which can become accepted by the courts of the state’.12 However, ‘in its widest sense and [e]specially in old times,’ the idea could mean ‘a perception among people who are not giving thought to the opinions of the state, but emerge from that which is in a local area correct in relation to rights and duties’.13 In addition, Jebens

6

E Helander, ‘Land and Saami traditional rights’ in Svensson (ed), above n 3, 149. M Asch, ‘The Role of Cultural Context in Reconciling Indigenous and State Law: Examples from the Canadian Experience’ in Svensson (ed), above n 3, 33. 8 AR Radcliffe-Brown, Structure and Function in Primitive Society (New York, The Free Press, 1965) 43–47. 9 Ibid, 43f. 10 UNEP/CBD/COP/DEC/VII/16, 13 April 2004. See also Black’s Law Dictionary (St Paul, Minn, Minnesota West Group, 1999). 11 O Jebens, ‘Om bruk og rettsoppfatning i Finnmark under en historisk synsvinkel’ in Rett til og forvaltning av land og vann i Finnmark. Bakgrunnsmateriale for Samerettsutvalget, NOU 1993/34, 381, 385. 12 Ibid, 385. 13 Ibid. 7

284 Elina Helander-Renvall also refers to ‘what people in an area count as proper and justified, based on the actual condition in that area, and hence adjusting to it’.14 Erik Solem writes that different cultural phases have their own customs or customary rules which are dependent on actual economic activities.15 He connects rules of rights with material and immaterial aspects of culture. He also pays attention to both historical and contemporary aspects. Moreover, Solem accounts for both written descriptions concerning the Saami people and their own oral descriptions by those living today. The oral ‘tradition’ used in my research refers to cultural elements that are handed down from the past to the present, from generation to generation. Traditions are dynamic and continuously changing. A tradition, ‘whether old or recent is still tradition’.16 Customary rules are also ever-changing.17 Customs are long-term practices that contain shared ideas.18 Some customs are law-generating or have validity as law, at least in the minds of local people or in local and wider contexts.19 Saami customs and traditions are local and appear in different forms in different Saami areas.20

III. MULTIPLE SYSTEMS OF ORDERING

The Saami area was divided into siida territories, each of which had its own resources, administration, social system and customary rules for resource use. Via its council, the siida allocated areas of use to families.21 Earlier, the Saami had their own rules connected to the use of resources within a siida area. The main rules were that the siida (village): (a) ‘owned’ and administered the areas of the village and its resources as a collective right; (b) had exclusive rights, in the sense that it could exclude other siidas from the use of its own areas and resources.22

14

Ibid. E Solem, Lappiske rettsstudier (Oslo, Bergen and Tromsö, Universitetsforlaget, 1970) 2–4. 16 TG Svensson, ‘On Customary Law: Inquiry into an Indigenous Rights Issue’ (2003) 3 Acta Borealia 95, 96. 17 See S Falk Moore, Law as Process: Anthropological approach (Berlin, LIT Verlag, 1978). 18 See Helander (2001a), above n 4. 19 See Svensson (ed), above n 3; and see Helander (2001a) and (2001b), above n 4. 20 M Åhren, ‘Indigenous Peoples’ Culture, Customs, and Traditions and Customary Law— The Saami People´s Perspective’ (2004) 21 Arizona Journal of International & Comparative Law 63, 68. 21 E Helander, ‘Sami subsistence activities—spatial aspects and structuration’ (1999) 2 Acta Borealia 7, 18. 22 A Kristensen, ‘Samiske sedvaner og rettsoppfatninger—med utgangspunkt i studier av tingbøkene fra Finnmark for perioden 1620–1770’ (2001) in Samiske sedvaner og rettsopfatninger. Bakgrunnsmateriale for Samerettsutvalget. NOU 2001/34, 35, 53. See also Helander, above n 21. 15

On Customary Law Among the Saami People 285 Today there is no formal societal system comparable to the siida. Still, many Saami persons follow traditional normative customs, established by Saami society, in order to guide them. Saami people in Tana have over time developed customary rules to which they are bound.23 Outsiders are normally unfamiliar with local customs, do not have traditional knowledge linked to customs, or do not respect local customary rules. The research conducted in this geographical area shows that the Saami people have previously been the only people using the resources in the area. This position continues to impact how the Saami locally relate to their environment. It is obvious that many Saami in Tana think, or thought at the time of my study, that the natural resources of their area still belong to them. Saami people have a colonial past. They have been subjected to colonialism, as well as to cultural, political and economic marginalisation. Marginalisation refers to the loss of influence and decrease of indigenous peoples’ and communities’ traditional ways as the primary norms; instead the values and needs of the majority are maintained or favoured by society. Colonialism includes the large-scale transfer of laws and legal institutions from one society to another.24 It also embodies disregard of legal perceptions and institutions of indigenous and local communities. The siida is one of the Saami social organisations in which internal legal phenomena were prominent until the external legal system was imposed on Saami society as a consequence of colonial activities. Laws may be ethnocentric. Ethnocentrism lies in the belief that ‘one’s own patterns of behaviour are always natural or important, and that strangers, to the extent that they live differently, live by irrational standards’.25 This is in contrast with the concept of cultural relativism or the ability to view the beliefs and customs of other peoples within the context of their culture rather than one’s own.26 A colonial or post-colonial State implements its political-economic-cultural power through laws. For instance, in the case of Sea Saami, Norwegian law is used to integrate peripheral fiord areas into the world economy.27 Sally Moore coined the concept of the ‘semi-autonomous social field’ to describe multiple systems of ordering in complex societies. A semiautonomous social field may generate rules and customs, as well as symbols internally. However, it is also vulnerable to rules, decisions and other forces

23

E Helander, Samiska rättsuppfattningar (Rovaniemi, Oy Sevenprint Ltd, 2004) 41–42. S Engle Merry, ‘Law and Colonialism’ (1991) 25 Law and Society Review 889, 890. 25 M Harris, Culture, People, Nature: An Introduction to General Anthropology (New York, Harper & Row Publishers, 1988) 125. 26 See DG Bates and F Plog, Cultural Anthropology (New York, McGraw-Hill, 1990). 27 See E Helander, ‘A marginalised minority remains marginalised? On the management of the fjord resources’ in K Karppi and J Eriksson (eds), Conflict and Cooperation in the North (Umeå, Norrlands universitetsförlag, 2002) 203. 24

286 Elina Helander-Renvall emanating from the larger world that surrounds it.28 According to Moore, the social field has rule-making capacities. This social space develops local practices and rules. The field is open to larger legal and economic structures. An external legal system may penetrate the field but does not necessarily dominate it: there is room for resistance and autonomy. Moore opposes the idea that only the State can be a source of law. Legal pluralism means that there is more than one legal system within a social space. Thus, legal pluralism is ‘an attribute of a social field’.29 According to Tom G Svensson, legal pluralism includes the possible combination of formal and informal elements in the execution of effective justice, not necessarily the existence of two legal systems which are equally formalistic structurally speaking.30

IV. SOME EXAMPLES FROM THE FIELD STUDY IN THE MUNICIPALITY OF TANA

In the previous section it was stated that many Saami persons continue following traditional rules regarding the use of lands and resources, which have been established and developed within Saami society. An overall rule among the Saami in Tana is that villages, such as Sirma, Båteng and Hillagurra, have their own specific areas of use. Within these areas, different families or family groups use certain places because, through long-term use, both historically and recently, the Saami believe that these areas are earmarked for them. Informant statements: — [Saami] people go to certain mountains. We walk along specific areas. I do not leave for the lands of Hillágurra in order to trap. My land is here. — This is our way. We have been around the Njuorggánvárri. The Jovnnut group goes to Erkkeláddot, the Garcovárri belongs to the Ballovara family. We continue following these rules even today. — When you come so far that you start seeing your place, you feel emotions. The emotions tell you that this is a familiar place. For that reason, you feel yourself safe and secure in that place. I don’t like to enter other people’s places. You are bound to your own area, therefore it is of great importance for you … When you are in another area and in another location, it is different—you don’t actually enter there. In your own area, all places are our places, you know all of them.

The legal effect of normative conceptions may be strengthened through the continuous use of a resource in a place and by having a cottage or turf hut in that locality.

28 29 30

Moore, above n 17, 55–56. J Griffith, ‘What is legal pluralism?’ (1986) 24 Journal of Legal Pluralism 1, 38. Svensson, above n 5, 32.

On Customary Law Among the Saami People 287 Informant statements: — I do not visit the areas where other people are. I have in my thoughts an old rule that I take into account. I have a cottage near a lake. There are not many who come to that lake because they know that I fish there. Therefore they do not come. — The places belong to you, because you have been using them. All areas that I have used are in my thoughts. I regard them as my lands.

Customary rules may be temporarily modified to fit into changing conditions. For example, in certain circumstances, one can fish in another families’ waters. This may take place if the members of a specific family no longer fish in particular waters or use certain locations. In relation to net fishing in the Tana River, the informants sometimes feel as though their own river areas are not located in good water under certain conditions or times of year, and therefore want to fish in zones belonging to other families. Informant statements: — It was not forbidden to fish in the lakes in other areas. Specially, the large lakes were common. — One can make an agreement with someone in another (Tana River) area that one can fish using a net there. By having good friends, it is possible to manage this. I have been fishing in some other zones. This has been good. In one place there is little water, and in another place there is much water. If in my place there is much water, I can go and fish briefly in another zone.

It is also possible to establish new agreements regarding the use of different subsistence areas. According to the general rule of conduct, a trapper is conscious of his or her own area. Other locals also know and understand that a specific trapping area belongs to a certain person and family. The trapping area of an individual or of a family may be extended in certain circumstances. The movements of ptarmigans and their appearance in some other location, the absence of other hunters and other conditions may result in permitting a person or persons to hunt in new areas. Normally, ptarmigan trappers remain within the area of their own village.31 Informant statements regarding ptarmigan hunting areas: — We divided the whole area between us. We two stayed higher up in the mountain area and those two stayed further down. — [Saami] people go to certain mountain areas. We walk along specific areas. I do not leave for the lands of Hillágurra in order to trap. My land is here. I know where to look. I know that in the neighbourhood of that mountain and that tree there are ptarmigans.

As may be seen from these examples, Saami customary rules are flexible. Based on the people interviewed, Norwegian law does not account for the

31

See Helander, above n 21.

288 Elina Helander-Renvall flexibility of the human-environment relationship and the rationality upon which this relationship is based. Saami people are accustomed to adapting themselves to changing ecological and meteorological conditions. Informant statements: — You pick berries in locations where there are berries. — Regarding the marsh areas with cloudberries, the rules are not as precise as regarding fishing in the lakes. — [Saami] people understand that people must fish with a net, within a zone, and where the water level of the river is right.

V. CUSTOMARY LAW AND NATIONAL LAW SYSTEMS

A. Case 1: Tana River Fishing in Finnmark County What happens when a Norwegian law is implemented within a Saami social landscape where a set of legal norms already exists? In order to investigate this issue, one may study certain groups and their activities, and locate rules in relation to a socio-cultural space that govern those activities. In this case I have investigated drift-net fishing in the Tana River. Drift-net fishing (golgadeapmi in Sámi) is an old fishing tradition of the Saami. In earlier times, this type of fishing took place in the Tana River in such a way that several drift nets (in Saami, golda) were floated downstream toward a net barrier, called oazes. The use of oazes, so-called goldin fishing, was banned in 1873, whereas drift-net fishing is still allowed and practised in the river today. At the time of my investigation, fishing in the Tana River had been legally regulated from 1888 onward.32 The law details who is allowed to fish in the river. A Resolution of 1911 allocates fishing methods.33 According to the Resolution of 1911, the river may be divided into fishing zones. There are approximately 70 zones. Within each zone, there are up to 10 fishing licences. A person has the right to fish with a drift net within one such zone. The main principle is that a fisherman, with the right to fish with a net, must do this inside his or her own zone. A person who has the right to fish within a zone is allowed to hire a person without formal net rights to assist him or her in those fishing activities. Belonging to a zone may lead to certain dilemmas. Within some zones, there are fishing waters that are not particularly good. The water level may be too high or too low, or there may be interference with the river current due to large rocks, which hinder driftnet fishing. There may also be natural obstacles that make fishing inside a 32 33

Lov om Retten til Fiskeri i Tanavassdraget i Finnmarkens Amt av 23. Juni 1888. Kongelig Resolusjon av 1. April 1911.

On Customary Law Among the Saami People 289 certain zone impossible or difficult. There has been a tradition among the Saami in Tana, where it is possible, to drift with the net through several zones. Good and stable social relations make it possible for persons to come to agreements regarding fishing in other zones.34 The following explanation illustrates the situation based on the existence of a semi-autonomous social field within which Saami and Norwegian legal perceptions may contradict one another. Informant statement: One can make an agreement with someone in another zone that a person can fish with a net there. By having good friends, it is possible to manage this. I have been fishing in some other zones. This has been good. In one place there is little water, and in another place there is much water. If in my place there is much water, I can go and fish briefly in another zone.

On the basis of Norwegian law and regulations, fishermen who fish with a drift net inside other fishermens’ zones are regarded as breaking the law and liable to a penalty for ‘illegal’ behaviour. Their decision to fish in a zone other than their own is based on traditional rules and customs, ecologically practical considerations and good social ties. Are these persons really criminals, or are they following Saami customary rules inside a social field in which two legal orders are in force? The analysis shows that conflicts between Norwegian society and Saami society may come into being when customary rules and perceptions that are important in the life of local Saami community members are not respected.35

B. Case 2: Black Forest (Svartskog) in Manndalen in Troms County The fishermen in Tana complained that State authorities and national laws do not respect Saami customary rules and practices with regard to net fishing in the Tana River. The Black Forest case of 2001 addressed another set of issues regarding whether the ‘owner’ of the area in question is the local Saami group or the Norwegian State. The case related to the Manndalen valley in Nord-Troms in Norway. The local population in Manndalen, of which the majority is Saami, opposed State ownership of certain land areas in their region. (This case is not linked to the Tana River debate, but it is relevant here because it suggests a movement towards the development of pluralistic legal practices in Norwegian society.)

34 35

See Helander (2001a), above n 4, 425. Ibid, 38–42.

290 Elina Helander-Renvall As a result of the Supreme Court decision, the local population was granted collective ownership of the local area through common utilisation since time immemorial—the State was denied ownership of this specific area. The Court decision was in harmony with Saami customary law. The rights were based on traditional, long-time usage, and the Court affirmed that Saami customary use could generate land rights. The Court recognised that Saami and Norwegians have different concepts of ownership, and that the local Saami had been using the land in an unspecified manner for diverse purposes, in good faith, as if they owned it. Anthropological testimony was used before the Court during the process.36 However, it is particularly interesting to note that the Svartskog case is ‘the first example of a Fennoscandinavian Court finding that the Saami people have acquired ownership to a land area through traditional use’.37

VI. CUSTOMARY LAW AS PART OF THE INDIGENOUS RIGHT TOWARDS SELF-DETERMINATION

Saami customary rules relating to modern-day land use (in Tana, Northern Norway) are present in various situations of everyday life, and are connected to and based on: (a) the traditional Saami way of life, founded on traditional knowledge and cultural rules and values; (b) Saami social relations; (c) the long-term use of local areas and local natural resources; (d) certain ecological values. Saami customary rules are: — — — — —

dynamic, adjusting over time flexible based on common understanding and social acceptance well-known locally, and practised in specific situations and contexts ‘traditions’ from the past, transferred to new generations according to contemporary needs.

Customary rules continue to be used inside the traditional Saami environment, as set out above, and because of this, there is a need to extend their effect beyond this social circle. Often, however, it is difficult for national

36 See B Bjerkli, ‘Svartskogen i Manndalen—samisk sedvanemessig bruk og forvaltning’ (2004) Nord-Troms Museums Skrifter 1/04; and B Bjerkli and T Thuen, ’On bruken av Svartskogen i Manndalen. Rapport utarbeidet for Utmarkskommisjonen for Nordland og Troms’ Stencilserie A 91 (Tromsø, Universitetet i Tromsø, 1998). 37 Åhren, above n 20, 102 and see Ravna, Ch 7 of this volume.

On Customary Law Among the Saami People 291 legal authorities to know what the customary rules are within a specific local community. In this respect, more research is required. On the other hand, customary rules are flexible and amenable to amendment, and it may be ‘useful’, ‘important’ or ‘favourable’, from the Saami point of view, to be careful to ensure that these norms do not become too specified or validated in the context of national law-making.38 There is a risk that the customary law of an indigenous group could lose its specific features if State lawyers or officials were to reconstruct it. A system of laws, or a set of rules in a given society, is the product of negotiation, struggle or another form of interaction inside a social system or between several social systems.39 My research shows that customary law should not be regarded as something belonging to the past. Instead, it should be used and recognised in dialogue on Saami rights with national governments. More precisely explained, Saami customary law needs recognition from an external party by different means in various contexts.40 One might, for instance, apply or abstract facts from customary law in legal procedures or as guidance to various covenants between indigenous people and States.41 How customs and customary rules are incorporated as part of an understanding of mainstream society concerning indigenous rights, is a topic that needs to be addressed urgently. The recognition of customary law as a legal source through national legal thinking is one way to proceed, as the Black Forest case shows. This approach would meet the demands of legal pluralism, as it contains many unrestricted aspects in relation to its definition. Generally speaking, recognition of customary law should be an element of national and international policies towards ensuring greater autonomy for indigenous societies.

38 GR Woodman, ‘Customary Laws and Customary Legal Rights: A Comparative Consideration of Their Nature and of the Relationships Between Laws’ in Svensson (ed), above n 3, 13, 24–25. 39 Griffith, above n 29, 36. 40 See TG Svensson, ‘Reconciling divergent normative orders: The struggle for recognition regarding customary law among indigenous peoples’ (2008) 2 Arctic & Antarctic International Journal of Circumpolar Sociocultural Issues 7. 41 See Bjerkli and Thuen, above n 36.

12 The Achuar People in Ecuador: Towards Territorial and Political Autonomy VERÓNICA POTES

I. INTRODUCTION

I

NDIGENOUS PEOPLES AROUND the world struggle to gain recognition of their different but equal value. In most cases, this is based on the recognition of their right to self-determination, and includes control over territories and resources which may be used as an instrument to further their values and visions of life in the way they see fit. The form, pace and issues of emphasis in those struggles differ depending on the historical, geographical, social, political, economic, etc contexts in which they occur. While particularity may warn against transplanting experiences, a closer look at what and how different peoples are doing may inform other processes. In this chapter, I review the quest of the Achuar people of Ecuador for territorial and political autonomy within a distinctive constitutional setting that declares the Ecuadorian State as plurinational and intercultural, recognises indigenous collective rights and furthers a substantive approach to rights in general. Section II. provides a brief description of the Achuar in Ecuador and points out their aspirations as related to me by the President of their main organisation, the Nacionalidad Achuar del Ecuador (NAE, ie ‘Achuar Nationality of Ecuador’). These aspirations include: the defence of the Achuar territory, political autonomy and sustainability on their own terms. This chapter emphasises the first two aspirations. The aims of the Achuar are to have their ancestral territory under one single comprehensive title and to become a self-governing entity. Section III. reviews the official land-tenure policy on the Ecuadorian Amazonia and the challenges that indigenous peoples face in having their territories recognised. It highlights how titling communal lands in the way provided for by Ecuadorian law is not sufficient to fulfil the aspirations of the Achuar.

296 Verónica Potes Section IV. analyses the new constitutional and legal framework for indigenous claims in Ecuador. It begins by providing a broader international and comparative context for the developments in Ecuador by reviewing how the negotiating States of the draft Nordic Saami Convention (NSC) and some Latin American countries have been addressing their relations with the indigenous peoples. The chapter then turns to describe the plurinational approach as envisaged by indigenous peoples in Ecuador and analyse whether—and to what extent—this approach informs the new Constitution of 2008. The focus is on the constitutional and legal norms related to land and resources and political autonomy, and shows the tension between those norms and the emancipatory promise of a plurinational State. I conclude that although the legal provisions implementing the rights to land and resources and political autonomy of indigenous peoples still fall below those established by international instruments and the guiding narrative of the Constitution, the potential of the latter is high. I also refer to some elements of the draft NSC and the plurinational approach to State–indigenous peoples relations that may serve as mutual inspiration. Ultimately, a significant similarity between the situations faced by the Achuar and the Saami is how their respective demands find strong resistance from State law, particularly with respect to those issues that lessen the authority of the State(s).

II. THE ACHUAR PEOPLE IN ECUADOR

The Achuar are an Amazonian indigenous people. As with the Saami, they are affected by several borders. The international border between Ecuador and Peru divided this people between two alleged sovereigns. The large majority of the Achuar people remained on the Peruvian side. While geography did not prevent the Achuar from sharing common customs or from interacting, the long-lasting war between both countries posed an obstacle to their consolidation as a people. The experience I shall refer to in this chapter is that of the Achuar people in Ecuador. On the Ecuadorian side, there are approx 8,000 Achuar.1 They are affected by internal borders (that divide the provinces of Pastaza and Morona Santiago) and a political and administrative division (provinces, cantones and parroquias) foreign to them. The Achuar remained relatively isolated from the white-mestizo society until relatively recently. Accounts of early contact with the Amazonian peoples date back to the sixteenth century; in contemporary times, more

1 Source: Censo de Población y Vivienda 2010, INEC Instituto Nacional de Estadísticas y Censo, available at .

The Achuar People Struggle for Autonomy 297 sustained contact began in the 1970s. Formerly semi-nomadic huntergatherers, living in extended family clans, the Achuar now mainly live in small communities.2 Several factors contributed to the formation of those communities. A period of sustained conflict among Achuar and between Achuar and their neighbors (mainly the Shuar) had reached a point where the Achuar population declined to less than a couple of thousand inhabitants. The current organisational structure of the Achuar is simple, and yet complex at the same time. Under the influence of the missions, particularly Evangelical and Catholic, the Achuar founded communities alongside landing strips that originally served the missions.3 Between seven to 10 communities (called centros) form associations, and all associations are part of NAE, a political entity that represents the Achuar in dealings with the Ecuadorian State and the rest of society. It is not a centralised form of government but a coordinating body for the communities and associations. The NAE is headed by a Governing Council composed of several officials and headed by an elected President.

III. THE OFFICIAL LAND-TENURE POLICY ON THE ECUADORIAN AMAZONIA AND THE STRUGGLE OF INDIGENOUS PEOPLES FOR RECOGNITION OF THEIR TERRITORIES

The Achuar communities now hold legal titles to almost all the territory claimed by the Achuar Nationality. In this section, I briefly describe the legal and policy framework of that process. Titling of lands of indigenous communities in the Amazonia, including the Achuar, has mainly occurred within a framework of policy and law that was not set up with the recognition of the indigenous difference in mind. Indeed, between the 1950s and the 1980s, the main interest of the Ecuadorian State was to colonise the Amazonia so as to consolidate its sovereignty over the region and to favour production from ‘vacant’ lands.4 This practice favoured incoming settlers. The emerging indigenous movement in Ecuador caught national and international attention in the early 1990s. Mobilisations that included 2 See P Maldonado Tobar, Aproximación a las dinámicas territoriales y configuración del territorio Achuar del Ecuador, report for Programa de Gestión Política y Socio Ambiental de los Recursos Naturales en el Ámbito Rural, Consorcio Camarén (2008), manuscript on file with the author. 3 For a more detailed account of the process of establishing communities, see P Descola, In the society of nature: a native ecology in Amazonia (Cambridge, Cambridge University Press, 1996) 26–28. 4 Law of Vacant Lands and Colonisation (1964), art 1: ‘The following lands are considered vacant, and thus, part of the patrimony of the Ecuadorian Institute on Agrarian Reform and Colonization: 1. All lands that, being part of the national territory, have no other owner,’ (translation by the author).

298 Verónica Potes marches to Quito (the capital) were highly effective in obtaining legal title to lands. Approximately one million hectares were titled to Shuar, Achuar and Shiwiar peoples, as the direct result of these actions. By the mid-1990s, and as a response to mobilisations and the increasing indigenous demands, the State put in place more specific rules for the adjudication of lands to indigenous communities in the Amazonia. The framework for claiming land in the Amazonia is provided by the ‘Law of Vacant Lands’ and the ‘Laws of Agrarian Development’, adopted in the 1990s,5 based on the principle of the ‘social function of property’, which emphasised production and exploitation.6 This focus makes it difficult for indigenous communities to succeed in their claims, as their patterns of use of land would not qualify as ‘productive’.7 Also, a newly-acquired State interest in promoting environmental goals resulted in the establishment of ‘protected areas’. This posed a new challenge for indigenous peoples, as the definition of these areas did not always respect or take into account the previous presence of the Amazonian peoples.8 The indigenous movement continued to gain political strength over the decades. This strength was evident in the tumultuous politics of the late 1990s and early 2000s, which saw the ousting of three presidents.9 In 1998, immediately after one of these oustings, a Constitutional Assembly was convened. The resulting Constitution contained a whole chapter on so-called ‘collective rights’, an innovation to the long-standing legal tradition of individual-centered rights.10 These collective rights included rights of indigenous and Afro-Ecuadorian peoples (Articles 83–85) along

5

Laws of Agrarian Development of 1994 and 1997, and the enabling regulations of 1994. According to Art 38 of the Law of Agrarian Development, land adjudications to indigenous communities imposed two general conditions: (i) to maintain their traditions; and (ii) to develop and maintain improved methods of land production. 7 As noted by the Inter-American Commission of Human Rights in its 1997 Report on Ecuador, ‘Amazonian forest-dwelling indigenous peoples clear and cultivate small gardens on a rotating basis to maximise the productivity of the shallow topsoil. Their methods of managing and harvesting the resources of the forest are consistent with their needs, and with the characteristics of the forest topsoil, which is shallow and poorly suited for the intensive cultivation models contemplated in the Law of Agrarian Development.’ Report on the Situation of Human Rights in Ecuador (1997) Inter-Am Comm HR, OEA/Ser.L/V/II.96, Doc 10, rev 1 (1997) Ch X, available online at . 8 Lands falling under ‘protected area’ designation belong to the State and are subject to reversion in case they have been titled to a private party, which in a good number of cases has not occurred. As a result, the whole system of protected areas in the country is a mix of overlapping ‘property’ and jurisdiction. That said, the Achuar territory is not currently affected by any State-designated protected area. 9 In February 1997, in the middle of strong mobilisations in Quito, the Congress declared President Abdalá Bucaram incapable of ruling the country. In January 2000 and in April 2005, Presidents Jamil Mahuad and Lucio Gutiérrez resigned in similar circumstances. In the first two oustings, the indigenous movement was an active participant. 10 Constitution Act 1998, Title III, Ch 5. 6

The Achuar People Struggle for Autonomy 299 with rights to the environment (Articles 86–91) and rights of consumers (Article 92). Rights of indigenous peoples that were recognised in the 1998 Constitution included: the right to maintain and develop their identity (Article 84.1), rights to lands (Articles 84.2 and 84.3), the right to participate and benefit from the use and administration of natural resources in their lands (Article 84.4); the right to be consulted regarding activities on non-renewable resources planned on their lands, to participate in benefits thereof and to be compensated for related damages (Article 84.5); and the right to maintain and develop their traditional forms of social organisation (Article 84.7), etc. On indigenous land entitlements, Articles 84.2 and 84.3 specifically enshrined indigenous collective rights ‘to conserve the imprescriptible property of communal lands which are inalienable, unseizable, indivisible, except for the faculty of the State to declare them of public utility’ (emphasis added)11 and ‘to maintain the ancestral possession of communal lands and to have them adjudicated free of costs’.12 Although this resulted in more sensitive titling regulations and speedier paperwork, the legal framework for adjudication was still based on the same ‘vacant-land’ and ‘production-orientated’ foundations of the general policy on colonisation of the region. The requisites for obtaining title to the land include that the community: (a) (b) (c) (d)

is organised in a particular form approved by the State; demonstrates that the claimed land is not titled to anyone else; presents a demographic census of the claimed area; presents a socio-historical study of the claimed area.13

These conditions have not been easy to meet in every case. The main challenges for claimant communities have included: — — — —

11

The lands claimed are already titled or disputed with neighbouring peoples. No experience in dealing with bureaucratic paperwork. Lack of clarity about what constitutes ‘ancestral possession’. Lack of coordination between adjudicating bodies: traditionally, the Instituto Nacional de Desarrollo Agrario (INDA, ie ‘National Institute for Agrarian Development’) and, since 2010, the Land Secretariat within the Ministry of Agriculture and the Ministry of Environment.

Ibid, Art 84.2. Ibid, Art 84.3. 13 Spelled out in Administrative Resolutions No 002 of the National Institute of Agrarian Development [INDA, Spanish acronym] of 2002, Nos 005 and 0017 of 1999. 12

300 Verónica Potes Even where titling initiatives succeed, the communities face important restrictions regarding their ‘property’: —

Adjudicated lands could revert to the State (although this is not applicable after 1998, the clause remains in the legal titles). — Communities have to devote the adjudicated land to agriculture/forestry/grazing without compromising the preservation of ecosystems. — The tenure regime restricts the community from engaging in non-authorised mining or hydrocarbon activities, and from preventing or obstructing mining or hydrocarbon activities authorised by the State.14 — There is no precision as to the scope and content of such rights to maintain property and ancestral possession. Notwithstanding this, the Achuar communities have been highly effective in obtaining legal title to their land. Over a 20-year period they have succeeded in obtaining title to almost 700,000 hectares. To date, almost every community has title to the land. In contrast to other Amazonian peoples (the Shuar, the Kichwa), the joint Achuar communities hold titles to an aggregated, continuous territory. There have been other challenges for the Achuar; not only have they encountered conflicts over land with other indigenous peoples (Shuar, Shiwiar, Andoas), they have also had to deal

14 However, some communities and groups have been successful in preventing companies from continuing State-sanctioned activities. The case of the Sarayaku Kichwa community against non-consulted oil activities in its territory, which made its way up to the Inter-American Commission of Human Rights is emblematic of these struggles. See Report No 64/04, Petition 167/03 Admissibility, The Kichwa Peoples of the Sarayaku Community and its Members (2004) Inter-Am Comm HR, online at . In 1996, the Ecuadorian Government agreed to the exploitation of hydrocarbons by Compañía General de Combustibles (CGC) in what the State calls ‘oil block 23’, which affects the territory of the Sarayaku community. The Sarayaku opposed the company’s plans and eventually filed a lawsuit in 2003, after a series of incidents. The judge ordered preliminary measures in favour of the communities but left pending the case on merits. The communities took the case to the Inter-American Commission, which ordered preliminary measures which have not been fulfilled by the State. The case went up to the Inter-American Court of Human Rights and was decided on June 27, 2012. See also the case of the Federation of the Shuar Peoples of the Amazonia (FIPSE) against penetration of Arco Oriente Inc into their territory affected by ‘block 24’. In 1998, the Ecuadorian Government had signed a Contract of Participation with Arco for the exploration of hydrocarbons in block 24. FIPSE opposed this and initiated a series of actions that did not stop Arco. FIPSE then filed for an amparo (a Constitutional action to prevent or stop immediate and serious rights violations) against alleged violations to its communities’ rights to inviolability of the domicile, and to have their own political organisation and own forms of authority. The court decided in favour of the claimants and banned Arco from approaching the communities without authorisation from FIPSE’s assembly. In 2002 the Constitutional Tribunal (as it was then) confirmed the decision. Later on, Arco sold its ‘rights’ over block 24 to Burlington Resources Ecuador Limited. These cases brought different Amazonian peoples, including the Achuar, into an alliance that is once more active against the current Government’s plans to open a new round of oil bidding. For more on these cases, see I Figueroa, ‘Indigenous peoples versus oil companies: constitutional control within resistance’ (2006) 3 Sur, Revista Internacional de Direitos Humanos 49, available online at .

The Achuar People Struggle for Autonomy 301 with sensitive security issues regarding militarised areas on the Ecuadorian– Peruvian border.15 As mentioned above, the Achuar people have high aspirations.16 The politico-legal strategy of NAE focuses on consolidating the Achuar territory under an integral title to their ‘territory’ (the collective title holder being the Achuar People of Ecuador)17 and on becoming an ‘Indigenous Territorial Unit’ under the current legal framework. In the section that follows, I analyse the current constitutional and legal framework for indigenous peoples’ claims for territorial and political autonomy.

IV. THE 2008 CONSTITUTION AND THE POLITICAL AND LEGAL SCENARIO FOR REALISING INDIGENOUS TERRITORIAL AND POLITICAL AUTONOMY

In this section, I analyse the 2008 Constitution of Ecuador on plurinationality, and consider whether this conception of the State informs indigenous land and resources rights and political autonomy. I briefly review some different strategies for responding to indigenous claims at the international and national levels to distinguish the current situation in Ecuador. I then discuss the Ecuadorian indigenous movement’s proposal for a plurinational State and the provision that was actually included in the final constitutional text. In considering the legal regime I focus on two fundamental topics: rights to lands and resources; and rights of peoples to exercise their own forms of authority.18 Societies and States have responded to indigenous demands in several ways. At the national levels, recognition of the indigenous difference varies. I briefly review relevant constitutional provisions in different countries to identify trends. Some Constitutions recognise generic cultural and language rights, and leave further elaboration to implementing laws. In Finland, the Constitution states that the Saami, the Roma and other groups have the right to maintain their own language and culture.19 The Constitution also recognises the ‘linguistic and cultural self-government’ of the Saami people in their 15

See Maldonado Tobar, above n 2. See section I. above. Interview with NAE former President Mr Germán Freire, on file with the author. 17 Although there is no clarity in the Ecuadorian law on the extent and scope of an ‘indigenous territory’. For the lack of uniformity on legal terms regarding indigenous lands, see discussion below on ‘land rights’. 18 Constitution Act of 2008, Title II, Ch 4 on the ‘Rights of Communities, Peoples and Nationalities’, and Title V, Chs 1 to 4 on the ‘Territorial Organisation of the State’. For an unofficial English version of the Constitution, see . 19 The Constitution of Finland, 11 June 1999 (731/1999), s 17. Available at . 16

302 Verónica Potes ‘native region’, as provided by the law.20 In the Norwegian Constitution, the language is that of State duties. Norway has an obligation to create ‘the conditions to enable the Sami people to preserve and develop its language, culture and way of life’.21 Sweden uses similar language: Chapter 1 of the ‘Instrument of Government’, one of the four fundamental laws of the Constitution, states that ‘[t]he opportunities of the Sami people and ethnic, linguistic and religious minorities to preserve and develop a cultural and social life of their own shall be promoted’.22 The chapter on fundamental rights, largely concerned with the rights of individuals and the limits on those rights, also provides that the ‘right of the Sami population to practise reindeer husbandry is regulated in law’.23 In the Americas, the trend is toward more explicit, constitutionallyentrenched rights. In Colombia, the Constitution recognises indigenous peoples, including: a fixed quota of representatives to Parliament (Article 171); indigenous systems of justice and authorities within indigenous regions (Article 246); indigenous territories (with a certain degree of autonomy, to be governed under their own uses and customs) (Articles 286 and 330); the collective and inalienable character of indigenous territories (Article 329); and Colombian nationality for members of indigenous peoples affected by borders (Article 96.2.c).24 Nicaragua recognises the constitutional rights of indigenous peoples to maintain and develop their culture; to have their own forms of social organisation and to manage their local affairs; to maintain their communal forms of property over their lands (Article 5); and to education in their own languages (Article 121). The Constitution also provides for a regime of autonomy for the communities of the Atlantic Coast, mainly the Miskito people who suffered badly during the Sandinista regimes (Article 5 and Articles 180–181). Paraguay declares itself a pluricultural and bilingual country, where the official languages are Spanish and Guaraní.25 The Constitution recognises indigenous peoples as pre-dating the formation of the State (Article 62). Indigenous peoples have rights to preserve and develop their identity, and to apply their systems of organisation, including their systems of norms; and have a constitutional right to the communal property of land in an amount and quality necessary to conserve and develop their ways of life (Articles 63–64).

20

Ibid, s 121. Constitution of Norway of 1814 and reforms, art 110a, online at . 22 The Instrument of Government as amended on 7 December 2010. See Ch 1 on ‘Basic Principles of the Form of Government’, online at . 23 Instrument of Government. See Ch 2 on ‘Fundamental Rights and Freedoms’, online at . 24 Colombia Constitution of 1991 and reforms, online at . 25 Paraguay, Constitution of 1992, English version available at , art 140. 21

The Achuar People Struggle for Autonomy 303 At the international level, the fundamental claim to be recognised as ‘peoples’ within the opening language of the human rights covenants which accord all peoples a right to self-determination, has been met with both qualified recognition in ILO Convention No 16926 and broader recognition in the UN Declaration on the Rights of Indigenous Peoples.27 The ILO Convention, a mandatory instrument, provides for a series of substantive rights and an umbrella right to be consulted on administrative and legislative measures that may affect indigenous rights. The UN Declaration is a comprehensive ‘Bill of the Rights of Indigenous Peoples’ under the umbrella of self-determination. Amongst others, the Declaration recognises rights to culture and cultural expressions, including forms of government (Articles 4, 5, 8, 11–16; 20; 24; 31; 33.2; 36.1) and rights not to be discriminated against (Articles 2; 16.1; 17.3; 21); rights to participate in the political life of the larger society, to be consulted on issues affecting them (Articles 5, 17.2; 18, 19, 32.2); rights to development on their own terms (Articles 23, 32.1); and rights to their lands and to maintain the special relationship they have with their lands, to have them titled and to redress in cases of undue loss (Articles 10, 25–30; 32). For its part, the draft NSC is a sui generis instrument that brings together three States (Norway, Finland and Sweden) and an indigenous people affected by the borders of those States, the Saami.28 The draft addresses, to some extent, what peoples around the world are demanding of States, ie a Nation-to-Nation relationship, one built on mutual recognition and historical memory, in this case not with one other Nation but with three different ones formally recognised as States. The most salient feature of the draft is

26 International Labour Organisation Convention (No 169) Concerning Indigenous and Tribal Peoples in Independent Countries (adopted 25 June 1989 and entered into force 5 September 1991) 28 ILM 1382, available at . Art 1.3 indicates: ‘The use of the term peoples in this Convention shall not be construed as having any implications as regards the rights which may attach to the term under international law.’ 27 UN General Assembly, United Nations Declaration on the Rights of Indigenous Peoples, 2 October 2007, A/RES/61/295. Arguably, the inclusion of a right to self-determination was the main issue of discussion in the negotiations of the Declaration, with States arguing against what could be read as a right to statehood. See Koivurova, ch 4 of this volume and Heinämäki, ch 5 of this volume. For Engle, the comprehensive understanding of the 1993 draft of the Declaration that listed an explicit array of areas under indigenous control in the exercise of their self- determination, was watered down to a version that reduced self-determination to a right to autonomy or self-government in internal affairs and the financing thereof. At the same time, Art 46.1 states that ‘nothing in this Declaration may be interpreted as implying for any State, people, group or person any right to engage in any activity or to perform any act contrary to the Charter of the United Nations.’ The language here was also watered down expressly to reject actions against the territorial integrity of sovereign States. K Engle, ‘On Fragile Architecture: The UN Declaration on the Rights of Indigenous Peoples in the Context of Human Rights’ (2011) 22 European Journal of International Law 141, 145–47. 28 The Finnish–Russian border also affects the Saami people, but Russia is not a party to the negotiations of the draft Convention.

304 Verónica Potes that it recognises the Saami as a people with the right to self-determination (Preamble, Articles 2–3). The Convention deals with the obligations of the respective governments, and the rights of the Saami, grouped as governance, language and culture, land and water, and livelihoods. In terms of Saami rights and State obligations regarding the Saami people, the NSC requires more from the Nordic States than their respective constitutions, reviewed above. It is also more in tune with the trends reviewed above, both at domestic and international levels. With regard to rights to land, the draft Convention recognises individual or collective ownership rights to protracted traditional use of land or water areas (Article 34), and rights of use and occupation in areas where the Saami have traditionally practised reindeer husbandry, hunting and fishing (Article 35). The States have the correlative obligation to take effective measures to ensure the exercise of these rights.29 While these domestic and international regimes provide significant recognition of indigenous peoples by States, the new Constitutions of Ecuador and Bolivia conceive of the relationship between States and indigenous peoples from another perspective. These Constitutions, passed in 2008 and 2009 respectively, afford more than recognition of the indigenous other; they envisage a new social pact that rejects the single-Nation State fiction and equally incorporates all peoples, indigenous and non-indigenous, in the making of the (new) society. To that end, both Constitutions declare the plurinational character of the State. This declaration is both a statement of fact and an aspiration. As we shall see in the next section, the recognition of plurinationality demands a new reading and understanding of the constitutional text, the scope of State authority and even the application of international instruments. I focus on Ecuador, but shall refer to developments in Bolivia as required. The indigenous movement in Ecuador had been advancing the idea that Ecuador be declared a ‘plurinational State’ since the 1980s, but it was only in 1990 that the claim was included in a list of demands presented to the State.30 For the National Indigenous Confederation of Ecuador (CONAIE), plurinationality encompasses at least three related dimensions: interculturality, a comprehensive transformation of the State, and the self-government

29 The introductory chapter to this volume provides a synopsis of the land and resources provisions of the draft Convention. 30 During the indigenous mobilisation of June 1990 (el levantamiento) the national coordinating body of indigenous peoples, CONAIE, presented a series of demands, known as the 16 Points, to the Ecuadorian State that included the recognition of Ecuador as a plurinational State. For the English text of the 16 Points, see Marc Becker online at .

The Achuar People Struggle for Autonomy 305 of indigenous peoples and nationalities.31 In their own words, plurinationality means: First, actual interculturality that allows for exchange of values, practices, knowledge, ways of seeing the world, in a dialogue among equals and without impositions. It is a mutual recognition of the country’s diversity and richness ... ; Second, a substantial transformation of power ... [D]emocratisation and actual social control of the public goods and policies. This implies the transformation of the main institutions of the State to recognise the cultural and political diversity of Ecuador ... Third, the recognition of important levels of self-government of the indigenous peoples and nationalities. Self-government does not mean isolation but recognition of the right of the peoples to their own forms of authority, [an authority that stems] from the grassroots, from the local communities that jointly conform the peoples and nationalities ... The plurinational State implies territorial self-government, self-government for the use and protection of the natural resources, and self-government of the local institutions that control issues of vital importance such as education and health.32

The constitutional reforms in 1996 incorporated the ‘pluricultural and multiethnic’ character of the Ecuadorian State,33 and required bilingual education in predominantly indigenous areas by recognising indigenous languages.34 Later, the indigenous movement proposed the idea of a plurinational State to the Constitutional Assembly, but the final text only confirmed the ‘pluricultural and multiethnic’ character of the State which was already in place.35 Still, as already mentioned, the new Constitution did go further than the previous text, by recognising collective rights. The ideas of pluriculturalism and multiculturalism, while progressive, did not really challenge the idea of a single-Nation State, at least not in the transformational sense envisaged by indigenous people who really had ‘plurinationality’ in mind. This is because the indigenous movement was not simply demanding recognition and respect, but was also seeking the active participation of the different nations that form Ecuador in the making of a new society and on the basis of equality. This concept of equal participation is crucial to the plurinational project, as plurinationality does not call for the ‘indigenisation’ of society, or the supremacy of the ‘indigenous

31 ‘Nationalities’ and ‘peoples’ are the preferred terms. ‘Nationalities’ is the more general term, while ‘peoples’ refers to the subgroups within the Kichwa nationality. The Amazonian people, including the Achuar, identify themselves as nationalities. 32 CONAIE, ‘La CONAIE frente a la Asamblea Constituyente. Propuesta de nueva constitución -desde la CONAIE- para la construcción de un Estado Plurinacional, Unitario, Soberano, Incluyente, Equitativo y Laico. (Documento de Principios y lineamientos)’, manuscript (Quito, 2007) (translation by the author). 33 Constitution Act 1979 reformed, Art 1. 34 Ibid, Arts 3 and 40. 35 Constitution Act 1998, Art 1.

306 Verónica Potes ways’ over the non-indigenous in some sort of reversal of hegemony.36 The decolonisation of power and of inter-societal relations, which lies at the core of the indigenous proposal of plurinationality, implies replacing the vertical approach to the exercise of power with a more horizontal one.37 Plurinationality is meant to be a broad-based project founded on substantive equality. As a leading thinker on the topic, Boaventura de Sousa Santos, suggests, the new society that will stem from it will be reflected in at least the following aspects: [A] new institutionality (plurinationality), a new territoriality (assymetric autonomies), a new legality (legal pluralism), a new political regime (intercultural democracy) and new individual and collective subjectivities (individuals, communities, nations, peoples, nationalities).38

This does not imply that plurinationality is an ‘anything and everything goes’ proposal. It is not eclecticism without principles; plurinationality has substantive components. As a decolonising project, it questions the ‘coloniality of power’39 derived from Eurocentrism and discrimination (in its multiple forms of racism, ethnicism, sexism).40 Also, at its core, plurinationality challenges capitalism as the prevailing political and economic model, and exploitation of nature as the model of growth, and instead favours an economy that is more planned from the (plurinational) State and is driven by ideas of human and natural well-being.41 Inextricably linked to the notion

36 Instead, as Kichwa thinker Nina Pacari indicates: ‘When indigenous peoples—as bearers of a knowledge that is different from that of the Western world—propose the re-foundation of the State, they refer to a model of State that includes them as collective subjects of rights, with their own notions and visions about the State, which does not mean [that they claim] for a supremacy or hegemony of the collective over the individual or the indigenous institutions ...’ Prologue in B de Sousa Santos, Refundación del Estado en América Latina: Perspectivas desde una Epistemología del Sur (Quito, Ediciones Abya Yala, 2010) 12. (translation by the author) 37 Pacari in de Sousa Santos, above n 36, 16. 38 Ibid, 103. (Translation by the author) For more theoretical elaborations on ‘plurinationality’, see A Acosta and E Martínez (eds), Plurinacionalidad: Democracia en la Diversidad (Quito, Ediciones Abya Yala, 2009). 39 Term coined by Peruvian sociologist Aníbal Quijano. See A Quijano, ‘Des/colonialidad del poder: el horizonte alternativo’ in Acosta and Martínez (eds) above n 38, 107. 40 Ibid, 111–12. 41 See CONAIE, Propuesta de la CONAIE frente a la Asamblea Constituyente. Pirincipios y Lineamientos para la nueva constitución del Ecuador (Quito, CONAIE, 2007) 6–7; Ecuarunari, Ecuador País Plurinacional. Pluralidad Jurídica (Quito, Artes Gráficas Silva, 2009) 5; F Simbaña, ‘El Movimiento Indígena Ecuatoriano y la Construcción de la Plurinacionalidad’ in R Hoetmer (ed), Repensar la política desde América Latina. Cultura, Estado y Movimientos Sociales (Lima, Fondo Editorial de la Facultad de Ciencias Sociales, 2009) 153; R Llasag Fernández, ‘Plurinacionalidad: Una Propuesta Constitucional Emancipadora’ in R Ávila Santamaría (ed), Neoconstitucionalismo y sociedad (Quito, Ministerio de Justicia y Derechos Humanos, 2008) 311; K Jameson, ‘The Indigenous Movement in Ecuador. The Struggle for a Plurinational State’ (2011) 38 Latin American Perspectives 63; C Walsh, ‘The Plurinational and Intercultural State: De-colonization and State refounding in Ecuador’ (2006) Kult Special Issue 65.

The Achuar People Struggle for Autonomy 307 of plurinationality is the idea of sumak kawsay, a Kichwa expression that means ‘good living’.42 In 2008, Ecuador enacted a new Constitution43 which finally recognised the State as plurinational and intercultural44 and announced the construction of a new society, ‘with diversity and in harmony with nature’.45 However, beyond that, the rich and ongoing discussion about plurinationality, as described above, is not manifestly evident in the new constitutional text. There are relevant references, including reference to the coexistence of multiple indigenous nationalities and the Ecuadorian nationality46; plurinationality and interculturality as principles that govern the function of indigenous and Afro-Ecuadorian autonomous units;47 and the State’s responsibility in protecting the cultural heritage that constitutes the plurinational identity of Ecuador.48 Still, the Constitution does include a whole set of indigenous collective rights and an approach to rights interpretation that goes far beyond procedural protections, known as garantismo. Article 57 spells out a list of rights of indigenous peoples and nationalities that include rights to culture and its manifestations (Article 57.1, 57.8, 57.12–57.14, 57.19, 57.21); rights to land and resources (Article 57.4– 57.8, 57.11, 57.20); rights to participate in decision-making in situations affecting their interests and in affairs of the society at large (Article 57.7, 57.16, 57.17); rights to maintain and develop their own authorities and legal systems (Article 57.9, 57.10, 57.15); and rights not to be discriminated against (Article 57.2, 57.3). Garantismo is a term coined by Italian legal philosopher Luigi Ferrajoli, and refers to a State founded on both formal legitimacy, that is, that all acts of the State are subject to the law, and substantive legitimacy, that is, that all State acts, including but not limited to laws, are subordinated to the contents of fundamental rights.49 This ‘guaranteeist’ spirit is present throughout the Constitutional text and, more specifically, in the chapter on ‘Principles of Application of Rights’. Article 11 lists these principles: pro-homine (Article 11.5), non-restriction of rights 42

CONAIE, above n 41, 7. Constitution Act 2008, RO 449, 20 October 2008. Online at Derecho Ecuador at . 44 Constitution Act 2008, Art 1. 45 Constitution Act 2008, Preamble. (translation by the author) 46 Ibid, Art 6 states that the Ecuadorian nationality is a legal and political link between individuals and the State without prejudice to their belonging to the indigenous nationalities that coexist in plurinational Ecuador. 47 Ibid, Art 257. 48 Ibid, Art 380. The failure to fully elaborate substantive plurinationality in the text is explained by the resistance of the major political force in the Constitutional Assembly, President Correa’s movement, Alianza País. Alianza País favoured ‘interculturality’ over ‘plurinationality’, and this is evident in the final text. 49 See, R Moreno Cruz, ‘El Modelo Garantista de Luigi Ferrajoli. Lineamientos Básicos’ (2007) 120 Boletín Mexicano de Derecho Comparado 825, 829; PL Cassoni, ‘Constitutionalism out of a Positivist Mind Cast’ (2011) 17 Res Pública 327. 43

308 Verónica Potes (Article 11.4), direct and immediate applicability (Article 11.3), progressiveness (Article 11.8) and an ‘open clause’ (an interpretive approach which states that the recognition of rights, as established in the Constitution and international instruments, does not preclude ‘other rights that derive from the dignity of persons and groups and are required for their full development’ (Article 11.7). Garantismo incorporates rights established by international human rights instruments into the Constitution.50 In sum, while the Constitutional text does not elaborate on plurinationality, it does take a strong approach to the guarantee of rights in general, and of collective rights of indigenous peoples in particular. I shall now focus on how the Constitution addresses two issues of fundamental importance for indigenous peoples in Ecuador: land and natural resources; and political autonomy. For analytical purposes, I treat each topic separately, keeping in mind that they are inextricably related (as we shall see below). We shall also see that there is tension between the grand narrative, exposed in the Constitution, and the actual institutions developed to address the recognition and participation of indigenous peoples in the construction of the new plurinational State of Ecuador.

A. The 2008 Constitution: Indigenous Land and Natural Resources As is the case in other parts of the world, a fundamental demand of the indigenous movement of the Ecuadorian State is the recognition of their lands and natural surroundings, on their own terms. This longstanding demand has met strong resistance from Ecuadorian society and the State. Arguments against it vary from the protection of third-party private

50 Several articles confirm this: Art 11.3, ‘The rights and guarantees established in the Constitution and in the international instruments of human rights will be of direct and immediate application ...’; Art 417, ‘[In] the case of treaties and other international instruments of human rights, the principles of pro homine, non-restriction of rights, direct applicability and open clause established in the Constitution, will apply’. Title IX on the Supremacy of the Constitution spells out the hierarchy of norms, and distinguishes between treaties and conventions and instruments. Along with the Constitution, treaties on human rights will prevail over any other norm or act of State (Art 424); the Constitution prevails over all other international treaties and conventions (Art 425); ‘Judges ... will directly apply the constitutional norms and those foreseen in the international instruments of human rights if the latter are more favourable than those established in the Constitution’ (Art 426). This absence of consensus as to the actual scope of ‘international instruments’ was evident in the Constitutional debates. While proponents argue that a wide interpretation of the term is consistent with the ‘guaranteeist’ spirit of the Constitution, critics note that a wide interpretation would include almost any instrument, including general reports by the UN, directives, declarations, letters of intent, etc increasingly in use by international organisations—all without the participation of Ecuador, let alone ratification. See Act-028 of the Constitutional Assembly debates, 19 March 2008, on file with the author.

The Achuar People Struggle for Autonomy 309 interests to reasons of national security.51 The mobilisations of the 1990s mentioned above, which resulted in the issuing of land titles to extensive areas in the Amazonia, marked a softening of resistance to indigenous land recognition. Before discussing the relevant Constitutional norms, including Article 57, it is useful to note that the Constitutional text uses many different but related terms, without any stated definition: ‘lands’, ‘communal lands’, ‘ancestral lands’, ‘ancestral territories’, ‘legally recognised territories’, ‘communal lands of ancestral possession’.52 This is confusing and may raise doubts about the possible application of the provisions. Ultimately, definitions in law determine legal relevance, and this is no less so for the law applicable to State–indigenous peoples relations. However, a closer look at the reasons for using non-uniform language may suggest that this is an informed choice. In this case, the Constitutional provision is trying to embrace a diversity of situations which, in turn, justifies the diversity of terms. The indigenous movement in Ecuador is not homogeneous; it comprises very different peoples with very different histories, ways of life and practical situations.53 While they all share a common interest in their land and environment, this interest is not manifested in the same way. If ‘territories’ is the concept that some Amazonian peoples living in relative isolation consider to be more appropriate in describing their land tenure, ‘communal lands’ is the concept that better serves that purpose for highland peoples who live in more demographically diverse areas than the Amazonians.54 If this is the case, the diversity

51 Generally, the political élites have claimed a potential ‘fractioning of the State’ as a result of giving in to indigenous demands for lands. Cattle ranchers, farmers, as well as provincial and local governments have opposed as they have seen their interests threatened. Similarly, the armed forces have opposed land claims by indigenous peoples, particularly in the Amazonia, due to national security concerns (as mentioned above, Ecuador had a long-standing territorial dispute with Peru in the Amazonia); the armed forces are also seen as siding with the oil companies in that region. See K Healy, ‘Allies and Opposition Groups to the 1990 Indigenous Political Mobilizations in Bolivia and Ecuador’, paper presented at the XVII International Congress of the Latin American Studies Association, 24–27 September 1992, Los Angeles, California, available online at Latin American Studies Association at . 52 The lack of uniformity in the use of terms leaves open the question of whether all forms of indigenous property fall within the right to property recognised and guaranteed in Art 321. The article refers to public, private, communitarian, State, associative, cooperative and mixed types of property. 53 See Luis Macas discussing the early encounters among indigenous peoples that led to the formation of the movement and, later, the institutionalisation of CONAIE. For Macas, this getting together in spite of profound differences has allowed the members of CONAIE to construct plurinationality in practice within the movement. L Macas, ‘Construyendo desde la historia: Resistencia del movimiento indígena en el Ecuador’ in Acosta and Martínez (eds), above n 38. 54 For differences in strategies on territorial autonomy claims advanced by highland peoples and Amazonian peoples in Ecuador, see P Ospina Peralta, ‘Estado plurinacional y autogobierno territorial: las demandas indígenas’ in Miguel González et al (eds), La Autonomía a Debate: Autogobierno Indígena y Estado Plurinacional en América Latina (Quito, Flacso,

310 Verónica Potes of terms is necessary and the challenge resides in devising implementing legislation that works the corresponding categories in more detail.55 That said, let us now look in more detail at the indigenous land rights in the Constitution. The texts on land rights are exactly the same as those in the previous Constitution, with one slight difference. Article 57.4 states that indigenous communities, peoples and nationalities have a ‘[right] to conserve the imprescriptible property of their communal lands that will be inalienable, unseizable and indivisible. These lands will be exempted from payment of taxes and fees.’ Article 57.5 indicates that ‘possession of ancestral lands and territories’ is also recognised as a right.56 This includes a right to have those lands and territories adjudicated at no cost. The distinction between lands possessed and lands held as property (ie ownership) is necessary, as it is still a fact that not all indigenous communities and peoples have title to their lands and territories. The characterisation of indigenous lands as ‘communal’ and ‘imprescriptible, inalienable, unseizable and indivisible’ is also necessary so as to avoid the loss of land that resulted from the Agrarian Reforms which titled parcels as individual marketable property. Unlike the 1998 Constitution, the present version of this article omits the ability of the State to declare indigenous lands as being of public utility; whether this change is significant or not remains to be tested.57 While the benefits of this recognition are evident, actual titling of lands is still problematic. Overlapping rights and land regimes, such as private titles and protected-area status, remain obstacles to fulfilling the promise of Articles 57.4 and 57.5. In practice, possessory suits are difficult to prove, and claims that succeed are usually only those related to vacant lands, which by law are State lands. In addition, beyond mere titling, there are outstanding issues about the recognition of diverse forms of tenure and the scope of property rights. As we shall see next, even in the presence of a title, the scope of the property rights it entails becomes unclear as a result of concurrent rights over natural resources claimed by the State.

2010) 201; and, S Kingman, ‘Entre la asimilación y la diferencia: la Asamblea Constituyente y los territorios indígenas’ (2008) 32 Iconos Revista de Ciencias Sociales 25. 55 A new ‘Lands Bill’ is in line for debate in the National Assembly. There are several projects from different societal actors in circulation, including one from the national organisation, CONAIE. In Bolivia there is also a project on a Lands Act. 56 The ancestral possession of territories of so-called peoples in voluntary isolation is declared ‘irreducible and intangible’ in Art 57, para 2. 57 Art 323 upholds the ability of the State to expropriate for reasons of public usefulness, or social or national interest. The question of whether indigenous communal property land falls within this article remains open.

The Achuar People Struggle for Autonomy 311 Actual control of natural resources was a sensitive issue in Ecuador even before the foundation of the republic.58 Traditionally, the State has reserved to itself the control of natural resources, as property (eg subsurface minerals) or as public goods (eg watercourses). However, there is a widespread perception that, in spite of being State resources, they are largely privatised for the generation of profit (as in the case of oil and mining exploitation by foreign multinationals, or the use of water by private companies). This perception has grown over the last few decades, with the adoption of neoliberal policies that included privatisations, reduction of the State apparatus and of public expenditures, and deregulation of the economy. The current Government, which championed the 2008 Constitution, shared this sentiment and adopted a strong Statist approach to economic planning and development in general.59 In the case of natural resources, this means concentrating decision-making powers in the State. CONAIE aligned with the Government in furthering what it called ‘nationalisation, recovery and de-privatisation of natural resources’, and the declaration of oil, mines and water as ‘strategic resources of the State and all Ecuadorians’.60 The rationale was that, in a plurinational State, strategic resources would be subject to ‘effective social control to guarantee their administration in favor of the whole community’.61 Just as in 1998, the current Constitution distinguishes between renewable and non-renewable natural resources, and upholds the State’s property rights and explicit powers of decision-making. In the 2008 text, Article 1, paragraph 3 and Article 408 state that non-renewable natural resources and ‘biodiversity’ belong to the State’s patrimony, which is inalienable, non-renounceable, unseizable and not subject to prescription.62 Such rights are also not included in collective indigenous rights protected by Article 57. Article 313 incorporates the idea of ‘strategic sectors under the decisionmaking and exclusive control of the State’; that is, those areas that trascend private interests for ‘economic, social, political, or environmental’ reasons and thus ‘will have to be oriented towards the full exercise of rights and

58 In order to secure the provision of precious minerals from the colonies, the Spanish Crown reserved to itself the property over sub-surface resources. In more recent times, the country’s economy continues to be heavily reliant on extraction and commercialisation of resources, particularly oil. 59 Like many others in the Ecuadorian Left, the indigenous movement favoured this approach as a means toward ‘nationalisation’ of wealth. See above n 41. 60 CONAIE, above n 41, 27. 61 Ibid. Art 312.II.2 of the Bolivian Constitution follows this State-as-steward idea: ‘[N] atural resources are the property of the Bolivian people and will be administered by the State.’ It must be noted too, that industrialisation of natural resources is a stated objective in the Constitution, see Arts 316.5 and 319. Constitution of Bolivia 2009, at . 62 See Arts 247 and 248 of the Constitution Act 1998.

312 Verónica Potes the public interest’.63 Strategic sectors specifically include: energy in all its forms, telecommunications, non-renewable natural resources, biodiversity and genetic patrimony, water, etc. Indigenous peoples do have rights to participate in the management of renewable resources located in their lands, as well as a right to benefit from them (Article 57.6).64 They also have a right to conserve and promote their practices in the management of biodiversity and the ‘natural surroundings’. This right will be exercised along with an active role of the State in ensuring that biodiversity is protected and used in a sustainable fashion.65 The rights of indigenous peoples are more limited in relation to non-renewable resources on their lands. Here, Article 57.7 provides that indigenous peoples only have an explicit right to be consulted prior to plans and programs on prospecting, exploitation and commercialisation that may affect them environmentally or culturally, plus the rights to participate in the benefits of these programs and to be indemnified for any social, cultural and environmental damages therefrom.66 The scope and content of consultation was a major topic in Constitutional debates. Although, as mentioned, the indigenous movement explicitly advanced and favoured State property in natural resources (provided that the plurinational State would guarantee that such resources be used to the benefit of the general public), the movement was also adamant in requiring prior informed consent as the consultation standard. The final text does not explicitly adopt this position. Instead, Article 57.7 provides that consultation must be ‘prior, free and informed; within reasonable deadlines ... conducted by competent authorities and must be mandatory and opportune’.67 There is no explicit recognition of a right to withhold consent. Indeed, the article provides that, in the absence of consent, the Constitution and the law shall prevail. There is no legislation implementing Article 57.7, but there are at least two ways to approach this provision. One, advanced by the State, is that the Constitution already anticipates a solution. This is Article 398 on ‘consultation of the community on environmental grounds’, which, so the argument goes, also applies to situations falling under Article 57.7. According to Article 398, the State will assess the community ‘opinion’ in light of criteria 63

Constitution Act 2008, Art 313. Ibid, Art 57.6 upholds a right to ‘participate in the use, usufruct, administration and conservation of the renewable natural resources on [indigenous] lands’. 65 Ibid, Art 57.8. 66 An exceptional regime on natural resources is that established to protect the territories of ‘peoples in voluntary isolation’ (mentioned above n 56). According to Constitution Act 2008 Art 57, para 2, ‘[a]ll types of extractive activity’ are banned in these territories. Art 407 on ‘intangible zones’ bans all extractive activities on non-renewable resources, including forestry. However, the latter provision also states that these resources may be exploited in exceptional cases with a previous declaration of ‘national interest’ by the National Assembly. 67 Ibid, Art 57.7. 64

The Achuar People Struggle for Autonomy 313 established by law and international human rights instruments, but the final decision is left to the higher administrative authority.68 An alternative interpretation (favoured by the indigenous movements and their advocates) is that the regime established for ‘consultation on environmental grounds’ does not apply to Article 57 rights.69 Instead, consent is required as stipulated in Articles 19 and 32.2 of the UN Declaration on the Rights of Indigenous Peoples (the Declaration) which is one of the international instruments explicitly recognised in Article 57 as a part of the ‘constitutional block’ incorporated in the Constitution, as discussed above.70 In sum, the regime on property and decision-making capacity over natural resources in indigenous lands is ambiguous with respect to indigenous demands for substantial control over those resources. I turn now to the broader topic of political autonomy and the measure of self-government recognised by the Constitution.

B. The 2008 Constitution: Indigenous Political Autonomy Along with control over territory and natural resources, autonomy, that is, the capacity of a people to govern itself, is a fundamental aspiration of the indigenous peoples of Ecuador, as clearly manifested by CONAIE in the long quotation above.71 Interestingly, de facto autonomy and territorial self-government already operate in several communities.72 However, as Ospina Peralta argues, the political and legal struggle for autonomy is still necessary, as in order to change the conditions of discrimination, impoverishment and marginalization, [indigenous peoples] require more attributions, more resources, more guarantees of respect and larger margins of autonomy so as to reconstruct their ways of life, their visions of the world and their cultural practices.73

68 Ibid, Art 398. In July 2012 in the advent of an announced oil blocks bidding process, President Correa has passed an Executive Decree to ‘Regulate the Performance of the Prior, Free and Informed Consultation in Processes of Bidding Oil Areas and Blocks’. The major national and regional Indigenous organisations have contested the constitutionality of this regulation through public statements but have not resorted to any legal actions yet. As anticipated, this regulation follows the approach to consultation and decision-making of Art 398 (consultation on environmental grounds) mentioned here and not that of Art 57.7 and the international standards (consultation with Indigenous Peoples). 69 While the Constitutional Court has held against State arguments that assimilate consultation in Art 57.7 to environmental consultation in Art 398, it has not decided on issues of consent or lack of it in consultation processes. 70 Art 57 recognises collective rights ‘to indigenous communes, communities, peoples and nationalities, in accordance with the Constitution and the pacts, conventions, declarations and other international instruments of human rights’ (emphasis added). 71 See text to n 32. 72 Ospina Peralta, above n 54, 206–07. 73 Ibid, 207.

314 Verónica Potes The claims for territorial autonomy are justified by reference to plurinationality and historical (in)justice [a]s territory pre-dates the modern State, it is not the territory that has to justify its autonomy but the State that has to justify the limits it imposes on territory in the name of national interest (which, paradoxically, encompasses an interest in promoting autonomies).74

The first thing to highlight in the Constitutional and legal regime on indigenous autonomy is that the applicable law is split between Article 57 (on indigenous collective rights) and the provisions on the ‘Territorial Organisation of the State’ (Title V, Articles 238 to 274 of the Constitution), and the implementing law, the Organic Code of Territorial Organisation, Autonomies and Decentralisation of 2010. Article 57 of the Constitution recognises rights that, taken as a whole, provide ample scope for the autonomy of indigenous peoples. These include: rights to maintain and develop their own forms of social organisation, and exercise authority in their legally-recognised territories and communal lands of ancestral possession;75 rights to create, apply and develop their own law;76 and instrumental rights to establish ‘territorial units to preserve their culture’77 and ‘to be consulted before the adoption of any legislative measure that may affect any of their collective rights’.78 It is also important to note that the language of the article consistently ratifies the idea that indigenous rights are to be exercised by indigenous peoples on their own terms. However, further elaboration of the right to establish ‘circunscripciones territoriales indígenas’ (CTIs, ie indigenous territorial units) starts to whittle away at the broad right to autonomy provided for in Title V, as we shall see next. I consider three aspects of the legal regime on autonomy in assessing the actual scope of indigenous autonomy: (a) the degree of difference accorded to CTIs in relation to pre-existing territorial organisations in the State; (b) the rules for constituting CTIs; and (c) the allocation of competences as between the central State and the autonomous governments, and among the autonomous governments themselves. The first two are closely related.

74 75 76 77 78

De Sousa Santos, above n 36, 140. (Translation by the author). Art 57.9 of the Constitution Act 2008 Ibid, Art 57.10. Ibid, Art 60. Ibid, Art 57.17.

The Achuar People Struggle for Autonomy 315 Title V of the Constitution is devoted to the territorial organisation of the State. It establishes a general regime of decentralisation based on a threepronged vision of autonomy: political, administrative and financial.79 This is the Constitution’s response to two needs: on the one hand, to overcome the weaknesses and failures of a traditional centralist State; and, on the other, to ratify the unitary character of the State. Articles 238–241 spell out the general principles of the new territorial order: Ecuador will be divided into ‘decentralised autonomous governments’ that will enjoy autonomy in the three realms mentioned above, and will have executive faculties and legislative faculties within their areas of competence and jurisdiction (emphasis added).80 Except for minor changes, the entities that make up the territorial organisation remain the same as in the 1998 Constitution. The decentralised autonomous governments include regions (the larger units) composed of provinces, which are composed of cantones and rural parroquias. There are also the so-called ‘special regimes’. These may be constituted for environmental conservation or ethno-cultural and demographic reasons.81 At present, there are three such special regimes: ‘autonomous metropolitan districts, the province of Galápagos, and the indigenous and pluricultural territorial units [CTIs]’.82 The Constitution announced an additional special regime (but with little elaboration), ‘the territory of the Amazonian provinces’.83 The 1998 Constitution did not elaborate much on either the general or the special regimes, and left the details to further laws.84 The new 2008 Constitution does elaborate. Two of the special regimes, metropolitan districts and the province of Galápagos, have governing bodies of their own and do not fall under the general regime. They will have the full competence of cantones, and provincial and regional governments as applicable.85 79

Ibid, Art 238. Save for rural parroquias that will enjoy only regulatory powers. Ibid, Art 240. 81 Ibid, Art 242. 82 Ibid. 83 Ibid, Art 250. This special unit will be subject to ‘integral planning as stated in a law that will include social, economic, environmental and cultural aspects, along with a territorial order that guarantees conservation and protection of ecosystems and the principle of sumak kawsay [good living]’. 84 CTIs were already present in the 1998 Constitution. There were some attempts to pass an implementing law on so-called ‘indigenous autonomy’, without success. 85 Constitution Act 2008, Arts 254, 256 and 266, and 258 for the special regime on Galápagos. For further analysis on the territorial organisation of the State in the new Constitution, see R Viciano Pastor, ‘Algunas Consideraciones sobre la Organización Territorial del Estado en la Constitución Ecuatoriana de 2008’ in A Grijalva et al (eds) La Nueva Constitución del Ecuador. Estado, derechos e instituciones (Quito, Corporación Editora Nacional, 2009) 105. For a critical theoretical analysis, see R Ortiz, ‘Fragmentación territorial y representación política. Criterios para el diseño del sistema electoral en el contexto de la Nueva Constitución’ (2008) 75 Ecuador Debate 63. Ortiz notes that conceptual imprecision of categories such as ‘decentralised autonomous governments’ (which combine decentralisation 80

316 Verónica Potes However, the CTI does not enjoy the same level of relative autonomy unless it becomes a region (very unlikely within the current regime). A CTI is not strictly a category on its own: to become a CTI it must first adopt the form of any of the general regime categories, that is, parroquia, canton, province or region (provided that it fulfils the requirements).86 The basic requirement to become a CTI is that, in a pre-existing parroquia, canton, or province with a majority indigenous population, a motion to become a CTI must obtain at least two-thirds of the votes cast. As one commentator notes, the primary challenge for indigenous peoples is that this formula ignores the fact that parroquias, cantons and provinces have been established around mestizo urban and semi-urban centers.87 This requirement will be difficult to fulfil for indigenous communities, even more so for peoples seeking to reconstitute their territories. The last aspect of the general regime on autonomy, which is fundamental to determining the level of autonomy recognised by the 2008 Constitution, is that of the allocation of competences. Here too, the new Constitution elaborates, in more detail, on the level of autonomy attainable by the decentralised governments, but in doing so it also endorses the unitary character of the State. Article 261 reserves a wide array of areas to the exclusive competence of the State, including: national defence and public order; international relations, migration issues, national planning; economic, fiscal, monetary policies, taxation, customs, external trade; education, health, social security, housing policies; protected areas and natural resources; communications; energy resources, biodiversity and forestry resources. Articles 262–267 allocate the competences of autonomous governments according to the hierarchy indicated above (regions, provinces, cantones and parroquias). These include the competences to elaborate and execute development plans in coordination with the corresponding superior level of government, with central State planning providing ultimate guidance for all.88 The Organic Code of Territorial Order, Autonomies and Decentralisation (COTAD, October 2010) spells out the scope of authority of the CTI in greater detail. The difficulties of establishing CTIs in practice, along the lines determined in the Constitution, had been a particular concern of the indigenous movement. COTAD’s detailed framework for constituting CTIs

and autonomy without due distinction between those terms as used in political theory), as well as inconsistency of the regime on competences, challenge the stated intentions of promoting actual descentralisation and autonomy: ibid, 65–67. 86

Constitution Act 2008, Art 257. Kingman, above n 54, 29. 88 Constitution Act 2008, Art 262.1. Viciano Pastor notes that this is a more coherent approach to decentralisation than the one adopted in 1998. See, Pastor, ‘Algunas Consideraciones’ (2009) above n 85. This may well be the case for the consolidation of a unitary single-nation state; however, if applied to CTIs, one is left to wonder how much remains of the ‘Indigenous autonomy’ recognised in Art 57. 87

The Achuar People Struggle for Autonomy 317 responds to some of the main concerns. Article 93, which elaborates on the ‘nature’ of CTIs, tries to strike a compromise between the indigenous peoples’ demand for recognition of their right to define their own governments through their customs and along their traditional territorial lines, and the Constitutional requirement that the State’s territorial pre-existing order must be respected: [CTIs] are special regimes of decentralised autonomous government established through the free determination of peoples, nationalities and communities, within the framework of their ancestral territories, respecting the political and administrative organisation of the State, that will exercise the competences of the corresponding autonomous government.89

This article is to be read along with Article 5 of COTAD, which defines autonomy as ‘the right and effective capacity to rule under its own norms and government organs, without intervention from other levels of government’.90 Article 93 also elaborates on the CTI as a ‘special’ regime. It confirms that CTIs will be ruled by the Constitution and international instruments, and adds ‘by its constitutive statutes’, for the full exercise of collective rights. This restores Article 57 of the Constitution Act 2008 as a relevant source of authority for CTIs. Another concern for the indigenous movement is the question of who holds the initiative to trigger the constitution of a CTI. If this were to correspond exactly with current local governments, as was argued in the COTAD debate, that would, in practice, considerably reduce the possibility of an indigenous population triggering the CTI process.91 Article 95 affords both the current local government, as well as the communities, peoples and nationalities, the capacity to initiate the process. Article 96 furthers the possibility of reconstituting ‘ancestral territories’ by allowing for the fusion of several CTIs, but within the framework of the current territorial order and upon the initiative of the corresponding government. The final decision on these initiatives lies with the incumbent authority in the case of a parroquia and the National Assembly in the case of the larger entities, ie cantons and provinces. Thus, the incumbent indigenous peoples do not have autonomy in relation to the reconfiguration of a territory. COTAD acknowledges that in some cases communities and peoples will not be able to become a CTI since they cannot meet the Constitutional

89 COTAD, Art 93. Translation and emphasis added by the author. Art 98 confirms that CTIs will become actual autonomous governments with the corresponding legislative powers (in accordance with their specific conditions, uses, customs and traditions), although always within the framework of the pre-existing territorial order. 90 Ibid, Art 5. 91 While the number of indigenous individuals holding office has increased considerably in the last decade, indigenous organisations feel that such participation in local politics is merely superficial and that the grassroots bases must maintain power.

318 Verónica Potes requirements. In these cases, they are entitled to exercise their collective rights, particularly their own forms of life, social organisation and authority in their territories. The corresponding local governments will have to establish a joint process of planning and may delegate functions to the indigenous authorities.92 COTAD also deals with the discontinuity of indigenous territories (already mentioned as a common feature of most of the indigenous peoples in Ecuador). The wording is complex and unclear but basically provides for some sort of functional autonomy.93 The regime of competences, as spelled out in the Constitution, is left untouched.94 An interesting, yet not much developed, provision in COTAD states that recently contacted peoples with special social and economic characteristics deriving from their dependence on their territories’ ecosystems will have the right to organise themselves and to administer their territories in a way that best fits their capacity to maintain their culture and forms of subsistence. This provision has yet to be explored, particularly by Amazonian peoples. In sum, the law applicable to indigenous autonomy is, at best, unclear. On the one hand, Article 57 of the Constitution grants significant levels of autonomy, including maintenance of an indigenous people’s own forms of organisation and authority, and the capacity to develop and apply law. Yet on the other hand, the legal regime on territorial organisation restricts both the Constitution and the functioning of the indigenous territorial units to a preexisting regime that is ill-suited to grasp indigenous differences and the need for authority to act autonomously in relation to a number of topics fundamental to maintaining their own ways of life. As a result, any potential that the CTI may have to advance a more substantive indigenous autonomy agenda will have to draw on the principles by which it will be governed, ie ‘interculturality, plurinationality and in accordance with the collective rights’.95 Thus, we can see that, in spite of the Constitution’s grand narrative on plurinationality and the construction of a new society embracing diversity and in harmony with nature, the operative norms on two fundamental issues—control over lands and resources, and autonomy—still supports a perception of State–indigenous peoples relations that subordinate the latter to the former.

92

COTAD, Art 97. Ibid, Art 97, paragraph 2 states that in spite of being separated, the nationalities will be integrated in the system of government of the corresponding nationality or people toward the exercise of their collective rights. 94 See, for example, COTAD Art 100 that states that ancestral territories affected by the national system of protected areas will remain under the corresponding jurisdiction of that system, although under a communitarian system of governance that will take into account the ancestral practices of conservation. Overall, see Art 261 of the Constitution Act 2008, discussed above, where the Constitution grants the State a wide array of competences in areas of great importance to indigenous autonomy, like control of natural resources, the environment and biodiversity. 95 As provided for in the Constitution Act 2008, Art 257. 93

The Achuar People Struggle for Autonomy 319 V. CONCLUSION

For the Achuar, consolidation and defence of their territory is vital, as it is for indigenous peoples around the world. To this end, and in spite of the difficulties and limitations of the legal characteristics of the CTI, discussed above, they have decided to pursue that status. Some of the conditions are favourable: almost all their territory is titled to Achuar communities; the Achuar territory is continuous; there is little or no presence of settlers in Achuar territory; and, in spite of the tensions that have arisen in the past, the Achuar people seem united behind NAE (see section I. above).96 At the same time, they face important challenges: the Achuar territory is currently divided along pre-existing provincial/cantonal/parroquial lines; there are no precedents for achieving ‘integral title’; and meeting the legal requirements to become a CTI is not an easy task. Arguably, the most fundamental question is whether the CTI can really serve as a vehicle for indigenous autonomy, in the way the Achuar demand (political authority over people and land, including decisions over management of territory and natural resources).97 On the one hand, the CTI is a decentralised autonomous government, and as such has administrative, financial and political autonomy. On the other hand, the legal instruments of autonomy in both the Constitution and COTAD reserve exclusive competence in a wide range of areas to the State, including some that are significant to indigenous peoples. Indigenous CTIs may become instruments for significant indigenous autonomy if ‘plurinationality’, as well as Article 57 and international standards, become more operative as guiding concepts for the Ecuadorian legal imagination. Even within a Constitutional scheme that emphasises the unitary State, arguments about substantive plurinationality and historical (in)justice can be made to justify the scope and extent of autonomist claims of indigenous peoples, and distinguish them from other autonomist claims in the country. The Constitutional regime on natural resources probably presents a greater obstacle for indigenous peoples in their goal of attaining actual autonomy. The law provides that the State is the owner of non-renewable resources and ‘biodiversity’, and has exclusive authority over these socalled ‘strategic sectors’, while the indigenous peoples are merely entitled to participate in the use and administration of renewable resources, and must be consulted regarding non-renewable resource activities. Certainly, the legal discourse here favours the State.

96 I have been working closely with NAE and different communities, and my perception is that the Achuar are, in general, backing NAE, in its strategy to consolidate and defend the territory. 97 Interview with Mr Germán Freire, former president of NAE (on file with the author).

320 Verónica Potes Here again, a more robust understanding of plurinationality, drawing upon international law standards, support a significantly different understanding of Constitutional and legal provisions. The tension between these two approaches begins with Article 1 of the Constitution, which defines the character of the Ecuadorian State as plurinational, but also reserves non-renewable resources to the ‘inalienable State patrimony’. While this unprecedented legislative strategy98 may have been pursued to quell fears raised by the recognition of ‘plurinationality’, a more coherent reading of the text argues that ‘non renewable resources belong to the inalienable patrimony of the [plurinational] State’.99 If this is the case, then the plurinational State’s decisions over the natural resources of its patrimony would have to be constructed by taking account of the different values and visions of all the nationalities that make it a plurinational State.100 In any case, the future is uncertain. There are no previous experiences with indigenous government, at least not in the ways that a CTI may imply. Control over natural resources has traditionally been fundamental to a State whose economy is largely based on resource exploitation. In the Amazonia, such control has been the main point of contention between the State and the indigenous peoples. At the same time, the new Constitution calls for a new relationship among the different nations that constitute Ecuador—indigenous and non-indigenous. A significant similarity between the situations faced by the Achuar and the Saami lies in the manner in which their respective demands encounter strong resistance from State law, particularly on issues that might lessen the authority of the corresponding State(s). The Achuar people might find further inspiration in instruments such as the draft Nordic Saami Convention, while the Saami and State negotiators might reflect on the principle of plurinationality, which is arguably a more inclusive conception of relations between indigenous peoples and States than the concept of recognition. Recognition is, however, a starting point of plurinationality. The nationsto-nations dialogue that the draft Convention uses and seeks to further may, as Koivurova argues,101 be a powerful inspiration for peoples whose claims for autonomy are still regarded as divisionist, if not outright secessionist. The draft NSC may become an example of a legal arrangement that uses 98 As noted above, Ecuador’s Constitutional history shows consistency in declaring the State the proprietor of non-renewable resources; however, it has never been set out in Art 1, which usually sets forth the characteristics of the State, but rather in the sections related to the economy. 99 This is an argument that the author has been discussing in the workshops with Achuar communities on collective rights. 100 An interpretation along these lines is compatible with contemporary understandings of the principle of ‘permanent sovereignty over natural resources’ as applicable in the case of indigenous peoples’ claims. 101 See T Koivurova, ‘The Draft Nordic Saami Convention: Nations Working Together’ (2008) 10 International Community Law Review 279, 280.

The Achuar People Struggle for Autonomy 321 the language of self-determination (although within the current ambiguous terms of international law as stated in Article 3 of the draft NSC);102 calls for inter pares negotiations when the rights of indigenous peoples are at stake in a manner that respects and recognises indigenous institutions; and an arrangement that circumvents legal categories to find avenues of understanding between States and indigenous peoples affected by the international boundaries of others about which they were not consulted (as is the case not only of the Achuar in Ecuador and Peru, but of other peoples in the Amazonia and other regions of the world).103 Similarly, the Saami people and the States Parties to the draft NSC might look to the experience in Ecuador and find inspiration in the conception of inter-societal relations that not only recognises heterogeneity, but aims to have it reflected in the structure and functioning of a State composed of different nations. The Plurinational State of Ecuador is a State under construction; the colonial mentality is not easy to overcome, as has been evident in Constitutional negotiations and is still evident in the debates on the implementing legislation. However, if something has become clear to Ecuadorians in general, it is that the struggles of indigenous peoples advance legal innovation.

102 Still, the symbolic force of language is undeniable. While for some peoples the possibility of a right to statehood may be important, there are more practical implications within the language of self-determination that include control—more than mere administration—of territories and natural resources. This control is contested by the States, and that explains the strong State opposition to the term, beyond the fear of secession. 103 For the historical reasons mentioned above, the Achuar are far from having consolidated institutions, let alone relations with the Achuar on the Peruvian side that could lead them to propose a joint convention between the Ecuadorian and Peruvian States. However, there is an ongoing initiative, led by the respective indigenous organisations and with support from the States, to form a bridge between the Achuar people. The whole process behind the draft Nordic Saami Convention is an experience the Achuar may be interested in examining more deeply.

13 The Australian Approach to Recognising the Land Rights of Indigenous Peoples: The Native Title Act 1993 (Cth) SHARON MASCHER

I. INTRODUCTION

I

T WAS NOT until 1992 that the High Court of Australia confirmed that the traditional land rights of Aboriginal and Torres Strait Islanders (known in Australia as ‘native title’) were recognised by the common law of Australia. Mabo v Queensland (No 2)1 (‘Mabo (No 2)’) also confirmed that prior to 31 October 1975 native title could be extinguished, without compensation or consent, by legislative and executive acts that manifested a clear and plain intention to do so. Thereafter, however, surviving native title rights were protected from further extinguishment in accordance with the standard of equality before the law by operation of the Racial Discrimination Act 1975 (Cth).2 The Australian Commonwealth Government responded by passing the Native Title Act 1993 (Cth) (‘NTA’), a piece of legislation designed to recognise and protect indigenous Australians’ native title rights while, at the same time, providing a mechanism to protect existing rights and facilitate the creation of future rights derived from the settler State.

1

Mabo v Queensland (No 2) [1992] HCA 23, (1992) 175 CLR 1 (HC). The High Court had earlier held, in Mabo v Queensland [1988] HCA 69, (1989) 166 CLR 186, that if native title existed at common law it was protected from extinguishment by s 10 of the Racial Discrimination Act 1975 (Cth). The 1975 Act binds the Crown in right of the Commonwealth (the Federal Government in Australia), as well as each of the states and the Northern Territory (s 6). 2

324 Sharon Mascher While the overall objectives and aspirations of the draft Nordic Saami Convention are much broader than those of the NTA,3 and the resulting aims much loftier, key provisions of the draft Convention seek to recognise and protect Saami rights to land and water.4 In this regard, the draft Convention and the NTA share similar goals. Given this, it is useful to examine the NTA as an example of a legislative approach, rather than the modern land claim agreements approach discussed by Nigel Bankes in chapter fourteen of this book, to recognising indigenous land rights. This chapter provides an overview of the Australian NTA, with a view both to explaining and critiquing the resulting framework. In so doing, the aim of this chapter is to expose the underlying deficiencies in the Australian approach, which may in turn inform decisions relating to the implementation of the draft Nordic Saami Convention. The chapter will begin by tracing the development of the Australian common law, in order to contextualise the discussion of the NTA that follows.

II. INDIGENOUS LAND RIGHTS IN AUSTRALIA PRE-MABO (NO 2)

As Dean and Gaudron JJ explained in Mabo (No 2), the numbers of Aboriginal inhabitants of the Australian continent in 1788 [when the first colonial settlement was founded], the relationship between them and the lands on which they lived, and the content of their traditional laws and customs which governed them are still but incompletely known or imperfectly comprehended.5

However, as they go on to state:6 [I]t is clear that the numbers of Aboriginal inhabitants far exceeded the expectations of the settlers. The range of current estimates for the whole continent is between three hundred thousand and a million or even more. Under the laws or customs of the relevant locality, particular tribes or clans were, either on their own or with others, custodians of the areas of land from which they derived their sustenance and from which they often took their tribal names. Their laws and customs were elaborate and obligatory. The boundaries of their traditional lands

3 Art 1 of the draft Nordic Saami Convention states that ‘the objective of this Convention is to affirm and strengthen such rights of the Saami people that are necessary to secure and develop its language, its culture, its livelihoods and society, with the smallest possible interference of the national borders’. Flowing from this objective are: general rights of Saami people (Ch I), including rights of self-determination (Art 3); Saami Governance (Ch II); Saami language and culture (Ch III); and Saami livelihoods (Ch V). For a discussion of the right of self-determination in the draft Nordic Saami Convention, see Heinämäki, ch 5of this volume. See also M Åhrén, M Scheinin and J Henriksen, ‘The Nordic Sami Convention: International Human Rights, Self-Determination and other Central Provisions’ (2007) 3 Gáldu C ála— Journal of Indigenous Peoples Rights. 4 Draft Nordic Saami Convention, Ch IV, Arts 34–40. 5 Mabo (No 2), above n 1, Dean and Gaudron JJ, para 37. 6 Ibid, paras 37–38.

Australian Native Title Act 1993 (Cth) 325 were likely to be long-standing and defined. The special relationship between a particular tribe or clan and its land was recognized by other tribes or groups within the relevant local native system and was reflected in differences in dialect over relatively short distances. In different ways and to varying degrees of intensity, they used their homelands for all the purposes of their lives: social, ritual, economic. They identified with them in a way which transcended common law notions of property or possession. As was the case in other British Colonies … the claim to the land was ordinarily that of the tribe or other group, not that of an individual in his or her own right. In the context of the above generalizations, the conclusion is inevitable that, at the time of the establishment of the Colony of New South Wales in 1788, there existed, under the traditional laws and customs of the Aboriginal peoples in the kaleidoscope of relevant local areas, widespread special entitlements to the use and occupation of defined lands of a kind which founded a presumptive common law native title under the law of a settled Colony after its establishment.

Nevertheless, when Australia was ‘settled’, the land rights of indigenous Australians were completely disregarded. Traditional lands were granted to settlers by local colonial governments without the agreement of indigenous Australians or the payment of compensation.7 While some reserves were established for indigenous Australians and pastoral leases were subject to reservations allowing Aboriginal usufructary access, the ‘dispossession was such that little traditional land remains to Aboriginal people anywhere in the settled regions of Australia’.8 With power moving from the Imperial Government to local colonial governments, ‘the Aborigines were increasingly treated as trespassers to be driven, by force if necessary, from their traditional home lands’.9 Supported by a line of Australian authority considering Crown ownership of land and resources in contexts unrelated to the land rights of indigenous people,10 the ‘perception grew that the denial of native title and the dispossession of the Aboriginal people afforded no wrong in law’.11 The experience of the Saami people, at least in parts of the Nordic region, resembles that of indigenous Australians. As Øyvind Ravna explains, when northern Norway came under Norwegian jurisdiction, at the ‘relatively late’ date of 1613, the Saami people’s traditional use of the land was not recognised as a basis for ownership.12 As result, based on ‘the State land

7

R Bartlett, Native Title in Australia (Sydney, Butterworths, 2000) 4. Ibid. 9 Mabo (No 2), above n 1, Dean and Gaudron JJ at para 51. 10 See eg Attorney-General v Brown (1847) 1 Legge 31; Wade v New South Wales Rutile Mining Co Pty Ltd (1969)121 CLR 177; Randwick Corporation v Rutledge (1959) 102 CLR 54; New South Wales v The Commonwealth [1975] 135 CLR 337. 11 Bartlett, above n 7, 4. 12 Ravna, ch 7 of this volume. 8

326 Sharon Mascher doctrine’,13 the State took this ‘ownerless’ land into possession without the agreement of, or treaty with, the people in occupation of and using the land.14 As Ravna explains, the Saami people looked to the courts throughout the twentieth century for recognition of their land rights based on traditional use.15 In Australia, the perception that the dispossession of Aboriginal people afforded no wrong in law remained unchallenged until 1970, when members of the Gumatji group brought an action asserting a native title right to traditional lands in the Northern Territory. In Milirrpum v Nabalco Pty Ltd, Blackburn J rejected the plaintiffs’ claim, finding that the ‘doctrine of communal native title does not form, and never has formed, part of the law of any part of Australia’.16 Blackburn J reached this conclusion after analysing the Canadian, New Zealand and United States jurisprudence, an analysis which commentators have subsequently criticised as ‘hopelessly flawed and wrong’.17 Indeed, Hall J, of the Supreme Court of Canada, later described Blackburn J’s analysis of the Canadian law as ‘wholly wrong as the mass of authorities previously cited … establishes’.18 Nevertheless, Blackburn J’s finding that native title did not exist at common law in Australia was not challenged for over 20 years. This is explained, at least in part, by the fact that following the Milirrpum decision the Commonwealth Government instituted an inquiry which recommended that land rights legislation be enacted in the Northern Territory.19 The resulting Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) (‘ALRA’) made provision for statutory titles to recognise Aboriginal customary tenure systems, and included procedures to allow for both Government and developers to access and use Aboriginal land. With the exception of Western Australia, the other Australian states also enacted legislation to return some land to Aboriginal owners.20 In this respect, most legislatures 13 Ø Ravna, ‘The Process of Identifying Land Rights in Parts of Northern Norway: Does the Finnmark Act Prescribe an Adequate Procedure Within the National Law?’ (2011) 3 Yearbook of Polar Law 423, 425. See also Ravna, ch 7 of this volume. 14 Ibid. 15 Ibid. 16 Milirrpum v Nabalco Pty Ltd (1971) 17 FLR 141. 17 B Hocking, ‘Aboriginal Law Does Now Run in Australia’ (1993) 15 Sydney Law Review 187, 188–89. For a full discussion of Blackburn J’s treatment of this jurisprudence, see R Bartlett, ‘Aboriginal Land Claims at Common Law’ (1982) 12 University of Western Australia Law Review 293; J Hookey, ‘The Gove Land Rights Case: A Judicial Dispensation for Taking of Aboriginal Lands in Australia’ (1972) 5 Federal Law Review 85; S Phillips, ‘A Note: Eddie Mabo v the State of Queensland’ (1993) 15 Sydney Law Review 121, 121–22. 18 Calder v Attorney General of British Columbia [1973] 34 DLR (3d) 145, 200. 19 For a full discussion of the Woodward Report and the resulting Northern Territory legislation, see R Bartlett, ‘Making Land Available for Native Land Claims in Australia: An Example for Canada’ (1983) 13 Manitoba Law Journal 73. 20 The state of South Australia passed the Pitjantjatjara Land Rights Act 1981 (SA) and the Maralinga Land Rights Act 1984 (SA), which transferred large Aboriginal reserves into Aboriginal ownership. The states of Victoria, Queensland, New South Wales and Tasmania

Australian Native Title Act 1993 (Cth) 327 of Australia had already given effect to some form of indigenous land rights prior to the Mabo (No 2) decision.21

III. THE MABO (NO 2) DECISION

In 1982, the plaintiffs sought a declaration that the Meriam people were entitled to the three Murray Islands in the Torres Strait. They asserted rights to the Murray Islands based on their local custom, their original native ownership and their actual possession, use and enjoyment of the Islands. Relying on the established common law proposition that pre-existing indigenous interests in land were assumed by the common law to be recognised and ‘fully respected’ under the law of a newly-annexed British territory,22 the majority of the High Court of Australia accepted that the native title rights of indigenous Australians survived the Crown’s acquisition of sovereignty.23 In the words of Brennan J:24 It is sufficient to state that, in my opinion, the common law of Australia rejects the notion that, when the Crown acquired sovereignty over territory which is now part of Australia it thereby acquired the absolute beneficial ownership of the land therein, and accepts that the antecedent rights and interests in land possessed by the indigenous inhabitants of the territory survived the change in sovereignty. Those antecedent rights and interests thus constitute a burden on the radical title of the Crown.

With this decision, coming, as it did, nearly 200 years after the arrival of the British, the High Court of Australia at long last corrected the misperception that the native title was not recognised by the common law of

also passed land rights legislation. The effect of these various pieces of legislation is reflected by the percentage of land converted in each state or territory to Aboriginal freehold (Northern Territory, 33.7 %; South Australia, 18.8%; Queenland, 2.1%; Tasmania, 0.06%). For a summary of the state and territory legislation in Australia, see J Gray, ‘The Lost Promise of Mabo: An Update on the Legal Struggle for Land Rights in Australia with Particular Reference to the Ward and Yorta Yorta Decisions’ (2003) 23 Canadian Journal of Native Studies 305, App A. 21 According to Richard Bartlett, ‘the rights recognised in the Northern Territory and South Australia may exceed those recognised under settled agreements in Canada and the United States’ (R Bartlett, ‘Another Triumph for the Common Law’ (1993) 15 Sydney Law Review 178, 184). 22 Amodu Tijani v The Secretary, Southern Nigeria [1921] 2 AC 399; Adeyinka Oyekan v Musendiku Adele [1957] 1 WLR 876; Calder et al v Attorney-General of British Columbia [1973] SCR 313. In accepting that native title continued without the need of those rights to be affirmed by the Crown, the majority of the Court adopted what McNeil refers to as the doctrine of continuity (K McNeil, Common Law Aboriginal Title (Oxford, Clarendon Press, 1989). 23 Dawson J dissented on this point, accepting the argument that the survival of native title rights was dependent on the subsequent recognition of the Crown (see Mabo (No 2), above n 1, Dawson J at para 85). 24 Ibid, Brennan J at para 62.

328 Sharon Mascher Australia. While arguably not legally necessary,25 the court also ‘declared legally dead’26 the suggestion that the doctrine of terra nullius informed the domestic common law of Australia. As Brennan J stated:27 The common law of this country would perpetuate injustice if it were to continue to embrace the enlarged notion of terra nullius and to persist in characterizing the indigenous inhabitants of the Australian colonies as people too low in the scale of social organization to be acknowledged as possessing rights and interests in land. Moreover, to reject the theory that the Crown acquired absolute beneficial ownership of land is to bring the law into conformity with Australian history.

As to the ‘nature and incidents’ of native title, Brennan J held:28 Native title has its origin in and is given its content by the traditional laws acknowledged by and the traditional customs observed by the indigenous inhabitants of a territory. The nature and incidents of native title must be ascertained as a matter of fact by reference to those laws and customs.

Brennan J placed similar emphasis on the customs and traditions of a clan or group in relation to both the proof of native title and its recognition and protection by the common law:29 Where a clan or group has continued to acknowledge the laws and (so far as practicable) to observe the customs based on the traditions of that clan or group, whereby their traditional connexion with the land has been substantially maintained, the traditional community title of that clan or group can be said to remain in existence. The common law can, by reference to the traditional laws and customs of an indigenous people, identify and protect the native rights and interests to which they give rise. However, when the tide of history has washed away any real acknowledgment of traditional law and any real observance of traditional customs, the foundation of native title has disappeared. A native title which has ceased with the abandoning of laws and customs based on tradition cannot be revived for contemporary recognition. Australian law can protect the interests of members of an indigenous clan or group, whether communally or individually, only in conformity with the traditional laws and customs of the people to whom the clan or group belongs and only where members of the clan or group acknowledge those laws and observe those customs (so far as it is practicable to do so).

However, the implications of the Mabo (No 2) decision reached far beyond the High Court’s affirmation that native title survived the assertion of sovereignty and continues, provided a traditional connection with the land

25 See Bartlett, above n 7, at 23–24 for a discussion of whether the High Court actually rejected the concept of terra nullius in Mabo (No 2). 26 A Kwaymullina, ‘Living Together in Country: Creation, terra nullius and “the trouble with tradition” ’ in S Young, The Trouble with Tradition (Sydney, Federation Press, 2008) xvi. 27 Mabo (No 2), above n 1, Brennan J at para 63. 28 Ibid, at para 64. 29 Ibid, at para 66.

Australian Native Title Act 1993 (Cth) 329 had been substantially maintained. The High Court’s decision also affirmed that, absent the protection of the Racial Discrimination Act 1975 (Cth), the common law did not operate to insulate indigenous Australians from subsequent dispossession, or extinction, by a paramount power:30 The dispossession of the indigenous inhabitants of Australia was not worked by a transfer of beneficial ownership when sovereignty was acquired by the Crown, but by the recurrent exercise of a paramount power to exclude the indigenous inhabitants from their traditional lands as colonial settlement expanded and land was granted to the colonists.

The High Court held that a clear and plain intention must be manifest in order to extinguish native title, and the majority concluded that native title could be extinguished without consent or compensation, even in the absence of legislation.31 Therefore, while public lands legislation did not itself manifest a clear and plain intention to extinguish, the High Court held that the making of grants under that legislation would extinguish native title to the extent of inconsistency: Where the Crown has validly alienated land by granting an interest that is wholly or partially inconsistent with a continuing right to enjoy native title, native title is extinguished to the extent of the inconsistency. Thus native title has been extinguished by grants of estates of freehold or of leases but not necessarily by the grant of lesser interests (eg, authorities to prospect for minerals).32

This meant, in the words of Brennan J, that the Aborigines were dispossessed of their land parcel by parcel, to make way for the expanding colonial settlement. Their dispossession underwrote the development of the nation.33

Or as Noel Pearson has put it, that native title could not result in the extinguishment or any derogation whatsoever of any rights granted by the Crown or by legislation … that native title is not about anyone else losing any legal rights that they have accumulated in the 200 years since colonization ... that native title is all about the balance, it is all about the remnants, it is all about what is left over.34

30

Ibid, at para 63. For a full discussion of the reasoning in the Mabo (No 2) decision relating to consent, compensation and extinguishment, see Bartlett, above n 7, 28–30. 32 Mabo (No 2), above n 1, Brennan J at para 83(4). 33 Ibid, at para 82. 34 N Pearson, Where We’ve Come From and Where We Are At With the Opportunity That Is Koiki Mabo’s Legacy to Australia (Mabo Lecture, AIATSIS Native Title Conference, Alice Springs, 3–5 June 2003) 3. Available at . 31

330 Sharon Mascher Therefore, while in broad overview Mabo (No 2) brought Australia into line with the rest of the common law world, for indigenous Australians the more specific implications of the High Court decision were:35 (a)

the validation of the dispossession of Aboriginal people ‘parcel by parcel’ from 1788 to 31 October 1975, without consent or compensation; (b) the recognition by the common law which gave effect to the surviving remnants of the traditional relationship of Aboriginal people to land; and (c) the protection of the Racial Discrimination Act 1975 of the surviving remnants from legislative impairment or extinguishment in accordance with the standard of equality before the law since 31 October 1975. It is not without interest that just over a decade before the Mabo (No 2) decision, the Swedish Supreme Court handed down its decision in the Taxed Mountain case,36 the first modern case to examine Saami land rights in Swedish history. And then, less than decade after Mabo (No 2), the Norwegian Supreme Court handed down two landmark decisions relating to the recognition of Saami land rights.37 In the Taxed Mountain case, the Swedish Supreme Court confirmed that Saami reindeer-herding rights were not based on rights created by legislation but rather were independent legal rights arising out of the civil law right of immemorial prescription. As such, the Court held that the resulting rights were protected from acquisition or infringement without compensation by the Constitution. The Norwegian Selbu Case similarly recognised that Saami people could acquire rights to land on the basis of immemorial usage, a conclusion supported by a 1988 amendment to the Norwegian Constitution to include the protection of Saami culture and livelihood.38 As with Mabo (No 2) in Australia, these decisions represented a ‘paradigm shift’39 in their respective countries, presenting both the opportunity and challenge to recognise and protect these interests in full.

35

Bartlett, above n 7, 31. Taxed Mountain Case (NJA 1981, s 1). For a full discussion of this decision and the most recent Swedish decision on reindeer-herding rights, the Nordmaling Case (NJA 2011, s 109), see Allard, ch 8 of this volume. 37 The Selbu Case (referred to in NRt 2001, 769) and the Swartskog Case (referred to in NRt 2001, 1229). For a full discussion of these two decisions, see Ravna, ch 7 of this volume. 38 Ravna, ch 7 of this volume. 39 Ibid, section III.C., text to n 53. 36

Australian Native Title Act 1993 (Cth) 331 IV. THE AUSTRALIAN RESPONSE TO MABO (NO 2) – THE NTA

Prominent indigenous activist and lawyer Noel Pearson argued that the Mabo (No 2) decision ‘presented the opportunity to settle the question of land justice for indigenous people in the Australian nation’.40 Paul Keating, the then Prime Minister of Australia, embraced the High Court decision as ‘a large step towards reconciliation and away from the injustice dealt to Aborigines over 200 years’.41 The next step was taken one and a half years after Mabo (No 2), when the Commonwealth Government of Australia passed the NTA. Australia’s decision to address native title by way of legislation is perhaps not surprising, given the earlier experience of the Australian states and territories with land rights legislation. Other possible responses were considered, with a discussion paper prepared in the months following the High Court decision raising several options to address native title, including a statutory framework codifying native title to provide more certainty, a specialist tribunal to adjudicate claims, and the negotiation of settlements between governments and indigenous peoples as in Canada.42

However, a draft report delivered to Cabinet in March 1993 recommended against the negotiated settlement approach:43 [T]o give effect to the concept on a national basis, a very long and difficult negotiation would be inevitable, in which concepts such as self-government over native title lands, constitutional protection of title and the granting of substantial economic and other benefits would come into play as part of the ‘grand bargain’. It is not therefore a practicable approach for dealing with immediate land management issues.

It was not uniformly accepted that legislation was the appropriate response, although many supporters of native title ‘thought that the legislation upheld, crystallised and protected the rights flowing from the common law finding’.44 However, rather than moving Australia one step further away from the injustices of the pre-Mabo landscape, as will be discussed below, ‘[i]n retrospect it can be seen that this Act has contributed to the erosion of the promise in Mabo (No 2)’.45

40

Pearson, above n 34, 2–3. The Australian, 17 October 1992, 2. 42 Bartlett, above n 7. 43 Interdepartmental Committee of Officials, ‘Mabo: The High Court Decision on Native Title’ (Draft Report, 12 March, 1993), quoted in Bartlett, above n 7, 34. 44 Gray, above n 20, 315. 45 Ibid. 41

332 Sharon Mascher A. The NTA – A Broad Overview The Preamble to the NTA declares that one of the underlying intentions of the Act is to rectify the consequences of past injustices by the special measures contained in the Act. Another is to ensure that Aboriginal and Torres Strait Islanders receive the full recognition and status within the Australian nation to which history, their prior rights and interest, and their right and diverse culture, fully entitle them to aspire. As the Full Court stated in Northern Territory v Alyawarr, ‘[t]he Preamble declares the moral foundation upon which the NT Act rests. It makes explicit the legislative intention to recognise, support and protect native title.’46 In keeping with this, one of the ‘main objects’ of the NTA is ‘to provide for the recognition and protection of native title’.47 This, however, is not the only object. The other three ‘main objects’ of the NTA are: (a)

to establish ways in which future dealings affecting native title may proceed; (b) to establish a mechanism for determining claims to native title; and (c) to provide for, or permit, the validation of past acts and intermediate period acts which would otherwise be invalidated because of the existence of native title. As these objects make clear, the NTA is focused not only on recognising and protecting native title rights, but also on providing mechanisms to validate the existing rights held by the broader Australian community to provide certainty going forward. Below, in very broad overview, is a description of the provisions in the NTA designed to achieve their objects. The description necessarily belies the complexity of the legislation, which, following extensive amendments in 1998, now covers over 443 pages.48 i. Registration and Determination of Native Title Claims As the objects suggest, the NTA establishes a process for registering and determining native title claims. This process begins when a group claiming native title files an application in the Federal Court seeking a determination recognising them as native title-holders. The application is first referred to the National Native Title Tribunal, where it is assessed against the registration test in the Act. After notice is given to people with interests in the claimed area, the application is referred to the Tribunal for mediation. If an 46 Northern Territory of Australia v Alyawarr, Kaytetye, Warumungu, Wakaya Native Title Claim Group [2005] FCAFC 135 (29 July 2005) 63. 47 NTA, s 3(a). 48 Bartlett, above n 7, 53.

Australian Native Title Act 1993 (Cth) 333 agreement is reached in the mediation process, the parties may apply to the Federal Court for a consent determination of native title. If no agreement is reached, the application is determined by the Federal Court following a trial. ii. Validation of ‘Past Acts’ and ‘Intermediate Period Acts’ The Act also provides for the validation of all ‘past acts’, giving ‘full force and effect’ to Crown grants made before 1 January 1994 and legislation made before 1 July 1993 which would otherwise be invalid because of the existence of native title and the protection afforded by the Racial Discrimination Act 1975 (Cth).49 The effect of the ‘past acts’ validation is further to extend the ‘parcel by parcel’ dispossession of indigenous Australian’s through to 1 January 1994, although compensation is payable under the Act for post-1975 validation if compensation would have been payable if the native title-holders instead held freehold title (the ‘similar compensable interest test’). In 1998, following a change of Commonwealth Government and the High Court of Australia decision in The Wik Peoples v State of Queensland,50 the NTA was amended to allow the further validation of ‘intermediate period acts’, which includes a range of acts undertaken between 1 January 1994 and 24 December 1996.51 In order to accommodate this validation, the NTA stipulates that the provisions of the Racial Discrimination Act 1975 (Cth) ‘do not affect the validation of past acts or intermediate period acts’.52 This is possible because Australian native title is protected by the Racial Discrimination Act 1975 (Cth), legislation which the Commonwealth government can amend or override. This marks an important point of departure from those jurisdictions that offer indigenous land rights some level of constitutional protection.53 iii. ‘Future Acts’ Affecting Native Title Under the NTA The NTA provides two ways in which ‘future acts’—ie acts which are not past or intermediate period acts—which affect native title may proceed. 49 NTA, Pt 2, Div 2. This validation is only necessary for grants and legislation made after 31 October 1975, when the Racial Discrimination Act 1975 (Cth) came into force, as native title was otherwise vulnerable to extinguishment by executive act prior to this legislation. 50 The Wik Peoples v State of Queensland (1996) 187 CLR 1 (HCA). This decision confirmed that pastoral leases were not necessarily wholly inconsistent with native title rights. The High Court held, however, that to the extent of inconsistency, pastoral leases prevail over native title rights absent the protection of the Racial Discrimination Act 1975 (Cth). 51 NTA, Pt 2, Div 2A. 52 NTA, s 7(3). 53 G Nettheim, ‘Native Title in Other Lands’ (2009) 93 Reform 2. Available at .

334 Sharon Mascher a. Right to Negotiate First, the future acts process makes a future act which affects native title permissible, provided the act could be done if native title-holders instead held ‘ordinary title’ (meaning freehold). In relation to the onshore, these provisions afford native title the same protection from future overriding Crown grants as that enjoyed by freehold. This is achieved by providing native title claimants and holders with procedural rights in relation to the grant of mining tenements (leases and licences) and certain compulsory acquisitions of native title.54 These procedural rights, known as ‘the right to negotiate’, require the Government, native title parties and the applicant for the mining grant to negotiate in good faith in an attempt to agree on whether the act can be done and, if so, on what conditions.55 If an agreement is not reached within six months of the State issuing notice of the proposed act, any of the parties may apply to the National Native Title Tribunal for a determination as to whether or not the act can be done, and on what conditions.56 As such, the ‘right to negotiate’ is not a veto. The draft Nordic Saami Convention also contemplates procedural rights, in the form of ‘negotiations with affected Saami as well as the Saami parliament’.57 As in the NTA, these rights are triggered when a public authority proposes to grant a permit for prospecting or extraction of minerals or other sub-surface resources, and also extends to ‘proposed decisions concerning utilization of other natural resources within such land or water that are owned or used by Saami’.58 The draft Convention goes further than the NTA, in that Article 36 provides that permits or extraction are not to be granted if as a result it would be ‘impossible or substantially more difficult for the Saami to continue to utilise the areas concerned, and this utilization is essential to the Saami culture’, without consent from the Saami parliament and the affected Saami. In accordance with this article, it seems that a proposal to make a decision under the draft Convention at a minimum requires some form of negotiation. The NTA provides a different minimum standard, as a ‘future act’ will not always even trigger the right to negotiate process. A ‘future act’ which does not involve a major disturbance to any land or waters, and which is unlikely to interfere directly with the community or social activities of the relevant native title-holders, or to interfere with areas or sites of particular traditional significance to the relevant native title-holders, may attract only what the NTA calls ‘the expedited procedure’,59 which does not engage the 54 55 56 57 58 59

NTA, ss 29–35. NTA, s 31(1)(b). NTA, s 35(1). Section 39 of the Act provides a list of criteria for making a determination. Draft Nordic Saami Convention, Art 36. Ibid. NTA, s 237 defines future acts attracting the expedited procedure.

Australian Native Title Act 1993 (Cth) 335 right to negotiate. Notice of expedited procedure is given as a matter of course in relation to exploration and prospecting tenements.60 If a native title party believes that the expedited procedure should not apply, that party has four months within which to lodge an objection. If an objection is lodged, an arbitral body must determine whether the proposed act indeed attracts the expedited procedure, and if not, the right to negotiate procedures must be observed before the proposed act can proceed.61 Neither the NTA nor the draft Nordic Saami Convention meets the standard set by Article 32(2) of the UN Declaration on the Rights of Indigenous Peoples, which requires that the State consult and cooperate in good faith with the indigenous peoples concerned … in order to obtain their free and informed consent prior to the approval of any project affecting their lands or territories and other resources, particularly in connection with the development, utilization or exploitation of mineral, water or other resource.

But the NTA expedited procedure sets the procedural rights bar lower than those contemplated in the draft Convention. When the right to negotiate is engaged, section 33 of the NTA provides: Profits, income etc (1) Without limiting the scope of any negotiations, they may, if relevant, include the possibility of including a condition that has the effect that native title parties are to be entitled to payments worked out by reference to: (a) the amount of profits made; (b) any income derived; or (c) any things produced; by any grantee party as a result of doing anything in relation to the land or waters concerned after the act is done.

However, if the Tribunal is asked to make a determination whether or not an act may be done, the Tribunal cannot set a condition that has the effect that native title parties are to be entitled to payments worked out by reference to: the amount of profits made; any income derived; or any things produced by any grantee party as a result of doing anything in relation to the land or waters concerned after the act is done.62 Profit sharing, therefore, can be acquired only through negotiations.

60

NTA, s 29. For a summary of the 82 decisions made by the National Native Title Tribunal and Federal Court through to 30 April 2011 relating to objections to use of the expedited procedure, see Deputy President of the National Native Title Tribunal the Hon CJ Sumner (with the assistance of the Legal Services Unit), Guide to Future Act Decisions Made under the Right to Negotiate Scheme (Perth, Commonwealth of Australia, 2011) 27–106. 62 NTA, s 38(2). 61

336 Sharon Mascher The draft Nordic Saami Convention contemplates not only compensation for damage inflicted by activities associated with the sharing of resources, but also the sharing of profits derived from such activities. Unlike the NTA, however, the draft Convention does not leave the question of whether profits will be shared to the negotiations of the parties. Rather, Article 37 provides: If national law obliges persons granted permits to extract natural resources to pay a fee or share of the profit from such activities, to the landowner, the permit holder shall be similarly obliged in relation to the Saami that have traditionally used and continue to use the area concerned.

This article offers Saami the assurance that they will be treated like other landowners. However, the profit-sharing provision in the NTA has the potential to go much further than this, contemplating profit sharing irrespective of whether other landowners would be so entitled. However, given that profit sharing may only be negotiated, the requirement that parties engage in ‘good faith negotiations’ is of particular importance in relation to this issue. Indeed, the obligation on miners to negotiate in good faith, before any other option arises to proceed with their development, is one of the few legal safeguards that native title parties have under the future act regime.63

There has been a significant amount of litigation directed at the meaning of the words ‘good faith’, but in over 40 cases the Tribunal has only found on four occasions that a grantee or government party has not acted in good faith.64 One of these decisions was, however, later overturned by the Federal Court. Indeed, both the Tribunal and Federal Court65 have tended to define good faith in terms of bad faith—that is, ‘negotiation in good faith is negotiation that is not in bad faith’.66 Bad faith is, in turn, something that is assigned by reference to ‘the quality of the party’s conduct’ and ‘what a party has done or failed to do in the course of negotiations’.67 The Tribunal has provided what is known as the ‘Njamal indicia’ of what might be called ‘bad faith’, which include ‘the adoption of a rigid non-negotiable position,

63 T Calma, Aboriginal and Torres Strait Islander Social Justice Commissioner, Native Title Report (Australian Human Rights Commission, 2009) 34. 64 S Burnside, ‘Negotiation in Good Faith under the Native Title Act: A Critical Analysis’ (2009) 4 Land, Rights, Laws: Issues of Native Title 5. See Western Australia v Taylor [1996] NNTTA 34, (1996) 134 FLR 211; Western Australia/Dimer/Equs Limited [2000] NNTTA 290; Cox v FMG Pilbara Pty Ltd [2008] NNTTA 90; and Cosmos/Alexander/Western Australia/Mineralogy Pty Ltd [2009] NNTTA 35. 65 For a summary of the 53 decisions made by the National Native Title Tribunal and Federal Court through to 30 April 2011 relating to the definition of ‘good faith’ in the context of the right to negotiate under the NTA, see Deputy President, above n 61, 107–60. 66 Burnside, above n 64, 5. 67 FMG Pilbara Pty Ltd v Cox [2009] FCAFC 49, para 20.

Australian Native Title Act 1993 (Cth) 337 a failure to make counter-proposals, or a tendency to shift position just as an agreement seems within reach’.68 In its 2009 FMG Pilbara Pty Ltd v Cox decision, the Full Federal Court of Australia held that there is no need for negotiations between the parties to be more than ‘embryonic’,69 and that negotiations that ‘had reached only a preliminary stage’ at the end of the six-month period when the grantee party lodged its application for determination did not, without more, equate to a failure to negotiate in good faith.70 Further, the Full Federal Court held that if the stalled negotiations were focused on the whole of a claim or project-wide basis71 rather than on the particular tenement the subject of the right to negotiate, there is no requirement to start the negotiation process again with a narrower focus.72 Instead, the Court focused on the ‘quality of [the grantee party’s] conduct’ rather than an attempt to reach an agreement,73 and held that there was ‘no reason to think that the ordinary meaning of “good faith” should not apply’,74 thereby denying any special significance to the native title context. In the aftermath of this decision, native title lawyer Sarah Burnside suggested that ‘only an unusually careless proponent risks being found to have failed to meet the threshold’.75 To address this concern, Greens’ Senator Siewert put forward an Independent Members Bill which proposes, amongst other things, that the right to negotiate be strengthened by requiring the parties to negotiate in good faith, ‘using all reasonable efforts’ to reach agreement,76 including, but not limited to, a list of explicit criteria.77 In addition, the Bill proposes that the onus of proving that negotiation has been in good faith is on the party asserting good faith.78 The 2011 Bill also proposes an amendment to allow the Tribunal to make determinations subject to profit-sharing conditions,79 to ensure that an application for a determination is not used to circumvent a profit-sharing outcome. The Bill was referred to the Legal and Constitutional Affairs Legislation Committee,

68 Burnside, above n 64, 4. For a complete list of these indicia of bad faith, see Western Australia v Taylor [1996] NNTTA 34, (1996) 134 FLR 211. 69 FMG Pilbara Pty Ltd v Cox, above n 67, para 23. 70 Ibid, para 27. 71 Ibid, paras 36 and 38. 72 Ibid, para 38. 73 Ibid, para 20. 74 Ibid, para 27. 75 S Burnside, ‘Take it or leave it’: how not to negotiate in good faith (paper delivered at the 10th Annual Native Title Conference, Melbourne, 3 June 2009). 76 Native Title Amendment (Reform) Bill 2011, proposed new s 31(1)(b). 77 Ibid, proposed new s 31(1A). 78 Ibid, proposed new s 31(2A). 79 Ibid, proposed new s 38(2).

338 Sharon Mascher with the majority of the Committee recommending that the Senate should not pass the Bill.80 The Bill, however, remains before the Senate. It is perhaps in relation to the right to negotiate that the NTA experience might offer the most valuable lessons for implementation, or perhaps refinement, of the draft Nordic Saami Convention. This is because Article 36 does not specify the content of the duty to negotiate, or identify who decides that consent rather than negotiation is required.81 It similarly does not contain the words ‘good faith’, let alone go further and define what this means in the context of the utilisation of natural resources. To the extent that negotiation, rather than consent, is relied upon, the principle of free and informed prior consent referred to in the UN Declaration on the Rights of Indigenous Peoples is traded for the opportunity to negotiate. In order to ensure that the resulting right of negotiation is not undermined, clear definition of how the parties to the negotiations should discharge this right might be preferable. b. Indigenous Land Use Agreements Lastly, it is important to note that while the bulk of the provisions relating to future acts in the NTA focus on the codification of procedural rights to facilitate the doing of future acts, the NTA’s Preamble also recognises the importance of negotiated agreements. A general reference in the NTA, pre1998, to native title-holders making agreements on a regional or local basis,82 was included at the behest of Aboriginal negotiators who were interested in the Canadian, and to a lesser extent New Zealand, experience.83 Such was the interest in regional agreements that the Commonwealth Government, industry and the National Indigenous Working Group all supported the inclusion of the more comprehensive indigenous land use agreement (ILUA) provisions when the NTA was amended in 1998. In keeping with this, the 1998 amendments to the Act provide that a future act will be valid if it is undertaken in accordance with an ILUA. The ILUA provisions mean that voluntary agreements between a native title group and others may be negotiated to allow for, and condition, the use and management of land and waters. Who the ‘others’ are—and specifically whether they include government—and what type of matters may be covered by an ILUA depends on the specific type of agreement. Importantly, however, these type of agreements allow native title-holders an avenue to 80 Legal and Constitutional Affairs Legislation Committee, Native Title Amendment (Reform) Bill 2011 (Commonwealth of Australia, 2011) 39. 81 N Bankes, ‘Indigenous Land and Resource Rights in the Jurisprudence of the InterAmerican Court of Human Rights: Comparisons with the draft Nordic Saami Convention’, (2011) 54 German Yearbook of International Law 231. 82 NTA, s 21(4), as it was pre-1998 amendment. 83 M Langton and L Palmer, ‘Modern Agreement Making and Indigenous People in Australia: Issues and Trends’ (2003) 8(1) Australian Indigenous Law Reporter 1.

Australian Native Title Act 1993 (Cth) 339 negotiate the terms upon which future acts, or classes of future acts, may be undertaken outside the otherwise onerous provisions of the NTA. When an ILUA is registered with the Tribunal, all parties to the agreement and all persons holding native title in relation to the land are bound by its terms.

B. Outcomes of the NTA Between 1 January 1994, when the NTA came into effect, and 30 June 2011, a range of outcomes may be identified. One hundred and sixty determinations of native title have been registered, with native title determined to exist over the whole or part of the determination area in 119 of those cases and not to exist in 41.84 Together, these native title determinations relate to approximately 1,228,373 sq km, or 16 per cent, of land in Australia.85 During this same period, 497 ILUAs were registered, covering 1,234,129 sq km of the land mass of Australia and 5,435 sq km over sea (below the high water mark).86 Perhaps not surprisingly, the most frenetic activity, particularly in the resource-rich states of Western Australia and Queensland, continues to occur in relation to the future acts process. In the two years between 1 July 2009 and 30 June 2011, a total of 10,581 future act notices were advertised.87 Of these, 9,574 asserted that the expedited procedure was engaged, in response to which 3,600 objections were lodged.88 During this same two-year period, applications covering 249 tenements were finalised, with 138 tenements cleared for grant following Native Title Tribunal decisions that the future act could proceed.89 Along with these tangible outcomes, commentators stress that indigenous peoples whose rights have been recognised have also received other important intangible benefits as a result.90 Yet there remains a great deal of dissatisfaction with the legislation. The average timeframe for native title applications to be determined, whether by consent or through litigation, is over six years.91 And, as of 31 December

84 National Native Title Tribunal, National Report: Native Title (August 2011) 1. This Report is available at . 85 Ibid, 2. 86 Ibid. 87 Ibid, 13. 88 Ibid. 89 Ibid. 90 K Smith, The Native Title Amendment Act 2009: Minor amendments or just playing it small and safe? (paper delivered at the National Indigenous Legal Conference, University of Adelaide, 24 September 2009) 6. Available at . 91 Between 1 January 1994 and 30 June 2011, the average timeframe for an application to be determined by consent was 5 years and 10 months (70 months), and the average timeframe for an application to be finalised through litigation was 6 years and 11 months (83 months). National Native Title Tribunal, above n 84, 2.

340 Sharon Mascher 2010, 458 native title claimant applications remained, of which 179 (or 39 per cent) were filed before 1 January 2001.92 In relation to the future act processes, in the NTA’s 17-year history, the National Native Title Tribunal has only three times reached the determination that a proposed future act could not be undertaken.93 And the progress that has been made under the NTA has come at a significant financial cost. In 2009 it was estimated that since the NTA’s inception a ‘global amount’ of Au$1.4 billion had been spent, with the National Native Title Tribunal estimating, based on current rates of disposition, that another 30 years will be required to deal with outstanding claims.94 In 2009, Tom Calma, the Aboriginal and Torres Strait Islander Social Justice Commissioner, assessed the system as follows:95 [W]hen I am asked how the native title system is operating in Australia, it is difficult to give a simple answer. On the one hand, recognition of connection to land and other beneficial agreements and relationships have been achieved for some Indigenous peoples. But on the other hand, it is a tough system, which at times can be quite cruel. Ultimately, I am not aware of anyone who considers that native title is operating in a way that achieves what it was intended to, nor comes close to realising the human rights of Aboriginal peoples or Torres Strait Islanders.

Why is a piece of legislation which provides for the recognition and protection of native title perceived to have failed to realise the human rights of Australia’s indigenous peoples? To answer this question, at least in part, this chapter will now turn to examine some of the main structural criticisms that have been directed at the NTA.

V. STRUCTURAL CRITICISMS OF THE AUSTRALIAN NTA

A. The Allocation of Certainty and Security of Title Commenting in 1993, Noel Pearson described the manner in which certainty is allocated as ‘perhaps the greatest failing of the native title system 92

Ibid, 2–3. See Weld Range Metals Limited/The State of Western Australia/Ike Simpson and Others on behalf of Wajarri Yamat [2011] NNRR 172 (September 2011); Seven Star Investments Group Pty Ltd/Western Australia/Wilma Freddie and Others on behalf of Wiluna [2011] National Native Title Tribunal (24 March 2011); Holocene Pty Ltd/The State of Western Australia/Western Desert Lands Aboriginal Corporation (Jamukurnu—Yapalikunu) [2009] National Native Title Tribunal Australia 49 (27 May 2009). All future act determinations are available at . For a summary of the 32 decisions made by the National Native Title Tribunal and Federal Court through to 30 April 2011 relating to determination of a future act, see Deputy President, above n 61, 164–218. 94 Smith, above n 90, 6. 95 T Calma, ‘Native Title in Australia: Good Intentions, a Failing Framework?’ (2009) 93 Reform 1. Available at . 93

Australian Native Title Act 1993 (Cth) 341 in Australia’.96 While the only certainty that the NTA provides native titleholders is the certainty of extinguishment, whenever non-indigenous interests have faced uncertainty as to the validity of their title, the legislature has responded by amending the NTA to restore certainty to those interests. Following Mabo (No 2), there was a great deal of uncertainty as to the validity of State legislation or Crown grants made after 31 October 1975, when the Racial Discrimination Act 1975 (Cth) took effect. Faced with pressure from state governments, farmers and the mining industry to validate all existing titles and to legislate to override native title in order to deliver ‘certainty’,97 the NTA responded by validating ‘past acts’. As Richard Bartlett notes, the ‘backdating of the Racial Discrimination Act 1975 (Cth) so as to require equality before the law prior to 1975 was never considered’.98 More than that, the legislature did not contemplate a process of negotiations or agreement for the validation of past acts, which might otherwise have been captured in native title determinations and the management and use of native title lands.99 Instead, the certainty of rights and interests held by others, including the Crown, ‘was guaranteed up front in the NTA’.100 The situation was significantly exacerbated by the 1998 amendment to the NTA, passed following a change of Commonwealth Government and in the wake of the High Court’s Wik decision. In Wik, the High Court held that pastoral leases were not necessarily wholly inconsistent with native title rights, meaning that native title must ‘yield’ to the rights of pastoral leaseholders only to the extent of inconsistency.101 The validation of ‘intermediate period acts’ over land which was previously the subject of any lease, including a pastoral lease, was explained on the basis that prior to Wik it had been assumed pastoral leases extinguished native title, and the need to resolve the associated ‘uncertainty’ created by the decision.102 Indeed, the 1998 amendments went well beyond the validation of acts on pastoral leases, delivering ‘bucket loads of extinguishment’ and further shifting the balance of power from indigenous peoples to already powerful non-indigenous interests.103

96

Pearson, above n 34, 3. Bartlett, above n 7, 36–39; and Nettheim, above n 53. 98 Bartlett, above n 7, 40. 99 Ibid. 100 Pearson, above n 34, 4. 101 The Wik Peoples v The State of Queensland (1996) 187 CLR 1 (HCA), 132–33 per J Toohey, writing a postscript on behalf of himself, Gaudron, Gummow and Kirby JJ. 102 For a discussion of the ‘uncertainty’ around this decision, see G Edgerton, ‘Overcoming Uncertainty: Wik Peoples v Queensland’ (1988) 25 Melbourne Journal of Politics 21. See also Bartlett, above n 7, 56. 103 For a detailed discussion of the 1998 amendments to the NTA, see R Bartlett, ‘A Return to Dispossession and Discrimination: the Ten Point Plan’ (1997) University of Western Australia Law Review 44. 97

342 Sharon Mascher By comparison, the rights of native title-holders, already reduced to remnants by the process of colonisation and the operation of the NTA ‘past act’ and ‘intermediate period’ validations, are left uncertain under the NTA regime pending determinations and the exercise of complex procedures. As Noel Pearson notes, [t]he extinguishment of native title was made certain by the legislation, but the existence of native title was not. All that was guaranteed was protection from hostile extinguishment.104

The United Nation’s Committee on the Elimination of Racial Discrimination noted with concern105 the persistence of diverging perceptions between governmental authorities and indigenous peoples and others on the compatibility of the 1998 amendments to the Native Title Act with the [International Convention on the Elimination of all Forms of Racial Discrimination]. The Committee reiterates its view that the Mabo case and the 1993 Native Title Act constituted a significant development in the recognition of indigenous peoples’ rights, but that the 1998 amendments roll back some of the protections previously offered to indigenous peoples and provide legal certainty for Government and third parties at the expense of indigenous title.

Arguably, the weighting of certainty in favour of non-indigenous rights and interests represents a policy choice by the architects of the NTA rather than a deficiency inherent in adopting a legislative response to recognise native title. However, in the Australian context, where resource-rich states and the mining industry form powerful alliances, it should perhaps not come as a surprise that the resulting legislative framework has consistently chosen to compromise the rights of native title-holders in favour of the rights of others.106 As Kevin Smith has said:107 In the chaos and over the cacophony of innumerable stakeholders, a common refrain is the need for faster, fairer and cheaper resolution of native title claims. From an Indigenous perspective, what we have got in return have been policies that border on the painfully malevolent (1998 Amendments where the then Deputy Prime Minister promised bucket-loads of extinguishment) to the insipidly painful (here, I would include the 2007 and 2009 amendments).

This stands in contrast to the Norwegian Government’s response to a court decision that diminished Saami reindeer-herding rights in favour of other 104

Pearson, above n 34, 5. UN Committee on the Elimination of Racial Discrimination (CERD), UN Committee on the Elimination of Racial Discrimination: Concluding Observations, Australia, 14 April 2005, CERD/C/AUS/CO/14, at para 16. Available at . 106 For a discussion of the Australian political landscape in the lead-up to the passage of the NTA, see T Rowse, ‘How We Got a Native Title Act’ (1993) 65(4) The Australian Quarterly 110; and Bartlett, above n 7, 33–44. 107 Smith, above n 90. 105

Australian Native Title Act 1993 (Cth) 343 landowners, reversing the established proposition that Saami held reindeerherding rights within reindeer husbandry areas. It was thought these rights had been established in the Norwegian Reindeer Husbandry Act of 1978. Concerned about meeting its constitutional and international obligations to provide these rights with proper protection, the Government amended the legislation to impose on the landowner the onus of proving that land is not subject to a reindeer husbandry right.108 This is not because there were no other stakeholders’ interests or strong competing interests. Rather, in both Norway and Sweden, the Saami reindeer-herding right is a civil law right, which may be exercised over both private and public lands, regardless of their ownership. Yet in the face of competing interests, the Norwegian Government, in this case, chose to ‘bring clarity’ by confirming Saami rights. The draft Nordic Saami Convention hints at a balancing approach in circumstances where the land is ‘used by Saami in association with others’, in which case the exercise of rights by Saami and the others ‘shall be subject to due regard for each other and the nature of the competing interest’.109 Beyond this, the draft Convention does not provide any specific guidance, except to specify that particular regard shall be paid to ‘the interests of Saami reindeer herding’. Informed by the Nordic experience in relation to recognised reindeer-herding rights, which are exercisable over private land, it may be that certainty will be achieved by allowing the coexistence of competing rights.

B. Strict Interpretation of Legislation and a Move Away from the Common Law While the Australian High Court declared in Mabo (No 2) that terra nullius was ‘legally dead’, in the words of Ambelin Kwaymullina,110 far from resting in peace, terra nullius has become the ghost story that continues to shape relationships between Western law and Indigenous peoples, and the growing obsession of the Australian courts with the notion of ‘traditional laws and customs’ is itself a part of this larger tale.

Australia’s pre-occupation with ‘traditional laws and customs’ finds its roots in the Mabo (No 2). The conclusion that Australia’s common law recognised native title but did not create it, necessarily meant that native title was sourced in the indigenous society’s occupancy of, and connection to, the land pre-sovereignty. However, in exploring this source, together

108 109 110

Ravna, ch 7 of this volume, section III.C. Draft Nordic Saami Convention, Art 34. Kwaymullina, above n 26, xvi.

344 Sharon Mascher with the content of native title, Brennan J placed a ‘notable emphasis’111 on traditional laws and customs, which now resonates in the Australian doctrinal framework.112 Yet, as Simon Young’s careful analysis of the High Court judgments reveals, there is little to suggest that the High Court intended a ‘strict tradition-focused approach to content’,113 or that a strict approach was intended on the issue of constancy and continuity of laws and customs114—and for the most part that suggestion may be explained by the context of the case itself. The statutory definition of ‘native title’ in section 223(1) of the NTA echoes the language of Brennan J’s judgment. Section 223(1) and (2) read: 223—(1) The expression native title or native title rights and interests means the communal, group or individual rights and interests of Aboriginal peoples or Torres Strait Islanders in relation to land or waters, where: (a) the rights and interests are possessed under the traditional laws acknowledged, and the traditional customs observed, by the Aboriginal peoples or Torres Strait Islanders; and (b) the Aboriginal peoples or Torres Strait Islanders, by those laws and customs, have a connection with the land or waters; and (c) the rights and interests are recognised by the common law of Australia. (2) Without limiting subsection (1), rights and interests in that subsection includes hunting, gathering, or fishing, rights and interests.

As a statutory translation of Brennan J’s articulation of common law native title, many expected this section would allow for the evolution of the common law within the strictures of the Act.115 In the words of Paul Keating, Labour Prime Minister of Australia when the NTA was passed, ‘[i] t is beyond discussion that the government I led intended native title to be determined by the common law principles laid down in Mabo (No 2)’.116 This sentiment was echoed by Liberal Senator Minchin, who said, during the debates on the 1998 amendments to the NTA: ‘I repeat that our act preserves the fact of common law; who holds native title, what it consists of, is entirely a matter for the court of Australia. It is a common law right.’117 Yet the 111

S Young, The Trouble with Tradition (Sydney, Federation Press, 2008) 236. Ibid, 234. 113 Ibid, 248. Young provides a full analysis of the relevance of ‘traditional laws and customs’ in the context of the Mabo (No 2), ibid, 233–65. 114 Ibid, 265. 115 L Strelein, ‘A Captive of Statute’ (2009) 93 Reform. Available at . 116 P Keating, ‘Time to Revisit Native Title Laws’, Lowitja O’Donoghue Oration, University of Adelaide, 30 May 2011. 117 See Senate, Parliamentary Debates (Hansard) 2 December 1997, Commonwealth Government Printer, Canberra, at 10171, quoted in Yorta Yorta (2002) 214 CLR 422, 572. 112

Australian Native Title Act 1993 (Cth) 345 subsequent interpretation of section 223(1) by the courts, and particularly by the Australian High Court in Western Australia v Ward118 and Yorta Yorta Aboriginal Community v Victoria,119 has produced the greatest dissatisfaction with the NTA—moving away from the common law and resulting in both an unduly onerous burden of proof to establish native title, and the particularisation and fragmentation of the resulting rights and interests. In Yorta Yorta, the majority of the High Court emphasised the role of the native title legislation over the common law.120 The statutory interpretation exercise undertaken by the High Court in Yorta Yorta focused on both the proof of native title and the content of any resulting rights and interests. As to the former, the High Court concluded that native title claimants needed to prove: (a) that traditional laws and customs existed pre-sovereignty; (b) that the society asserting the right or interest continued to exist to the present; and (c) that each generation of that society had continued to acknowledge and observe laws and customs substantially uninterrupted since sovereignty. Yorta Yorta marked a significant departure from the approach of other common law jurisdictions, where continuity is presumed once the existence of a pre-sovereign society has been proven.121 The Yorta Yorta decision, instead, placed the heavy onus of proving the continuity of traditional laws and customs, traceable from pre-sovereignty through to the assertion of the native title right or interest, on the native title claimants.122 Subsequent reflections by courts on the ‘Yorta Yorta formulation’123 explain the High Court’s focus on the continued acknowledgement and observance of laws and customs, ‘because the rights and interests the subject of a determination of native title … are the product of the laws and customs of the society’.124 From this starting point,125 [p]roof of the continuity of a society does not necessarily establish that the rights and interests which are the product of the society’s normative system are those

118

Western Australia v Ward (2002) 213 CLR 1 (HCA). Yorta Yorta, above n 117. 120 Ibid, 37. 121 See Calder v A-G (British Columbia), above n 22; and Amoudu Tijani v Secretary, Southern Nigeria, above n 22. 122 For a full discussion of the continuity test developed by the High Court, see Young, above n 111, 312–47. 123 Bodney v Bennell [2008] FCAFC 63. 124 Ibid, 74. 125 Ibid. 119

346 Sharon Mascher that existed at sovereignty, because those laws and customs may change and adapt. Change and adaptation will not necessarily be fatal. So long as the changed or adapted laws and customs continue to sustain the same rights and interests that existed at sovereignty, they will remain traditional. An enquiry into continuity of society, divorced from an inquiry into continuity of the pre-sovereignty normative system, may mask unacceptable change with the consequence that the current rights and interests are no longer those that existed at sovereignty, and thus not traditional.

In other words, native title claimants have the onus of proving the continuity, from generation to generation, of the pre-sovereignty traditional laws and customs through to the present day. Proof of a continuous community is not sufficient. In Western Australia v Ward,126 the High Court of Australia also emphasised that the claims before the court ‘are claims made under the NTA for rights that are defined in that statute’.127 And in defining those rights recognised by the statute, the High Court was satisfied that the NTA imposed a requirement additional to the common law definition. Specifically, section 223(1)(c) requires that the particular native title right or interest claimed must also be recognised at common law—a stick in the common law bundle of rights, varying in ‘number and kind’.128 This approach has made it difficult to capture non-specific non-usufructuary rights important to Aboriginal peoples, such as the ‘right to speak for country’,129 and has necessarily meant a fragmentation of the rights and interests possessed by Aboriginal people. In the words of Gleeson CJ and Gaudron, Gummow and Hayne JJ in Ward:130 The difficulty of expressing a relationship between a community or group of Aboriginal people and the land in terms of rights and interests is evident. Yet that is required by the NTA. The spiritual or religious is translated into the legal. This requires the fragmentation of an integrated view of the ordering of affairs into rights and interests which are considered apart from the duties and obligations which go with them.

Subsequent determinations of native title-holders’ rights and interests reflect this approach. For example, in Attorney-General of the Northern

126

Western Australia v Ward, above n 118. Ibid, per Gleeson CJ, Gaudron, Gummow and Hayne JJ at para 16. 128 Lardil Peoples v Queensland [2004] FCA 298 71. 129 S Dorsett and S McVeigh, Managing the Meeting of Laws: Native Title, Plurality and the Limits of Jurisdictional Thinking (paper delivered at the Between Indigenous and Settler Governance Conference, University of Western Sydney, 18–20 August 2011). 130 Ward, above n 118 at [14] per Gleeson CJ, Gaudron, Gummow and Hayne JJ. 127

Australian Native Title Act 1993 (Cth) 347 Territory v Ward,131 the court held that the rights and interests held by the native title group were described as132 non-exclusive rights to use and enjoy the land and waters in accordance with their traditional laws and customs, being: (a) the right to hunt on the land, to gather and use the natural resources of the land such as food, medicinal plants, wild tobacco, timber, stone and resin, and to have access to and use of natural water on the land; (b) the right to live on the land, to camp, to erect shelters, and to move about the land; (c) the right to engage in cultural activities on the land, to conduct ceremonies, to hold meetings, and to participate in cultural practices relating to birth and death; (d) the right to have access to, maintain and protect the sites of significance on the land of the NT determination area; and (e) the right to make decisions about the use and enjoyment of the NT determination area by Aboriginal people who recognise themselves to be governed by Aboriginal traditional laws and customs.

The reduction of native title in this way, to a ‘social and cultural artefact’, has been contrasted with the common law conceptualisation of native title in jurisdictions such as Canada, where communal title gives rise to the right of possession, of both the surface and the subsurface.133 Together, these decisions have significantly raised the already onerous burden of proof placed on native title claimants to provide a continuous connection, and provide only a fragmented version of native title rights and interests when that hurdle is cleared. In the wake of these decisions, the Federal Court has on several occasions ‘denied any recognition of native title rights and interests in the same breath as acknowledging that the peoples before them are the same peoples that owned that land more than 200 years ago’.134 As Lisa Strelein argues, the approach taken by the courts seems extraordinary, reading significant import into words that were part of a barely developing Australian jurisprudence at the time they were captured in statute, while ignoring the rich traditions of common law native (or Aboriginal) title both prior and since Mabo.135

The current Chief Justice of the Australian High Court, Robert French, has said that the emphasis on statutory interpretation in Yorta Yorta has 131 Attorney-General of the Northern Territory v Ward [2003] FCAFC 283 (9 December 2003). 132 Ibid. 133 Pearson, above n 34, 9, referencing the Supreme Court of Canada decision Delgamuukw v British Columbia (1991) 79 DLR (4th) 185. 134 Calma, above n 95, 1. 135 Strelein, above n 115.

348 Sharon Mascher resulted in the court moving away from the ‘original concept of the Act as a vehicle for development of the common law of native title’, suggesting that the court in so acting ‘may have transformed the Act from a vessel for the development of the common law into a cage for its confinement’.136 The result? Well, focused on strictly interpreting statutory provisions rather than recognising and protecting native title, the High Court has ‘disavow[ed] native title as a doctrine or body of law within the common law’.137 Rather than considering the vast body of law that has developed in the Privy Council, the United Stated Supreme Court, the Supreme Court of Canada and the cases from around the common law world which underpinned the Mabo (No 2) decision, the High Court has ‘decided to draw a line between the two centuries of common law leading up to Mabo, and the development of Australian native title law since the Native Title Act’. It has done so by focusing on the NTA as a statute and treating native title as an exercise in statutory interpretation—an exercise made possible by the codification of native title rights in that statute. Where now for native title in Australia? There is a range of suggestions. Some have suggested that section 223 of the NTA should be repealed, to allow a common law definition of native title to operate.138 Others, such as the current Chief Justice of the High Court of Australia, have proposed the introduction of a presumption of continuity into the Act, to shift the burden of proof that now rests so heavily on native title claimants.139 The Native Title Amendment (Reform) Bill 2011 currently before the Australian Senate (and referred to above) proposes new sections to implement the suggestion of now Chief Justice French, inserting a rebuttable presumption of continuity.140 It also proposes a clarification of the definition of ‘traditional’, such that the laws and customs are traditional if they remain identifiable over time.141 Questions of proof and content of rights are also important for the Saami. Article 34 of the draft Nordic Saami Convention states that protracted traditional use of land or water areas constitutes the basis for … ownership rights to these areas for the Saami in accordance with national or international norms concerning protracted use.

As Nigel Bankes has noted, despite the reference to international norms, the question of Saami rights to land and water appears to be left to domestic

136

Quoted in Keating, above n 116. Pearson, above n 34, 11. 138 Strelein, above n 115, citing Noel Pearson. 139 Chief Justice R French, ‘Lifting the Burden of Native Title: Some Modest Proposals for Improvement’ (2009) 93 Reform. Available at . 140 Native Title Amendment (Reform) Bill 2011, proposed s 61AA. 141 Ibid. 137

Australian Native Title Act 1993 (Cth) 349 law for resolution.142 Little direction beyond this is provided in the draft Convention, except to provide, in Article 35, that appropriate procedures for examining Saami rights to land and water ‘shall be available under national law’. If the experience from Norway continues to inform the development of domestic procedures to recognise Saami rights to land and water in other Nordic States, some of the mistakes of the NTA will be avoided. Most notable in this regard, as Ravna discusses in chapter seven, is the court’s approach in the Selbu case. There, the Court assessed the evidence in a new way, ‘emphasising the significance of Saami cultural features, reindeer, husbandry characteristics, migration patterns and land use’, thereby putting reindeer herders and landowners on a more equal footing.143 In addition, as noted above, the Norwegian Reindeer Husbandry Act of 1978, as amended, places the onus of proving that the land is not subject to a reindeer husbandry right on the landowner.144 However, it will be necessary under the national laws of the Nordic countries to evaluate evidence of Saami use of land according to traditional laws and customs in order to ascertain title and/or rights and interests. The challenge for Nordic countries will be to make sure that they do so in a holistic manner and do not place an unduly heavy burden on the Saami people to prove their existing rights.

VI. CONCLUSION

While the Australian NTA is ‘a’ response to recognising native title and reconciling the resulting rights with other rights created by the settler State, many would argue that it is not the best response. The resulting legislative framework, as interpreted by the National Native Tribunal and the courts of Australia, provides a code in which the burdens are heavy on Aboriginal and Torres Strait Islanders seeking to prove native title rights. Those who are successful often have their native title rights reduced to particularised fragments, protected only from further infringement by the procedural rights afforded by the right to negotiate. The draft Nordic Saami Convention also offers a response to recognising the rights of Saami people to land and water. While articulating general principles, much of the detail is left for future refinement under national law. This refinement will no doubt be informed by the Nordic experience with Saami people and the existing legislative frameworks, in place to recognise the important right of reindeer herding. It might also be informed by 142 143 144

Bankes, above n 81, 29. Ravna, ch 7 of this volume, section III. Ibid.

350 Sharon Mascher the Australian experience, not least to ensure that the States respond in a different way to the issues that have given rise to criticism of the NTA. And, having found a different way forward, the draft Nordic Saami Convention and the resulting national laws may also help to inform future Australian responses.

14 The Forms of Recognition of Indigenous Property Rights in Settler States: Modern Land Claim Agreements in Canada NIGEL BANKES

I. INTRODUCTION

T

HIS CHAPTER DEALS with some questions relating to the form of the legal recognition accorded to indigenous lands by one settler State (Canada) under the terms of modern land claim agreements and similar legal arrangements. These questions include: the form and content of the indigenous title; the identity of the title-holder and the relationship between State norms identifying the title-holder and customary norms; the legal limitations associated with the indigenous title; and the relationship between the individual and the collective in terms of the right to use land. Section II. introduces these legal issues by setting them in the context of what are often considered to be marginalised forms of property held by or for indigenous people as some sort of reserve, reservation or trust property set aside for indigenous people. Section III. examines one particular critique of the legal rules pertaining to reserves and similar ‘protective’ lands in light of the writings of Hernando de Soto.1 Section IV. examines how land ownership issues have been dealt with in modern land claim agreements in Canada. Section V. considers whether there are any lessons in all of this for those involved in the development and subsequent implementation of the Nordic Saami Convention. Section VI. offers brief conclusions. The chapter focuses on the law and practice in Canada, but also draws on examples from other jurisdictions.

1 H de Soto, The Mystery of Capital: Why Capitalism Triumphs in the West and Fails Everywhere Else (New York, Basic Books, 2000).

352 Nigel Bankes II. RESERVATIONS, RESERVES AND ABORIGINAL TRUST LANDS

The general history of colonialism in settler States is a history of dispossession of the lands of indigenous peoples. The project of colonialism was aided and abetted by intellectual constructs such as ideas of terra nullius, the presumed inferiority of indigenous peoples, and legal doctrines like the doctrine of tenure, the right of pre-emption and the concept of radical title.2 But settler States also historically recognised that some land should be set aside for indigenous peoples generally as part of a conception of the wardship responsibility of the settler State. These lands include Indian reserves in Canada, reservations in the United States and Aboriginal trust lands in Australia. In some cases these lands were set apart pursuant to the terms of treaties, and in some cases by way of discretionary executive act on the part of the government.3 In some cases religious societies were involved in the acquisition of lands for indigenous peoples. The legal status of these lands is typically very complex. In Canada, for example, the Indian Act4 defines a reserve as ‘a tract of land, the legal title to which is vested in Her Majesty, that has been set apart by Her Majesty for the use and benefit of a band’. A reserve therefore is held by the federal Crown for the benefit of the collective. Other provisions in the Act deal with questions such as how reserve lands may be alienated to third parties, and how individual band and First Nation members may acquire individual rights to particular tracts of reserve lands as against the collective. Historically, a third party could acquire an interest in reserve land only if the lands were first surrendered to the Crown either absolutely, to permit the third party to acquire a fee simple title,5 or conditionally, to allow the third party to take under the terms of a lease, with the Crown as lessor and the third party as the lessee.6 The procedure under the Act therefore 2 As to the first two, see Ravna, ch 7 of this volume, and J Tully, Strange Multiplicity: Constitutionalism in an Age of Diversity (Cambridge, Cambridge University Press, 1995). On radical title, see DV Williams, ‘Customary Rights and Crown Claims: Calder and Aboriginal Title in Aotearoa New Zealand’ in H Foster, H Raven and J Webber (eds), Let Right be Done: Aboriginal Title, the Calder Case, and the Future of Indigenous Rights (Vancouver, UBC Press, 2007) 155–76; and on the doctrine of tenures, see S Hepburn, ‘Disinterested Truth: Legitimation of the Doctrine of Tenure Post-Mabo’ (2005) 29 Melbourne University Law Review 1 and G Simpson, ‘Mabo, International Law, Terra Nullius and the Stories of Settlement: an unresolved jurisprudence’ (1993–94) 19 Melbourne University Law Review 195. 3 Both approaches were used in Canada. The prairie reserves were largely set aside pursuant to the numbered treaties; reserves in British Columbia were mostly set aside by executive act, see eg the Musqueam reserve discussed in Guerin v R [1984] 2 SCR 335. 4 RSC 1985, c I-5, s 2(1). 5 Absolute surrenders gave rise to difficult constitutional issues (because the underlying title was considered to be vested in the province: St Catherine’s Milling and Lumber Co v R (1888) 14 App Cas 46) which had to be resolved through inter-governmental agreements. See generally GV La Forest, Natural Resources and Public Property under the Canadian Constitution (Toronto, University of Toronto Press, 1969). 6 Indian Act, above n 4, ss 37–41.

Forms of Recognition 353 continued the Crown’s longstanding practice, dating back to the Royal Proclamation of 1763,7 of interposing itself between the First Nations and the individual settlers. Thus, indigenous lands in Canada, whether on reserve or the subject of an aboriginal title, are said to inalienable except to the Crown.8 While this policy was generally justified in terms of protecting indigenous people, it also afforded the Crown a monopoly on land dealings.9 Other legal incidents circumscribe the legal nature of a reserve. For example, section 89 of the Act provides that the real and personal property of an Indian or a band situated on a reserve is not subject to any legal process such as charge, pledge, mortgage, seizure or execution. The rules that deal with the acquisition or recognition of individual property rights on reserve (ie, the right of an individual First Nation member) and the legal character of those rights are equally complex.10 In some cases the recognition of the right of an individual to use particular property may be based on the underlying customary rules of the First Nation, while in other cases the procedure may be more bureaucratic. The most secure forms of entitlement require not only band council approval but Ministerial approval as well. The process may be highly politicised and contested within the band, and the allocation of individual rights may have long-term economic

7

RSC 1985, App II, No 1. Delgamuukw v The Queen in Right of British Columbia [1997] 3 SCR 1010, para 129 and para 113. Chief Justice Lamer explains the doctrine partly on the basis of the doctrine of tenure and partly to ensure that indigenous people are not ‘dispossessed of their entitlements’. 9 See RA Epstein, ‘Property Rights Claims of Indigenous Populations: The View from the Common Law’ (1999) 31 University of Toledo Law Review 1, 13. For New Zealand, see A Parsonson, ‘The fate of Maori land rights in early colonial New Zealand: the limits of the treaty of Waitangi and the doctrine of aboriginal title’ in D Kirkby and C Coleborne (eds), Law, history, colonialism: The reach of empire (Manchester, Manchester University Press, 2001) 173–89; and J Weaver, ‘The construction of property rights on imperial frontiers: the case of the New Zealand Land Purchase Ordinance’ in Kirkby and Coleborne (eds), 221–39. Weaver points out that direct alienations preceded the Treaty of Waitangi, and in some cases continued after the land Purchase Ordinance was enacted. In some cases settlers wanted the assurance of direct dealings with Maori and land officials were prepared to turn a blind eye. See also on inalienability, PG McHugh, Aboriginal Title: The Modern Jurisprudence of Tribal Rights (Oxford, Oxford University Press, 2009) 102, 148, 334, referring inter alia to the brokerage function of the Crown and suggesting that the ‘Crown’s monopsony … also had the consequence of stifling the commercial potential’ of the indigenous interest. 10 For a legal account, see J Woodward, Native Law (Toronto, Carswell, 1990), especially ch IX, ‘Management and Development of Indian Land’, and ch X, ‘Individual Possession and Development of Reserves’; for a discussion of the rules as well as the actual practice, see T Flanagan, C Alcantara and A Le Dressay, Beyond the Indian Act: Restoring Aboriginal Property Rights (Montreal, McGill-Queen’s University Press, 2010); and see also J Baxter and M Trebilcock, ‘“Formalizing” Land Tenure in First Nations: Evaluating the Case for Reserve Tenure Reform’ (2008–2009) 7 Indigenous Law Journal 45, 68–88. The individual forms of entitlement under the Act include: certificates of possession (s 20), certificates of occupation (s 20); and leases. 8

354 Nigel Bankes distributional consequences.11 There has been considerable litigation on these forms of rights in recent years.12 The government’s land registry is poorly developed by contrast with provincial land title registries.13 The complexity of these rules has made it difficult for First Nations to encourage commercial development on reserve. While innovative First Nations and their lawyers have developed legal techniques that permit developments to occur (eg long-term head leases to band-owned corporations, with subleases to corporate tenants or residential homeowners), the resulting complexities increase the transaction costs of doing business on reserve and may serve to discount the value of reserve-based property rights.14 The details of these legal arrangements no doubt differ in the jurisdictions of other settler States, but there are some common themes.15 Thus, the basic property interest is held by the State, a trustee or a corporation for the benefit of the collective;16 the title is generally inalienable or not freely alienable; and the title may be protected from ordinary legal process. There are some well-known exceptions. For example, the General Allotment Act17 (the Dawes Act) of 1887 in the United States permitted individual tribal members to take an individual allotment which ultimately might be alienated to a non-tribal person.18 Most commentators consider that the Dawes Act was aimed at undermining the political and collective authority of the tribes by creating individual entitlements. Most agree that the result was

11 Eg, Flanagan et al, above n 10, 105, point to the example of the Westbank First Nation, where there has been significant real estate development on reserve lands held under a certificate of possession (CP) ‘by a small number of individuals and families’ and ‘all of the profit goes to the individual CP holders, while the band receives no revenue’. 12 See, eg, Songhees Indian Band v Canada (Minister of Indian Affairs and Northern Development), 2006 FC 1009 and Parker v Okanagan Indian Band Council, 2010 FC 1218. 13 Indian Act, ss 21 and 55. 14 For a case that refers to some of the legal techniques, see Reference re Stony Plain IR No 135 [1982] 1 WWR 302. On the discounting of land values on reserve, see Musqueam Indian Band v Glass [2000] 2 SCR 633. 15 For a survey covering experiences in the United States and New Zealand as well as Canada, see MA Stephenson, ‘Individual Title versus Collective Title in Australia: Reflections on the North American and New Zealand Experiences of Indigenous Title to Land’ in E Cooke (ed), Modern Studies in Property Law, vol 4 (Oxford and Portland, Ore, Hart Publishing, 2007) 295–328. 16 In New Zealand, for example, Maori land may be held in a variety of ways, including corporations and trusts, although in some cases title will simply be registered in the names of a number of individuals, creating doubts as to the authority of those individuals to deal with the land and in relation to other Maori who might have interests in the land. For an excellent discussion of the complexities of Maori land law, see C Linkhorn, Maori Land and Development Finance (2006) Centre for Aboriginal Economic Policy Research, Discussion Paper No 284/2006. 17 24 Stat 388, 25 USC 331. 18 At least one Canadian treaty, Treaty 8, allowed individual members to take land in severalty. For discussion, see Chingee v Canada (Attorney General), 2005 BCCA 446.

Forms of Recognition 355 disastrous.19 Not only did the Act create a patchwork of land ownership within a reservation, making it difficult to apply tribal laws on a uniform basis, but it frequently resulted in the fragmentation of land titles as successive generations of tribal owners died intestate, thereby creating one of Heller’s paradigmatic examples of an anti-commons.20 The period of allotment came to an end in 1934 with the passage of the Indian Reorganization Act,21 but its consequences live on.

III. INDIGENOUS LAND HOLDINGS AND THE MYSTERY OF CAPITAL

The legal restrictions associated with these forms of State-protected tribal lands have caused some to question whether such restrictions are desirable. While on the one hand commentators argue that reserve lands should be inalienable to preserve an indigenous land base, and to protect that land base from market forces and more generally the forces of globalisation, others argue that this is excessively paternalistic. More specifically they say that such rules may have the side-effect of condemning indigenous communities to continuing poverty, since the legal arrangements preclude the community and individual members of the community from unlocking the capital value of the land.22 This argument draws on the writings of Hernando de Soto in his book The Mystery of Capital.23 There, de Soto addresses himself to the question of why it is that certain societies have been able to achieve a high level of material development, while others, some with rich resource endowments, have not been able to escape poverty. de Soto’s thesis is that the principal difference between the two groups of States lies in those that provide for the formal titling of land and the recognition of individual rights to land, and those which rely on informal forms of property which are typically

19 Stephenson, above n 15, 305 and the literature cited in fn 57 of that essay; Baxter and Trebilcock, above n10, 107–08 and also discussing (at 98–102) the experience in the 19th century in New Zealand, noting one additional problem (absenteeism) that may accompany the individuation of titles. 20 M Heller, ‘The Tragedy of the Anticommons: property in the transition from Marx to markets’ (1998) 111 Harvard Law Review 621, 685–87. Multiple owners may also be a problem in New Zealand. Linkhorn, above n 16, eg, quotes data to the effect that there are 2.3 million ownership interests in the 15,000 sq km of Maori land in New Zealand. 21 25 USC 461. 22 Flanagan et al, above n 10; D Lea, Property Rights, Indigenous People and the Developing World: Issues from Aboriginal Entitlement to Intellectual Ownership Rights (Leiden, Martinus Nijhoff Publishers, 2008) esp ch 4, ‘Tully and de Soto on Uniformity and Diversity’. Lea notes (at 92) that ‘indigenous enclaves following a diversity of laws and customs with respect to property, within both North America and Australia, may well ensure the necessity for the continuing financial support from the dominant group’. 23 de Soto, above n 1.

356 Nigel Bankes collective. Within such collective title schemes individuals may have rights, but they are rights which may be very difficult to explain to community outsiders. Formal titles, with uniform content and attributes, allow individuals to unlock the capital value of land by using it as security for loans and to provide incentives for improvements to the land. Formal titles also encourage the delivery of utility services. Informal titles make it virtually impossible to leverage land to secure capital from sources outside the community, or at the very least they dramatically increase the transaction costs of doing so, since the capital provider needs to satisfy itself as to the nature of the internal informal rules and any necessary community consents that may need to be acquired. de Soto also notes that transactions within an informal property system will always be heavily politicised, contested and negotiated because of the multiple consents that may be required to deal with the land. In his work de Soto focuses on the differences in property systems as between nations. He does not examine the position of indigenous peoples within settler States, but others have been quick to draw the analogies. In Canada, Tom Flanagan, Chris Alcantara and André Le Dressay have relied enthusiastically on de Soto to support their arguments for the adoption of a First Nation land titles and property ownership statute.24 Similarly, in Australia, a libertarian think tank, the Centre for Independent Studies, has argued in a series of papers that communal ownership ‘impedes the productive use of land, employment creation and economic development’ on Aboriginal lands, just as does communal ownership worldwide.25 The Centre recommended individual ownership as a solution, and the idea even obtained some official traction when the National Indigenous Council of Australia (NIC), a Commonwealth advisory body that functioned from 2004–08, released a set of draft Indigenous Land Tenure Principles which, while affirming the fundamental significance of an underlying communal interest in land for indigenous culture, also asserted that individuals should be able to obtain transferable leasehold interests ‘consistent with individual 24 Flanagan et al, above n 10, especially ch 10, and noting that the Nisga’a First Nation has already adopted (2008) the Nisga’s Land Title Act, available at . See in addition C Alcantara, ‘Individual Property Rights on Canadian Indian Reserves: The Historical Emergence and Jurisprudence of Certificates of Possession’ (2003) 23 Canadian Journal of Native Studies 391; T Flanagan, First Nations? Second Thoughts (Montreal, McGill-Queen’s University Press, 2000), esp at 131, referring to inalienability as a problem that has ‘plagued Canada’s Indian reserves’; C Alcantara, ‘Reduce transaction costs? Yes. Strengthen property rights? Maybe: The First Nations Land Management Act and economic development on Canadian Indian reserves’ (2007) 132 Public Choice 421; T Flanagan and C Alcantara, ‘Individual Property Rights on Canadian Indian Reserves’ (2003–2004) 29 Queen’s Law Journal 489. Baxter and Trebilcock, above n 10, offer a much more nuanced account. 25 H Hughes and J Warin, ‘A New Deal for Aborigines and Torres Strait Islanders in Remote Communities’ (1 March 2005) Issue Analysis no 54, 4, available at .

Forms of Recognition 357 home ownership and entrepreneurship’.26 One result was an amendment to the federal Native Title Act in 2006 to permit lands to be leased to governmental entities so as to permit subleases to third parties. While the head lease requires Land Council consent, the subsequent subleases do not.27 Others are more cautious and sceptical. For example, Godden and Tehan28 express the concern that much will be ‘lost in translation’ if native title legislation seeks to title individual owners. They argue that western conceptions of property have become increasingly abstract and that such reductionism, by virtue of its focus on economic objectives and value, may operate to emphasise the physically-oriented access and use components of native title and to minimize the cultural connections and the broader relationship context for native title.29

Hepburn takes a similar position, arguing that a process of individuating native title would destroy the role of native title as an intercultural recognition device; ‘title would be reconceived in terms of proprietary rather than cultural status’.30 Godden and Tehan also offer a more pragmatic or empirical critique of de Soto’s claim, since they observe that ‘blackfellas’ get ‘whatever is left over’ (ie, properties that are deemed marginal from the perspective of settler society).31 Furthermore, the Aboriginal estate may be limited to a loosely connected bundle of rights rather than the functional equivalent of an estate in fee simple. In such circumstances it is hardly likely that the indigenous property interest will ‘provide a sufficiently robust and defined interest to support secured lending by financial institutions’.32 Similarly, 26 The former NIC website has been disabled. The principles are reproduced as Annexure 2 of Aboriginal and Torres Strait Islander Social Justice Committee, Native Title Report, 2005, Report No 4/225, available at . 27 Aboriginal Land Rights (Northern Territory) Act 1976, Act No 191 of 1976 (as amended), s 19A. For discussion of the background to and implementation of these provisions, see L Terrill, ‘The Day of the Failed Collective: Communal Ownership, Individual Ownership and Township Leasing in Aboriginal Communities in the Northern Territory’ (2009) 32 University of New South Wales Law Journal 814. 28 L Godden and M Tehan, ‘Translating Native Title to Individual “Title” in Australia: Are Real Property Forms and Indigenous Interests Reconcilable?’ in Cooke (ed), above n 15, 262–94. See also M Tehan, ‘Customary land tenure communal titles and sustainability: The allure of individual title and property rights in Australia’ in L Godden and M Tehan (eds), Comparative Perspectives on Communal Lands and Individual Ownership: Sustainable Futures (Abingdon, Routledge, 2010) 353–81. 29 Godden and Tehan, ‘Translating Native Title’, above n 28, 266. 30 S Hepburn, ‘Transforming Customary Title to Individual Title: Revisiting the Cathedral’ (2006) 11 Deakin Law Review 63, 68. 31 Godden and Tehan, ‘Translating Native Title’, above n 28, 289, emphasis in the original. Accord, Baxter and Trebilcock, above n 10, 113. 32 Godden and Tehan, ‘Translating Native Title’, above n 28, 288. See also at 291, where the authors question ‘whether commercial lenders are prepared to accept remote land as security’.

358 Nigel Bankes Altman et al, examining the debate as to individual versus community titles, conclude that ‘there is no evidence to suggest that individual ownership of land is either necessary or sufficient to increase rates of economic development or housing construction on Aboriginal Land’.33 Linkhorn’s work in New Zealand acknowledges that the protective approval role of the Maori Land Court undoubtedly increases the transaction costs associated with developing Maori land, which therefore makes it a less favourable investment option than general land,34 but nevertheless he concludes that it is business rather than legal reasons that ultimately make Maori land less attractive.35 Others36 fear that an individualised property regime in which land can be pledged as security will lead to the dismemberment and loss of reserve lands, and these commentators question whether the consumer and individualistic values that lie behind a push to recognise individual property holdings are really the values that indigenous communities wish to adopt. Lea37 discusses the arguments pro and con, while noting the conflict between de Soto’s emphasis on uniformity (to unlock capital) and Tully’s emphasis on multiplicity and diversity (as a response to both modern constitutionalism38 and the forces of globalism).39 In sum, the historical efforts of some settler governments to create legallyprotected residual spaces for indigenous peoples also created considerable legal complexity. These complex arrangements have made it difficult to ascertain the rights of individuals versus the rights of the collective, as well as the legal status of third parties who might be interested in doing business on these legally-protected areas. While the protected status of these lands has helped preserve and protect a limited indigenous land base, there is an ongoing debate as to whether these very restrictions make it difficult to stimulate economic development on reserve, thereby condemning, in the views of some, reserves and their residents to poverty.

33 JC Altman, C Linkhorn and J Clarke, ‘Land Rights and Development Reform in Remote Australia’ (September 2005), Centre for Aboriginal Economic Policy Research, Discussion Paper No 276/200, ix, available at . 34 Linkhorn, above n 16, 12. 35 Ibid, 21. Linkhorn’s paper includes two case studies: one involving mortgaging Maori land to support an investment on non-Maori land; and the other involving a leasehold-based recreational/residential development on Maori land. Both resulted in litigation questioning the authority of the Maori corporation to enter into these types of legal arrangements. 36 J Rowinski, ‘Why privatization of reserve lands risks aboriginal ruin’ (24 September 2010), The Lawyers Weekly, 15–17, available at . 37 Lea, above n 22. 38 Tully, above n 2. 39 J Tully, ‘Consent, Hegemony, and Dissent in Treaty Negotiations’ in J Webber and C Macleod (eds), Between Consenting Peoples: Political Community and the Meaning of Consent (Vancouver, UBC Press, 2010) 233–56.

Forms of Recognition 359 IV. MODERN ARRANGEMENTS FOR TITLING INDIGENOUS LANDS, CANADA

Section II. above described how settler States have typically set the terms of indigenous landholding on reserves and similar properties. Most of the practices described here had their origins in the nineteenth century. Section III. referred to recent discussions in property rights and development literature that focus on the economic implications of customary tenures and restrictions on the alienability of indigenous lands. This section considers the implications of this debate for modern arrangements for titling indigenous lands. Over the last 40 years or so, the governments of at least some settler States, prompted by court rulings, international standard setting exercises, and the political and moral need to seek reconciliation, have moved to recognise indigenous title lands through agreements (the so-called modern land claim Agreements in Canada), through statutes such as the Native Title Act in Australia and the Alaska Native Claim Settlement Act,40 and through the proceedings of entities like the Waitangi Tribunal in New Zealand.41 But what form of title have these arrangements recognised? How have these arrangements answered the questions posed in the introductory paragraph to the chapter: What is the form and content of the indigenous title? What is the identity of the title-holder and the relationship between State norms governing the title and customary norms? What are the legal limitations associated with the indigenous title? And what is the relationship between the individual and the collective in terms of the right to use land? Some of the literature (quite apart from the de Soto literature) emphasises that these are profoundly difficult issues to deal with, in part because of the different cultural meanings and values associated with land and property,42 the different uses that may be made of property and the different groups that may have a claim on that territory. Some members of the community may want access for harvesting purposes, others may have special spiritual

40

1971, now 43 USCA 1601. Linkhorn, above n 16, 1–2, notes that some tribal groups that have received land as a result of Treaty of Waitangi settlements negotiated with the Crown, have elected to register the lands as general lands rather than have them subject to the Maori Land Court jurisdiction. 42 R Overstall, in consultation with V Napoleon and K Ludwig, ‘The Law is Opened: The Constitutional Role of Tangible and Intangible Property in Gitanyow’ in C Bell and V Napoleon (eds), First Nations Cultural Heritage and the Law: Case Studies, Voices and Perspectives (Vancouver, UBC Press, 2008) 92–113, noting (at 92–93) that the categories of property (eg cultural property) may be established by the settler State but may be either meaningless within an indigenous legal system or have different meanings: ‘This is not to say that Canadian legal categories should be applied to indigenous law; rather, it is to say that indigenous legal terms used in the context of the relevant indigenous legal order should be recognized as being just as valid as the categories of the state legal order.’ 41

360 Nigel Bankes responsibilities to discharge.43 How should the competing claims of different groups or nations be dealt with? In responding to these questions, implicitly or explicitly the chosen process for recognising indigenous property interests inevitably privileges some interests over others, and as a result ‘may fail to recognize the diversity of Aboriginal interests and the plural bases for those interests’ and in doing so may exclude some from the debate ‘in a way that reduces their self-determination’.44 This section of the chapter focuses on Canada’s northern land claim Agreements: the James Bay and Northern Quebec Agreement (1977) (JBNQA), the Inuvialuit Agreement (1984) (IFA), the Sahtu Dene and Metis Agreement (1994) (Sahtu), the Gwich’in Agreement (1992), the Yukon Umbrella Final Agreement (1995) (UFA) and the specific Yukon First Nation Agreements, the Nunavut Final Agreement (1993) (NFA), the Tlicho Agreement (2005) and the Labrador Inuit Agreement (2005) (LIA).45 There are three distinct parts. The first part deals with indigenous title lands (ie, the lands that the Agreements confirm as being owned by the indigenous party to the agreement). The second part deals with the certainty provisions of the Agreements (ie, the provisions of the Agreements that secured the Government’s title to non-indigenous lands). The third part offers some preliminary observations as to how the indigenous parties to these Agreements have dealt with the internal aspects of ownership (ie, how decisions will be made surrounding the use of collective property by the individual beneficiaries of the Agreements or by third parties).

A. Indigenous Title Lands All of the Agreements provide that the indigenous party to the Agreement shall have exclusive title to some (but not all) lands within its traditional territory. But how is that interest expressed? Is the indigenous title simply recognised, or does it result from a Crown grant? How does the agreement describe the legal quality of the title? What is the constitutional status of title lands? What is the content of the indigenous title? How does the recognition of indigenous title accommodate (or not) existing third party interests? In whom does title vest? Does the Agreement impose restrictions on the alienability of indigenous title lands?

43 Particularly useful here is J Bern and S Dodds, ‘On the Plurality of Interests: Aboriginal Self-Government and Land Rights’ in D Ivison, P Patton and W Sanders (eds), Political Theory and the Rights of Indigenous Peoples (Cambridge, Cambridge University Press, 2000) 163–79, esp 164–65. 44 Ibid, 165. 45 All of these agreements are available at .

Forms of Recognition 361 i. Conveyance or Recognition? The doctrine of aboriginal title as adumbrated in the Canadian courts makes it clear that one of the distinctive features of an aboriginal title is its source; it is not based on a grant from the Crown or recognition in an instrument like the Royal Proclamation of 1763.46 This understanding has led the negotiators of at least some Agreements (and perhaps especially the later Agreements) to avoid the use of granting language in identifying lands that are to be treated as indigenous title lands by the Agreement.47 But this has not always been the case. For example, the IFA states that the Inuvialuit ‘shall, by virtue of the Settlement Legislation, be granted title to’ the described lands.48 The earlier JBNQA refers to lands ‘being set aside’,49 but also refers to lands ‘being granted in ownership by Quebec to the Inuit of Quebec and to the Inuit of Port Burwell’.50 The Gwich’in ‘shall receive title’.51 Other Agreements try to avoid words of grant or conveyance completely, and are more agnostic as to the source of title. Thus, Inuit in Labrador simply ‘own in fee simple the Labrador Inuit Lands’,52 and in the Tlicho Agreement the Tlicho government ‘is vested with title’ on behalf of the Tlicho First Nation,53 while the Yukon Agreements provide that the particular First Nation ‘shall have by virtue of this chapter’ the stated interest.54 ii. The Legal Quality of The Title Describing the quality of the title of the lands held under the Agreement as ‘indigenous lands’ poses a conundrum for the negotiators, especially given the discussion above of recognition/conveyance. On the one hand, the indigenous party has an interest in preserving the line of argument that aboriginal title is inherent and distinctive, and has a broad content. On the other hand, negotiators might wish to make sure that the content of the title

46

Delgamuukw, above n 8, para 114. See also ILO Convention No 169, Art 14(1), requiring that ‘[t]he rights of ownership and possession of the peoples concerned over the lands which they traditionally occupy shall be recognized’. For commentary in a Nordic context, see HP Graver and G Ulfstein, ‘The Sami People’s Right to Land in Norway’ (2004) 11 International Journal on Minority and Group Rights 337. The authors note (at 353) that the term ‘recognized’, ‘suggests that the indigenous peoples’ rights are not something “allocated” by the State, but are rights they already hold by virtue of their being an indigenous people who have traditionally occupied an area’. 48 IFA, s 7(1) 49 JBNQA, s 5.1.1. 50 JBNQA, s 6.1.1 and see also s 7.1.1. 51 Gwich’in Agreement, s 18.1.2 52 LIA, s 4.4.1. 53 Tlicho Agreement, s 18.1.1. 54 UFA, s 5.4.1. 47

362 Nigel Bankes is large and not subject to the types of ‘inherent limits’ identified by Chief Justice Lamer in Delgamuukw.55 In order to resolve this conundrum,56 most of the Agreements stipulate that the lands described by the Agreement as indigenous lands shall be held or owned in ‘fee simple absolute’57 or in fee simple.58 The LIA clarifies that fee simple is the equivalent of an estate in fee simple absolute, being the largest estate known in Law, without any proviso, restriction, exception or reservation under any Law, except as set out in the Agreement.59

In the Tlicho Agreement, Tlicho title is to be held ‘in the form of a fee simple title,’ which title ‘shall not be construed as having the effect of extinguishing any rights’ protected by section 35 of the Constitution Act, 1982.60 Characterising the interest as an estate in fee simple resonates with one of the traditional liberal justifications for the institutions of private property, that is property as freedom, or property as providing a space which lies beyond government control.61 Describing the indigenous interest as a fee simple may create the largest space within which an indigenous property interest may operate within the familiar rules of settler law, but it does beg the question of whether the space is large enough. Somewhat more complex are the provisions in the Yukon Agreements. Thus, these Agreements all provide that the First Nation shall have a title described as ‘the rights, obligations and liabilities equivalent to fee simple’.62 This type of deeming language seems designed both to avoid terms of grant and perhaps to avoid the implication that a fee simple title will necessarily 55 In Delgamuukw, above n 8, one of the leading aboriginal title cases in Canada, Chief Justice Lamer took a broad view of the content of aboriginal title. For him the title includes oil and gas (paras 122 et seq), and is certainly not confined to traditional uses of the land (paras 118 and 132). On the other hand he suggested that the aboriginal title-holder could not put the lands to uses that destroy the value of the land for present and future generations. Thus he suggests that lands valued for hunting could not be used for a strip mine, and lands valued for cultural purposes could not be used for a strip mall (para 128). 56 Delgamuukw, ibid, was decided after many of the agreements negotiated here were already in place; before Delgamuukw was available there would have been real doubts about the breadth of the content of an aboriginal title. 57 IFA, s 7(1). 58 Gwich’in Agreement, s 18.1.2. An exception is the JBNQA, which refers to Quebec granting ownership but does not use a more technical descriptor of the form of ownership; perhaps this is explainable simply because the civil law property regime would be the default regime. 59 LIA, s 4.4.2. 60 Tlicho Agreement, s 18.1.1. 61 See CA Reich, ‘The New Property’ (1964) 73 Yale Law Journal 733, 771. On ideas of space and a fee simple title as ‘an umbrella for a range of rights … for the management and regulation of land’, see Tehan, above n 28, 358–59. 62 UFA, s 5.4.1.1(a) and (b), emphasis added. This title applies to the surface land description. Where mineral lands are included in the title, the title is simply described as the ‘fee simple title in the Mines and Minerals’.

Forms of Recognition 363 extinguish an aboriginal title in the same lands. And on this point the UFA provides that ‘nothing … constitutes an admission by Government that an aboriginal claim, right, title or interest can coexist’ with the rights described in the deeming clauses.63 iii. Constitutional Status of Indigenous Lands Under the Terms of Land Claims Agreements In general we can say that lands that are subject to an unextinguished aboriginal title have a special constitutional position in Canadian law,64 as do Indian reserves. The terms of modern land claim Agreements universally change this position with respect to those lands that are confirmed as indigenous lands, and declare, in one way or another, that indigenous lands are no longer ‘lands reserved’ within the meaning of the Constitution.65 In practical terms this means that all federal and provincial/territorial laws of general application will apply to the lands, subject to the terms of the land claim Agreement itself (which will render some laws inapplicable) and in some cases subject to the terms of self-government agreements which may provide the indigenous party with the opportunity to ‘back out’ of (ie make inapplicable) a relevant provincial/territorial law of general application.66 iv. The Content of the Indigenous Title Under the Agreements Most of the Agreements contemplate two categories of indigenous land titles: (i) those lands that include mines and minerals; and (ii) a rather larger area of lands that excludes mines and minerals (but which is not necessarily confined to a traditional surface estate).67 There are some exceptions. For example, under the Tlicho Agreement, all of the Tlicho title lands include the mines and minerals,68 while under the Labrador Agreement none of the Labrador Inuit Lands includes the mines and mineral estate; but on the other hand, the Labrador Inuit own ‘an undivided 25 percent interest, with the Province, in all Subsurface Resources’.69

63

UFA, s 5.2.2. In technical terms aboriginal title lands are ‘lands reserved’ within the meaning of s 91(24) of the Constitution Act 1867, and ‘interests other than that of the province in the same’ within the meaning of s 109: Delgamuukw, above n 8. For further discussion, see RDJ Pugh, ‘Are Northern Lands Reserved for Indians?’ (1982) 60 Canadian Bar Review 36; and N Bankes, ‘Delgamuukw, Division of Powers and Provincial Land and Resource Law: Some Implications for Provincial Resource Rights’ (1998) 32 University of British Columbia Law Review 317. 65 NFA, s 2.17.1; UFA s 5.2.6; IFA, s 7(100); Tlicho Agreement, s 2.3.1. 66 P Hogg and ME Turpel, ‘Implementing Aboriginal Self-government: Constitutional and Jurisdictional Issues’ (1995) 74 Canadian Bar Review 187. 67 See, eg, UFA, s 5.4.1; NFA, Art 19; IFA, s 7(1). 68 Tlicho Agreement, s 18.1.1. 69 LIA, s 4.4.1(a). 64

364 Nigel Bankes The Agreements generally further specify the content of the surface title. For example, the NFA provides that the Inuit surface title includes ‘specified substances’ which are defined to include sand and gravel, etc as well as carving stone.70 The LIA notes that title lands include carving stone and geothermal resources.71 Since the Agreements, with the exception of the Tlicho Agreement, all recognise split estates (ie, a situation in which the surface title is vested in A and the subsurface or mineral title vested in B), it is important that the Agreements also deal with how to resolve disputes and priorities as between different owners. The relevant provisions tend to be technical (and deal with a broad range of potential conflicts), but broadly speaking the Agreements provide that where the indigenous title does not include mines and minerals, the government is still reasonably free to provide third parties with rights to the mines and minerals, including oil and gas; and that those third parties will generally be able to acquire a right of surface access to those lands, either by negotiating an agreement with the surface owner or by obtaining something like a right of entry order from a surface rights board or equivalent, and upon payment of appropriate compensation.72 v. In Whom is Title Vested at the Outset? The Agreements use a variety of language to describe the party in whom title is formally vested at the outset. In the Yukon Agreements it is simply the ‘Yukon First Nation’,73 and the Agreements contemplate that the First Nation may register that title in the Land Titles Office.74 Labrador Inuit Lands are under the administration, control and management of the Nunatsiavut Government.75 The JBNQA was more prescriptive. Thus, section 6.1.1 contemplated that land ‘granted in ownership by Quebec’ shall be allocated to the communities in approximately equal amounts; title shall be vested in an Inuit community corporation incorporated under special Quebec legislation for each community;76 the lands shall be held by the community corporation ‘for Inuit community purposes, which shall include the use of lands by the Inuit Community Corporations for commercial, industrial, residential or other purposes’;77 soapstone shall ‘belong to the

70 71 72 73 74 75 76 77

NFA, s 19.2.1 and the definition of ‘specified substances’. LIA, s 4.4.1, and ‘Specified Materials in Specified Material Lands’. See, eg, NFA, Art 21; UFA, ch18 and ch 8. UFA, s 5.4.1. The Tlicho Agreement, s 18.1.1 is similar. UFA, s 5.2.3, and s. 5.9.1 and s 5.10.1. LIA, s 4.4.4. JBNQA, s 7.1.2. JBNQA, s 7.1.3.

Forms of Recognition 365 respective Inuit Community Corporations’.78 The NFA vests title in the ‘designated Inuit organization’ (DIO).79 vi. Restrictions on Alienation As we have already seen, the common law aboriginal title is inalienable except to the Crown, and this same policy is carried through into the Indian Act. Most but not all of the Agreements considered here restrict the right of beneficiaries permanently to alienate indigenous lands outside the community. For example, the Inuvialuit Agreement provides that the Inuvialuit Land Corporation may exchange lands with Canada but otherwise may not convey Inuvialuit lands to anybody other than Inuvialuit individuals or corporations controlled by the Inuvialuit or to Canada.80 Leases are permitted whether they provide occupation rights or authorise the exploitation and production of non-renewable resources on Inuvialuit lands.81 Other Agreements contain provisions to the same effect, except that they are more restrictive in so far as the prohibition on alienation of the full title extends to beneficiaries and beneficiary-owned corporations.82 Thus title under these Agreements may be conveyed only to Canada, or to a ‘designated’ beneficiary organisation.83 The Yukon Agreements are unusual in as much as they do not include any provision restricting the complete alienation of Yukon First Nation (YFN) lands. They do, however, provide that land ceases to be ‘settlement land’ within the meaning of the Agreement if the YFN is divested voluntarily or involuntarily ‘of all of its interest in the lands’.84 Instead of rules restricting alienation, UFA contemplates that each YFN may exercise management powers in relation to its lands, including through the development of by-laws and a land management program.85 Since the Agreements generally impose restrictions on alienability, these restrictions also affect the ability of the indigenous title-holder to pledge land as security. The Agreements generally do not contain specific provisions

78

JBNQA, s 7.1.15(b). NFA, s 19.3.1. 80 IFA, ss 4(43) and (44). 81 Ibid. 82 See, eg, Gwich’in Agreement, s 18.1.5; NFA, s 19.7; Tlicho Agreement, s 18.1.9–18.1.11; and LIA, s 4.4.5 (permitting alienation to Canada or the Province and permitting the grant of any interest less than a fee simple interest). 83 The concept of a ‘designated’ indigenous organisation is simply an organisation that has been designated by the main land claim organisation of the Agreement to perform or exercise some power, function or authority. For the NFA, see both the definition of ‘designated Inuit organization’ (DIO) and Art 39, Inuit Organizations. There are similar provisions in the Sahtu and Gwich’in Agreements. 84 UFA, s 5.11.0. 85 UFA, s 5.5.1. 79

366 Nigel Bankes dealing with this, although they may, for example, provide that indigenous lands may not be seized and sold for the purposes of discharging property tax-related debts.86 vii. Conclusions The northern land claim Agreements answer some of the questions we identified at the outset, but they have little to say about other matters, and in particular have nothing to say about the responsibilities of the new title (however named or designated) holder in making decisions about the use of the land for which title has been confirmed, or about any responsibilities to traditional owners. Implicitly, and as discussed in more detail below, these matters are left to the internal order of the indigenous people concerned, and we return to that in part C. of this section of the chapter. While the Agreements all avoid the complications of vesting title in the Crown as a trustee (the model of the Indian Act), for the most part they retain some forms of restriction on alienation which limit not just the power of sale, but also the power to provide land as security.

B. The Certainty Provisions of the Agreements One of the key goals of the Federal Government of Canada in entering into land claim Agreements is to establish legal certainty in relation to land ownership and title within the traditional territory of each indigenous people. The Government has tried to achieve this objective by the use of a number of clauses, including: (a) a surrender clause; (b) a commitment not to sue; and (c) an indemnity. These clauses (and especially the surrender clause, which is also known as an ‘extinguishment clause’) have been the subject of much debate and criticism, both domestically and internationally.87 The surrender clause generally requires the indigenous party to the Agreement to ‘cede, release, surrender and convey’ all of its ‘aboriginal claims, rights, titles and interests, if any’ within a defined geographical

86

NFA, Art 22 and esp s 22.2.7. For a review of some of these criticisms and some of the literature, see N Bankes, ‘Land claim agreements in Arctic Canada in light of international human rights norms’ (2009) 1 Yearbook of Polar Law 175. 87

Forms of Recognition 367 area.88 All of the Agreements examined here, except the Tlicho Agreement, contain some version or other of the surrender clause.89 In some cases the word ‘surrender’ is omitted and in other cases the word ‘convey’ is omitted, but the general intent is the same. The word ‘surrender’ has been a particularly contentious term because of its primary dictionary meanings, and also because it has a particular context and usage in the Indian Act in relation to reserve surrenders. There has been some variation in the geographical area in relation to which the ‘surrender’ has been taken. In one case, that of the JBNQA, the surrender was narrowly framed and applied only to ‘land in the Territory and in Quebec’. The result of confining the surrender to Quebec was that the beneficiaries of the Agreement retained both an offshore claim90 and a claim to other parts of Canada, including Nunavut91 and Labrador.92 All of the other Agreements examined here express the geographical ambit of the surrender in broader terms. Thus the surrender in the Nunavut Agreement extends to ‘lands and waters anywhere within Canada and adjacent offshore areas within the sovereignty or jurisdiction of Canada’.93 This broad language captures not just land and waters in Canada but also adjacent areas which are not part of Canada,94 including the exclusive economic zone, but over which Canada may have economic and other rights. In some cases the Agreements exclude from the surrender jurisdictions that were not included in the negotiations. This is most obviously the case in relation to the Yukon Agreement, which clearly contemplates that there will be additional negotiations over Yukon First Nation rights in British Columbia and also in the Northwest Territories.95 Lastly, in some cases, the surrender clause excludes from its ambit the lands that the indigenous party selects as lands that it will retain as indigenous lands or settlement lands howsoever called. Such lands therefore may have a dual legal character, as both lands

88 It should be noted that the beneficiaries of these Agreements retain use rights and other forms of rights throughout the area of the land claim Agreement, but space does not allow an analysis of the nature of these forms of property right. 89 The Tlicho Agreement contains both the commitment not to assert a cause of action based upon a right or title and the indemnity provision. See below for further discussion and Tlicho Agreement, s 2.6. The issue as a matter of law is the question of whether the surrender clause adds anything to the commitment not to sue and the indemnity. 90 Nunavik Inuit Land Claims Agreement, 2006. 91 See NFA, Art 40.2. 92 See Nunavik Inuit v Canada (Minister of Canadian Heritage) [1999] 1 FC 38. In that case, the Inuit of Northern Quebec sought and obtained a declaration that they were entitled to be consulted with respect to proposals to create a new national park in the neighbouring province of Newfoundland and Labrador, as part of the settlement of the land claim of the Inuit of Labrador. 93 NFA, s 2.7.1. 94 See the Oceans Act, SC 1996, c 31. The internal waters and territorial sea of Canada are part of Canada, but not the exclusive economic zone beyond the 12-mile territorial sea. 95 UFA, s 2.5.1.

368 Nigel Bankes encumbered by a continuing aboriginal interest and a more conventional status under the non-indigenous title system. This is the case, for example, with the Yukon Agreements.96 The commitment not to sue is just that. The indigenous parties to the Agreement undertake not to assert a cause of action in respect of any of the rights and interests covered by the terms of the surrender clause.97 In some cases the terms of the Agreement may also compromise and settle ongoing litigation. This was the case in the JBNQA, where the parties agreed to settle and withdraw ongoing aboriginal title litigation.98 In some cases the duty not to assert a cause of action extends to specific treaty obligations.99 And in some cases there may be a reciprocal undertaking from the Government. For example, the Yukon Agreements contain the commitment on the part of Government not to assert that the terms of Treaty 11 ‘had or has any effect with respect to the rights, titles or interests of a Yukon First Nation or a Yukon Indian Person on Settlement Land’.100 Lastly, in the indemnity clauses of these Agreements, the indigenous party promises that it will indemnify Canada from all harms that it may suffer as a result of an action brought by a person eligible to participate in the Agreement in relation to the rights and interests that were the subject of the surrender. By making this commitment the indigenous party assumes economic responsibility for its claim that it has the capacity to enter into the Agreement (including the surrender clause) on behalf of all of the eligible participants.101

C. The Internal Aspect of Indigenous Lands As noted in part A. above, the Agreements are largely silent on the question of how the beneficiaries of the Agreement will engage in decision making with respect to the future use of indigenous lands by members of the community or by third parties. Either expressly, or more commonly implicitly, the parties evidently decided that these are matters for the internal rule systems of the beneficiaries to determine, and not matters to be laid out in

96

UFA, s 5.4.1. See, eg, the UFA, s 2.5.1.4; Gwich’in, s 3.1.17; Sahtu, s 3.1.16. 98 JBNQA, s 2.4. 99 See, eg, the Gwich’in and Sahtu Agreements, which both provide that the beneficiaries will not assert a cause of action in respect of inter alia specified treaty rights (eg the right to have reserves set aside): see Gwich’in Agreement, s 3.1.13; and Sahtu Agreement, s 3.1.12. 100 YFA, s 2.5.3. 101 This will not always be clear. In some cases members of the indigenous community may argue that those involved in the negotiations do not represent the community. See, eg, the discussion in Gitxsan Treaty Society, 2012 BCSC 452. 97

Forms of Recognition 369 an agreement that has constitutional status. Thus the Agreements simply do not provide answers to the following sorts of questions: —

—

—

Can an individual beneficiary acquire exclusive use rights in relation to some part of indigenous lands and, if so, how may such rights be acquired? What is the connection, if any, between ownership under the Agreement and ownership under any pre-existing customary rules in relation to the use of particular lands (whether indigenous title lands or Crown lands)? This may be particularly significant given the trade-offs that occurred as part of land selection negotiations. For example, some lands traditionally used by family A may have been titled as indigenous lands, whereas lands traditionally used by family B may now be designated as Crown lands. How does a third party acquire an interest in indigenous lands, and how does the indigenous owner make decisions about these matters?

In order to find answers to these questions it is necessary to consult a variety of sources, which may differ depending upon the particular people and the manner in which they have elected to organise their own affairs. In particular, there may be a distinction depending upon whether the First Nation or Inuit organisation has elected to deal with these matters through selfgovernance arrangements or through administrative rules. Both approaches are described in the next two sections. i. The Self-government Approach Yukon First Nations have generally entered into self-government agreements (SGAs) with Canada and Yukon in addition to their land claim Agreements. These SGAs (which are in a fairly standard form)102 all provide for the adoption of a Constitution which must address a number of matters and may provide for other matters, including matters related to ‘the governing of Settlement Land, or of persons on Settlement Land’.103 In addition, the SGAs state that the First Nations shall have the right to make laws in relation to a number of matters, including the ‘use, management, administration, control and protection of’ First Nation lands and the ‘allocation or disposition of rights and interests in and to’ those lands, including expropriation of interests in lands for First Nation purposes.104 Hence it follows that in order to identify answers to the above types of questions, it will be necessary to consult the Constitution of the particular First Nation

102 103 104

See, eg, the Vuntut Gwitchin First Nation Self-Government Agreement, 1993. Ibid, s 10.0. Ibid, s 13.0.

370 Nigel Bankes and any laws that it may have made in relation to these matters. The position is similar under the terms of the Tlicho Agreement.105 The terms and style of the First Nation Constitutions vary, and some First Nations have yet to develop land and resource laws. In some cases the style of enactment is very similar to the enactments of provincial or territorial governments, while in other cases style and content are dramatically different. For example, the statute book of the Carcross/Tagish First Nation begins with three stories, followed by a section on the use of stories.106 More familiar to a western lawyer are the terms of the Teslin Tlingit Constitution (TTC)107 and that nation’s Settlement Land and Resources Act.108 The TTC (covering some 38 pages of text) establishes and describes four branches of government: the General Council, the Executive Council, the Elders Council and the Justice Council. The government is to be based on the traditional clan system of government, with each of the five clans represented in each of the four branches of government. The General Council may make laws in relation to lands and resources, and may allow the use of Settlement Lands, ‘provided that such development is designed for the general good of the First Nation as a whole’.109 There shall be no disposition of public property except in accordance with the Constitution.110 The Teslin Tlingit Settlement Land and Resources Act contemplates that settlement lands are held in trust by the Teslin Tlingit Council for the use and benefit of present and future generations of citizens, and provides that no grants of a fee simple interest in settlement lands shall be permitted.111 The Act provides for a number of different tenures, notably allocations of settlement land (only to citizens) and leases of settlement lands (to residents of Yukon who need not be citizens). Allocations provide a right of exclusive occupation and use (subject to specified exceptions, including a right of entry for the exploration and production of minerals). Allocations are made by the General Council and may be for a specified or unspecified period of time at the discretion of the General Council.112 Leases, also authorised by the General Council, may be for no longer than 99 years (residential), 25 years (agricultural) and 15 years (commercial, industrial or institutional).

105 The Tlicho Agreement is a combined land claim Agreement and SGA. Section 7.4 sets out the law-making powers of the Tlicho government. 106 Statutes of the Carcross Tagish First Nation. Book One is entitled ‘Traditional Beliefs and Practices: Our Place, Our Responsibilities’; Book Two is entitled ‘Traditional Families, Practices and Beliefs’. Both are available at . 107 Teslin Tlingit Constitution (TTC), last updated 23 March 2009, is available at . 108 Assented to 20 November 1998, available at . 109 TTC, s 10.5. 110 Ibid, s 46. 111 Settlement Land and Resources Act, ss 3, 8 and 9. 112 Ibid, s 26(3).

Forms of Recognition 371 The Act is significant for what it says, but also for what it does not say. The Act, for example, does not address how the competing claims of citizens may be dealt with, and it does not indicate what role custom or an entitlement under customary law might have in making decisions on allocations of settlement land, other than a general reference in the purposes section of the Act to the effect that the Act is to113 establish a comprehensive and integrated process for making decisions that considers the importance of environmental, social, cultural and heritage values of citizens and ensures protection and conservation of Settlement Land and resources for present and future generations.

It would be interesting to explore the role of custom through an empirical research project, looking at a number of different Yukon First Nations. ii. The Administrative Rules Approach Not all of the northern land claim Agreements have, or anticipate, a parallel self-government agreement. This is particularly the case for Nunavut, where the Inuit of Nunavut aimed to achieve their political and self-government aspirations through the creation of the public government of Nunavut.114 Accordingly, Nunavut Tunngavik Inc (NTI), the Inuit land claim organisation, is a federally-incorporated not-for-profit corporation rather than a government. As such, NTI acts through by-laws, resolutions and rules and procedures—and not statutes. Under the terms of the Nunavut Agreement, title to all Inuit-owned lands selected under the terms of the Agreement vests in a body described in the Agreement as the ‘Designated Inuit Organization’ (DIO) (section 19.3.1). Title is registered in the Land Titles Office.115 The DIO is the Tungavik Federation of Nunavut (now NTI as the successor to TFN), unless and until NTI designates another DIO under section 39.1.3.116 As a matter of practice NTI has designated the three regional organisations (Kivalliq, Kitikmeot, Qikitani) as the relevant DIO for the surface title lands found within the region. There has been no further designation of another DIO at the community level. Consequently, notwithstanding that particular lands were selected at the community level (although in some cases the same lands might have been of interest to two or more communities), the competent authority to deal with the lands is a regional level authority. By contrast, NTI has never made a further designation with respect to mineral titles,

113

Ibid, s 3(b). NFA, Art 4, ‘Political Development’. 115 NFA, s 19.3.4. 116 NTI maintains a master list of designations. DIO master list, last updated 8 January 2007, on file with the author. 114

372 Nigel Bankes with the result that all the mineral titles remain vested in NTI, and NTI is therefore the competent decision-maker in relation to the terms and conditions under which a third party might be able to acquire the right to work minerals on Inuit lands. In recent years there has been some discussion of this within NTI, with some regions seeking a transfer of mineral titles to the regional level. An important part of the justification for leaving mineral title with NTI rather than devolving it regionally is that during the land selection negotiations the negotiating team decided to reallocate part of the quantum of mineral title allocated to the Baffin (Qiqitani) Region to more prospective regions, thereby emphasising that, at least at that time, the Inuit collectively viewed the mineral estate as something that might be used to benefit Inuit generally rather than particular communities or regions that happened to be located adjacent to mineralised properties.117 Nunavut Tunngavik Inc confirmed this approach in 2011 with the adoption of a Resource Revenue Policy, which prescribes how resource revenues are to be capitalised or distributed and the sharing formula for revenues subject to distribution.118 Nunavut Tunngavik Inc has established a number of policies relating to the use of Inuit lands in addition to the revenue-sharing policy, as well as number of standard-form agreements. The policies include a mineral policy,119 a uranium mining policy,120 a policy paper on the Management and Use of Inuit Land and Resources, and a set of Rules and Procedures for the Management of Inuit Owned Lands (IOLs), jointly adopted by NTI and the three regional Inuit associations (RIAs).121 The introduction to the Rules and Procedures establishes some of the principles that should underlie administration of IOLs. Thus, the document acknowledges that lands were selected for ownership for a variety of reasons, including renewable or non-renewable resource potential, but also areas of archaeological, historical or cultural importance.122 This reality informs the statement of the aims of Inuit land management:123 The aim of Inuit land management is to administer Inuit Owned Lands on behalf and for the benefit of all Inuit so as to promote the principles of self-reliance and the cultural and social well-being of Inuit. In order to benefit Inuit now and into the future, Inuit Owned Lands must be managed in such a way as to sustain and

117 R McPherson, New Owners in Their Own Land: minerals and the Inuit land claim (Calgary, University of Calgary Press, 2003) esp ch 5. 118 Nunavut Tunngavik Inc, Resource Revenue Policy, approved November 2011, available at . 119 See . 120 See . 121 Rules and Procedures for the Management of Inuit Owned Lands, revised 27 February 2003, on file with the author. The bilingual version of the document is over 150 pages in length. 122 Ibid, vi and NFA, Art 17. 123 Rules and Procedures, above n 121, vii.

Forms of Recognition 373 enhance the value of these lands. Intrinsic to these aims is the active participation of Inuit at all levels of decision-making of Inuit land management. Given that community objectives will invariably differ and that the selection of lands reflects competing interests and preferences, for example, conservation and wildlife harvesting versus mineral development, the management of Inuit Owned Lands must be open, democratic and accountable to Inuit. As each of the three RIAs and NTI are title holders, regional interests and concerns must be balanced by a broader consensus regarding the role of Inuit Owned Lands in achieving the objectives of the Final Agreement.

Community participation is to be achieved in a number of ways, including through community land and resource committees to consider and make recommendations on applications for land use.124 The document claims that while some of its provisions are modeled on the existing land use regime applying on government lands, efforts have been made to tailor the rules to the terms of the agreement and to develop ‘a system that is responsive to Inuit cultural and other needs’ while acknowledging that this must be a work in progress.125 The body of the rules describes a number of different tenures available to non-beneficiaries for a variety of purposes, including commercial leases, mineral agreements and quarrying agreements. But it also addresses how beneficiaries may use IOLs. In general, Inuit may use IOLs for noncommercial purposes without the need for any land-use licence or other similar authority.126 Exclusive rights might be obtained through residential leases (Rules 62–70) and recreational leases (Rules 75–78). The terms of the different tenures vary. A residential lease is available for 25 years in a community and for five years outside. Both are renewable. Recreational leases are to have a maximum duration of five years. Commercial leases may be granted for between three years and 40 years (renewable). The rules expressly address and authorise the mortgaging of subsurface lease rights but not other forms of leases.127 Since the title to IOLs is registered in the Nunavut Land Titles Office, it should be possible to caveat any of the above forms of tenure, or a mortgage or charge against a mineral lease but, in addition, the rules contemplate that NTI shall maintain a Nunavut Land Management Register.128 As with the Teslin Tlingit Settlement Land and Resources Act discussed above, the Rules do not provide much, if any, sense of how they might be administered in practice, or how customary claims to, for example, use a particular harvesting site might be dealt with. The only hint comes in the introduction and the reference to community participation. 124

Ibid at viii. Ibid at ix. 126 Ibid, Rule 53. Both Inuit and non-Inuit may apply; non-Inuit must pay an application fee. Both Inuit and non-Inuit must pay an annual rental of $250. 127 Ibid, Rule 242. 128 Ibid, Rule 13. 125

374 Nigel Bankes iii. Conclusions The modern land claim Agreements in northern Canada create a property space within which indigenous peoples may exercise autonomy. The Agreements generally describe that property space in terms of the common law of Canada, and indeed, in the case of title lands, mostly describe that space in the largest terms known to the common law—the estate in fee simple. While most of the Agreements limit the alienability of these lands, they do not otherwise prescribe rules for management and decision making in relation to these lands. These matters are deliberately left to the internal rule system of the indigenous party to the agreement, leaving it to that party to elaborate rules—whether customary rules, self-government constitutions and laws, or by-laws and policies. Examination of the written documents which are available shows that this is a work in progress for most of the parties to these Agreements. But it also suggests that there are rich opportunities for research here. In particular, it would be useful to know more about the rule systems that have been developed, and the interplay between the terms of the Agreements and the customary entitlements of the beneficiaries to these Agreements. Do these rule systems follow western land administration models, or are they responsive to cultural and other needs. Do they create and celebrate diversity and multiplicity, or do they resort to uniformity for fear that multiple land administration rules will act as a disincentive to third parties who may be interested in developing indigenous lands? In general the Agreements and the arrangements that have developed under those Agreements suggest diversity and multiplicity, and emphasise communal title rather than individual titles. Indeed, the debates that de Soto has triggered globally and in relation to reserve lands in southern Canada and indigenous lands elsewhere, seem to have had remarkably little influence on the development of land claim Agreements in northern Canada.129 While titles may be registered in a central registry, the internal rules behind that title may be difficult to uncover.

V. OBSERVATIONS WITH RESPECT TO THE DRAFT NORDIC SAAMI CONVENTION

Other chapters in this volume have considered the land and water rights articles (Chapter IV) of the draft Nordic Saami Convention in some detail.

129 Note that there is at least some evidence of a push to uniformity in the context of Yukon, specifically in relation to oil and gas resources. The government of Yukon was concerned that the individual Yukon First Nations would each adopt its own (different) oil and gas law, which the government viewed as creating a disincentive to much-needed investment. Accordingly, the government devoted a lot of time and effort to establish a so-called common oil and gas regime which might be adopted by both First Nations and the Yukon government.

Forms of Recognition 375 Here I shall simply comment on four issues. First, the draft Convention and the Canadian land claims Agreements serve very different normative purposes, which makes direct comparisons difficult and hazardous. Secondly, while the Canadian land claims Agreements recognise the title of a collective, the draft Convention contemplates that Saami ownership and use rights may be collective or individual. Thirdly, while the Canadian land claims Agreements seem to be concerned as much with clarifying the State’s property interests as they are with recognising indigenous property interest, this is not the case with the draft Convention. Fourthly, while the Canadian land claims Agreements almost universally contain provisions restricting the alienability of indigenous lands, this idea is not reflected at all in the draft Convention. The following paragraphs elaborate on these points. As discussed in section IV. above, Canada has adopted the land claims Agreement as a principal vehicle for recognising collective indigenous property interests in northern Canada. The fundamental process is one of negotiations (albeit not between equal parties) as an alternative to litigation or some other judicial titling process. A different vision underlies Chapter IV of the draft Convention, one that is based upon recognising Saami property and use rights through the decisions of courts or other similar bodies. It is apparent that the draft Convention and land claim Agreements operate at very different normative levels, and thus they do not admit of direct comparison. The draft Convention will be an international treaty once finalised, which will offer a framework for a new relationship between the indigenous people and the settler State(s). Indeed, it operates somewhat like a constitution or a framework convention in international environmental law. It leaves the details of the new relationship to be worked out at the national level, subject to the standards established by the Convention. By contrast, land claim Agreements offer detailed specifications of the relationship between the settler State and the indigenous community. Chapter IV of the Convention assumes that the Saami can establish ownership (Article 35(1)) and use rights (Article 35(2)) based on protracted usage and in accordance with national and international norms. The States should establish appropriate procedures to examine Saami land rights (Article 35(2)). The draft contemplates that the rights recognised and established through these procedures may be individual or collective.130 Which it will be in any particular case will depend upon the circumstances

130 T Koivurova, ‘The Draft for a Nordic Saami Convention’(2008) 6 European Yearbook of Minority Issues 103, 126, points out that in recognising the possibility of individual interests, the draft differs from ILO Convention No 169 which vests the collective with the property interest. For Koivurova, this different approach ‘may become problematic’, and may lead to conflicts between individuals and the collective in relation to possible alienations by individuals.

376 Nigel Bankes and the manner in which any such claims are litigated, either in the courts or through the alternative appropriate procedures established in accordance with Article 35(2). The draft itself does not provide any guidance on the matter. Mattias Åhrén interprets this provision to mean that the draft does not take a stand on how indigenous peoples’ collective rights to land relates to individual members’ individual right to the same. This in turn implies that the Saami Convention is silent on how lands and natural resources shall be distributed within the Saami society.131

He goes on to say that ‘[c]laims that the Saami Convention particularly benefits certain segments of the Saami society in this regard are hence not justifiable’.132 However, Åhrén does not shed light on when the entitlement will be that of an individual and when the entitlement will be that of the collective. These issues may be resolved by customary law, but as Åhrén himself acknowledges, the role of custom within the framework of the draft Convention is ambiguous and not well developed.133 The identification of the rights-bearer may also be an issue with respect to other Articles of the draft. Thus, Article 36, dealing with the granting of resource rights by the State, refers to negotiations with ‘the affected Saami’ and with the Saami parliament. Similarly, Article 37, dealing with compensation and profit sharing, contemplates as beneficiaries ‘affected Saami’ and/or ‘the Saami that have traditionally used and continue to use the area concerned’. It is not clear whether these articles are concerned only with collective entitlements, or whether they might also include individual entitlements. Again, these issues may be resolved by customary norms, but the draft does not explicitly address the issue. One additional implication that flows from the emphasis that the draft Convention places on the recognition of Saami ownership and use rights, is that the draft Convention is not concerned to confirm or clarify the State’s interest in lands other than those lands to which the Saami or private owners might be able to establish title. This serves to emphasise that the draft Convention treats the Saami as owners in the same manner as other owners in Nordic societies; they are not required to give up anything in order to obtain the State’s recognition of the Saami ownership interest. This is a significant step forward, and one that is much more consistent with international human rights norms than Canada’s approach, which insists on an exchange of interests accompanied by some form of extinguishment of rights in relation to lands that are not confirmed as indigenous lands.

131 M Åhrén, ‘The Saami Convention’ (2007) 3 Gáldu ála—Journal of Indigenous Peoples Rights 8, 27, fn 75. 132 Ibid. 133 Ibid, 18–19.

Forms of Recognition 377 Another feature of Canadian land claims Agreements that has no parallel in the draft Convention is the provisions restricting the alienability of indigenous lands. The Agreements illustrate two different approaches. In the first, the Agreement itself restricts the free alienability of the lands, whereas in the second approach (exemplified by the Yukon Agreements) the First Nations themselves have adopted constitutional provisions or laws which restrict the alienability of their lands. The draft Convention is silent on this issue, although Article 35 requires that the States ‘shall take adequate measures for effective protection’ of Saami ownership and use rights. However, the clause particularises this duty by enjoining the States to identify traditionally-used lands. This confirms that the duty to protect is discharged through identifying and titling Saami lands, and does not require the State to restrict the alienation of those lands.

VI. CONCLUSIONS

The recognition of indigenous property rights by settler States often results in the creation of distinctive legal regimes for those indigenous property interests. This is not a new development in many settler States. These distinctive legal regimes typically serve to protect a land base and frequently recognise that land is a communal asset. Canada’s modern land claim Agreements continue this tradition and typically vest ownership of indigenous lands in some form of communal entity, and then restrict the alienation of those lands. But these Agreements say little about internal ordering within the community, about how decisions are to be made with respect to those lands, and about the relationship between community entitlements and individual entitlements. This creates a space for the operation of community norms, but also a need to develop (or rediscover) such norms. The evidence to date suggests that the beneficiaries of northern land claim Agreements are still struggling with this challenge. The chapter also examined the ongoing debate as to the relationship between property ownership and community development. The modern debate is, by and large, a response to the writings of de Soto, who argues for individual titling of land so as to unlock its capital value. While some have argued that this line of reasoning should have implications for the way in which we create special and protective land regimes for indigenous people, the evidence suggests that it has had little, if any, impact on the development of ownership regimes for Canada’s northern land claim Agreements. This also seems to be the case for the draft Convention, even though the Convention contemplates that ownership and use rights may be vested individually or collectively. Lastly, the chapter identified the need for additional research on the implementation of northern land claim Agreements, and in particular

378 Nigel Bankes for research on the development of the internal rule systems for making decisions about the management and use of lands that have been titled to the collective. Such research may also be useful in the Nordic context, especially given the different ways in which the draft Convention identifies the rights-holder in Chapter IV.

15 The Nordic Saami Convention and the Rights of Saami Women: Lessons from Canada JENNIFER KOSHAN*

We cannot separate gender justice from indigenous peoples’ right to self-determination, and we cannot decolonize our societies without addressing sexism in those societies.1 While changes to the Canadian Constitution have not erased the consequences of state-sponsored sex and race discrimination and colonialism, constitutional changes have gone some distance to identifying these matters and creating legally enforceable rights.2

I. INTRODUCTION

I

NDIGENOUS WOMEN AROUND the world have been active in struggles for indigenous rights, and in the project of ensuring that their own interests are included within the articulation of those rights.3 There has been some recognition of these arguments both at the international and

* The author wishes to thank Tanja Joona and Jonnette Watson Hamilton for their comments on an earlier version of this chapter, and Christina Allard, Piia Nuorgam, Elina Helander-Renvall and Sanna Valkonen for their suggestions on resources regarding Saami women. 1 R Kuokkanen, ‘Sámi Women, Autonomy and Decolonization in the Age of Globalization’ in Beyond Subject and State? Indigenous Interests in the Age of Globalization (Rovaniemi, The Arctic Centre, 2006) 10, available at . 2 J Green, ‘Balancing Strategies: Aboriginal Women and Constitutional Rights in Canada’ in J Green (ed), Making Space for Indigenous Feminism (Winnipeg, Fernwood Publishing, 2007) 141. 3 See eg CK Roy, Indigenous Women: A Gender Perspective (Guovdageaidnu-Kautokeino, Norway, Resource Centre for the Rights of Indigenous Peoples, 2004) 5.

380 Jennifer Koshan national levels. For example, Article 22 of the United Nations Declaration on the Rights of Indigenous Peoples provides that: Particular attention shall be paid to the rights and special needs of indigenous … women … in the implementation of this Declaration … States shall take measures, in conjunction with indigenous peoples, to ensure that indigenous women and children enjoy the full protection and guarantees against all forms of violence and discrimination.4

Similarly, Article 3(1) of the International Labour Organisation’s Indigenous and Tribal Peoples Convention (No 169) guarantees that: The provisions of the Convention shall be applied without discrimination to male and female members of these peoples.5

Additionally, the Beijing Declaration and Platform for Action makes several references to the rights of indigenous women,6 and the Commission on the Status of Women has urged the implementation of ‘comprehensive measures … to address all forms of discrimination, marginalization and exclusion that keep indigenous women from a full enjoyment of their rights’.7 The United Nations Environment Programme has a Gender Plan of Action that recognises the particular concerns of indigenous women in environmental management and protection,8 and the Arctic Human Development Report contains a chapter on ‘Gender Issues’.9 At the national level, Canada’s Constitution Act, 1982, section 35(4) provides that: Notwithstanding any other provision of this Act, the aboriginal and treaty rights referred to in subsection (1) are guaranteed equally to male and female persons.10

In contrast, the Preamble to the draft Nordic Saami Convention states only that: Increased consideration shall be given to the role of Saami women as custodians of traditions in the Saami society, including when appointing representatives to public bodies.11 4 UN General Assembly, United Nations Declaration on the Rights of Indigenous Peoples, 2 October 2007, A/RES/61/295. 5 International Labour Organsation, Indigenous and Tribal Peoples Convention No 169, 27 June 1989. 6 Beijing Declaration and Platform for Action, UN Doc A/CONF.177/20, Annex I (1995); UN Doc A/CONF.177/20/Add.1, Annex II (1995). 7 United Nations Commission on the Status of Women, Review of the implementation of the Beijing Platform for Action and the outcome documents of the special session of the General Assembly entitled ‘Women 2000: gender equality, development and peace for the twenty-first century’, E/CN.6/2005/2 (6 December 2004), para 595. 8 United Nations Environment Programme, UNEP Gender Plan of Action, 22 September 2006, 3. 9 K Jessen Williamson et al, ‘Gender Issues’, in Arctic Human Development Report (Akureyri, Stefansson Arctic Institute, 2004). 10 Constitution Act, 1982, Schedule B to the Canada Act 1982 (UK), 1982, c 11. 11 Draft Nordic Saami Convention, unofficial English version, available at .

Nordic Saami Convention & Rights of Saami Women 381 There is no other mention of Saami women in the draft Convention, and no explicit guarantee of equal indigenous rights for Saami women. Article 7 of the Convention does ensure against all discrimination against the Saami people and Saami individuals, but it does not specifically mention sex or any other grounds of discrimination.12 This chapter will consider the need, merits and potential pitfalls of including guarantees of equal rights for indigenous women in instruments providing for indigenous rights.13 Given the scope of this collection, my primary focus is on the draft Nordic Saami Convention and property and associated rights, but my analysis may also be relevant more broadly. Although it is important not to essentialise the very different contexts of indigenous peoples nor of indigenous women,14 it is also important to recognise that indigenous women around the globe often share a ‘common struggle for greater recognition of their rights as indigenous peoples, and within this broader framework, the more specific focus of their rights as indigenous women’.15 Drawing upon writings by and about Saami women, and their traditional and contemporary places in their communities and broader society, section II. of this chapter explores the need to guarantee equal enjoyment of indigenous rights to Saami women. Section III. undertakes a comparative analysis by examining the struggle for legal protections for indigenous women in Canada, and the impact of those protections. Section IV. analyses some of the challenges presented by a clause guaranteeing equal enjoyment of indigenous rights to women, including scepticism and backlash towards indigenous feminism and equality, alleged tensions between collective and individual rights, and the limits of rights-based approaches more broadly. In section V., I conclude that in spite of these challenges, there is merit in considering inclusion in the Nordic Saami Convention of a provision guaranteeing Saami women equal enjoyment of indigenous rights.

12

Ibid, Art 7. The scope of this clause will be discussed in section II. While I shall focus on the position of women, it is important to note that the categories of male and female may ignore the concerns of ‘two-spirited’ people, those who are gay, lesbian or transgendered. See PA Monture, ‘Building Indigenous Legal Communities Post-Delgamuukw: Where Are the Women?’ in M Morellato (ed), Aboriginal Law Since Delgamuukw (Aurora, Canada Law Book, 2009) 96; V Napoleon, ‘Raven’s Garden: A Discussion about Aboriginal Sexual Orientation and Transgender Issues’ (2002) 17 Canadian Journal of Law and Society 149. 14 In Canada see Monture, above n 13, 89; Napoleon, above n 13, 151. Regarding Saami women, see K Kailo, ‘Gender and Ethnic Overlap/p in the Finnish Kalevala’ in H Bannerji, S Mojab and J Whitehead (eds), Of Property and Propriety: The Role of Gender and Class in Imperialism and Nationalism (Toronto, University of Toronto Press, 2001) 206. 15 Roy, above n 3, 4. On strategic essentialism of this kind, see G Chakravorty Spivak, The Post Colonial Critic: Interviews, Strategies, Dialogues (New York, Routledge, 1990) 11, and see the reference to strategic essentialism and Saami women by Kailo, above n 14, 208. 13

382 Jennifer Koshan II. THE NEED TO GUARANTEE EQUAL INDIGENOUS RIGHTS FOR SAAMI WOMEN

Several authors argue that Saami women were historically viewed as equal to men, although they exercised different functions within their families and communities.16 According to Saami scholar Louise Bäckman, while there is some debate about the extent to which Saami society was matriarchal, ‘there was a state of balance between the masculine and feminine’.17 Saami women’s activities traditionally focused on domestic matters, but they were also engaged in reindeer herding, in the manufacture of clothing and economic management.18 Bäckman notes that, upon marriage, ‘the reindeer that a Saami bride brought with her formed the basis of her economic independence, since she had full rights over the herd that was built up with these animals’.19 Saami women also owned property such as clothing and other items they made,20 while other property was held in common (for example dwelling houses and boats).21 Saami inheritance laws also provided for equality between men and women.22 There is some support for the continuation of traditional roles and female power amongst Saami,23 although others note that the impact of colonisation, capitalism and Christianity has been to subordinate Saami women and their traditional roles, and subject them to disadvantageous State laws and policies.24 While the Nordic countries are often praised for their gender equality, some commentators argue that male dominance persists,25 and that gender equality policies do not account for the interests of Saami women.26 It is also said that the male Saami leadership has used an essentialised 16 See eg L Bäckman, ‘Female—Divine and Human. A Study of the Position of the Woman in Religion and Society in Northern Eurasia’ in A Hultkrantz and Ø Vorren (eds), The Hunters: Their culture and way of life (Tromsø, Universitetsforlaget, 1982) 158; Kailo, above n 14, 196; R Kuokkanen, ‘Indigenous Women in Traditional Economies: The Case of Sámi Reindeer Herding’ (2009) 34 Signs 499, 500; J Eikjok, ‘Gender, Essentialism and Feminism in Samiland’ in Green (ed), above n 2, 108–09, 110–11 (trans G Hoogensen). 17 Bäckman, above n 16, 147. 18 Ibid, 148; Kuokkanen, above n 16, 500. 19 Bäckman, above n 16 153. 20 Kuokkanen, above n 16, 500. 21 Bäckman, above n 16, 156. 22 Kuokkanen, above n 16, 500. 23 Bäckman, above n 16, 149; RM Lukkari, ‘Where Did the Laughter Go?’ in E Helander and K Kailo (eds), No Beginning, No End. The Sami Speak Up (Edmonton, Canadian Circumpolar Institute, 1998) 108–09. 24 Bäckman, above n 16, 157; Kuokkanen, above n 16, 501; K Paltto, ‘One Cannot Leave One’s Soul by a Tree Trunk’ in Helander and Kailo (eds), above n 23, 29; J Eikjok, ‘Gender in Sápmi— Socio-Cultural Transformations and New Challenges’ (2004) 1–2 Indigenous Affairs 52, 54. 25 See eg H Skjeie and M Teigen, ‘Political Constructions of Gender Equality: Travelling Towards … a Gender Balanced Society?’ (2005) 13 Nordic Journal of Women’s Studies 187. 26 See eg M Rönnblom, ‘Letting Women in? Gender Mainstreaming in Regional Policies’ (2005) 13 Nordic Journal of Women’s Studies 164, 165 and 172 (focusing on the lack of attention to race, ethnicity and class in Norway’s and Sweden’s gender equality policies).

Nordic Saami Convention & Rights of Saami Women 383 ideal of strong Saami women as a political strategy to distinguish the Saami from their colonisers, as well as to discount the claims of Saami women.27 Saami legal scholar Rauna Kuokkanen writes of the ‘central and significant role’ of Saami women in the struggle for Saami rights, including land and reindeer-herding rights.28 However, she argues that Saami women’s roles have been largely ignored in historical and more modern accounts of these struggles.29 In Kuokkanen’s recent research on the views of Saami women in Norway and Finland on self-determination, her interview subjects are critical of the narrow approach being taken by Saami leadership, which is seen to focus primarily on cultural issues and not sufficiently on issues related to land rights and resource management.30 Some participants in the study were critical of the ways in which Saami parliaments had supplanted rather than supported self-determination struggles,31 and argued that Saami women’s voices were not being heard in their parliaments.32 The under-representation of women in Saami parliaments and on Saami electoral registers has been identified as problematic by others as well.33 In addition to governance matters, land rights appear to be an issue of particular concern to Saami women.34 According to Kaarina Kailo: For all their diversity, Sami women’s writings reflect two areas of shared belief and concern: the importance of the Samis’ self-determination in all matters affecting them (land base, education, politics and so forth); and an emphasis on sustainable modes of living and co-existing with the natural world.35

27 Eikjok, above n 16, 113–14; R Kuokkanen, ‘Myths and Realities of Sami Women: A Post-colonial Feminist Analysis for the Decolonization and Transformation of Sami Society’ in Green (ed), above n 2, 73. 28 R Kuokkanen, ‘Self-determination and Indigenous Women—Whose Voice Is It We Hear in the Sámi Parliament?’ (2011) 18 International Journal on Minority and Group Rights 39, 42. 29 Ibid, 42. 30 Ibid, 49. Kuokkanen interviewed 15 Saami women in Karasjok, Norway, and Ohcejohka, Finland, as well as female Saami politicians. 31 Ibid, 50–52. 32 Ibid, 53–54. See also V Stordahl, ‘The Sami Parliament in Norway: Limited Access for Women?’ in Taking Wing. Conference Report (Helsinki, Ministry of Social Affairs, 2002) 130–32; Eikjok, above n 24, 56. On the legitimacy of the Saami parliament for other marginalised Saami, see L Gaski, ‘Sami Identity as a Discursive Formation: Essentialism and Ambivalence’ in H Minde (ed), Indigenous Peoples: Self Determination. Knowledge. Indigeneity (Delft, Eburon Academic Publishers, 2008) 219. 33 Stordahl, above n 32, 129; Eikjok, above n 24, 56 (discussing Norway); M Kråik, ‘Sámi Women Equal Rights—Yesterday and Tomorrow’ in Taking Wing, above n 32, 130–32, 156 and 159–60 (discussing Sweden). See also Arctic Human Development Report, above n 9, 198, noting the disproportionately low numbers of women in Saami parliaments in Finland, Sweden and Norway. 34 Land rights are also a key women’s equality issue globally. See Global Land Tool Network, Secure Land Rights for All (Nairobi, United Nations Human Settlements Programme, 2008) 15. 35 Kailo, above n 14, 197.

384 Jennifer Koshan Kailo notes how for Saami, ‘land is not a property for individual exploitation, but something to be shared communally’.36 Saami anthropologist Jorunn Eikjok notes the connection between earth (‘eana’) and mother (‘eadni’) in the Saami language.37 She argues that ‘the current discourses of resource management, defense of Indigenous peoples’ landscapes and the use of nature and the environment are profoundly masculinised,’38 and calls for an ‘ecologically oriented feminism’ that recognises women’s special relationships to the land.39 Similarly, Kuokkanen contends that land should be seen ‘as a source or relationship, not as a re-source—something to be taken for granted’.40 She also writes of the Saami’s ‘land-based worldviews founded on active recognition of kinship relations that extend beyond the human domain’.41 However, colonisation has had an impact on Saami land and associated reindeer-herding rights, an impact which is gendered.42 In Finland, for example, reindeer-herding policies have discriminated against Saami women by allocating ownership of herds to Saami men in official records and by not providing for division of the herd upon divorce or death. Reindeer Herding Associations sometimes ignore the role that Saami women play in this activity as well.43 In Sweden, although revisions to the Reindeer Herding Act have eliminated discrimination based on marital status against Saami women, the law’s focus on membership in a Saami village has continued to impact women’s reindeer-herding rights, as membership and related voting rights are typically held by male heads of households.44 Similar arguments about Saami women’s unequal reindeer-herding rights have been raised in Norway, and may be due to the lack of participation of Saami women in the development of reindeer-herding laws and policies.45

36

Ibid, 197 and 206. Eikjok, above n 16, 117–18. See also I Seurujärvi-Kari, ‘Indigenous Women and Sustainable Development—Identity and Land Rights’ in Taking Wing, above n 32, 81. At the time of her article, Seurujärvi-Kari was Vice-President of the Saami parliament in Finland. 38 Eikjok, above n 16, 111. See also Kuokannen, above n 28, 53. 39 Eikjok, above n 16, 120. 40 Kuokkanen, above n 1, 13. 41 R Kuokannen, ‘Indigenous Economies, Theories of Subsistence, and Women: Exploring the Social Economy Model for Indigenous Governance’ (2011) 35 American Indian Quarterly 215, 219. 42 Kuokkanen, above n 1, 5 and 7. 43 Kuokkanen, above n 27, 79–80; Kuokkanen, above n 16, 501. 44 Kråik, above n 33, 157–58. See also A Amft, Sámi in a Time of Change. A Study of Swedish Sámi Living Conditions during the Twentieth Century from a Gender and Ethnic Perspective (Umeå, Umeå University, 2000), cited in K Leppänen, ‘Book Review: Voices of Sámiland’ (2000) 8 Nordic Journal of Feminist and Gender Research 111, 113–14. This is analogous to the situation in Canada regarding band membership. See discussion in section III below. 45 Eikjok, above n 16, 109 and 112. See also S Joks, ‘Women’s position in the Sámi reindeer husbandry’ in LP Dana and RB Anderson (eds), International Handbook of Research on Indigenous Entrepreneurship (Cheltenham, Edward Elgar Publishing Ltd, 2007) 248. 37

Nordic Saami Convention & Rights of Saami Women 385 In official State policies, the modern perception that reindeer herding primarily consists of hunting and the production of meat, rather than being a way of life, may also have gendered implications.46 To the extent that Saami identity and status may be tied to reindeer herding, the discrimination against Saami women in this context has significant repercussions.47 For example, Article 4 of the draft Nordic Saami Convention uses the right to pursue Saami reindeer husbandry in Norway or Sweden as one of the ways to qualify as ‘Saami’.48 Inequality with respect to reindeer-herding rights may result in precarious financial circumstances, and may cause Saami women to leave their communities to pursue education and other occupations.49 Another area where the interests of Saami women are at risk is cultural rights. Kailo states that, within a diverse array of interpretations of Saami culture, common themes include [e]cological balance and sustainability; opposition to crass materialism; the importance of storytelling and traditional extended families; functional rather than commercial … handicrafts; suspicion of development; and the importance of the Saami language, clothing, yoiking, cultural ceremonies, festivals, holy days, and shamanism.50

Reindeer herding is also seen as a cultural practice,51 and women have traditionally been responsible for passing this and other aspects of Saami culture to their children.52 As noted by Eikjok, however, following colonisation, ‘Sami culture and language became defined as inferior with the woman bearing the brunt of the loss of status, self-determination, support and respect’.53 In light of the inequalities experienced by Saami women with respect to governance, land, reindeer herding and cultural rights, it is somewhat surprising that the literature canvassed in this chapter is almost completely silent on the need for a clause guaranteeing equal indigenous rights for 46

Kuokkanen, above n 16, 502; Joks, above n 45, 250–51. Kuokkanen, above n 16, 501. See also U Mörkenstam, ‘The power to define: The Saami in Swedish legislation’ in K Karppi and J Eriksson (eds), Conflict and Co-operation in the North (Umeå, Norrlands Universitetsförlag, 2002) 119, who notes that Saami women were ‘made invisible’ by early Swedish reindeer-herding policies. 48 Draft Nordic Saami Convention. Reindeer husbandry rights are provided for in Arts 42 and 43 of the Convention. 49 Kuokkanen, above n 16, 502; K Kailo and V Sunnari, ‘Women and Gender Relations in the North’ (Module 7) in University of the Arctic, Contemporary Issues in the Circumpolar World II (2007) 129, available at . 50 Kailo, above n 14, 208. 51 T Gjernes, ‘Perceptions of Risk and Uncertainty Among Sámi Women Involved in Reindeer Herding in Northern Norway’ (2008) 10 Health, Risk & Society 505, 509. 52 Seurujärvi-Kari, above n 37, 81. 53 J Eikjok, ‘Indigenous Women’s Situation: Similarities and Differences. Common Struggle for Future’, International Conference and VI General Assembly of the World Council of Indigenous Peoples (Tromsø, 1990) 10, quoted by Kailo, above n 14, 204. 47

386 Jennifer Koshan women in the Nordic Saami Convention.54 Nor is there discussion of Saami women’s rights in the country reports on the draft Nordic Saami Convention. In fact, Sweden’s report suggests that the non-discrimination clause in Article 7 of the Convention applies only to ‘ethnical’ discrimination, and does not mention the possibility of protecting against sex discrimination.55 On the other hand, Finland’s report notes that Article 7 is consistent with the more general guarantee of equality under Finnish law, for example with respect to ‘children, elderly people and minorities’.56 Norway’s report is silent on the scope of Article 7.57 Even if it applies to sex discrimination, Article 7 is arguably an insufficient protection of the rights of Saami women, particularly when compared to other guarantees of equal rights for indigenous women, which are much more explicit and unequivocal.58 The preambular language of the draft Nordic Saami Convention also seems insufficient to guarantee Saami women equal enjoyment of their indigenous rights, as it fails to use the language of equality or non-discrimination. Mattias Åhrén agrees that the Convention is ‘parsimonious towards Saami women’, and notes that the Expert Group that drafted the Convention ‘can perhaps be criticised for not giving more attention to Saami children, youth and women’.59According to Åhrén, the Expert Group did consider provisions concerning the rights of these groups, but those articles ‘were not even close to [making] it into the Saami Convention,’ likely because it was thought that such rights must be addressed by the Saami people themselves, consistent with their right to self-determination.60 Åhrén raises the debate about individual and collective rights in the broader discourse on human rights as relevant to whether the Convention should ‘take on’ the rights of Saami women.61 That debate has also occurred in Canada, a jurisdiction to which I shall now turn.

54 For an exception see Åhrén, below n 59. A serious limitation of my research is that I was only able to read sources available in English. 55 Sweden report, unofficial English translation (on file with the author). 56 Finland report, unofficial English translation (on file with the author). 57 Norway report, unofficial English translation (on file with the author). 58 See eg s 35(4) of Canada’s Constitution Act, 1982, above n 10, and accompanying text. Section 35(4) provides that ‘Notwithstanding any other provision of this Act, the aboriginal and treaty rights referred to in subsection (1) are guaranteed equally to male and female persons.’ 59 M Åhrén, ‘The Saami Convention’ in M Åhrén, M Scheinin and JB Henriksen, ‘The Nordic Sami Convention: International Human Rights, Self-Determination and other Central Provisions’ (2007) 3 Gáldu Cˇála—Journal of Indigenous Peoples Rights 24. 60 Ibid, 24. 61 Ibid, fn 61.

Nordic Saami Convention & Rights of Saami Women 387 III. PROTECTION OF INDIGENOUS WOMEN’S RIGHTS IN CANADA

It is important to begin this section with a rationale for undertaking a comparison between indigenous women in Canada62 and Saami women. As noted earlier, it is critical not to essentialise indigenous women between or within particular States or regions. However, it should also be recognised that indigenous women in Canada and Saami women have compared their experiences of colonisation. For example, Eikjok compares the ways in which the Governments of Canada and Norway defined indigenous identity so as to create internal hierarchies between men and women, and how negative attitudes towards women have become internalised in indigenous communities.63 Kailo and Sunnari also compare definitions of indigeneity in Canada and Norway, and discuss the impact of marriage on the rights of indigenous women in Canada and Sweden.64 Kuokkanen compares land claim and self-government policies in Canada with the situation of the Saami in Finland, where self-government is separated from land rights.65 Indigenous women in both regions have also written about the importance of indigenous legal traditions.66 An assessment of the rights-based struggles of indigenous women in Canada and their successes and failures may therefore be useful in assessing the merits of a clause guaranteeing equal rights for Saami women in the Nordic Saami Convention. Similar to the writings of Saami women, literature on the traditional roles and positions of indigenous women in Canada discusses the often special position of women with respect to the land. For example, Patricia Monture wrote that, ‘in some Indigenous legal traditions, such as those of my people, the Haudenosaunee, Aboriginal title must focus on women, as women “owned” the fields and the produce from those fields’.67 Saulteau legal scholar Val Napoleon notes that ‘in some Aboriginal nations, women owned all private and public real property, controlled all family and community governance, selected and deposed political leaders, and went to

62 I use the terms ‘indigenous’ and ‘aboriginal’ interchangeably when referring to the Canadian context. ‘Indigenous’ is the preferred term at the international level, and ‘aboriginal’ is the term used in the Canadian Constitution. 63 Eikjok, above n 53, 11–12, as cited in Kailo, above n 14, 204–05. For discussions of internalised negative attitudes in Canada, see J Barker, ‘Gender, Sovereignty and the Discourse of Rights in Native Women’s Activism’ (2006) 7 Meridians 127, 128 and 133; E Gabriel, ‘Aboriginal Women’s Movements: A Quest for Self-determination’ (2011) 1 Aboriginal Policy Studies 183, 186; Green, above n 2, 145 and 149. 64 Kailo and Sunnari, above n 49, 135. 65 Kuokkanen, above n 1, 5. 66 Monture, above n 13, 89, and see generally the work of Kuokkanen. 67 Monture, above n 13, 93.

388 Jennifer Koshan war’.68 Prior to the colonisation of what is now Canada, indigenous women and men often enjoyed a ‘separate but equal’ position in their communities, where each had their own roles and both were seen as essential to the survival of the people.69 This of course changed with colonisation.70 A major imposition of colonial and patriarchal norms occurred through the Indian Act,71 federal legislation that tied the status of Indian women72 and their related entitlements to their husbands. Under the Indian Act, Indian women who married status Indian men took on the status and band membership of their husbands, and Indian women who married non-status men (referred to as ‘marrying out’) lost Indian status altogether, as did their children.73 In both cases, the loss of status was irreversible even upon divorce or death of the spouse. Indian women without status lost the right to participate in band governance, to access land, resources and housing rights, and to receive other benefits under the Indian Act. Indian women with status also faced disadvantages, particularly in situations of domestic violence and marriage breakdown. Certificates of possession for family homes on reserves are typically held by Indian men, the Indian Act is silent on matrimonial property distribution, and provincial matrimonial property legislation does not apply to Indian lands. The combined effect is that women are often forced to leave their reserves in such situations.74 Outside of the Indian Act, indigenous women in Canada have also been subjected to colonial and patriarchal laws, policies and practices regarding land rights, language, culture, child welfare and criminal justice.75 68 Napoleon, above n 13, 158–59. See also Gabriel, above n 63, 183, who writes of equality with respect to governance, cultural heritage and health. 69 Barker, above n 63, 132. See also Royal Commission on Aboriginal Peoples (RCAP), Report of the Royal Commission on Aboriginal Peoples, vol 4: Perspectives and Realties (Ottawa, Minister of Supply and Services Canada, 1996) 18–19 and 79. But see Napoleon, above n 13, 158, who states that ‘some Aboriginal societies historically were sexist and homophobic’. 70 See Barker, above n 63, 132; Gabriel, above n 63, 183; Green, above n 2, 145–46. 71 The Indian Act, SC 1876, c 18. For a detailed history of this legislation, see M Eberts, S McIvor and T Nahanee, ‘Native Women’s Association of Canada v Canada’ (2006) 18 Canadian Journal of Women and the Law 76, 95–97; Barker, above n 63, 130–31. 72 Canadian law recognises three distinctive aboriginal peoples: Indian, Inuit and Métis. See Constitution Act, 1982, above n 10, s 35(2). The term ‘First Nations’ is currently preferred over ‘Indian’, but I shall continue to use the latter term when referring to those persons affected by the Indian Act. 73 Indian Act, RSC 1970, c I-6, s 12(1)(b). This is the version of the Act that was in force prior to the amendment discussed in the text to n 93 below. 74 See Derrickson v Derrickson [1986] 1 SCR 285; Paul v Paul [1986] 1 SCR 306; ME Turpel, ‘Home/Land’ (1991) 10 Canadian Journal of Women and the Law 17. 75 See eg P Monture, ‘A Vicious Circle: Child Welfare and First Nations’ (1989) 3 Canadian Journal of Women and the Law 1 (noting that aboriginal women are subject to racist child welfare practices); M Nightingale, ‘Judicial Attitudes and Differential Treatment: Native Women in Sexual Assault Cases’ (1991) 23 Ottawa Law Review 71 (discussing judicial basis against aboriginal women in sexual assault sentencing decisions).

Nordic Saami Convention & Rights of Saami Women 389 As in the Saami context, there is a long history of mobilisation by indigenous women in Canada. Initially this mobilisation focused on the provisions of the Indian Act, and that struggle offers important lessons about engagement with the State and potential opposition from within.76 In the 1970s, Jeannette Corbiere Lavell and Yvonne Bédard challenged the Indian Act’s marrying-out provisions and their resultant loss of status and residency rights under the Canadian Bill of Rights.77 While Indian Rights for Indian Women (IRIW) and the Native Women’s Association of Canada (NWAC) supported Lavell and Bedard’s litigation, their claims were actively opposed by organisations such as the National Indian Brotherhood (NIB), which intervened against the women at the Supreme Court. Lavell, Bedard and their supporters were accused of complicity with a colonialist agenda by relying upon rights-based arguments to challenge the Indian Act.78 Although Lavell and Bedard had some success in their litigation, a majority of the Supreme Court of Canada held that there was no breach of the Canadian Bill of Rights because all Indian women were being treated the same in the enforcement and application of the Indian Act.79 Aboriginal women’s organisations then brought a complaint to the United Nations Human Rights Committee through Sandra Lovelace, a Maliseet woman from the Tobique First Nation who had lost her status and the right to reside on her home reserve after marrying a non-Indian man. In 1981, the Committee held that Canada had breached its obligations under Article 27 of the International Covenant on Civil and Political Rights,80 as Lovelace’s right to access her culture and language ‘in community with the other members’ of her group had been violated.81 While noting that Article 27 must be interpreted in light of other provisions in the Covenant, including those providing against sex discrimination, the Committee declined to consider whether there had been a separate breach of Lovelace’s equality rights.82

76 See Barker, above n 63, 140–46. For other discussions of aboriginal women’s activism in Canada, see Gabriel, above n 63, and Green, above n 2. See also E LaRocque, ‘Métis and Feminist: Reflections from the Margins’ in Green (ed), above n 2, 53, who notes that Métis women’s issues have sometimes been ignored. 77 Canadian Bill of Rights, SC 1960, c 44, s 1(b). For discussions of these cases, see Barker, above n 63, 135–36; Gabriel, above n 63, 183. 78 See eg Barker, above n 63, 137; Gabriel, above n 63, 184. 79 Attorney General of Canada v Lavell [1974] SCR 1349. 80 International Covenant on Civil and Political Rights (entered into force 23 March 1976) GA Res 2200A (XXI), 21 UN GAOR Supp (No 16), 52, UN Doc A/6316 (1966), 999 UNTS 171, (hereafter ‘ICCPR’). Art 27 provides: ‘In those States in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practise their own religion, or to use their own language.’ 81 Sandra Lovelace v Canada, Comm No R.6/24 (29 December 1977), UN Doc Supp No 40 (A/36/40) (1981), paras 15–16. 82 Lovelace, ibid, paras 16, 18. The Committee explicitly referenced the equality provisions in Arts 2, 3 and 26 of the ICCPR.

390 Jennifer Koshan The Lovelace decision was rendered during the lead up to the Constitution Act, 1982. Here too, there are useful lessons to be learned about the challenges for indigenous women of seeking equality protections. According to Joanne Barker, ‘serious political differences’ among governments, the NIB, band leadership and aboriginal women’s groups ‘defined the legal and social contexts’ surrounding the development of the provisions of Canada’s new Constitution.83 The Constitution Act, 1982 contains a separate part on aboriginal rights, in which section 35(1) provides that: ‘The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.’84 The original version of section 35 did not include the subsection guaranteeing aboriginal women equal aboriginal and treaty rights (section 35(4)), which was added by amendment following a constitutional conference in 1983.85 Aboriginal women’s groups were excluded from participation in this and other constitutional conferences focusing on aboriginal issues, and some participating organisations (such as the Assembly of First Nations (AFN)) opposed the amendment on the grounds that it would undermine claims of aboriginal sovereignty and self-government.86 However, aboriginal women gathered support from the Native Council of Canada, Inuit and Métis delegates, and several provinces and territories,87 and in the end, aboriginal and treaty rights were guaranteed equally to male and female persons in section 35(4).88 At the next constitutional conference addressing aboriginal issues in 1984, aboriginal women sought to extend the effect of section 35(4) by advocating that gender equality should itself be deemed an aboriginal right. The AFN and band leadership again opposed the women’s arguments, and this particular amendment was not achieved.89 Similarly, at later constitutional conferences, aboriginal women’s efforts to participate in the discussions to ensure that aboriginal self-government was made subject to section 15, the equality rights provision of the Canadian Charter of Rights and Freedoms,90 were opposed by governments, aboriginal groups and

83

Barker, above n 63, 140. See also Eberts, et al, above n 71, 80–84. Constitution Act, 1982, above n 10, Pt II. 85 A series of constitutional conferences dealing with, inter alia, the rights of aboriginal peoples was mandated by s 37 of the Constitution Act, 1982. 86 Barker, above n 63, 141–44. The AFN is the successor to the NIB. 87 Ibid, 143. 88 Constitutional Amendment Proclamation,1983, SI/84-102. The text of s 35(4) is quoted in n 58 above. 89 Barker, above n 63, 145. 90 Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, above n 10 (hereafter ‘Charter’). Section 15 is the general equality rights provision, which came into effect in 1985. Section 28 of the Charter guarantees Charter rights equally to male and female persons, and has been relatively ineffectual in Charter litigation. 84

Nordic Saami Convention & Rights of Saami Women 391 ultimately the Supreme Court.91 Although the AFN eventually supported amendments to the Constitution that would have made aboriginal governments subject to the Charter, the Accord containing these amendments was defeated in a national referendum in 1992.92 As a matter of practice, the equality guarantee in section 15 of the Charter seems to have been invoked more often by indigenous women than section 35(4) of the Constitution Act, 1982. For example, when the Indian Act was amended in 1985 to remove the marrying-out provision and reinstate Indian women and their children who had lost status under previous versions of the Indian Act,93 the amendment was said to be based on section 15 rather than section 35(4).94 Reinstatement was made subject to a second generation cut-off rule, which was later challenged in litigation based on aboriginal women’s rights.95 In the litigation arena as well, the focus has been on section 15 of the Charter rather than section 35(4) of the Constitution Act, 1982. For example, when the Indian Act’s second generation cut-off was challenged by Sharon McIvor, a member of the Lower Nicola Band, the British Columbia Court of Appeal decided the case only under section 15 even though the claim raised section 35(4) arguments.96 According to the Court, ‘we have neither an evidentiary foundation nor reasoned argument as to the extent to which Indian status should be seen as an aboriginal right rather than a matter for statutory enactment’.97 Similarly, in Scrimbitt v Sakimay Indian Band Council, a band’s argument that section 35 afforded it the right to determine membership and voting rights contrary to the interests of Bill C-31 reinstatees was dismissed based on a lack of evidence, so there was no need to consider section 35(4).98

91 Native Women’s Association of Canada v Canada [1994] 3 SCR 627. NWAC argued for the application of the Charter to aboriginal governments in Native Women and SelfGovernment: A Discussion Paper (Ottawa, NWAC, 1992). 92 See Green, above n 2, 147–50. 93 Bill C-31, An Act to Amend the Indian Act (SC 1985, c 27). Bill C-31 also created a distinction between status and band membership, giving rise to subsequent litigation such as Scrimbitt, below n 98, and Sawridge, below n 101. 94 See eg Barker, above n 63, 145; Green, above n 2, 146; NWAC, Aboriginal Women and Bill C-31: An Issue Paper (Ottawa, NWAC, 2007) 1; Beverley Jacobs, ‘Gender Discrimination Under the Indian Act: Bill C-31 and First Nations Women’ in G MacDonolad, R Osborne & C Smith (eds), Feminism, Law, Inclusion. Intersectionality in Action (Toronto, Sumach Press, 2005) 175, 195. 95 Barker, above n 63, 145–46, notes that although the AFN and NWAC jointly agreed to the amendments in Bill C-31, the second generation cut-off was a major compromise conceded to by NWAC in order to gain the AFN’s support. 96 McIvor v The Registrar, Indian and Northern Affairs Canada, 2007 BCSC 827; varied 2009 BCCA 153; leave to appeal denied, 2009 CanLII 61383 (SCC). For a critique of the BCCA decision and the Government’s response (the Gender Equity in Indian Registration Act, SC 2010, c18) see Gabriel, above n 63, 184–85. McIvor has now brought a complaint against Canada to the UN Human Rights Committee. 97 McIvor v The Registrar, Indian and Northern Affairs Canada, 2009 BCCA 153, para 66. 98 Scrimbitt v Sakimay Indian Band Council [2000] 1 FC 513.

392 Jennifer Koshan In NWAC v Canada, the Supreme Court went further and held that participation in constitutional discussions was not an existing aboriginal or treaty right, making section 35(4) ‘of no assistance to the respondents’.99 Section 35(4) has had more impact in cases where it was raised as a shield rather than a sword. For example, in Harpe v Massie and Ta’an Kwäch’än Council, the authority of an Elders Council to appoint an acting Chief was at issue. In response to a submission that the Council could only appoint a male, the Yukon Supreme Court cited section 35(4) in holding that ‘the power of the Elders Council to appoint an acting Chief [is] an aboriginal right and thus the power would include both male and female persons’.100 Section 35(4) was also influential in Sawridge Band v Canada, in which it shielded a claim that Indian Act bands have a section 35(1) right to determine membership rights contrary to Bill C-31.101 According to Justice Muldoon of the Federal Court of Canada: If ever there was or could be a clear extinguishment of any alleged Aboriginal or treaty right to discriminate within the collectivity of Indians and more particularly against Indian women, subsection 35(4) of the Constitution Act, 1982 is that; and it works that extinguishment, very specifically, absolutely, and imperatively.102

However, the decision was overturned on the basis of a reasonable apprehension of bias.103 Perhaps little should be made of the lack of impact so far of section 35(4), given that many decisions dismissing the section are based on a lack of evidence or reliance on other arguments rather than an unfavourable interpretation of the section. However, aboriginal rights litigation under section 35(1) has also largely ignored section 35(4) and any gendered dimensions of aboriginal rights.104 Monture argued that this lack of attention relates not only to the material impact that a successful claim for land or resources will have on aboriginal women, but also to the very definition of indigenous rights, stating that ‘until we … centre gender in the discussion of Indigenous legal traditions, we are not really doing anything Indigenous at all’.105 On the other hand, Joyce Green, a political scientist of English, Ktunaxa

99 NWAC v Canada, above n 91, para LXXVI. For an alternative version of this decision that takes s 35(4) into account, see Eberts et al, above n 71, paras 134–37. 100 Harpe v Massie and Ta’an Kwäch’än Council, 2006 YKSC 1, para 89. 101 Sawridge Band v Canada [1996] 1 FC 3 (TD). For a critique of band membership codes as a ‘colonial creation’, see V Napoleon, ‘Aboriginal Self Determination: Individual Self and Collective Selves’ (2005) 29.2 Atlantis 1, 6. 102 Sawridge Band v Canada, above n 101, 144. 103 Sawridge Band v Canada [1997] 3 FC 580 (CA). In a re-trial, the s 35 claim was dismissed for procedural irregularities. See 2008 FC 322, aff’d 2009 FCA 123, leave to appeal denied, 2009 CanLII 69744 (SCC). 104 Monture, above n 13, 90. 105 Ibid, 93. Monture also noted that s 35(4) has received little scholarly attention (ibid, 90).

Nordic Saami Convention & Rights of Saami Women 393 and Cree-Scots Métis descent, contends that victories under section 35(1) ‘strengthen Aboriginal women’s rights as Aboriginals, though they are not gender-specific or gendered in their application’.106 Outside the litigation context, section 35(4) has recently been invoked in the realm of matrimonial property rights reforms for women living on reserves. Wendy Grant-John, the Ministerial Representative for Indian and Northern Affairs Canada (INAC) and a member of the Musqueam First Nation, recommended that in addition to a Charter rights analysis, the Crown undertake a section 35 analysis, including section 35(4), of any proposed legislation prior to the introduction to Parliament of a Bill on matrimonial real property.107

She also recommended that the Preamble to any legislation recognise ‘the equality of men and women’ and ‘the importance of including women at all levels of decision making as equals’.108 The Guiding Principles of the Matrimonial Real Property Working Group, which consisted of representatives of the AFN, NWAC and INAC, also referenced section 35(4).109 The proposed legislation introduced by the Government on matrimonial real property does not use the language of equality or reference aboriginal women’s rights, although it does deal with family violence and property issues, which has been a major concern for aboriginal women.110 The Canadian experience gives rise to important pragmatic and theoretical considerations related to the protection of women’s equal indigenous rights, to which I now turn.

IV. CONSIDERING AN EQUAL INDIGENOUS RIGHTS CLAUSE FOR WOMEN

One pragmatic consideration related to clauses guaranteeing women equal indigenous rights is that it is typically necessary to enforce such provisions by way of litigation, which—especially before the courts—is an expensive and often inaccessible way to pursue rights claims, a particular concern

106

Green, above n 2, 149. W Grant-John, Report of The Ministerial Representative: Matrimonial Real Property Issues On Reserves (Ottawa, Women’s Issues and Gender Equality Directorate of the Department of Indian Affairs and Northern Development, 2007) 55. 108 Ibid, 59. 109 NWAC/INAC/AFN, Matrimonial Real Property Working Group Guiding Principles (2006), Appendix J to Grant-John, ibid. 110 Bill S-2, Family Homes on Reserves and Matrimonial Interests or Rights Act, First Session, Forty-first Parliament, 60 Elizabeth II, 2011. NWAC and AFN jointly opposed an earlier version of this Bill. See NWAC and AFN, ‘NWAC, AFN, and AFN Women’s Council Unite to Oppose Bill C-8 on Matrimonial Real Property’, News release, Ottawa, 14 May 2009. On family violence and property, see Turpel, above n 74. 107

394 Jennifer Koshan for under-funded indigenous women’s organisations.111 Cases such as the ones discussed above show the potential for conflicts between indigenous women and their communities in the interpretation and application of equality rights provisions, which may add to the cost, complexity and sensitivity of litigation, and to backlash against indigenous women.112 Further, litigation has risks, in that it gives power to lawyers and judges to define indigenous traditions and rights and their gendered implications without proper cultural understandings.113 Depending on the dispute resolution mechanism implemented for the Nordic Saami Convention, these concerns may arise in that context as well. However, the experience in Canada in the debates about matrimonial property issues shows that a clause guaranteeing equal indigenous rights for women may also have an impact outside of the litigation context. Such a clause may have significant symbolic impact for indigenous women as well. Another issue is indigenous women’s scepticism about the language of equality and its ties to feminist legal theory and activism. In Canada, Cree lawyer Mary Ellen Turpel has argued that ‘equality is simply not the central organizing political principle in our communities’.114 Furthermore, Green indicates that for Aboriginal women … resistance to sexism, racism and colonialism is complicated by the intersecting allegiances with Aboriginal men and by the reality that settler women and men are complicit in and benefit from the colonial policies of their government.115

Nevertheless, Green notes the existence of indigenous feminisms that combine critiques of sexism and anti-colonialism to advocate for issues of concern to indigenous women,116 and some indigenous women in Canada do employ the language of equality in their analyses.117 To the extent that discomfort with equality rights flows from the fear of a formal, sameness

111

Green, above n 2, 147 and 154. See Green, ‘Introduction’, above n 2, 16; Barker, above n 63, 150. See also the interview of Sharon McIvor by Kuokkanen in Green (ed), above n 2, 248–51. 113 Monture, above n 13, 88. See also ME Turpel, ‘Aboriginal Peoples and the Canadian Charter: Interpretive Monopolies, Cultural Differences’ [1989–90] Canadian Human Rights Yearbook 3, 6, who argues that the text of the Canadian Constitution is ‘insensitive to cultural differences’. 114 ME Turpel, ‘Patriarchy and Paternalism: The Legacy of the Canadian State for First Nations Women’ (1991) 6 Canadian Journal of Women and the Law 174, 180. For a detailed discussion of aboriginal women’s critiques of feminism, see V St Denis, ‘Feminism is For Everybody: Aboriginal Women, Feminism and Diversity’ in Green (ed), above n 2, 36–41. 115 Green, above n 2, 144. 116 Green, ‘Taking Account of Aboriginal Feminism’ in Green (ed), above n 2, 23. 117 See Gabriel, above n 63, 186–87; Napoleon, above n 13, 58; S McIvor, ‘Aboriginal Women Unmasked: Using Equality Litigation to Advance Women’s Rights’ (2004) 16 Canadian Journal of Women and the Law 106. See also the arguments of NWAC, above, section III. 112

Nordic Saami Convention & Rights of Saami Women 395 approach to equality incompatible with some traditional indigenous views, a substantive equality approach like the one adopted in Canada may also offset concerns.118 However, there is debate in Canada as to whether a substantive approach to equality has actually taken hold.119 A similar debate about equality and feminism has occupied Saami women. For example, Kailo notes that ‘Sami women perceive colonization rather than sexism as their chief source of oppression,’120 and Stordahl has raised the issue of backlash against Saami women who speak out.121 Another complexity is that Saami women may be seen as better off than Saami men in some respects, and not in need of equality rights protection. For example, the fact that Saami women pursue higher education more often than Saami men is sometimes raised as a positive indicator of their position. However, their out-migration may be seen as resulting from changes to traditional ways of life that have had more of an impact on women than men.122 Saami women have also contributed to the literature on indigenous feminism,123 and the language of equality is prominent in the work of some Saami women.124 The debate about the place of equality in indigenous rights struggles is often grounded in the purported dichotomy between individual and collective rights. Many of the arguments of the AFN in the Canadian context have been based on the concern that protection and enforcement of individual equality rights would undermine collective rights to land and selfdetermination.125 Turpel has noted this dichotomy in her work questioning the propriety of a rights-based paradigm for aboriginal peoples, arguing that individual rights tend to be privileged over collective rights.126 She also raises the problem of using the master’s tools (rights) to dismantle the master’s house.127 While Turpel’s argument is largely focused on classical liberal property rights, she also contends that equality rights are, at least in the Canadian context, fundamentally individualistic (relying on the language of

118 Substantive equality takes difference into account. See eg Eldridge v British Columbia (Attorney General) [1997] 3 SCR 624. 119 See eg J Koshan and J Watson Hamilton, ‘Meaningless Mantra? Substantive Equality after Withler’ (2011) 16 Review of Constitutional Studies 31. 120 Kailo, above n 14, 205. See also Kuokkanen, above n 28, 59–60 (distinguishing between the liberal feminist approach of Nordic women and the approaches of indigenous feminists). 121 Stordahl, above n 32, 132. See also Eikjok, above n 24, 54. 122 Arctic Human Development Report, above n 9, 192. 123 See eg Kuokkanen and Eikjok’s contributions to Green (ed), above n 2. For a review of this book from a Saami perspective, see H Sinevaara-Niskanen, ‘Crossings of Indigenousness, Feminism, and Gender’ (2010) 18 Nordic Journal of Feminist and Gender Research 217. 124 See generally the work of Kuokkanen; and see Kråik, above n 33; Stordahl, above n 32. 125 Barker, above n 13, 150. 126 Turpel, above n 113, 14–16. 127 Ibid, 6, citing A Lorde, ‘The Master’s Tools Will Never Dismantle the Master’s House’ in A Lorde, Sister Outsider (Trumansburg, The Crossing Press, 1984) 110; see also Green, above n 2, 153.

396 Jennifer Koshan section 15 of the Charter and its interpretation by the courts, rather than section 35(4) of the Constitution Act, 1982).128 Her argument could be seen as failing to take adequate account of section 25 of the Charter, which provides that: The guarantee in this Charter of certain rights and freedoms shall not be construed so as to abrogate or derogate from any aboriginal, treaty or other rights or freedoms that pertain to the aboriginal peoples of Canada.

However, Turpel argues that section 25 is not only based on the same rights-based paradigm she critiques, it serves to ‘other’ aboriginal rights by treating them as exceptional.129 She does acknowledge that indigenous peoples have employed the use of rights in their battles against colonialism, and that the individual/collective dichotomy is not absolute.130 There is some support in the Canadian case law for the distinction between individual and collective rights that invokes section 35(4) of the Constitution Act, 1982. In Ross c Québec (Sous-ministre du Revenu), a case involving a taxation claim, the court found that aboriginal rights may be claimed by private individuals without the involvement of their bands, stating that ‘the individual nature of this right is apparent in subsection 35(4), which applies such aboriginal rights equally to male and female persons’.131 Internationally, Karen Engle employs the collective/individual rights dichotomy to argue that the UN Declaration on the Rights of Indigenous Peoples (UNDRIP) is compromised by the ‘persistence of an international human rights paradigm that eschews strong forms of indigenous selfdetermination and privileges individual civil and political rights’.132 She notes that a number of collective cultural rights present in the 1993 version of UNDRIP were later dropped.133 Engle also critiques the UN Human Rights Committee’s failure to consider claims to self-determination under Article 1 of the ICCPR, including a claim that the Saami are a people, because the Optional Protocol only allows petitions by individuals, and self-determination is a collective right.134 She construes Lovelace as having affirmed an individual right to culture, although the Committee framed its

128

Turpel, above n 113, 27–28. Ibid, 10. 130 Ibid, 11 and 16. 131 Ross c Québec (Sous-ministre du Revenu), 2010 QCCQ 790, para 23. 132 K Engle, ‘On Fragile Architecture: The UN Declaration on the Rights of Indigenous Peoples in the Context of Human Rights’ (2011) 22 European Journal of International Law 141. 133 Ibid, 148–49. 134 Ibid, 154, citing Kitok v Sweden, Comm No 167/1984, 26 March 1990, UN Doc Supp No 40 (A/45/40). See also ME Turpel, ‘Indigenous Peoples’ Rights of Political Participation and Self-Determination: Recent International Legal Developments and the Continuing Struggle for Recognition’ (1992) 25 Cornell International Law Journal 579, 601. 129

Nordic Saami Convention & Rights of Saami Women 397 decision in terms of access to culture in community with other members of the group.135 Engle does not consider the gender equality dimensions of Lovelace or UNDRIP. In the Saami context, Kuokkanen’s interviews with women about selfdetermination reveal both individual and collective aspects of the right. According to the interviewees, self-determination includes the right to make decisions about one’s body and livelihood, equal rights and powers between men and women, and the right to live as Saami.136 Relying on these interviews and the work of Iris Marion Young and Jennifer Nedelsky, Kuokkanen argues that self-determination is a relational concept that recognises the importance of collective governance and rights, and at the same time, the impact on individuals of collective decisions. Individual and collective rights are thus ‘fully congruous—not oppositional … and should not be constructed as such as is often done’.137 Her arguments are similar to those of Napoleon in the Canadian context, who urges a relational model where indigenous persons have enforceable rights within their own self-governing communities, including those of ‘sustenance, livelihood, personal safety, [and] access to territory and resources’.138 Métis writer Emma LaRocque argues that the individual/collective rights dichotomy is a Western cultural framework, and that indigenous leaders have sometimes emphasised collective rights strategically.139 Indigenous women’s arguments challenging the dichotomy between individual and collective rights are particularly important in the context of property rights, as they assist us in framing such rights in relational terms that have both individual and collective dimensions and do not rely on liberal conceptions of property. Napoleon raises this example: Gitxsan property rights are similar to Gitxsan individual rights in that both are internal and collectively enforceable through kinship relationships. Over a lifetime, each person has a right to specified access and use of both the father’s and mother’s territories, but the territories are communally held by the House in the name of the Head Chief.140

135

Engle, above n 132, 155. Kuokkanen, above n 28, 44–45. 137 Ibid, 57, citing IM Young, ‘Two Concepts of Self-Determination’ in IM Young, Global Challenges. War, Self-Determination and Responsibility for Justice (Cambridge, Polity Press, 2007). See also Kuokkanen, above n 1, 8–12, citing J Nedelsky, ‘Reconceiving Autonomy: Sources, Thoughts and Possibilities’ (1989) 1Yale Journal of Law and Feminism 7. 138 Napoleon, above n 13, 164–65; Napoleon, above n 101, 5–6, citing Nedelsky, above n 137. 139 E LaRocque, ‘Re-examining Culturally Appropriate Models in Criminal Justice Applications’ in M Asch (ed), Aboriginal and Treaty Rights in Canada: Essays on Law, Equity and Respect for Difference (Vancouver, UBC Press, 1997) 75, cited in Kuokkanen, above n 1, endnote 64. 140 Napoleon, above n 13, 166. 136

398 Jennifer Koshan Napoleon also states: Historically, Gitxsan women were arguably in a much stronger position of equality than they are post contact, because their individual rights were collectively protected and enforced.141

Rights such as those to land may therefore be seen as having both collective and individual aspects as entitlements and in terms of enforcement. These arguments support the inclusion of guarantees of equal rights for women in indigenous rights provisions. Rather than constructing indigenous women’s equality as a threat to collective indigenous rights, a relational model contends that all indigenous persons should have equal access to collective rights such as property, culture, governance and resource use. This, in essence, is what indigenous women in Canada have been arguing in their rights claims over the past several decades. At the same time, the Canadian experience shows that it is important to be realistic about what rights guarantees for indigenous women are likely to accomplish.

V. CONCLUSION

The silence of the draft Nordic Saami Convention on Saami women’s equal enjoyment of indigenous rights may be seen as consistent with Kuokkanen’s observation that Saami women are not mobilizing to change the existing political structures … they are not openly challenging the system, nor are they calling for or thinking of alternatives for either masculine political institutions or the contents of Sámi self-determination.142

It may also reflect a different vision of self-determination that is more in keeping with traditional and relational modes of governance instead of the statist model reflected in Saami parliaments143 and arguably in the draft Nordic Saami Convention as well. Kuokkanen indicates that Saami women’s lack of mobilisation should not be taken to mean that Saami women feel no need for change; rather, colonisation has distanced them from traditional forms of governance and ‘has rendered grassroots engagement and debate on self-determination irrelevant’.144 Ultimately, it will be up to Saami women to decide whether to advocate for a clause guaranteeing equal indigenous rights for women in the Nordic Saami Convention. The experiences of indigenous women in Canada in claiming their rights, as well as the scholarship of indigenous women, will, it is hoped, provide useful food for thought for Saami women in deciding whether to pursue such a clause. 141 142 143 144

Ibid, 161. Kuokkanen, above n 28, 58. Ibid, 59. Ibid, 61.

Conclusion NIGEL BANKES AND TIMO KOIVUROVA

T

HIS VOLUME HAS examined some of the challenges associated with State recognition (and non-recognition) of indigenous property interests. It has done this against the backdrop of the draft Nordic Saami Convention. The goals of the volume included that of providing a broader context within which to view the draft Convention and developments in the Nordic legal systems, but also that of identifying, in at least some of the contributions, issues that the negotiators might wish to consider (or re-consider) as they seek to finalise the text. As all the contributors to this volume recognise, the draft Nordic Saami Convention is a considerable and imaginative achievement. It recognises and celebrates the Saami as a transnational people, and develops a vision in which it is possible to conceive of four nations co-existing within the physical space and territories of three States. This conclusion pulls together a number of themes that run through the various contributions to this volume. The themes that we have selected for comment are the following: customary norms and legal pluralism; process and relationships; lost in translation; courts, legislators and conventions; pushing the boundaries of international law; and the identification of the rights-bearer.

I. CUSTOMARY NORMS AND LEGAL PLURALISM

Many of the chapters in the volume acknowledge the importance of the customary laws of indigenous people in thinking about the relationship between indigenous peoples and the settler societies, and issues of property. Bankes, for example, notes that the presumed continuity of such norms through and notwithstanding the acquisition of sovereignty by the settler society is one basis for asserting a continuing indigenous property interest, while Webber emphasises that the recognition of an indigenous property interest necessarily entails the recognition of another normative order, and thus a degree of legal pluralism. Similarly, both Helander-Renvall and

400 Nigel Bankes and Timo Koivurova Ravna affirm the importance of customary norms and pluralism in different ways, and Broderstad discusses what happens in cases of norm collision. For Helander-Renvall, customary norms serve to legitimate the use and allocation of resources, even where such uses conflict with the norms of State law, while for Ravna customary norms may be used to help establish title and use rights and to determine boundaries between siida. Given the importance that these authors all attach to customary norms (and thus to legal pluralism, whether expressly or implicitly), it is perhaps surprising, as Watson Hamilton points out, that the draft Nordic Saami Convention does not have more to say about the foundational importance of Saami laws and customs.1

II. PROCESS AND RELATIONSHIPS

If legal pluralism is an inevitable part of recognising indigenous property interests, it follows, as Watson Hamilton reminds us, that ‘the legal orders must relate to one another in some fashion’. This leads to an emphasis on the importance of process and an invitation to consider whether, in any particular case, the relationship between these orders is hierarchical or more horizontal and respectful. Potes, for example, draws our attention to the concept of plurinationality as a way of conceptualising the relationship between the indigenous order and the order of the settler State, and several other essays in this volume also emphasise the importance of process. Broderstad, for example, refers to the importance of process both in the bilateral reindeer-herding arrangements between Norway and Sweden, and in the similar provisions in the draft Convention. Mascher, Watson Hamilton and Heinämäki all emphasise that the draft Convention recognises the important role that the Saami parliaments will play in working through what Watson Hamilton refers to as arrangements of interlegality. Interlegality may take several forms (interaction between autonomous systems, a limited autonomy model and a hierarchical model) and the draft Convention adopts elements of each. In some cases (eg the Article 3 provision on self-determination and the Article 43 provision emphasising the importance of inter-community agreements) the draft Convention adopts an autonomy model; in other cases (eg the co-determination provisions in Articles 39 and 40, and the veto provisions of Articles 16 and 36) the draft adopts a limited autonomy model; while in still other cases the draft articles (eg the due regard and due respect provisions of Articles 9, 34 and 38) may be more emblematic of a hierarchical relationship. Heinämäki frames

1 See also, making a similar point, M Åhrén, ‘The Saami Convention’ (2007) 3 Gáldu Cˇála—Journal of Indigenous Peoples Rights 8, 18–19.

Conclusion 401 questions of process in terms of ‘the right of a people to control issues of importance to them’, and in so doing locates the procedures of interlegality within the normative context of the discourse on free prior informed consent which Heinämäki contends is already accepted in international law—at least where, as Article 16 of the draft Convention recognises, the issues that are at stake ‘may significantly damage the basic conditions for Saami culture, Saami livelihoods or society’.

III. LOST IN TRANSLATION

A number of the essays in this volume deal with the challenges associated with recognising the other, specifically the challenge of recognising indigenous property norms and values within the legal system of the settler State. Ravna deals with this problem in his essay dealing with the assessment of evidence as part of seeking recognition of Saami land rights, both ownership rights and use rights, while others focus on the challenges associated with the terms of recognition. Mascher, for example, notes that the recognition extended to indigenous land rights in Australia has been limited by the narrow terms of the Native Title Act, which has encouraged a fragmented understanding of indigenous land rights and does a poor job of capturing responsibilities such as ‘the right to speak for country’. Helander-Renvall warns that we should be careful not to lose the adaptability of customary norms; thus, customary norms should ‘not become too specified or validated in the context of national law-making’ for fear that the norm will ‘lose its specific features’. The process of recognition is also important in terms both of the legal form of the recognition and of the implementation or consequences of that recognition. Constitutional recognition, as both Potes and Koshan contend, is one thing, but we must also examine how that constitutional recognition is (not) implemented, whether positively, as in Norway, where (Ravna) the constitutional amendment also contributed to the amendment of the Reindeer Herding Act, or less positively, as in Ecuador, where (Potes) it has proven to be difficult to translate plurinationality into something that has more concrete implications in terms of control over lands and resources and political autonomy. Beyond constitutional recognition, various models exist, including the legislation-plus-special-tribunal model (adopted in both Australia and under the Finnmark Act) and the negotiated agreements model (the model Canada has adopted). But in either case, as both Webber and Bankes point out, many issues will still have to be resolved by the internal order of the indigenous community. In doing so, care should be taken so as not to structure the terms of recognition in a way that favours some over others—whether through gender (Koshan) or in a way that erases customary norms, dealing

402 Nigel Bankes and Timo Koivurova with, for example, the relationship between the individual or family and the collective. Allard’s essay reminds us that the terms of recognition must also create a good fit for both the normative order of the indigenous society and the normative order of the State. Thus, for her there is an important incongruity between the terms of State recognition of the Saami reindeerherding right in the positive law of the Swedish Reindeer Husbandry Act, which vests the reindeer-herding right collectively in the Saami as a people, and the Saami norms and customs which are organised around the Saami village and the siida.

IV. COURTS, LEGISLATORS AND CONVENTIONS

The legal position of indigenous peoples has improved considerably over the last three decades in many jurisdictions around the world, as Koivurova and others point out in this volume. Different actors (courts, legislators, international human rights bodies) have contributed to these developments, as have different normative orders (national, international). One of the themes that runs through this volume is the importance of the interaction between these actors and norms in developing this enhanced understanding of the rights of indigenous people. The courts have undoubtedly played a key role, as Mascher points out in her discussion of Mabo (No 2) in Australia. Similarly, Ravna and Allard refer to the Selbu and Svartskog decisions of Norway’s Supreme Court. Ravna, however, also points to the importance of ILO 169 in influencing the reasoning of the Court, as well as the role of the Storting in amending the Reindeer Husbandry Act to make it easier for the Saami to maintain their reindeer-herding rights on the outlying fields. But the interaction does not always lead to gains for indigenous people. As Mascher points out, legislative intervention may serve to unravel gains made in the courts. This leads her to suggest that the drafters of the Convention may want to provide more specific guidance where the Convention uses general terminology (eg ‘appropriate procedure’ in Article 35 and ‘due regard’ in Article 34), but she qualifies this when she recognises that, at least in Norway, the legislature and the courts all seem to be pulling together and in the same direction, and indeed they are enjoined to do so as a result of Norway being a party to ILO 169.

V. PUSHING THE BOUNDARIES OF INTERNATIONAL LAW?

We did not set out in this volume to provide a systematic account of the extent to which the draft Convention as it stands goes beyond the current requirements of international law. However, since a number of the chapters touch on aspects of this issue, and since, as Heinämäki in particular points

Conclusion 403 out, the Finnish national report on the draft Convention indicates that this is a significant issue in terms of moving forward to finalise the Convention, it seems appropriate to pull some of these threads together. There is certainly a strong sense in which the draft Convention is procedurally innovative, involving as it does four nations or peoples and three States. The very process of a structuring a set of negotiations involving three States and an indigenous people, as equals, to negotiate an agreement to be the subject of international law, is, so far as we know, without precedent. But what of the substantive provisions in the draft Convention? In particular, what about the provisions dealing with the right of self-determination and the principle of territorial integrity as applied to an indigenous people separated by an international boundary, and the provisions that touch upon the status of free, prior informed consent in relation to developments that affect indigenous peoples and their territory? As to the first, both Koivurova and Heinämäki conclude that the right of self-determination as articulated in Article 3 of the draft does not go beyond general international law. Similarly, Heinämäki makes a very strong case for concluding that the consent provision included in Article 16 of the draft Convention (‘[t]he states shall not adopt or permit measures that may significantly damage the basic conditions for Saami culture, Saami livelihoods or society, unless consented to by the Saami parliament concerned’) is fully consistent with the UN Declaration, the jurisprudence of the Inter-American Court of Human Rights and the decisions of the UN Human Rights Committee.

VI. THE IDENTIFICATION OF THE RIGHTS-BEARER

Two of the essays in the volume (those by Tanja Joona and Juha Joona) draw attention to Article 4 of the Convention (‘Persons to whom the Convention applies’), and especially to the way in which it applies in Finland. Both suggest that the article is problematic in so far as it is not sufficiently inclusive of all persons who consider themselves Saami in Finland. They offer a number of different critiques. For Juha Joona, the emphasis on language retention in paragraph (a) of Article 4 is problematic because it discriminates against the Forest Lapps or Saami, the original indigenous inhabitants of northern Finland. The emphasis on language is further compounded by the way in which the Saami parliament applies the Finnish legislation dealing with eligibility for the voting registry for the parliament (which is relevant to criterion (c) of Article 4). Although the legislation seems to contemplate a number of different grounds for establishing eligibility, in practice the Finnish Saami parliament has put a great deal of emphasis on language in its decisions, and it has proven to be very difficult to secure judicial review of these decisions. For Tanja Joona, Article 4 is problematic because it accords too large a role to the three States in determining eligibility. This arises both because

404 Nigel Bankes and Timo Koivurova of paragraph (c), which inevitably draws on the national legislation dealing with eligibility to vote in the respective Saami parliaments, but also (and less directly) through past policies in relation to the Saami language. Tanja Joona suggests that this deference is inconsistent with the general emphasis in international law on the importance of self-identity. It is also inconsistent with the emphasis in the draft Convention on harmonising laws and practices concerning Saami rights as between the three Nordic States. Both authors are critical of the arbitrary manner in which the original electoral roll was first developed for the Finnish Saami parliament in the 1960s. In the end, therefore, both authors recommend that Article 4 be re-examined as part of finalising the text of the Convention. Tanja Joona goes further and offers a concrete proposal for the drafters to consider, a proposal which has the added advantage of trying to take account of other traditional livelihoods followed by Saami in addition to reindeer herding.

VII. FINAL THOUGHTS

As stated in the Introduction, all of the authors welcome the development of the draft Convention as an innovative and progressive way to advance the rights of transnational indigenous peoples. Yet, as some of the authors point out, there will be resistance to adopting some elements of the draft Convention, and perhaps especially the land and resources provisions. At present the draft Convention (Article 46) contemplates that the three States will be required to give the Convention direct effect in domestic law. The policy behind this seems admirable (to ensure uniform application of the Convention), but it is not clear that the substantive drafting of the provisions of the current text (especially the land and resources provision of the draft Convention) is really premised on direct effect. Thus it may be easier to consider different ways of achieving the policy objective of uniformity rather than relying on the direct effect clause. One possibility, for example, might be to expand on the role of the Convention Committee described in Article 45 to achieve this goal. Continued reliance on the direct effect clause may make it more difficult for the States (or some of them) to agree to the language of the current draft.

Index Abkhazia, 113 Achuar people, 15, 295–321 acquisitive prescription, 84–5 Agenda 21, 262 Åhrén, Mattias, 57, 59, 66, 129, 183, 189n31, 270, 376, 386 Alcantura, Chris, 356 Alfred, T, 54 Alfredsson, G, 269–70 Allard, Christina, 5, 11, 12, 207–27, 402 Altman, JC, 358 American Convention on Human Rights, 31 Anaya, James, 2, 32, 33 Andean countries, 55 Andoas people, 300 anthropology, 14, 47, 58, 88, 281, 283, 290 Asch, Michael, 283 Asian Development Bank (ADB), 259 Assembly of First Nations (AFN), 390, 391, 393, 395 Australia: aboriginal land rights, 37 forms of ownership, 98 Mabo (No 2), 323, 324–5, 327–30, 341, 402 Mabo cases, 22, 27 NTA, 28, 323–4, 331–40 pre-Mabo (No 2), 324–7 recognition, 15–16, 56, 323–50 Aboriginal Land Rights (Northern Territory) Act 1976, 326 aboriginal trust lands, 352 censuses, 274–5 colonialism 325, 329 Council for Aboriginal Reconciliation, 54 Mabo (No 2), 402 legislative response to, 331–40 paradigm shift, 327–30 terra nullius and, 343 uncertainty, 341 Meriam people, 327 National Indigenous Council of Australia (NIC), 356–7 National Native Title Tribunal, 331, 401 Native Title Act (1993), 28, 401 burden of proof, 345–7 certainty and security of title, 340–3 compensation, 333 court jurisdiction, 332–3

definition of native title, 344, 348 determination of claims, 332–3 dissatisfaction, 339–40 future acts, 333–40 global trend, 359 good faith, 334, 335, 336–7 indigenous land use agreements, 338–9 intermediate period acts, 333, 341–2 mining tenements, 334 move away from common law, 343–9 natural resources, 334–8 nature of rights, 347 negotiation right, 334–8 objectives, 332 outcomes, 339–40 overview, 331–40 past acts, validation, 333, 341–2 pastoral leases, 341 Preamble, 332, 338 profit sharing, 335, 337–8 registration of claims, 332 response to Mabo, 323–4 s 33, 335 s 223, 344, 348 strict interpretation, 343–9 structural criticisms, 340–9 subleases, 357 Ward case, 346–7 Yorta Yorta case, 345–6, 347–8 Native Title Amendment (Reform) BIll 2011, 337–8, 348 Racial Discrimination Act (1975), 329, 330, 333, 341 reconciliation process, 54 self-identification of Aboriginals, 274–5 terra nullius, 26–7, 328, 343 UNDRIP (2007) and, 118 Bäckman, Louise, 382 Bangladesh: Adivasi people, 274 Bankes, Nigel, 1–17, 21–43, 348–9, 351–78, 399–404 Barker, Joanne, 390 Bartlett, Richard, 341 Bédard, Yvonne, 389 Beijing Declaration, 380 Berman, P Schiff, 61–2, 65, 66–7, 68, 72, 76 Blackburn, C, 54

406 Index Bolivia: Constitution (2009): indigenous people, 304 Borgen, CJ, 113 Borrows, John, 30, 36, 95–6 Brand, Fr, 181–2 Broderstad, Else Grete, 2, 8, 10, 63, 149–74, 400 Burnside, Sarah, 337 Calma, Tom, 340 Canada: Assembly of First Nations (AFN), 390, 391, 393, 395 Australian jurisprudence and, 326 Centre for Independent Studies, 356 colonialism, 352, 388, 389 Constitution equal rights of indigenous women, 380, 390 equality rights, 389–93, 395–6 cultural rights, 262–3 customary law, due regard, 75 Delgamuuku case, 29, 362 Elders Council, 392 Gitksan people, 88–9 Indian Rights for Indian Women (IRIW), 389 indigenous land claim agreements, 338 administrative rules approach, 371–3 alienability, 365–6, 377 capital and, 355–8 certainty provisions, 366–8 Constitutional status of lands, 363 conveyance or recognition, 361 Gwich’in (1992), 360, 361 internal decisions, 368–74 Inuvialuit (1984), 360, 364 James Bay and Northern Quebec Agreement (1977), 99, 360, 361, 364, 367, 368 Labrador Inuit (2005), 360, 361, 362, 363–4, 367 legal quality of titles, 361–3 model, 401 modern agreements, 16–17, 359–74 natural resources, 363–4 northern land agreements, 360 Nunavut (1993), 143, 360, 364, 367, 371–3 recognition, 56 reserves, 352–5 restricted alienability, 355–8 Saami Convention and, 374–7 Sahtu Dene and Metis (1994), 360 self-government approach, 369–71 Teslin Tlingit, 370–1 titles, 93, 360–6 Tlicho (2005), 143, 360, 361, 362, 363

vested parties, 364–5 Yukon agreements, 360, 361, 362–3, 364, 365, 367, 368, 369–70, 377 indigenous peoples, 36 classes, 220 definition, 262–3, 387 recognition, 55 self-determination, 131 indigenous treaties, 37 indigenous women equality rights, 387–93, 394–8 Lovelace case, 262–3, 389–90, 396–7 matrimonial property, 393, 394 mobilisation, 389 R v Marshall and Bernard, 29–30 National Indian Brotherhood (NIB), 389, 390 Native Council of Canada, 390 Native Women’s Association of Canada (NWAC), 389, 393 Nisga’a Treaty, 50, 54 non-indigenous governments as trustees, 96–7 Nunavut territory, 69 property doctrines, 352 Quebec secession right, 110–12 recognition and reconciliation, 49 reserves, 352–5, 363 Royal Proclamation (1763), 353, 361 terra nullius, 352 UNDRIP (2007) and, 118, 138 capital: aboriginal land holdings and, 355–6 capitalism, 73, 306, 372, 382 Carl XI, King of Sweden, 255 Centre for Independent Studies, 356 CERD, 32–3 CERD Committee, 270, 276, 278, 342 certainty: Australian indigenous titles, 340–3 Canadian indigenous titles, 366–8 state structures and, 90–1 Chartrand, PLAH, 52n46, 55 Christianity, 382 co-ownership, 8, 85, 95 collective rights, 85, 171, 209, 211–14, 221, 225, 298–9, 307–8, 314, 318, 386, 395–7 Colombia, 302 colonialism: Australia, 325, 329 Canada, 352, 388, 389 decolonisation of Saami, 126–7 Denmark, 50 Ecuador, 306 ICCPR decolonisation background, 131 inner colonialism, 50, 54, 56 Lapp Codicil (1751) and, 10 legal pluralism, 47 marginalisation, 285

Index 407 meaning of law and, 58 Norway, 50, 325–6 post-colonial self-determination, 107–10 territorial restrictions, 114–15 post-colonial transitional justice, 50 property rights and, 37 recognition and, 55–6 reconciliation, 54 Sweden, 50, 255 women and, 382, 384, 395 common law, 22, 24–5, 28, 29, 30, 90, 93, 188, 324–31, 343–8, 374 condominiums, 95 conflict of laws: legal pluralism and, 66–7 cooperatives, 94–5 corporations: governance powers, 94–5, 98–9 private actors, 92–3 cosmopolitanism, 39 Coulthard, GS, 56 Crocker, DA, 53–4 cross-border reindeer grazing rights: 1919 Grazing Convention, 163 1972 Grazing Convention, 149, 163, 164, 165–7, 171 2009 Agreement, 149–50, 165–9, 174 conflicting interests in grazing areas, 160–9 customary rights, 67–8, 150, 169, 170, 171, 172 Lapp Codicil (1751), 150–1 current relevance, 158–60, 167, 174 history, 156–8 ignoring principles, 173 legal history, 10, 156–60 legal pluralism, 67–8 negotiations, 165–9 insufficient mechanism, 169–72 new cooperative approach, 173–4 norm collision, 152–4 norms v interest politics, 152–6 Norway-Sweden border, 10, 149–74 Saami Convention, 10, 67–8, 158–9 sovereignty, 154–6, 160–5 culture see indigenous cultures customary law: characteristics, 290 codifying, 73–4 culture and, 282–3 deference, 74–5 definition of law and, 60 evolution, 60, 284 flexibility, 287–8, 401 grazing rights, 150, 169, 170, 171, 172 legal pluralism and, 67–8, 284–90, 399–400 meaning, 283–4 multiple systems of ordering, 284–6

Norwegian evidence of Saami land use herders’ opinions, 200–3 overview, 197–203 siida boundaries, 199–200, 205 traditional rules, 200 traditional use, 197–9 Norwegian Saami, 14, 281–91 recognition, 291 recognition of indigenous land rights, 24, 25, 26–9 Saami Convention and, 67–8, 376 self-determination and, 290–1 siidas, 224, 284–5 South American constitutions, 62 survey, 200–3 Daes, Erica-Irene, 260, 261 decentralisation, 87, 89–90, 94, 100–1, 172, 315–17 definition of Saami people: Article 4 Saami Convention, 5 assessment, 270–1, 278–9, 403–4 criteria, 13–14, 264–5, 271–3 survey, 13–14, 264–78 text, 264–5, 279 Finland see Finland language criterion, 230, 247, 248–50, 252, 271–2 Nordic comparisons, 273–8 Norway, 266–7, 385, 387 reindeer herding right criterion, 266, 272 women and, 384–5 Saami Convention, 229 Saami parliament criterion, 272–3 self-identification, 273–5 Sweden, 251, 264, 266, 267, 275–6, 384 Delmas-Marty, Mireille, 62, 65 Denmark: colonialism, 50 devolution, 72 Strömstad Treaty (1751), 2, 150, 242 Dodson, M, 260 Ecuador: Achuar people, 15, 295, 296–7 colonisation of Amazonia, 297 CONAIE, 304–5, 306n41, 309n53, 311, 313 Constitution (1998) collective rights, 298–9 indigenous land rights, 299–301, 310 territorial organisation, 315 Constitution (2008), 15 assessment, 319–21 indigenous political autonomy, 313–18 indigenous rights, 301–18 land rights, 308–13 natural resources, 311–13

408 Index plurinationality, 15, 301, 304–8, 312, 318, 320–1 territorial organisation, 315–18 COTAD, 316–18, 319 decolonisation, 306 indigenous land rights, 401 1998 Constitution, 299–301, 310 2008 Constitution, 308–13 indigenous movement, 297–301, 308–9 NAE, 297, 301, 319 Eide, A, 27, 32–3, 34, 42 Eikjok, Jorunn, 384, 387 Eliassen, Kjell, 171 Engle, Karen, 396 English law, 25, 93 environmental protection, 5, 63, 69–70, 380, 400 equality: gender see gender equality international human rights law, 22, 30, 31 recognition of property interests and, 32–3 Saami Convention (Article 7), 159, 381, 386 ethnocentrism, 285 Eurocentrism, 306 European Convention on Human Rights, 191 European Court of Human Rights, 65 European Union, 47, 158 evidence of land rights see indigenous land rights Faroe Islands, 72 federalism, 36, 63, 65, 100–1 Fellman, Isak, 233 feminism, 384, 394–5 Ferrajoli, Luigi, 307 feudalism, 37, 93 Finland: border definition, 157 colonialism, 50 Constitution consent of Saami parliament, 137–8 free association, 269 indigenous rights, 301–2 rights of indigenous people, 71 customary law and, 60 definition of Saami people, 267–70 Article 4 Saami Convention and, 12–13, 230–1 assessment, 403–4 case law, 277–8 language criterion, 247, 248–50, 278 overview, 246–52, 267–70 reindeer husbandry, 272 devolution, 72 Forest Lapps, 231, 236–41, 243–4, 246, 247, 249–52, 403

Human Rights Committee decisions, 140 ICCPR ratification, 128 ILO 169 and, 4, 132, 147, 278 indigenous rights, 230 Lapp, meaning, 267–8 Lapp tax, 233–4, 238 legal pluralism and, 48 Mountain (Reindeer) Lapps, 236–46, 247, 252 Norwegian border closure (1852), 244 Saami Convention and, 120, 122 Article 4 (application), 12–13, 251–2, 268 Article 7 (non-discrimination) and, 386 assessment, 145–7 international participation, 143–5 national participation, 141–2 process, 125–6 report, 403 self-determination in action, 135–40 self-determination rights, 9, 125, 127–8, 130–4 Saami parliament definition of Saami identity, 267–70, 277–8 electoral registration, 248–50, 277–8, 404 Saami people, 1, 120 1962 survey, 246–7, 249 numbers, 276 Saami settlement history, 230 16th/early 17th century, 231–4 1673 settlement decree, 235–41, 253 1741 land register, 252 arrival of nomadic reindeer husbandry, 241–6 historical Lapland, 232 language, 239–40 Lapland border, 231–2, 237 Lapp Codicil (1751), 242 Lapp villages, 232–4, 252 map, 232 survey, 231–46 taxman’s rights, 233–4 Saami women, 384 Swedish territory, 230 independence, 242–3 Fitzmaurice, M, 55 Flanagan, Tom, 356 Framework Convention for the Protection of National Minorities, 269 French, Robert, 347–8 Geertz, C, 60 gender equality: Canadian indigenous women and, 387–93 equality clause option for Saami Convention, 393–8

Index 409 international law on indigenous people, 380 Saami women and, 382–6 Gilbert, J, 24 Gitksan people, 88–9, 397–8 Godden, L, 28, 357 good faith: Australian aboriginal land right negotiations, 334, 335, 336–7 ILO 169, 137 Norwegian Saami land rights and, 195–7 Selbu case, 188 UNDRIP, 144–5 governance see also self-determination corporations, 94–5, 98–9 decentralisation, 87, 89–90, 94, 100–1, 172, 315–17 federalism, 63, 100–1 forms, 81 property rights and, 92–7 sovereignty and, 81–2 Graan, Johan, 235, 236 Grant-John, Wendy, 393 Graver, Hans Petter, 4 Gray, Kevin, 97 grazing rights see reindeer husbandry Green, Joyce, 392–3, 394 Greenland, 72 Griffiths, J, 57 Haudenosaunee people, 387 Heinämäki, Leena, 8, 9–10, 125–47, 276, 400–1, 402–3 Helandar-Renvall, Elina, 5, 11, 14, 281–91, 399–400, 401 Heller, M, 355 Henderson, Youngblood, 36 Henriksen, J, 31, 270 Hepburn, S, 37, 357 Heurgren, Sven, 275 Hiltunen, Mauno, 236 Holmbäck, Åke, 233–4 human rights: movement, 105 property rights, 22, 30–1, 30–4 transitional justice and, 49–53 Hungary, 273 Hunter, R, 55 hybrid courts, 72 ILO 169: approach, 31 Article 1, 260–1, 275–6, 278 Article 6, 168 Article 8, 197 Article 14 (recognition), 55, 179, 187

cultural rights, 303 duty to consult, 168 evidence of land use, 197 Finland and, 4, 132, 147, 278 gender equality, 380 identification of traditional territories, 179 importance, 402 international rights, 144 Nordic countries and, 256 Norwegian recognition, 4, 60, 168, 197, 402 participation rights, 141 peoples, meaning, 132 Saami Convention and, 136, 137 self-determination, 303 UNDRIP (2007) and, 119 India, 258 Indian Rights for Indian Women (IRIW), 389 indigenous cultures: characteristics, 177–8 constitutional recognition, 301–2 customary law and, 282–3 definition of indigenous peoples and, 262 international law, 303–4 land relationships, 95–6, 177–8, 182–3, 276, 324, 384 oral culture, 177, 193, 196, 282, 284 relativism, 285 rights Canada, 262–3 ICCPR (Article 27), 131, 140, 146, 262–3, 264, 389–90 ILO 169, 303 international human rights law, 22, 31 land and cultural rights, 22, 31, 33–4 pluralism, 38 rooting out, 256 women and, 385 indigenous land: cultural relationships, 95–6, 177–8, 182–3, 203, 276, 324, 384 rights see indigenous land rights indigenous land rights: acquisitive prescription, 84–5 Australian recognition see Australia bundle of rights, 28, 221 categories of indigenous rights, 220–2 co-ownership, 95 constitutional recognition, 301–2 ECHR property rights, 191 Ecuador, 297–301, 308–13 English law, 25 evidence customs and traditions, 197–203 herders’ opinions, 200–3 immemorial usage, 179, 187–8, 189

410 Index Norway see Norway problems, 178–80 Saami Convention, 178–9 siida boundaries, 199–200, 205 traditional rules, 200 traditional use, 197–9 extinguishment rules, 37, 38 feudalism and, 93 Finland see Finland governance and, 92–7 immemorial prescription, 265 indigenous concept, 23–4 international human rights law and cultural rights, 22, 31, 33–4 doctrines, 22, 30–4 equality rights, 32–3 self-determination, 31–2 international law, 31, 303 Locke on, 22, 34–6, 181 meaning, 23–4 nomadic communities, 180–3 Norway see Norway political theory consent, 34–7, 52 Locke, 22, 34–6, 181 Tully, 35–7, 43, 52 public law dimension, 7–8, 79–92 recognition, 401 justification, 21–37 recognition doctrines, 24–30 common law, 22, 24–5, 28, 29, 30 customary law, 24, 25, 26–9 sui generis right, 24, 28–30 restoration and restitution, 38–42 Saami Convention see Saami Convention sovereignty and, 81–4 succession, 87–8 Sweden see Sweden trusts, 96–7, 98–9 western paradigm, 23, 35–7 indigenous peoples: definition international law, 258–64 Saami Convention see definition of Saami people international human rights law, 31 meaning, 258–62 threats to, 258 UN Declaration see UNDRIP women see women worldwide position, 258 Inter-American Commission on Human Rights, 22, Inter-American Court of Human Rights, 22, 33–4, 38, 40, 138, 403 inter-societal law, 6 International Court of Justice, 22, 27, 57, 113–14

International Covenant on Civil and Political Rights (ICCPR): Article 1 (self-determination), 105–6, 109, 116, 129, 132, 263, 396–7 Article 27 (cultural rights), 31, 131, 140, 146, 262–3, 264, 389–90 decolonisation background, 131 Finnish ratification, 128 Lovelace case, 389–90, 396–7 property rights, 34 Saami Convention and, 4, 129 International Covenant on Economic, Social and Cultural Rights, 109, 116, 129 International Decade of the World’s Indigenous People (1995–2004), 116 international human rights law see human rights International Labour Organisation see ILO 169 international law see also specific conventions definition of indigenous peoples, 258–64 human rights see human rights indigenous land rights, 31, 303 indigenous women and, 380 pushing boundaries, 402–3 recognition of indigenous cultures, 303–4 self-determination see self-determination transnational people and, 105–7, 114–19 Inuit, 99, 143, 258, 360, 361, 363–5, 369, 371–3, 390 Jebens, Otto, 283–4 Joint Norwegian-Swedish Commission for a New Reindeer Grazing Convention (RGC) (1997), 149, 151, 165–6 Joona, Juha, 5, 11, 12–13, 14, 403–4 Joona, Tanja, 5, 11, 13–14, 403–4 Kailo, Kaarina, 383–4, 385, 387, 395 Karlstad Convention (1905), 160–2, 164, 166 Keating, Paul, 331, 344 Kichwa people, 300 Kingsbury, B, 30 Koivurova, Timo, 1–17, 105–24, 276, 320, 399–404 Kola Peninsula, 1, 120, 255 Korpijaakko-Labba, Kaisa, 182 Koshan, Jennifer, 17, 379–98, 401 Kosovo, 113–14 Krajina, 113 Krisch, N, 76 Kuokkanen, Rauna, 383, 384, 387, 397, 398

Index 411 Kwaymullina, Ambelin, 343 Kymlicka, Will, 52 land see indigenous land; indigenous land rights language: definition of Saami people and, 230, 247, 248–50, 271–3 oral culture, 177, 193, 196, 282, 284 Lapp Codicil (1751): ancient use and customary rights, 169, 170 Article 10, 157 contents, 150, 169 current relevance, 158–60, 167, 174 Finland and, 242 history, 156–8 ignoring principles, 173 international law status, 2, 150 Norway and, 10, 150–1, 160–1, 162, 173 RGG and, 151 significance, 10, 158 Sweden and, 10, 173 validity, 150, 168 LaRocque, Emma, 397 Lavell, Jeannette Corbiere, 389 law: certainty, 90–1 definition, 56–61 indigenous view of, 92 pluralism see legal pluralism sources, 60 Le Dressay, André, 356 Lea, D, 358 legal pluralism: 1st wave, 47 2nd wave, 47 3rd wave, 47 colonialism and, 47 customary law and, 67–8, 284–6, 399–400 national legal systems, 288–90 definition of law, 56–61 global legal pluralism, 47 interaction models, 61–75 greater autonomy, 65–8 hierarchies, 71–5 limited autonomy, 68–71 interlegality, 61 meaning, 46 new legal pluralism, 47 positivism and, 47, 48 process and relationships, 400–1 recognition, 48–56 reconciliation and, 48–9, 77 Saami Convention and, 6–7, 45–77 suppression, 62

transitional justice, 49–53, 77 weak legal pluralism, 72–3 Lijphart, A, 70 Liljenstrand, Axel, 182 Linkhorn, C, 358, 359n41 Locke, John, 22, 34–6, 181 Lund Recommendation on the Effective Participation of National Minorities, 145 McGarry, J, 62 McHugh, PG, 25 Macklem, P, 36 McNeil, Kent, 24–5, 27, 30, 43 mandated territories, 108 Maori people, 82–3 Mascher, Sharon, 8, 15–16, 323–50, 400, 401, 402 Meiijknecht, A, 263 Meriam people, 327 Michaels, R, 58, 73 Minchin, Nick, 344 minority rights: international human rights law, 30, 31 Monture, Patricia, 387, 392 Moore, Margaret, 41 Moore, Sally, 285–6 Myntti, Kristian, 276 Namibia, 117–18 Napoleon, Val, 89, 387, 397–8 National Indian Brotherhood (NIB), 389, 390 National Indigenous Council of Australia (NIC), 356–7 National Union of Swedish Saami (SSR), 165–6, 169, 217 Native Council of Canada, 390 Native Women’s Association of Canada (NWAC), 389, 393 natural resources: Australian Native Title Act (1993), 334–8 Canadian indigenous land agreements, 363–4 Ecuador, 311–13 Saami Convention, 70–1, 123, 138–40, 146–7, 334, 336, 338, 376, 400 UN Human Rights Committee, 139–40, 146 New Zealand: aboriginal land use agreements, 338 Maori Land Court, 358 UNDRIP and, 118, 138 Waitangi Treaty, 82–3 Waitangi Tribunal, 359 Newman, Dwight, 41 Nicaragua, 302 Nickul, Erkki, 246n75, 247n78, 277 Nickul, Karl, 246–7

412 Index nomadic communities: land titles, 180–3 non-profit making corporations, 94–5 Norberg, Lars, 171 Nordic Council, 1, 2, 120 Nordic Saami Convention see Saami Convention Norway: 17th century law, 56 border definition, 157 colonialism, 50, 325–6 Constitution property rights, 191 Saami rights, 302, 330 cross-border reindeer husbandry, 149–74 definition of Saami peoples, 266 Canadian comparisons, 387 Saami parliamentary voting rights, 266 women, 385 Finnish border closure (1852), 244 fisheries, 57, 288–9 ILO 169 and, 4, 60, 168, 197, 402 independence (1905), 150, 160–1 Lapp Codicil and, 10, 150–1, 160–1, 162, 173 Lapp Commission, 189 legal pluralism and, 48 Lutheran Church, 272 non-Saami reindeer husbandry, 183–4 Reindeer Husbandry Act (1978), 188–92, 203, 342–3, 349, 401, 402 Saami Convention and, 120, 125–6 Saami customary law Black Forest case, 289–90 fieldwork, 281–2 fishing allocations, 288–9 legal pluralism, 284–6 national legal system and, 288–90 survey, 14, 281–91 Tana, 281–2, 285, 286–9 Saami land rights, 27, 401 19th century doctrine, 180–3 20th century case law, 183–6 case law, 402 discrimination, 183–4 lack of nomadic title to land, 180–3 siida, 209 state ownership of territories, 178 Saami land use evidence assessment case law, 192–7, 204 customs and traditions, 197–203 good faith entitlement, 195–7 herders’ opinions, 199–203 immemorial usage, 187–8, 189 intensity and continuity of use, 193–5 legal assessment framework, 186–92 older sources, 195 oral sources, 193, 196 presumption, 188–92

Selbu case, 187, 188, 189, 191–2, 193, 195, 197, 198–9, 203–4, 330, 349, 402 siida boundaries, 199–200, 205 tracing problems, 192 traditional use, 197–9, 204–5 Saami language, 272 Saami parliament, 71, 266, 277 Saami people, 1, 120, 276 Saami Rights Committee, 281 Saami women, 383, 384 Sweden: historical hostilities, 235 terra nullius, 326 Nozick, R, 36 NRL (Saami Reindeer Herders’ Association of Norway), 149, 165, 167, 169 Nunavut Tunngavik Inc, 372 Oduro, F, 53 O’Leary, B, 62 Olli, Jan Josef, 200–3 oral culture, 177, 193, 196, 282, 284 Pacari, Nina, 306n36 Paraguay, 40, 302 Pareli, Leif, 192, 193 Pearson, Noel, 329, 331, 340–1, 342 Pentassuglia, G, 33, 38 peoples: meaning, 112 self-determination and international law, 107–14 Peralta, Ospina, 313 Peru: Achuar people, 15, 296 plurinationality, 15, 301, 304–8, 312, 318, 320–1, 400 positivism, 47, 48, 58 possessory titles, 25 Potes, Verónica, 14–15, 295–321, 400, 401 Povinelli, EA, 55–6 pre-emption, 352 prescription: acquisitive prescription, 84–5 private law: corporations, 92–3 public law and, 8, 100 property: land see indigenous land land rights see indigenous land rights western concepts, 357 public law: private law and, 8, 100 property and governance, 92–7 recognition of indigenous property interests and, 7–8, 79–92 Radcliffe-Brown, Alfred, 283 Ravna, Øyvind, 5, 10–11, 16, 33, 177–205, 325–6, 349, 400, 401, 402

Index 413 recognition: colonialism and, 55–6 legal pluralism, 48–56 meaning, 55–6 property rights see indigenous land rights reconciliation and, 48, 49, 53–5 Saami Convention (Article 2), 59, 130, 264 reconciliation: achieving, 77 legal pluralism and, 53–5 meaning, 53–4 recognition and, 48, 49, 53–5 self-determination pre-requisite, 53 transitional justice and, 49–53 reindeer husbandry: category of right, 220–2 cross-border rights see cross-border reindeer grazing rights culture and, 177–8, 182–3, 203, 385 definition of Saami peoples and, 266, 272 women and, 384–5 Finland: origins of nomadism, 241–6 flexible use of land, 198 grazing practices, 198 historical family ties, 210–13 land use evidence customs and traditions, 197–203 herders’ opinions as to, 199–203 Norway see Norway traditional rules, 199–203, 204–5 Norway see Norway Saami Convention (Article 43) see Saami Convention siidas see siidas Sweden see Sweden women and, 384–5 reparation: models, 38–42 restitution: duty, 38–42 Saami Convention and, 39 RGG (Joint Norwegian-Swedish Commission for a New Reindeer Grazing Convention), 151 Ritter, D, 27 Rowley, Charles, 98 Russia: closure of Norway-Finland border (1852), 244 Kola Peninsula, 1, 120, 255 Saami Convention and, 120, 124 Swedish historical hostilities, 235 UNDRIP (2007) and, 118 Saami Convention: Preamble, 17, 158, 257, 265, 271, 272, 380, 386 Article 1 (Objective), 257

Article 2 (recognition), 59, 130, 264 Article 3 see self-determination Article 4 see definition of Saami people Article 5 (state responsibility), 59, 71, 158 Article 7 (non-discrimination), 159, 381, 386 Article 8 (minimum rights), 159, 227 Article 9 (Saami legal customs), 5, 7, 59–60, 67, 73, 74–5, 197, 400 Article 10 (harmonisation), 64–5 Article 14 (Saami parliaments), 71, 135–6 Article 15 (independent decisions by Saami parliaments), 136 Article 16 (Saami parliaments’ right to negotiations), 5, 70–1, 137–8, 146–7, 400–1, 403 Article 17 (rights of Saami parliaments), 63, 70–1, 141–2 Article 18 (Saami parliaments and national assemblies), 142 Article 19 (international representation), 142–5, 147 Article 20 (joint organisations), 122 Article 21 (Saami organisations), 172 Article 22 (Saami region), 69 Article 34 (traditional use of land and water) balancing approach, 343 burden of proof, 348 contents, 4, 74 due regard, 7, 74, 402 hierarchical relationship, 400 identification issues, 192 issues, 178–9 national legal systems and, 265 Norwegian rights, 186–7 ownership forms, 304 scope, 43 Selbu case and, 204, 349 territorial scope, 70 Article 35 (Protection of Saami rights in land and water), 304, 349, 375–6, 402 Article 36 (natural resources) contents, 70–1 issues, 138–40, 338 negotiations, 334, 376 scope, 9, 123, 400 Article 37 (compensation and profit sharing), 4, 43, 336, 376 Article 38 (coastal areas), 4–5, 7, 70, 74, 400 Article 39 (land and resource management), 5, 63, 69–70, 400 Article 40 (environmental protection), 5, 63, 69–70, 400 Article 43 (cross-border grazing rights) autonomy model, 400 conflict of laws, 67–8

414 Index dispute resolution, 72, 172, 205 Lapp Codicil and, 158 Norway and, 171 terminology, 7 Article 45 (Convention Committee), 404 Article 46 (implementation), 3, 64, 404 Canadian experience and, 374–7 contents, 3, 4–5 customary law and, 67–8, 376 development, 2–4 direct effect, 404 English translation, 3 ILO 169 and, 136, 137 inconsistency, 257–8 indigenous people: concept, 229 inspiration, 320–1 international participation, 143–5 land rights, 230, 304 alienability, 377 Article 37, 43 Canadian experience, 374–7 Chapter IV, 21 grazing see cross-border reindeer grazing rights landmark, 399, 404 languages, 3 legal pluralism and, 6–7, 45–77, 63 national participation, 141–2 objectives, 229 procedural rights, 334 process, 125–6 equal partnership, 126, 127 profit sharing, 336 pushing boundaries of international law, 402–3 reindeer husbandry, 10 restitution and, 39 Russia and, 120, 124 Saami parliaments and, 69–71, 107, 134–40, 250 subjects see definition of Saami people submission, 229 sui generis instrument, 127, 303–4 transnational aspect, 64 UNDRIP and cultural rights, 403 international rights, 144–5 participation rights, 136, 141–2 self-determination, 127, 128, 129, 132–3 transnationalism, 124 veto rights of indigenous people, 137–8 women and, 17, 380–1 equality clause option, 393–8 Preamble, 380, 386 Saami Council, 2–3, 246–7 Saami land rights see indigenous land rights

Saami parliaments: functions, 134–40 legal pluralism, 63 Saami Convention and, 69–71, 107, 121–2, 250 definition criterion, 272–3 women, 17 Saami people: definition see definition of Saami people economy, 1 geography, 1, 120, 255 land and culture, 177–8 numbers, 276 organisation, 2 treaties, 2 Saami Reindeer Herders’ Association of Norway (NRL), 149, 165, 167, 169 Saami Rights Commission, 46, 173 Sandberg, A, 56 Sara, Mikkel Nils, 198–200, 205 Sarayaku people, 300n14 Scheinin, Martin, 31, 270 Schnitler, Boundary Commissioner, 156 self-determination: customary law and, 290–1 Ecuadorean indigenous peoples, 313–18 international law, 303 human rights law, 22, 30 peoples, 107–14 post-colonialism, 107–10 Quebec, 110–12 right, 5, 59 Saami claims, 47 Saami Convention and, 403 Saami rights, 128–34 statehood, 108–9, 123 territorial restrictions, 108, 114–15 transnational people, 105–7, 114–19 uti possidetis, 108 key to reconciliation, 53 post-colonialism, 107–10, 126–7 recognition of indigenous land rights and, 31–2, 55 Saami Convention, 303–4 actualising, 134–40 Articles, 59–60 assessment, 120–3 autonomy model, 400 Finland and, 9, 125, 127–8, 130–47 inspiration, 320–1 legal pluralism, 7 natural resources, 138–9 scope, 125–47, 128–34 sui generis right, 129, 133 Saami Convention (Article 3) Article 43 and, 7 contents, 63 international law right, 59

Index 415 interpretation, 66, 133, 268 text, 129, 264 UNDRIP and, 129, 132–3 Saami women’s views, 383, 397, 398 secession and, 134 territoriality, 68–9 transnational people international law and, 105–7, 114–19 Saami claim, 47 Saami Convention, 107, 120–3 UNDRIP, 115–19 UN Covenants, 105–6, 109, 116, 129 UNDRIP (2007), 129, 132–3 Semb, AJ, 71 Severinsen, Anne, 192, 193 Short, D, 52 Shuar people, 297, 298, 300 Siewert, Rachel, 337 siidas: customary law, 224, 284–5 meaning, 2, 223–4 Norwegian land rights, 209 boundaries, 199–200, 205 Saami Convention (Article 21), 172 Swedish land rights, 223–4, 226 standing, 216–18 Sillanpää, L, 64 Simeon, R, 62 Simpson, G, 26, 27 Slattery, Brian, 24, 25, 27, 28–30, 36, 41–2, 220–1 Smith, Kevin, 342 social Darwinism, 211 Solem, Erik, 284 Søreng, SU, 57 Soto, Hernando de, 16–17, 355–6, 357, 358 Sousa Santos, Boaventura de, 61, 306 sovereignty: Australian native title and, 327–9 consent and, 36–7 cross-border reindeer husbandry and, 154–6, 160–5 governance and, 81–2 indigenous property rights and, 79, 81–4 international human rights law, 31 Westphalian order, 154 Sponheim, Lars, 167 SSR (National Union of Swedish Saami), 165–6, 169, 217 Stang, Fredrik, 182 states: certainty and state structures, 90–1 self-determination and, 108–9, 123 UNDRIP (2007) and, 119 Steiner, H, 68 Stordahl, V, 395 Strelein, Lisa, 28, 37, 347 Strömstad Treaty (1751), 2, 150, 242

subjects of Saami Convention see definition of Saami people succession, 87–8, 92 Sunnari, V, 387 supersession theory, 23 Svensson, Tom G, 56, 60, 73–4, 282, 286 Sweden: 19th century Saami courts, 57 border definition, 157 colonialism, 50, 255 Constitution: Saami rights, 302 cross-border reindeer husbandry, 149–74 definition of law, 60 definition of Saami peoples, 251, 264, 266, 267, 275–6, 384 EU accession, 158 Finland as part of, 230 independence, 242–3 ILO 169 and, 4, 275–6 Lapp Codicil and, 10, 173 Lapp Committee Report (1883), 212 legal pluralism and, 48 National Union of Swedish Saami (SSR), 217 Norwegian historical hostilities, 235 property law, 218–22 public right of access, 221–2 Reindeer Husbandry Act (1971), 402 definition of Saami, 264 women and, 384 Russian historical hostilities, 235 Saami Convention and, 120, 122 Article 7 (discrimination), 386 process, 125–6 Saami land rights 1993 changes, 213–15, 216, 225, 226 case law, 215–18, 226 categories, 220–2 civil rights, 343 collective character, 208–9, 210–18, 222–5 Girjas case, 217–18 historical family ties, 210–13 immemorial prescription, 213–14, 216 Lapp privilege, 216 Nordmaling case, 204, 215, 216–17 overview, 207–27 pastures, 208 property law aspects, 218–22 protracted possession and use, 218–19 Reindeer Husbandry Act (1883), 224 Reindeer Husbandry Act (1886), 212, 226 Reindeer Husbandry Act (1898), 212 Reindeer Husbandry Act (1928), 212 Reindeer Husbandry Act (1971), 208–9, 210–15, 223, 225, 251 Reindeer Husbandry Act (2007), 224–5

416 Index scholarship, 207 siidas, 223–4, 226 standing of villages, 216–18 Taxed Mountains case, 214, 215–16, 220, 330 vagueness, 207, 214 Saami parliament, 266, 277 Saami people, 1, 120 17th century legislation, 255 definition, 251, 263–4, 266, 267, 275–6, 384 historical property rights, 255 numbers, 276 Saami women, 383, 384, 387 Settlement Bill of Lapland, 255 Strömstad Treaty (1751), 2, 150, 242 traditional reindeer herding, 223–4 Tehan, M, 28, 357 Teitel, RG, 49 terra nullius, 26–7, 328, 343, 352 territoriality: legal pluralism and, 68–9, 71 self-determination and, 108, 114–15 Teslin Tlingit, 370–1 Thornberry, P, 273–4 transitional justice, 7, 48, 49–53, 77 transnationalism: self-determination: international law and, 105–7, 114–19 Saami Convention, 107, 120–3 UNDRIP (2007), 115–19 trusteeship territories, 108 trusts, 96–7, 98–9 Tully, James, 6, 21, 32, 35–7, 43, 52, 358 Turpel, Mary Ellen, 394, 395–6 Twining, William, 47 Ulfstein, Geir, 4 UN Human Rights Committee: collective rights and, 396–7 on consent of indigenous people to harmful activities, 138 on cultural rights, 131 on culture and property, 34 definition of indigenous peoples, 262–3 jurisprudence, 128 Lovelace case, 262–3, 389–90, 396–7 on rights to natural resources, 139–40, 146 Saami Convention and, 403 on self-determination, 132 UN Human Rights Council, 115–16, 117, 118 UNDRIP (2007): adoption, 115–19, 256 Article 5, 59, 132, 141 Article 19, 137–8, 139, 141 Article 22, 380

Article 27, 38 Article 28, 38 Article 32, 138, 139, 335 Article 33, 259 Article 40, 197 collective rights and, 396 consent, 338 customary law, 59, 197 definition of indigenous peoples, 261 gender equality, 380 human rights paradigm, 396 international consensus, 106 international rights, 144 land rights, 303 negotiations, 106 restitution, 38 Saami Convention and cultural rights, 403 Finnish position, 128, 132–3 international rights, 144–5 participation rights, 136, 141–2 self-determination, 127, 128, 129, 132–3 transnationalism, 124 veto rights of indigenous people, 137–8 scope, 123 self-determination right, 303 significance, 146 women, 380 UNEP: women, 380 UNESCO, 143–4 United Kingdom, 22 United Nations: Commission on Human Rights, 115–16 Declaration on the Rights of Indigenous Peoples see UNDRIP (2007) decolonisation process, 108 definition of indigenous peoples, 259, 260 Human Rights Committee see UN Human Rights Committee United States: aboriginal land rights, 354–5 Alaska Native Claim Settlement Act (1971), 359 Dawes Act (1887), 354–5 indigenous people, 35–6 non-indigenous governments as trustees, 96–7 reservations, 352 Royal Proclamation (1763), 29, 36 UNDRIP and, 118 Universal Declaration of Human Rights (1948), 105 universalism, 54, 58, 62 uti possidetis doctrine, 108 Van Cott, DL, 76–7

Index 417 Waldron. Jeremy, 23, 39–41, 52 Walters, M, 30, 36 Wampum, Two Row, 36 Watson Hamilton, Jonette, 5, 6–7, 45–77, 400 Webber, Jeremy, 5, 7–8, 36, 60–1, 62, 79–102, 399, 401 Wegelus, Henrik, 238 Westphalia, Peace of (1648), 154 women: activism, 379–80 Canadian indigenous women, 387–93

environmental protection role, 380 feminism, 384, 394–5 international law on indigenous people, 380 need for equal rights guarantee for Saami women, 382–6 position of Saami women, 382–6 Saami Convention and, 17, 380–1 equality clause option, 393–8 Preamble, 380, 386 Young, Simon, 344