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Hocking, Barbara Ann --- "Land and Natural Resource Management in the Context of International Obligations to Indigenous Citizens: A Case Study of Norway's Finnmark Act" [2005] AUIndigLawRpr 52; (2005) 9(3) Australian Indigenous Law Reporter 82

LAND AND NATURAL RESOURCE MANAGEMENT IN THE CONTEXT OF INTERNATIONAL OBLIGATIONS TO INDIGENOUS CITIZENS: A CASE STUDY OF NORWAY’S FINNMARK ACT

Barbara Ann Hocking∗

Introduction

Norway was the first country to ratify ILO Convention 169 concerning Indigenous and Tribal Peoples in Independent Countries.¹ Yet its commitment to its Indigenous citizens has been placed under considerable pressure since the Norwegian government insisted upon ‘consulting’ rather than ‘negotiating’ with the Sámi over the Finnmark Act, which will deal with land and natural resource management in Finnmark County.

Finnmark is the ‘large district lying east-west along Norway’s Arctic coast’.² This large area, and particularly the area of inner Finnmark, is ‘part of Europe’s last “wilderness”’.³ Given its ‘fantastic natural resources’,⁴ as acknowledged by the Justice state secretary Jorn Holme, it is an area where the law has been used to offer ‘everyone in Finnmark special rights’.⁵ Inner Finnmark is a centre for the Sámi people and Sámi reindeer herding. Despite these points, the new law ‘envisions the north as a resource hinterland open to all comers and [offers] no special respect for Sámi who feel, and indeed are, betrayed’.⁶

The Finnmark Act (Finnmarksloven) has now been passed, and was enacted on 17 June 2005.⁷ It contains several Chapters dealing with general provisions, the establishment of the Finnmarkseiendommen,⁸ renewable resources on Finnmark Estate land, Tana and Neiden watercourses, the survey and recognition of existing rights, and then, final provisions.

The law’s stated purpose does not reveal, on its face, the frustrations that arose during that its gestation. The purpose of the Act is to facilitate the management of land and natural resources in the County of Finnmark in a ‘balanced and ecologically sustainable manner for the benefit of residents of the county and particularly as a basis for Sámi culture, reindeer husbandry, use of non-cultivated areas, commercial activity and social life.

The Content of the Finnmark Act

The law specifically acknowledges that through ‘prolonged use of land and water areas, the Sámi have collectively and individually acquired rights to land in Finnmark’.⁹

The law also explicitly acknowledges Norway’s international obligations. Section 3 sets out the relationship of the act to international law, stating that it applies in accordance with the parameters¹⁰ of ILO Convention 169. It states that the law is to be applied in compliance with the provisions of international law concerning Indigenous peoples and minorities and with the provisions of agreements with foreign states concerning fishing in trans-boundary watercourses.

Section 4 of the Finnmark Act provides for the Sámi Parliament¹¹ to issue guidelines for assessing the effect of changes in the use of uncultivated land on Sámi culture, reindeer husbandry, use of non-cultivated areas, commercial activity and social life. The guidelines are to be approved by the Ministry, which will examine whether they lie within the framework of the legislation, and whether they have been drawn up in an appropriate manner. In matters concerning changes in the use of uncultivated land, state, county and municipal authorities are to assess the significance such changes will have for Sámi culture, reindeer husbandry, use of non-cultivated areas, commercial activity and social life. The guidelines of the Sámi Parliament are to be followed in the assessment of Sámi interests pursuant to the purposes of the law.

In s 5, the law states further that it does not interfere with ‘collective and individual rights acquired by Sámi and other people through prescription or immemorial usage’. It acknowledges its application to the rights held by reindeer herders on such a basis or pursuant to the Reindeer Herding Act.¹² In order to establish the scope and content of the rights held by Sámi and other people on the basis of prescription or immemorial usage or on some other basis, it provides that a commission be established to investigate rights to land and water in Finnmark, together with a special court to settle disputes concerning such rights.

Chapter 2, s 6 sets out the legal position of Finnmarkseiendommen. This is to be an independent legal entity with its seat in Finnmark, established to administer the land, natural resources and so on, that it owns in compliance with the purpose and other provisions of the Act. By s 7, it is provided that Finnmarkseiendommen shall be governed by a board consisting of six persons. Finnmark County Council and the Sámi Parliament are both to elect three members, each with a personal deputy. The members and deputies are to be resident in Finnmark. Among the members elected by the Sámi Parliament at least one board member and that person’s deputy are to be representatives for reindeer husbandry. Both bodies are to elect both women and men as members and deputies.

Further, the board will elect its own chairman and vice-chairman from among its members. If no-one obtains a majority of votes, then provision is made for decision-sharing, with the decision as to which of the six members shall be chairman and vice-chairman to be decided by Finnmark County Council in years ending on an odd number and by the Sámi Parliament in years ending on an even number.

In s 10, the law deals in some detail with changes in the use of uncultivated land, providing that Finnmarkseiendommen shall assess the significance a change will have for Sámi culture, reindeer husbandry, use of non-cultivated areas, commercial activity and social life. In this event, the guidelines of the Sámi Parliament pursuant to s 4 are to be followed in the assessment of Sámi interests. It is further provided that decisions concerning changes in the use of uncultivated land require the support of at least four board members if the whole minority bases its opinion on consideration for Sámi culture, reindeer husbandry, use of non-cultivated areas, commercial activity and social life assessed on the basis of the guidelines of the Sámi Parliament. If the majority consists of four or less, a collective minority may during the board meeting demand that the matter be placed before the Sámi Parliament.

It is then provided that if the Sámi Parliament does not ratify the decision of the majority or does not consider the matter within a reasonable time, a collective majority of the board may demand that Finnmarkseiendommen place the matter before the King, who shall then decide whether the decision shall be approved. Such approval of the decision has the same effect as such a decision by the board.

There are further and somewhat complex provisions relating to changes in the use of uncultivated land in the Karasjok, Kautokeino, Nesseby, Porsanger and Tana municipalities, and then as to such changes in the remainder of Finnmark. In that latter context, it is provided that the last board member elected by the Sámi Parliament who does not represent reindeer husbandry shall not take part. The matter shall be decided by a simple majority. If changes in the use of uncultivated land are decided with the support of three and only three members of the board and the whole minority bases its opinion on consideration for Sámi culture, reindeer husbandry, use of non-cultivated areas, commercial activity and social life assessed on the basis of the guidelines of the Sámi Parliament, a collective minority may during the board meeting demand that the matter be placed before the Sámi Parliament.

Chapter 3

The third chapter the Finnmark Act reveals some insight into the frustration of the Sámi people.¹³ Chapter 3 deals with renewable resources on the land of Finnmarkseiendommen, and sets out the main principles for management in s 21. In that section, Finnmarkseiendommen shall manage the renewable resources on its land in compliance with the purpose of this Act and within the frameworks provided by the Wildlife Act, the Act relating to salmonids and fresh-water fish and other legislation. It is specifically provided that the diversity and productivity of nature shall be preserved.

Section 22 sets out the rights of persons resident in municipalities. Pursuant to the provisions of this chapter and within the framework provided by other legislation, residents of a municipality in the county of Finnmark have, on the land of Finnmarkseiendommen, the right to:

(a) fish for freshwater fish with nets,
(b) fish for anadromous salmonids with fixed gear in the sea,
(c) gather eggs and down,
(d) fell deciduous trees for domestic fuel,
(e) cut peat for fuel and other domestic purposes and
(f) remove deciduous trees for use as fence posts and poles for hay-drying racks in the reindeer husbandry and agriculture industries.

It is provided that reindeer herders have the same right as persons resident in the municipality for the period during which reindeer husbandry takes place there.

Section 23 accords even more generous rights to residents of Finnmark. In compliance with the provisions of this chapter and within the framework provided by other legislation, persons residing in the county of Finnmark have, on the land of Finnmarkseiendommen, the right to:

(a) hunt big game,
(b) hunt and trap small game,
(c) fish in watercourses with a rod and line,
(d) pick cloudberries and
(e) remove timber for home crafts.

It is further provided that agricultural holdings shall have grazing rights for as large a herd as can be winter-fed on the holding.

Section 24 provides special rights for local utilisation of renewable resources. The section applies to individuals or groups of persons who are associated with a rural district and whose livelihood is wholly or partly associated with the utilisation of renewable resources in the vicinity of the rural district. Such persons may, for up to ten years at a time, be assigned special rights by the municipality to utilise renewable resources as mentioned in ss 22–3, in specified areas of the municipality.

When establishing the area and the specific conditions, the use traditionally made of the area by people associated with the rural district shall be taken into consideration. It is provided that the area shall preferably constitute an uninterrupted area in the vicinity of the rural district, and that Finnmarkseiendommen may issue general rules concerning the procedures and assessment of matters pursuant to this section. Further, Finnmarkseiendommen shall be the appeal body for decisions made by the municipality.

The procedures followed by the municipalities and Finnmarkseiendommen are subject to the Public Administration Act. However, this section does not apply to hunting of large and small game, fishing in watercourses with a rod and line and fishing with fixed gear in the sea for anadromous salmonids. Nevertheless, by s 25, all persons have the access to hunt and trap small game and to fish with a rod and line in watercourses on Finnmarkseiendommen’s land and to pick cloudberries for their own domestic use.

Chapter 5

With Chapter 5, the law turns to the survey and recognition of existing rights. In pt I, s 29, the Finnmark Act establishes the Finnmark Commission, which, on the basis of current national law, shall investigate rights of use and ownership to the land to be taken over by Finnmarkseiendommen pursuant to s 49. It is provided that the King shall appoint the members of the Finnmark Commission, and that it is to consist of a chairman and four other members. The chairman is to fulfil the requirements of the Courts of Justice Act regarding Supreme Court judges, and two of the other members are to fulfil the requirements regarding district court judges. At least two members are to be resident in or otherwise have a strong affiliation with Finnmark.

Part II of Chapter 5 provides that a special court (the Uncultivated Land Tribunal for Finnmark) is to be established, with the purpose of considering disputes as to rights arising after the Finnmark Commission has investigated a field. The members of the Uncultivated Land Tribunals are to be appointed by the King, and it is to comprise a chairman, vice-chairman, three permanent members and two deputy members. The chairman, the vice-chairman and one of the other members are to fulfil the requirements of the Courts of Justice Act regarding Supreme Court judges. The same applies to one of the deputy members, who is to function as a deputy for these three members. Matters pertaining to the jurisdiction of the Uncultivated Land Tribunal are not to be brought before the ordinary courts or the Land Consolidation Court unless the Uncultivated Land Tribunal has rejected a case pursuant to provisions of the legislation.

In its final provisions, the law provides that in connection with preliminary examination of minerals in the county of Finnmark, a person wishing to conduct such preliminary examination of minerals shall, not later than one week prior to the commencement of such preliminary examination, provide written notification to the Sámi Parliament, the landowner and the appropriate area and district boards for reindeer husbandry. If the person wishing to conduct such preliminary examination intends to make an impact on the land, the location of such impact is to be indicated.

It is then provided that applications for licensed prospecting in the county of Finnmark may be rejected if general considerations contraindicate granting of the application. When considering such applications, significant emphasis is to be placed on due consideration of Sámi culture, reindeer husbandry, use of non-cultivated areas, commercial activity and social life. If the application is granted, conditions may be stipulated in order to safeguard such considerations.

Further, when considering the application the Commissioner of Mines shall give the landowner, the Sámi Parliament, the County Governor, the county authority, the municipality and the appropriate area and district boards for reindeer husbandry an opportunity to comment. If the Sámi Parliament or Finnmarkseiendommen, as landowner, oppose the granting of the application, the application shall be decided by the Ministry. If the Ministry grants the application in cases mentioned in the third paragraph, an appeal to the King from the Sámi Parliament or from Finnmarkseiendommen will have the effect of suspending the licence.

Conclusion

Thus the Finnmark Act appears, on its face, to acknowledge the obligations of the Norwegian State to the Sámi according to the principles of international law, and to consolidate Norway’s commitment to ILO Convention 169. Yet in spelling out a detailed regime for land and resource holding and dispute management, it does appear, as Peter Jull maintained, to hold Finnmark out as a golden ‘resource hinterland’¹⁴ – and to hold that out to all, even while acknowledging the prolonged use by the Sámi, by means of which they have established centuries-old rights.

So there are many reasons why the local Sámi might feel betrayed about the enactment of the Finnmark Act, and further reasons why other Sámi citizens might feel disappointed with the law. The answer in the Norwegian context, as so often with the application of mainstream law to Indigenous citizens, lies in the history of Sámi–Norwegian state relations. For part of the purpose of the proposed Finnmark Act was finally to: ‘close the process commenced in the 70s and 80s in Norway following the controversy over Sámi land rights in connection with the establishment of a hydroelectric power plant in Alta’.¹⁵

That controversy produced bitter divisions among the Sámi and prompted considerable disillusionment with political processes. With the Finnmark Act, there was an expectation of closure to that controversy decades later. This could have been reinforced with Norway’s ratification of ILO Convention 169. However, there was a perception of a paternalistic undercurrent to much of the Finnmark Act’s development – and this is arguably echoed in several provisions of the law itself – which contributed to an impression that the law is unlikely to fully repair the Alta legacy.

Norwegian jurisprudence provides strong protection for user rights, but there is also considerable emphasis upon competing user rights. So one concern is the apparent potential of the Finnmark Act to derogate from the Indigenous nomadic form of ownership – hunting and grazing property land rights. In accordance with self-determination principles, it is arguable that the Sámi should have ownership of the resources on and below the land and seas they traditionally traverse as nomadic owners, together with the right to exclude and/or negotiate with interested others or be compensated if that right is lessened or indeed taken over by the government in the Act.

With the draft of a Nordic Sámi Convention between Norway, Sweden and Finland due at the end of 2005, it will be interesting to observe developments in the topics that the Convention will govern, including the status of the Sámi, the framing of the Convention text (which must be based on the international instruments by which the respective states are bound¹⁶), and the extent to which the Convention will respect customary law.

An English translation of the Finnmark Act is extracted in this edition at p 87.

Endnotes

∗ Senior Lecturer, Faculty of Law, Queensland University of Technology, Brisbane, Australia.

1 International Labour Organisation, Convention No 169 concerning Indigenous and Tribal Peoples in Independent Countries, 1989, available online at <http://www.ilo.org/ilolex/cgi-lex/convde.pl?C169> at 13 October 2005.

2 Peter Jull, ‘Finnmarksloven (The Finnmark Act): A Brief Commentary’ (2003) 8(3) AILR 69, 69.

3 Ibid.

4 Norwegian Justice State Secretary Jorn Holme, cited in Jull, above n 2, 69.

5 Ibid.

6 Jull, above n 2, 69.

7 Act of 17 June 2005 No 85 relating to legal relations and management of land and natural resources in the County of Finnmark (Finnmark Act).

8 The Finnmark Estate, or Finnmárkkuopmodat in Samisk.

9 Finnmark Act s 5.

10 The word ‘limitations’ is used in the English translation provided on the Norwegian Justice Ministry site. However, the original Norwegian word ‘begrensninger’ may be also be translated as ‘parameters’ or ‘restrictions’.

11 For more detail on the Sámi Parliaments, see Barbara Ann Hocking, ‘Commenced Constitutional Business? The Sámi Parliaments of Norway, Sweden and Finland’ in Barbara Ann Hocking (ed),Unfinished Constitutional Business? Rethinking Indigenous Self-determination (2005).

12 Reindeer herding is the most entrenched and long-established basis for recognition of Sámi livelihood in the Nordic nations.

13 See Jull, above n 2, 69.

14 Ibid.

15 See International Work Group for Indigenous Affairs, Indigenous World 2005, available online at

<http://www.iwgia.org/sw151.asp> at 13 October 2005.

16 Norway’s Report to the United Nations Special Rapporteur is available online at <http://www.un.org/esa/socdev/unpfii/pfii/documents/other%20docs/Doc%20Norway> at 13 October 2005.