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Reconciliation and Social Justice Library
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Reconciliation and Social Justice Library |
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By Donna Craig[1] and Steven
Freeland[2]
In 1997 the Australian Research Council awarded a Collaborative Research Grant
to support this Project to develop recommendations for more effective
interaction between indigenous and non-indigenous governance structures. The
central problem that the Project seeks to address is the question of `fit'
between traditional forms of indigenous land `ownership' and control, and the
non-indigenous legal system. The focus is on management of land subject to
native title. However, the Project extends to a consideration of indigenous
structures for asserting and protecting interests on land and waters that are
not subject to native title. Discussion Paper 1 gives a more detailed overview
of the Project.[3]
Other Discussion Papers will cover material on indigenous land holding
structures in other overseas jurisdictions, indigenous associations and other
governance bodies not administering land, and governance structures off
indigenous lands and waters.
All members of the Project team are non-indigenous. We make no claim to speak
for any indigenous community but hope that the recommendations we develop will
provide ways of improving the relationship between indigenous and
non-indigenous governing bodies when administering native title. The Project's
goal is to help to identify avenues and strategies for effective
self-government by Indigenous peoples.
This Discussion Paper is an overview of indigenous land-holding and governance
structures in Greenland and those Scandinavian countries with a Sámi[4] population - Norway, Sweden and Finland. The
material has been drawn together for comparative purposes in this Project. This
is a preliminary document aimed at provoking strategic discussion and
deliberation. The discussion of each jurisdiction is relatively brief.
Section 2 of this Discussion Paper discusses the Inuit of Greenland and focuses
on the evolution of the present system of Greenland Government,
which has been in place since the establishment of Home Rule in 1979. The
terminology `Home Rule' has tended to be dropped, in recent times, and the
Greenland Government represents a very significant and evolving example of
modern indigenous governance.
This can be compared with the governance structures in place for the
Sámi populations in Norway, Sweden and Finland. Each of these countries
has established a Sámi Parliament, the details of which are briefly
reviewed in Section 3 of this Discussion Paper.
When dealing with the various models of governance structures outlined in this
Discussion Paper, reference is also made to particular land and resource rights
and management issues which have arisen in each of the jurisdictions considered.
The first part of this Section looks briefly at the demographics and geography
of Greenland. An overview of the administration in provincial Greenland is
followed by a discussion of the Greenland Government.
The establishment of the Home Rule Government, hereafter referred to as the Greenland Government, was not benevolently granted by the Danish state, but rather arose as a result of struggle by Greenlanders for increased rights.[5] It has enabled Greenland to achieve a relatively high degree of political autonomy, which is reflected in the breadth of activities now falling within the jurisdiction and responsibility of the Greenland Government.
The Greenland Government's jurisdiction is defined territorially, not ethnically, although it has highlighted the need for discussion on matters such as self-determination and indigenous rights.[6] It must, however, be noted that Greenland still remains partially dependent on Denmark, particularly for economic support. This is an important factor to consider in any discussion regarding the possible future political autonomy of Greenland.
The first Inuit came to Greenland about four to five thousand years ago.[7] The most recent significant influx occurred
with the Vikings and North American Inuit, who migrated between the tenth and
nineteenth centuries. The Inuit refer to the island as Kalaallit Nunaat
which means `the land of the Greenlanders'. Inuit peoples also live in three
other Arctic areas: Canada, Alaska and Russia.[8]
Greenlandic (Kalaallisut) is part of the East-Eskimo family of languages. Three main dialects are spoken: West Greenlandic (the official language), East Greenlandic and Polar-Eskimo. While English remains a direct threat to Inuit dialects in the Canadian North and Alaska, the fear that the Greenlandic languages may eventually disappear, which was a concern particularly during the 1950s, no longer appears to be the case.[9]
Greenland has an extremely harsh physical environment. Approximately 85% of the country is covered by an ice cap and the climate is arctic. It lies north of the tree line and with rare exceptions it is not possible to cultivate crops there. The Arctic Circle crosses Greenland south of Sisimut, and as a result a large section of the island is subjected to twenty-four hour darkness during the winter and midnight sun in summer.[10]
Figures issued by Statistics Greenland, the central authority for all statistics in Greenland, show that, as at 1 January 1999, only 11.2% of a total population of 56,083 were born outside Greenland, mainly in Denmark and the Faroe Islands.[11]
More than eighty percent of the population are Inuit.
Approximately eighty percent of the population live in the eighteen larger
towns, with the remainder in fifty-nine small settlements and stations spread
along the approximately 410,449 square kilometres of ice-free coastal land.[12]
The capital, Nuuk, has a population of around 13,000.[13]
Approximately two-thirds of the workforce are employed in the public service.
Fishing and fish processing, which represent the most significant elements of
the economy, employ approximately 5,500 people.
Prior to the 1720s, the waters of Greenland had been regularly visited by
whaling vessels from England, Spain and Portugal, and by Danish-sponsored
German missionaries who had regular contact with the Inuit living in small
settlements along the coastline. A small colony and Lutheran mission was
established near the site of present-day Nuuk by Denmark in 1721 as a
result of the activities of the Danish King, the Church and Danish-Norwegian
trading companies.
As well as allowing missionaries to convert many of the Inuit to
Christianity, this was intended to exclude foreigners from the waters of
Greenland, a policy that was largely successful up until 1953, when it was
incorporated as a Danish province by constitutional amendment. This gave the
residents of Greenland equal rights and ended the over two-hundred years of
colonization.
In 1776 the Danish Government formed the Royal Greenland Trade Company (KGH)
and established a trade monopoly which was to last until the end of the Second
World War. The KGH established a number of trading posts (udsteder) on
the island, some of which were to develop into larger villages over time.[14] The KGH is now known as KNI, and it remains
a limited liability company owned by the Greenland Government.
Through the ownership of KNI, the Greenland Government maintains control
over production and export in the fishing industry.[15] KNI is represented in all inhabited places and
charges the same prices everywhere.
Over the period of colonial rule, Danish authorities administered each of
the thirteen districts. Villages were smaller settlements consisting of a trade
station, school, midwife and representative of the district council.[16] The Danish administration was headed by two
regional governors, each of whom chaired a provincial council. The councils,
elected among Greenlanders and Danes living in Greenland, had a mainly advisory
role.[17] Independent municipal administration
was initiated in 1905.[18]
Municipalities then took on responsibility for wildlife management and social
welfare. In the mid 1960s they took control of construction, pollution control
and road maintenance. By the time Home Rule was achieved in 1979, the
municipalities also had responsibility for town planning.
Under the colonial regime there was a dual system of law. Danish law applied to
the minority of the population who were employed in various state agencies.[19] The rest of the people, who lived by the
traditional means of hunting and fishing, were governed by Greenlandic
customary law.[20] This law was made up of
some written rules and by-laws passed by the local councils and a set of
unwritten customs.[21] Where those involved
were all Greenlanders, civil and criminal disputes were generally resolved by
municipal councils.
This was considered as a quick and flexible administration of justice, and successfully helped to maintain civil order, because it was based upon the mutual acceptance of the decisions.[22]
Matters where only one party was under Greenlandic law were heard by district
courts which were dominated by Danish personnel. The Danish civil administrator
(who was often also the district governor) functioned as investigator,
prosecutor and chairperson of the court. He or she was assisted by between two
or four other members acting as law assessors. One or two of these assessors
may have been Greenlanders.[23]
As mentioned above, Greenland became a province of Denmark in 1953, thus giving
the Greenland Inuit equal status with the Danes. This reform was
prompted by concerns which began to be more widely expressed after the Second
World War about the low standard of living of most Greenlanders. After 1945,
people in Greenland began to question the concept of continued colonization of
Greenland, and overall Danish economic policy. In 1948, in response to
increasing pressure from Greenlanders and the Danish media,[24] the Danish Government set up a Royal Commission for
Greenland. The Commission recommended reforms of economic and trade structures
designed to increase productivity and end state monopoly.[25] It also made recommendations about housing, education and
the administration of justice.[26]
In 1948-49 a Danish juridical expedition to Greenland studied the prevailing customary law with the aim of determining `how far it was possible to introduce unity of law between Denmark and Greenland or at least between Danes and Greenlanders in Greenland'.[27] The expedition determined that looking at council decisions and interviewing decision makers in isolation would not provide a sufficient picture of customary law, which was regarded as
... not a closed system such as a modern dogmatically defined system of law. Customary law is a `living law', not written law. Data gathering must be concerned with the whole cultural context.[28]
In 1951 a Law Reform Committee was established to draft legislation intended to apply to all people living in Greenland. Bills were circulated to the Greenlandic authorities for comment before being presented to the Danish Parliament. What developed through the meshing of customary and Danish law is referred to as local law.[29]
Following the end of colonization, Greenland saw rapid development. Industrialisation, large scale construction projects and modern infrastructure were all planned, built and run by Danes for the benefit of Greenland.[30] This led to some feelings of frustration among the Inuit population, and the changes associated with these developments led to various societal problems such as alcoholism and family breakdowns. Nevertheless, the developments of the 1950s and 1960s transformed the economic basis of Greenland and, by the 1970s Greenlandic society had been transformed from one based on small-scale subsistence hunting and fishing to a modern, export-oriented economy.[31]
These developments helped to facilitate the emergence of an educated Greenlandic elite, comprising teachers, journalists and social workers, who with the support of the wider Greenlandic population, sought greater independence for Greenland.[32] There also emerged a much stronger element of Inuit political awareness.[33]
The Inuit of Greenland became the first population of Inuit to achieve a degree
of self-government over a large region of the high Arctic[34] when Home Rule from Denmark was established in May 1979.
Under the structure which established the system of Greenland Home Rule, an
emphasis was placed on the definition of indigenous peoples, as collective
entities, being the first inhabitants of part or all of Greenland.[35]
A movement to establish local autonomy in Greenland had arisen during the mid 1970s, after Denmark began granting concessions for oil exploration off the Western coast to foreign groups, even though this had been approved by a majority of Greenlandic politicians at the time. The granting of these concessions created expectations of the need to change the relationship between Denmark and Greenland.[36] In 1975, recommendations were made to create a form of Home Rule for Greenland based on the system that had been established for the Faroe Islands in 1948.[37]
The terms of Home Rule were proposed by the joint Danish-Greenlandic Greenland Home Rule Commission, a group of seven elected indigenous representatives and seven Danish national Members of Parliament, with a constitutional law professor as a neutral Chairman.[38] These were adopted without amendment by the Danish Parliament.[39]
After approval by a referendum in Greenland (12,754 votes for and 4,705 against),[40] responsibility for political decisions in a number of key areas was transferred from the Danish Government to the Greenland Government under the Greenland Home Rule Act 1978,[41] which came into force on 1 May, 1979. However, there remain a number of unsolved problems linked with the development of Greenland's society toward greater economic independence.[42]
The Greenland Home Rule Act 1978 describes Greenland as a `distinct community within the Kingdom of Denmark'.[43] The Schedule to the Act lists those areas over which the Greenland Government has assumed responsibility and jurisdiction. These include local government, taxation, religion, fishing, hunting and reindeer breeding, social welfare, employment, education, trade and environmental protection. In the course of exercising this jurisdiction, the Greenland Government has instigated various policies designed to develop Greenland within the context of its own social and economic conditions and available natural resources.[44]
Certain major responsibilities continue to remain within the jurisdiction of the Danish state. These include the administration of justice and civil rights, citizenship, passports, visas, national emblems, foreign policy, defence, the National Bank, currency, weights and measures, foreign exchange and legislation on the rights of the individual, family law, criminal law and prisons.[45] All health care and schooling in Greenland is provided by the state[46] irrespective of citizenship and is the responsibility of the Greenland Government.
The Greenland Government comprises a popularly elected assembly (Landsting) and an administration headed by an executive (Landsstyre).[47] The size of the Landsting has changed over time and currently has thirty-one members chosen on the basis of proportional representation. General elections for the Landsting are held every four years[48] although other elections may be necessary if the Government loses the confidence of the Landsting. All Greenlanders or resident Danes over 18 years of age are eligible to vote.[49] Both Inuit and Danes living in Greenland are eligible for election to the Landsting.
Proposed legislation is prepared by the administration and debated three times in the Landsting prior to adoption. These laws are binding on all permanent residents of Greenland. It is still the subject of debate as to whether these law making powers have been delegated to the Landsting - and thus could be withdrawn or amended unilaterally by Denmark at any time - or alternately irrevocably transferred, in which case Denmark cannot interfere with Greenland Government legislation.[50]
The Premier and other members of the Landsstyre are elected by the Landsting.[51] The Danish Government is represented by a Commissioner (Rigsombudsmand) in Greenland. The Landsstyre implements decisions and legislation made by the Landsting. Individual members of the Landsstyre have day-to-day responsibility for particular areas of authority, though important decisions are made at joint meeting sessions of the Landsstyre. The Premier is responsible for the administration of the Greenland Government, supported by a Cabinet.
Any jurisdictional disputes between the Greenland Government and the Danish Government are resolved by a board comprising two representatives of each government. If this group cannot determine the issue it is referred to three judges of the Supreme Court of Denmark nominated by its President.[52] A liaison committee has been established to co-ordinate relations between the Danish Parliament (Folketing) and the Landsting.
At the most recent elections held in Greenland on 16 February, 1999, the distribution of the thirty-one representatives were as follows:[53]
| Atassut | 8 |
| Siumut | 12 |
| Inuit Ataqatigiit | 7
|
Kattusseqatigiit
|
4
|
Other political parties include Akulliit Partiaat (`Centre Party') and the Inuit Ataqatigiit (`Inuit Brotherhood'), a socialist opposition party, which held the balance of power from 1983 up until the mid 1990s.[54] Inuit Ataqatigiit has flagged independence as one of its major goals although there has been little real progress on this front.[55] Economic independence would be highly problematic for Greenland given that core funding comes by way of a block grant from Denmark to help meet the costs of those public services previously administered by Denmark. Some observers believe that this dependency on the economic support from Denmark through the block transfer payments is actually increasing,[56] highlighting both the differences between the two economies and the difficulties associated with any call by Greenlanders for full national independence.
Indeed, the GNP of Greenland has been declining during the 1990s, partly as a result of the collapse of cod fishing and the closure of two producing mines in the late 1980s. Future economic initiatives are likely to be in the area of resource development, particularly oil and gas, and inter-regional business development.[57] This is evidenced by the recently concluded agreement between Greenland and the new Canadian self-governing territory of Nunavut.
There are limited natural resources from which the Inuit could generate an income. Some traditional practices, such as whaling and fur trading, are contentious internationally,[58] but are strenuously maintained by Greenlanders as being culturally, environmentally and economically appropriate. The Greenland Government levies taxes and duties, including goods tax and company tax but, although this is an important source of revenue, it is not particularly substantial given the small size of the tax base. The municipalities impose some forms of income tax and receive subsidies from the Greenland Government. The level of tax rate differs in each of the municipalities. Tax paid by businesses is shared between the Greenland Government and the relevant municipality. The system of municipal government allows for a less centralised form of administration and gives the municipalities responsibility for social services, education and housing.
Greenland is currently divided into eighteen districts or municipalities made
up of a main town and various smaller villages. Each town has a member board of
governors of between three and seventeen people. Elected village councils
perform tasks delegated by the boards. The councils can recommend policies.
There are five Greenland Government enterprises: Greenland Telecom;
Greenland Building and Construction; Greenland Energy Supply (responsible for
water supply as well as electricity); Greenland Shipyards; and Greenland Field
Investigation. The Greenland Government has interests in a number of
trading and shipping companies and has been considering the privatisation of
some of those enterprises in which it is the sole shareholder.[59]
The magistrates' courts which administer local law are staffed by Greenlandic lay judges. This is regarded as significant because
... it has been of major importance for the hearings proper that the courts have been managed by people with a thorough knowledge of the local community and the language, culture and ways of living of the local population, the clients of the court. This has contributed to the confidence in the judge and the administration of justice, especially in the Greenlandic population.[60]
District Courts and the Greenland High Court also exercise legal jurisdiction. With the permission of the Danish Ministry of Justice, decisions of the Greenland High Court can be appealed to the Danish Supreme Court.[61]
The political transfer of power and authority to the Greenland Government has
been successfully managed by all sides. This form of political autonomy allows
Greenland to set out its own policies and adopt its own laws, whilst remaining
within the Danish kingdom (for some purposes) and receiving financial support,
for administrative functions, from Denmark.
The Greenland Government now acts on many issues as if it was an independent nation. Whilst in principle it has no power to conclude treaties or maintain links directly with foreign governments,[62] it has, independently of Denmark, entered into a number of bilateral agreements with Norway, Russia and Iceland on fishing and with Canada on narwhals and white whales.[63]
Greenland, along with Iceland, Norway and the Faroe Islands, was a founding member of the North Atlantic Marine Mammal Commission (NAMMCO), which was established pursuant to an agreement signed in Nuuk in April 1992. NAMMCO is involved in the research and management of marine mammals, and arguably may be considered[64] as a `competing' body to the International Whaling Commission (IWC) of which Denmark is a member.[65]
Internally, the success of the Greenland Government in developing a `regular' Parliament with a structure similar to that of other Governments[66] has been to unify the population of Greenland - both Inuit and Danish born. Whereas prior to the establishment of Home Rule, Inuit politicians and leaders spoke on behalf of ethnic Greenlanders, they now speak for all people living in Greenland. The transfer of responsibility for economic matters to the Greenland Government has strengthened Greenlandic politicians' ability to influence societal development.
The large majority of Danes living in Greenland now regard the Greenland politicians as their representatives in internal and external affairs, a situation markedly different from the mid-1970s.[67] There has therefore been a gradual incorporation of ethnic Danes and Greenlandic Inuit into `a common political frame of reference'.[68] Whilst the Danes living in Greenland are a minority group, they remain an important part of Greenlandic society, and own a number of businesses often working together with Inuit.[69]
Under the Greenland Government, the development of Greenland has been more rapid than in the prior period, although it experiences fluctuations associated with a narrow economic base and the impact of the global economy. The system has brought with it a sense of empowerment for the Inuit of Greenland.[70] The process appears to have been well managed, although there have been occasional crises due to poor financial management.[71] In a radio interview, the then Premier Lars Emil Johansen was quoted as saying
... Greenlandic authorities have been better in managing the development [of Greenland] than the Danish authorities back in their governing time.[72]
Traditionally, land in Greenland was not `owned' as there was no concept of
private property. Hunting and fishing were unrestricted. The Inuit regarded the
land as `an integrated part of their cultural identity'.[73] Individuals or groups could obtain exclusive use of an
area for special purposes with the permission of the local council, for
example, to build a house. If that purpose was abandoned, the site reverted to
common property.[74]
Under the current system, local authorities allocate land for building purposes and other private enterprises free of charge but the site cannot be sold. If the land stops being used it reverts to the municipality.[75]
Subsistence hunting and fishing continues to underpin the social economies of a number of local communities in Greenland, particularly in the north-west and on the east coast. Subsistence hunting also has significant cultural and symbolic significance, with the procurement, sharing and consumption of kalaalimernit (Greenland food acquired through hunting and fishing) facilitating the continuity of Inuit culture and identity.[76] In traditional Inuit society, there is a code of unwritten rules and regulations which specify how hunters are to act in relation to animals and the environment. Traditionally, the catch of bigger mammals such as whales, seals and bears was divided among a settlement according to strict customary rules.
In small Inuit settlements, meat from seals and other marine mammals is not regarded as a commodity, but rather as something containing an `element of the giver' when shared or given away.[77] When meat is shared it expresses the relationships people share and cements feelings of kinship and close social association.[78]
The subsistence and small scale commercial hunting activities of Inuit have, from time to time, been the subject of protest by international environmental groups. Anti-sealing protests and European Community bans on the import of sealskins and sealskin products have had a significant effect on smaller Greenlandic communities which traditionally relied upon the sale of sealskins as their primary source of income.[79] NAMMCO supports the subsistence whaling activities of its members (which include Greenland), though international opposition to whaling has been strident. Greenland's subsistence whaling activities still remains subject to quotas and regulation specified by the International Whaling Commission (IWC), by virtue of Denmark's continued membership of that organisation.
International agencies are increasingly focusing on the design of what they consider to be appropriate resource management structures and environment protection strategies for the Arctic region generally.[80] This undoubtedly affects the traditional Inuit hunting and fishing activities (including for subsistence purposes).
Fishing and hunting, along with sheep farming, are the main industries of Greenland and provide a significant means of employment. Manufacturing depends on the fishing industry, and fish and prawn processing plants in major towns account for a high proportion of employment.[81] The trade in cod has declined as the shrimp market has increased.
Customary activities such as hunting and fishing have been increasingly
disturbed by non-Indigenous activities such as building construction and
mineral exploration. The building of a United States Air Base at Thule in
1953-54 is an infamous example of such disruption. In August 1999, a Danish
court found that Inuit of the far north-west of Greenland had been forced to
move from their traditional village to make way for the base. The base was
secretly used to store hydrogen bombs[82]
resulting in a disaster in 1968 when a plane loaded with four bombs crashed
into Wolstenholme Fiord.[83]
The events at Thule exposed the weaknesses of the Danish Government, which was
not told about the accident and the resultant plutonium contamination until
nineteen hours after the crash.[84] Parts of
the four bombs located in the crashed plane have never been retrieved and there
are continuing concerns about the level of contamination in the area.[85]
In June 1995, the Danish Government made public the fact that it had become
aware that nuclear weapons had been stored at the base. As a result of the
court decision, damages were awarded to a group of fifty-three Inuit, who had
brought a legal action against Denmark on behalf of 611 people, for the loss of
their homes and hunting grounds,. Shortly afterwards, Prime Minister Poul Nyrup
Rasmussen of Denmark met with locals and Inuit leaders and apologised - in
Danish and Inuktitut[86] (the Greenlandic
Inuit language)
... to the Inuit, the population of Thule, and to the whole population of Greenland ...[87]
As well as issues relating to the forced abandonment of settlements or impeded access to traditional hunting grounds, Inuit have also raised concerns over disturbance to breeding areas and migration routes.[88]
Private mining activities have been undertaken in Greenland since the 1860s.
Historically, however, there have been limited economic resources available to
explore much of the vast area of Greenland, and hence relatively little is
known about its natural resources.[89] Over
recent years, greater efforts have been undertaken to find mineral
resources.
Traditionally, land and non-living resources in Greenland were regarded as being publicly owned. Denmark took the position that jurisdiction over mineral resources could not be transferred to another part of the country, since these were to be regarded as common assets of Denmark. On the other hand, Greenland had maintained that such resources in the territory of Greenland should be regarded as the property of Greenland's population.[90]
Eventually, a compromise was negotiated. Section 8 of the Greenland Home Rule Act 1978 provides that the permanent resident population of Greenland has fundamental rights to the natural resources of Greenland. This included rights to the underground.
Over time, the Greenland Government has determined that a greater emphasis should be placed on the exploitation of non-renewable resources to provide increased revenues. In 1991, the Greenland Parliament passed a Mining Act which encouraged mineral exploration and exploitation. The Mining Act provided for favourable taxation treatment and concession arrangements for foreign companies seeking to mine resources on the island.[91]
In 1992 the Danish Government changed its previously held position by allowing for the Home Rule Government of the Faroe Islands to assume all responsibility for natural resources in its territory. Subsequently, in January 1998, amendments were made to the Greenland Mineral Resources Act transferring responsibility for oil and mineral resources management in Greenland to the Greenland Government.[92]
In the early 1980s the Landsting had granted a concession for prospecting for oil over 10,000 square kilometres of land which includes an Inuit hunting ground for those living in the small town of Scoresby Sound on the east coast of Greenland. The grant was made subject to certain conditions including `an assurance of compensation for expropriation of hunting areas and compensation for decrease in the catch provided the same effort of work'.[93]
The most profitable mineral for Greenland has been cryolite although supplies have been largely exhausted, having yielded approximately thirty-five million tons. At one stage these were the richest deposits in the world of this mineral, and were exploited from 1860 to the early 1980s.[94] Zinc and lead have also been mined but these deposits also now seem to be depleted. Iron, chromium, molybdenum, tungsten and anorthosite deposits have been located but have largely not yet been exploited, primarily for commercial reasons. Coal was mined at Qutligssat on the island of Disko from 1924 to 1972, and large deposits still remain there. Uranium deposits have been found but not yet exploited, on both economic and political grounds. There is interest in potential oil and gas deposits in Jameson Land.[95]
Under agreements reached between the Danish Prime Minister and Greenland political leaders, proceeds from the exploitation of natural resources in Greenland are divided on an equal basis, subject to various limits.
Environmental, resource and wildlife management are seen as integral and centrally important to indigenous rights and self governance in Greenland. Indigenous Greenlanders have an impressive contemporary record in recognizing traditional practices and of adapting to new environmental problems and knowledge. In traditional Inuit society, unwritten rules underpinned the way hunters were to act in relation both to the animals and to the environment. Historically, there is no record of Greenlanders ever making a species extinct.[96] More recently, the emphasis has been on recognizing traditional practice, knowledge and, more particularly, traditional use, from which much indigenous knowledge derives. This does not necessarily ignore modern environmental issues and knowledge but places them in an indigenous value context.
Traditional activities such as subsistence hunting have increasingly come under the management of the Greenland Government, which has been placing a greater emphasis on more formal environmental strategies. Rights to continue with traditional subsistence hunting practices are subject to quotas. The legal right to hunt is dependent on the individual holding of a hunting licence allocated by the municipal authorities. There are two types of licence - one for people who make their living from hunting or fishing and the other for recreational or part-time hunting or fishing. Hunting licences are now allocated in accordance with the specific requirements and circumstances, and the authorities allocate quotas on shrimp fishing. Quotas for each licensee are allocated by the Greenland Government after the total allowable catch of each species has been determined.
In addition, the Greenland Government is also responsible for the distribution of quotas for subsistence fin and minke whaling in collaboration with the IWC, and provides annual reports on all whaling activities in Greenland. These reports form the basis upon which the following year's quotas are calculated. The Greenland Government and Greenland Association of Fishermen and Hunters (KNAPK - Kalaallit Nunaat Aalisartut Piniartullu Kattufiat)[97] argue the case for a continuation of subsistence whaling at IWC meetings, challenging IWC scientific research and policy on the basis of their own research. They stress the importance of more `use-based' research and cultural knowledge.
They also contend that subsistence hunting, both historically and in contemporary indigenous culture, often involves elements of the cash economy in the various stages of procurement, sharing and consumption of kalaalimernit. Indeed, access to this food by Greenlanders who cannot carry out subsistence hunting, has important cultural significance for Greenlanders.[98]
Complete jurisdiction over environmental matters is among the responsibilities transferred to the Greenland Government. It has developed various environmental strategies to safeguard the future of Inuit resources.[99] The Environmental Protection Act 1988 became effective on 1 January 1989, and other legislation has been passed by the Landsting designed to protect wildlife most commonly harvested by local communities.
The experience of the GreenlandGovernment in environment and resource management areas, including the concept of sustainable development, is extensive and adaptive. It regards environmental issues as the concern of indigenous Inuit and values and protects indigenous culture, believing it to be essential that local knowledge is utilised in the ongoing research of natural resources and environmental management.[100] It also addresses new political developments and environmental issues such as ozone depletion.[101]
The Inuit themselves claim the right to international recognition as resource conservationists, and have begun to use indigenous knowledge to further their political actions.[102] They also argue that their indigenous culture is not `frozen' in time and that they need a contemporary economic base that strengthens and renews this culture.
Section 11(1) of the Greenland Home Rule Act 1978 specifically
requires that foreign relations remain a matter for the Danish Parliament. In
practice, however, Greenland participates in relevant international
negotiations. For example, it plays an integral role in the Nordic Council,[103] of which it has been a member since 1984.
Two members of the Danish delegation to the Council are appointed by the
Landsting.[104] Danish bills
including provisions of exclusive concern to Greenland must be referred to the
Greenland Government for comment.[105]
Greenland was brought into the European Community upon Denmark's admission in 1973, despite the fact that less than twenty-nine percent of people in Greenland voted in favour of membership.[106] Following a referendum in 1982, Greenland chose to withdraw with effect from 1 February 1985 and remains outside the membership of the European Community.[107] It now has the status of an associated Overseas Country and Territory (OCT) under Part 4 of the 1957 Treaty Establishing the European Economic Community (the Treaty of Rome).[108]
The Greenland Government can negotiate and enter into treaties and
international agreements concerning matters of specific interest to Greenland,
such as fish and marine mammal management. Greenland maintains a Brussels
Representative Office, which functions as Greenland's permanent representative
to the European Union, and continues to negotiate fisheries agreements with the
European Union, allowing Member States access to Greenland waters for certain
fishing activities in return for annual payments.[109] European Union countries purchase approximately eighty
percent of Greenland's exports.[110]
Greenland is also a member of a number of multinational organisations, either
in its own right (for example NAMMCO) or through the Danish membership of the
particular organisation concerned. Through the Danish delegation, the Greenland
Government has attended global conferences such as the 1992 United Nations
Conference on Environment and Development (`Earth Summit'). ILO Convention 169
was adopted by the Danish Parliament at the request of the Greenland
Government. This is the most important (operative) global convention dealing
with indigenous rights at the present time. The Landsting has two
permanent seats on the Danish parliamentary delegation to the United Nations
General Assembly.
The approach of the Greenland Government and indigenous Greenlanders to environmental management has been exerted both nationally and internationally through the United Nations, the Inuit Circumpolar Conference, the Arctic Environmental Protection Strategy, the IWC and NAMMCO. The Greenland Government is increasingly able to hold itself out as an example of the centrality of these concerns to indigenous rights and their successful implementation in a modern system of indigenous governance.
Greenland has opened a representation with the Danish Embassy in Ottawa to facilitate the exchange of information with Canada.[111] On 22 June 1999, the Premier of Greenland signed a Memorandum of Intent to develop a co-operation agreement with the recently elected government of Nunavut, an Inuit self-governing territory in Canada, by the year 2000.[112]
Greenland has also established a Trade Council to coordinate and facilitate development of international trade.[113]
Greenland Inuit are members of the Inuit Circumpolar Conference (ICC), an NGO
which has since 1983 had consultative status under the United Nations Economic
and Social Council (ECOSOC). Its purpose is to increase the level of
international awareness and co-operation among Inuit peoples, especially in
relation to matters concerning the environment. It was established in Utqiarvik
(Barrow), Alaska in 1977 in response to increased oil and gas-based development
in the Arctic, with initial participation of the Inuit of Greenland, Canada and
Alaska. In 1995, the Inuit of Russia became full members.[114]
In 1985, the ICC established its own Environmental Commission (ICCEC) which has been involved in the Inuit Regional Conservation Strategy. This included the development of a resource management programme designed to take account of the cultural and subsistence needs of Inuit communities.[115] Subsequently, in 1992 an extensive document entitled Principles and Elements for a Comprehensive Arctic Policy was published.[116]
The discussions leading to the final formulation of this policy highlighted the value to indigenous peoples and to Governments of co-operation between them, and among different indigenous peoples.[117] The policy was a significant factor in the formation of the Declaration on the Arctic Environmental Protection Strategy (AEPS)[118] and the founding of the recently inaugurated (September 1996) Arctic Council, where the ICC had observer status.[119] AEPS was signed in 1991 by the eight countries that make up the circumpolar region. It set out the fundamental principles for co-operation among these countries and the role of indigenous peoples.[120] It focuses on the monitoring of pollution and the establishment of procedures in the event of an environmental disaster, as well as the prevention of further degradation of the Arctic environment and conservation of Arctic flora and fauna. At the same time, it recognizes the need to accommodate the concerns of indigenous people and to encourage their participation.[121]
Greenland participates in the Arctic Council, which has taken over the AEPS and is developing programs to reflect its broadened mandate. The Arctic Council pursues, at the same time, environmental protection (through this AEPS mandate), economic, social and cultural aims by promoting sustainable and equitable development. The Council comprises the eight Arctic countries, as well as international indigenous peoples' organisations.[122]
By providing for this formal role of indigenous people in the international agreement establishing the Arctic Council, the status of these groups is stronger than in most other conventions which provide for `meaningful participation' or `full consultation', or under current international law and practice. Moreover, the Council can readily utilize the knowledge and expertise of the indigenous people of the Arctic region, and can be sensitive to their cultural and social priorities. This allows for a contribution to other international initiatives such as sustainable development and human rights.[123]
The Arctic Council has developed terms of reference and a work plan for a Sustainable Development Program. Arctic Indigenous Peoples, including Greenland, are involved in the Council through this Program as well as the Indigenous Peoples Secretariat.
The ICC is also involved in the Arctic Monitoring and Assessment Program (AMAP), for which it has prepared a report on the risk of contaminants for Arctic indigenous peoples. It also co-operates with the Sámi Council and the Association of Indigenous Minorities of the Russian North and East Asia (AIPON).[124]
Greenland is the most populated homeland for Inuit - it has a substantial proportion of the Inuit population of the Arctic region. The ICC and, subsequently, the AEPS and Arctic Council are examples of how Greenlanders have worked on a successful regional approach to environmental protection and sustainable development with other indigenous people and governments (indigenous and non-indigenous).
The Arctic indigenous people are developing a unique status and role under
international law through these areas and issues. Greenlanders have exercised
significant leadership and co-operation in regional and international forums,
and have often resorted to international standards, such as human rights
conventions, when conflicts have arisen or as authority for their claims.
The Sámi, or Lapps[125], are the
native people of the area in northernmost Europe formerly known as Lappland.
There are currently estimated to be somewhere between 75,000 - 100,000[126] Sámi people living in the
traditional areas of their homeland. They have inhabited these areas for
thousands of years.[127] These traditional
lands now lie within the borders of four present day countries - Russia,
Norway, Sweden and Finland. As a result, the Sámi have now found
themselves under the jurisdiction of four different governments and four
separate systems of State authorities.
Their relationship with the Governments and populations of these countries `became one of minority and majority'.[128] Yet, in spite of the fundamental differences between the Sámi minority and other population groups within these four countries, they have managed to maintain access to much of their traditional land, despite ongoing debates regarding the true legal ownership.[129] Nevertheless, they have also at times been treated as immigrants, and have been stigmatised by the various assimilationist policies of the respective countries.
Despite the fact that their traditional areas have been divided by state borders for centuries, the Sámi have maintained a strong will to ensure the survival and growth of their culture, language and lifestyle in the traditional ancestral lands, whilst also adapting to the modern way of life. The Sámi have historically regarded the reindeer as the basic guardian of their culture and their efforts to maintain their reindeer herding rights have represented an important focus for the ongoing existence of Sámi culture.
Through these efforts, they have managed to maintain a common identity across state borders. In 1956, a Nordic Sámi Council was established to promote Sámi economic, social and cultural interests. Subsequently the Kola (Russian) Sámi have joined and it is now referred to as the Sámi Council[130] and has NGO status within the United Nations. A Nordic Sámi Institute was established in Norway in 1973 and the Sámi of Norway, Sweden and Finland have become members of the World Council of Indigenous Peoples (WCIP). At its 1996 meeting, the Sámi Council unanimously adopted a motion drawn up by its legal committee for the establishment of a Sámi Convention,[131] giving national and international legal recognition to their rights as an indigenous people.
The Sámi language is divided into a number of major dialects with quite marked variations. It contains many borrowed words from Finnish, indicating a long history of Sámi-Finnish relations, and also from Old Norse, going back at least 1,300 years.[132]
The Sámi have been recorded as being reindeer herders, hunters and
fishermen in the areas now forming part of the four countries mentioned above
since AD 98.[133] Historically, large areas
of the northern regions of the four countries mentioned above were called
Finnmark, or alternatively Lappland, or in the Sámi language,
Sapmi. Parts of the area north and east of the city of Tromso, which
were solely inhabited by Sámi, were regarded as terra nullius by
other Norwegian settlers.[134]
Even before they were brought under the full sovereignty of the states of
Sweden, Denmark-Norway and Russia, the Sámi had felt the effects of
competition between these regional kingdoms as they engaged in territorial
rivalry. In the early fourteenth century, state and church expansion into
Finnmark intensified and the Danish-Norwegian kingdom declared its sovereignty
over the coastal regions of Finnmark, declaring the Arctic Ocean mare
nostrum - `our sea' or `the King's sea'.[135]
This was followed by further colonization activities in the region, and a number of wars were fought over `the Finnmark question' between Russia and Sweden and then between Denmark-Norway and Sweden (the Kalmar War 1611-1613).[136] Following Denmark-Norway's victory in the Kalmar War, Finnmark was officially designated as a county.
During the eighteenth century, particularly after the Great Nordic War
(1701-1720), it became obvious that formal borders between Norway and Sweden
were necessary. Border Treaties were concluded between Denmark-Norway and
Sweden-Finland in 1751 (the Stromstad Treaty) and between Norway and Russia
1826. A codicil to the Stromstad Treaty, known as the Lapp Codicil but now
commonly referred to as the `Sámi Magna Carta', recognised that
Sámi had migrated across what became the border between Norway
and Sweden for centuries without hindrance, and provided a guarantee
that this right to freely cross the border as part of their
seasonal migration of reindeer herding could continue.
The Lapp Codicil provided in part as follows:
... The Sami need the land of both states. Therefore, they shall, in accordance with tradition, be permitted both in autumn and spring to move their reindeer herds across the border into the other state. And hereafter, as before, they shall, like the state's own subjects, be allowed to use land and share for themselves and their animals, except in the places stated below, and they shall be met with friendliness, protected and aided ...[137]Despite the recognition of this traditional right, the Lapp Codicil, in effect, cut across `immemorial territories'[138] and forced pastoral Sámi to choose citizenship in either Denmark-Norway or Sweden. The Lapp Codicil has never been cancelled, though its implementation is regulated by bilateral commissions and agreements.
... beings of lower order, who should not be given the same legal status as the Nordic peoples, nor stand in the way of higher civilization.[140]
In the early years of the twentieth century, a number of Sámi organisations began to emerge,[141] partially in response to this perception of the Sámi. However, these earlier organisations had difficulty showing positive results and did not create a financial base for future activity,[142] and the notion of organised Sámi opposition largely disappeared.
It was not until the end of the Second World War, that significant renewed attempts began to establish various forms of Sámi organisation- described as `Sami self-organising initiatives'.[143] Over time these have led to a `new Sami self-understanding'[144] and the emergence of the Sámi as a political force in the Scandinavian region. A Nordic Sámi Conference met for the first time in 1953, leading to the establishment in 1956 of a Nordic Sámi Council to co-ordinate the various Sámi organisations in each of the Scandinavian countries.
Sámi organisation and the recognition of various forms of Sámi rights have followed to varying degrees in the four countries which they inhabit. This Discussion Paper will briefly overview the current position of the Sámi in the three Scandinavian countries - Norway, Sweden and Finland. Overall, the position of the Sámi has improved in recent years mostly in Norway, where the authorities have made a relatively coherent effort to make progress. In Sweden and Finland, the progress that has been achieved has largely been on a sporadic basis.[145] However, in each of the three countries there has been a revival of the Sámi language and culture.[146]
There is not, however, any serious consideration about the establishment of an independent Sámi state. They are more concerned with the protection of the traditional lands against exploitation, and the clear recognition of their traditional hunting, fishing and reindeer herding rights. The establishment of Sámi Parliaments in each of the three Scandinavian countries potentially provides for their interests to be taken more into account and is a further avenue for Sámi to present a more unified front. This will require the `healing' of those internal divisions that have arisen among Sámi[147] and the role and powers of the Sámi Parliaments to increase.
There are estimated to be approximately 40,000-60,000 Sámi in Norway,[148] representing the most significant ethnic
minority in the country,[149] as well as the
largest Sámi group in any one country. They are usually categorised into
three groups - the Sea Sámi (mearraolbmot) who live in the
coastal regions, the dalon who are small landholders engaged in
subsistence agriculture and the reindeer Sámi
(boazosápmelaèèat) who engage in nomadic herding
activities.[150]
Unlike Finland, there is no clearly defined Sámi homeland in Norway and
Sámi are found throughout the country. There was, however, an
administrative area for Sámi language, which takes in a number of
municipalities.[151] In 1953, the County
Prefect (Fylkesmannen) in Finnmark established a Sámi Council to
look at regional Sámi issues. In the 1960s, a more organised
`Sámi Movement' began to develop as Sámi developed a growing
awareness of the need to maintain their identity and culture. A national
Norwegian Sámi Council, a state institution, was established by Royal
Resolution in 1964[152] to act as an
advisory body in relation to issues of significance to Sámi, replacing
the Sámi Council.
In the main, however, any Sámi demands for tangible rights, especially
with respect to the disposition of land and the distribution of any economic
surplus from the use of the land inhabited by Sámi, were ignored by
Norwegian leaders.[153]
By a Royal Resolution in June, 1979, the Norwegian Parliament had decided to dam the Alta-Kautokeino watercourse, which flowed through various central areas of Sapmi, in order to construct a hydroelectric energy system. This proposal was regarded by reindeer Sámi as a threat to important grazing areas and the broader Sámi `Movement' considered the construction as an infringement of the Sámi rights to land and water in Sapmi.[155]. Resistance to the construction was mobilized and the resulting actions of supporters and opponents attracted significant national and international attention, as the response of widespread civil disobedience by both the Sámi and various sympathetic Norwegian environmental groups provoked unprecedented police response.
Whilst the affair revealed some divisions within the Sámi population, and the Sámi campaign to halt the dam construction ultimately failed, the episode proved to be a watershed in Sámi ethno-political history in Norway. Public opinion became more positive towards the Sámi, and grew further as parts of the community came to regard the building of the dam as a failure which did not achieve its planned purposes.[156] In September 1993, ownership of the Alta hydro-electric plant, including a majority interest in Finnmark Hydro Power AS, was sold by the county Government to the Norwegian State, as it could no longer carry the increasing debt burden of the power station.[157]
These developments, coupled with the widespread discussion that had arisen out of the opposition to the construction, served to increase awareness of, and legitimize Sámi demands that their rights as an indigenous population should be respected in Norway. Up until as late as the end of the 1980s, the suggestion that the Sámi were an `indigenous people' had been foreign to the wider community, the Norwegian Government and even some elements of the Sámi.[158]
The Government response to the `Alta Affair' was to appoint two committees to investigate the current situation, and propose reforms in relation to the position of the Sámi in Norway. Taking note of the combined resistance of the Sámi and various conservation groups to the construction of the Alta dam, the Swedish Government also appointed a Sámi Rights Commission in 1983,[159] though its mandate was somewhat narrower than its Norwegian counterpart.[160]
One of the Norwegian Government appointed committees was mandated to address
cultural questions and the other to address political rights and the right to
land and water. The seventeen member Sámi Rights Commission, one-third
of which represented Sámi interests with the remainder being Norwegian,
founded in 1980-81, was required to make recommendations regarding the
utilisation of natural resources in Sámi inhabited areas. Its 1984
report on the legal position of the Sámi formed the basis for the
Sámi Act 1987[161]
(which came into force on 24 February 1989) and the establishment of the
Sámi Parliament in 1989.[162]
The purpose specified in the Sámi Act 1987 was in almost
identical wording to the new Article 110a of the Norwegian Constitution, which
was inserted in 1989 and informally referred to as `the Sámi paragraph'.
The Sámi Act 1987 provides as follows:
... It is the obligation of the State authorities to create the conditions necessary for the Saami to protect and develop their language, their culture and their society.
The inclusion of this provision is regarded as
... a Constitutional guarantee for the Saami as an indigenous people, as a legal and political guarantee for the protection and development of the Saami language, culture and society.[163]
In June 1990, Norway became the first country to ratify ILO Convention No. 169
concerning indigenous and tribal peoples in independent countries and which
came into force on 5 September 1991.[164] The Government has expressly stated that its provisions
apply to the Sámi in Norway.[165] Its
interpretation of Article 14 of that Convention[166] is that, by providing what it regards as `strongly
protected' rights of usage to land traditionally occupied by Sámi in
Norway, this fulfils the Article's requirement of admission of land
ownership. It therefore runs the risk of being found to be in
contravention of the Convention.[167]
Norway was also the first country to ratify the 1992 European Charter for
Regional or Minority languages, and made express reference to the Sámi
language, but no other language, in its ratification document.[168]
These substantive actions should not obscure the reality that the overall
policy of Norway towards the Sámi has been very much geared towards
assimilation. Norway had been annexed by the Danes for many years, only
to then be forced into a Union with Sweden. This historical heritage led to a
resurgence of Norwegian nationalism.[169]
During discussions relating to the Dissolution of the Norway-Sweden Union
in 1905 and the establishment of a northern border with an independent
Finland after World War I, this process of assimilation was justified in order
to protect Norway from the danger of Swedish influence and `the Finnish
Danger'[170]
raised by the presence of a Finnish speaking minority in Northern Norway
(the `Kvens'). In reality, the Sámi were regarded by some as a similar
security threat.[171]
During the inter war period, this process was continued on security and
political as well as cultural grounds - the `superiority of the Norwegian
culture' - and, following the decimation of parts of the country during World
War II, economic considerations were also important. As one anthropologist put
it, the argument of the Norwegian Government after the war was based on the
following:
... I believe that assimilation is necessary and inevitable. The Saami will mix with Norwegians and blend more with Norwegian society ... What I do is economic politics. It may be that our country will be a poorer country culturally when the Saami culture disappears, but no one can live from culture. [172]
This policy was also reflected in the Norwegian approach to land. The 1902 Land
Regulations only permitted land ownership for Norwegian speakers. Whereas
Sweden-Finland made a legal distinction between land uses based on herding and
those of agriculture, Norway acknowledged no such difference.[173]
As an example, on 24 October 1997, the Supreme Court of Norway handed down its decision in an action brought against a southern Sámi group, the Riast-Hylling herding administration. Twenty-seven private landowners were successful in their attempt to prevent reindeer being pastured on their property. The Court relied on a similar 1897 case. The Sámi Parliament responded to this decision as follows:
... The Sámi Parliament condemn the verdict and emphasise the frightening implications of an apparent reversion to the earlier days of colonisation of Sámi areas. At the same time they fear that this verdict can be the beginning of the final extermination of south-Sámi culture in Norway.[174]
Norway, Sweden and Finland each have a Sámi Parliament comprising
individuals elected by and among the Sámi. These are advisory bodies
primarily responsible for the review of policies and proposed legislation of
concern and relevance to Sámi in each respective country.
The Sámi Parliament (Sameting) was established in 1989. It is regarded by many as the central element of the undertakings included in the Norwegian Constitution and facilitates the involvement of Sámi in the regulation and administration of issues of concern to Sámi. The Sámi Parliament is democratically elected by the Sámi population in Norway.
The Sámi Act 1987 specifies the following powers of the Sámi Parliament:
The Saami Parliament's area of activity includes all questions that the Parliament considers to relate to the Saami. The Saami Parliament can on its own initiative raise and issue statements on all questions within its area of activity. It can on its own initiative also raise questions before public authorities and private institutions ... The Saami Parliament has the authority to make decisions when this follows from other provisions in the law or is decided in another way.[175]
The Sámi Parliament comprises thirty-nine elected representatives,
elected on the basis of a special census conducted among Sámi throughout
the country. The President of the Sámi Parliament, its only full-time
salaried official, and the Vice President are also the leader and deputy leader
respectively of the Sámi Parliamentary Council, a group of five members
chosen from the Sámi Parliament.[176]
The Sámi Parliament has its administration based in the town of
Karasjok, and falls within the administration of the Norwegian Ministry for
Labour and Local Government. It has defined its mandate as follows:
1. to be the Sámi's elected political body; and
2. to carry out the administrative tasks delegated to it by the Norwegian
Government.[177]
Apart from the Sámi Parliament, there are three main Sámi political organisations in Norway - the Confederation of Norwegian Reindeer Herders (NRL) founded in 1948, the Norwegian Sámi National Union (NSR) founded in 1968 and the Sámi Confederation (SLF) founded in 1979.[178]
Under the provisions of the Sámi Act, all national, regional and local authorities are required to consult with the Sámi Parliament before making any decisions which may effect the Sámi people. Although some administrative authority has been delegated to it, the Sámi Parliament primarily acts as an advisory body to the Norwegian Parliament, which bears the financial responsibility for activities of the Sámi Parliament and its subsidiary bodies. Sufficient funds must be made available by the Norwegian Parliament in its annual budget to meet these purposes.[179]
The extent of the formal authority and jurisdiction of the Sámi Parliament is yet to be completely clarified, along with recognition of the Sámi's territorial rights to `land and water'. These remain areas of `intense debate' among and between Norwegians and Sámi.[180]
The Sámi have, `since time immemorial,'[181] occupied and used land over considerable areas of
northern Norway. The Sámi notion of land territoriality was, however,
different from the system of the European States that colonised them. Whilst it
does not involve a concept of private land `ownership', it stems originally
from the notion of a `recognized territorial base' and a `discernible, but
flexible, membership' revolving around the Lapp Village.[182]
This concept of Sámi social organisation (the siida - `a
local community') still influences modern Sámi views of land
`ownership'. For the boazosápmelaèèat, the land was
considered as common property which they were free to use, whilst the
animals themselves were privately owned. However, there has never been a single
Sámi model of land use among the various Sámi groups, with their
pattern of movement and resource adaptation varying between districts.[183]
Norway and the other colonizing Nordic states viewed the Sámi as nomadic
and regarded the lands occupied by the Sámi as `ownerless'. They
interpreted the Sámi approach to land in such a manner as to deny the
existence of any prior `rights'. As a result, they extended their sovereignty
over the Sámi and their traditional lands without any regard for these
Sámi notions of territoriality.
From the mid 1800s onwards, the state authorities developed a theory that the
Sámi were too primitive and nomadic to be recognised as having a proper
system of private property rights.[184] This
led to the development of the `doctrine of the unregistered ground in Finnmark'
by Norwegian authorities.[185] This doctrine
formed a basis for all laws and regulations passed with regard to land in that
region up until the present. It declared that the state had full ownership of
all land which was not formally in private possession. For the Sámi the
question of ownership had been of little practical interest up until the time
that the State claimed ownership of land which they had previously used without
interference.
In the 1902 Land Regulations for Finnmark, provisions were included whereby the
sale of any land must further the development of `an educated population, who
can speak, read and write the Norwegian language, and make daily use of it'.[186]
The question of land and water rights remains unresolved. The State claims to
own approximately ninety-six percent of the land in Finnmark county.[187] This is disputed by some groups of
Sámi, but the Government generally does not accept their claims to land
rights. After thirteen years of investigation and deliberation, during which
the Sámi remained relatively silent on the issue of land rights, a
sub-group of the Sámi Rights Committee (which did not include any
Sámi legal experts) completed a report to the Committee which confirmed
the Norwegian state's rights to land and water in Finnmark. The report also
concluded that the Sámi had no legal basis for territorial rights,
either under Norwegian law or the criteria established in ILO Convention No.
169.[188]
This report drew sharp criticism from Sámi representatives. Ole Henrik Magga, the then newly re-elected President of the Sámi Parliament made the following comments:
... This means we have been made fools of for thirteen years! It is no news that the legal convention of the State is that all belongs to the State. The whole idea behind the Sami Rights Committee was not to repeat what had been legal conventions, but to find better solutions for the future.[189]
Subsequently, the majority report of the Sámi Rights Committee concluded in 1997 that land rights should not be granted on an individual ethnic basis, but rather should be shared among the population in a particular geographical area, irrespective of ethnicity.[190] Apart from a minor exception for the Skolt Sámi, where special sweep-net and sea-salmon fishing rights were proposed, the Committee stated that it `has not drawn any line for the sake of individual ethnicity'[191] (emphasis in the Committee's report).
This finding generated heated debate among both Sámi and Norwegians, and a number of Sámi organisations have since declared that the Sámi should be regarded as having original rights to the land which they have traditionally inhabited.[192]
At the same time different models of natural resource management are represented by the Sámi Parliament and the Norwegian elected Finnmark County Parliament.[193] Added to this, the small size of Finnmark (48,000 square kilometres) makes it difficult to create an appropriate model of rights distribution and management for Sámi, given that the Sámi are no longer a majority in many areas of that county.
In the meantime, the management of, and property rights to common land in Finnmark has been transferred to an `independent' public corporation (the Statsskog SF), with the state as the only shareholder.[194] This corporation operates according to commercial business principles,[195] which may further diminish the influence of any claims based on cultural or traditional rights. This transfer has reduced the political influence of the Sámi Parliament over the management of the land.
In other parts of the country, a process of land privatisation is taking place, with the Norwegian Reindeer Breeders Association (NRL) working for the rights of reindeer herding as an industry rather than as part of a movement towards Sámi land rights.[196]
In essence, whilst some significant issues relating to the status of Sámi as an indigenous people in Norway have been resolved, the issue of Sámi land rights remains to be settled in a manner regarded by many Sámi as being satisfactory, or in accordance with international standards relating to indigenous and human rights. The Norwegian Government recognises only usufruct rights. Even these rights are not guaranteed - despite Norwegian claims that they are `strongly protected' - and can be weakened by ordinary Norwegian law and the actions of Norwegian authorities. In 1993 and 1994, for example, the Norwegian authorities granted general mineral prospecting licences to two multi-national mining companies without even informing, let alone consulting with, the Sámi Parliament and various Sámi reindeer organisations.[197] This met with objection from the Sámi Parliament.
When the latest session of the Sámi Parliament was opened in September 1999, the Norwegian Prime Minister, KM Bondevik, stated that he was interested in strengthening the Sámi Parliament's powers and broadening its role. Yet he was, at the same time `abrupt and dismissive' to suggestions by the Sámi Parliament President, Sven-Roald Nystø, that negotiations should be undertaken to agree on land and water rights for Sámi.[198]
Whilst certain language rights and political rights (through the Sámi Parliament) have been established, these clearly have their limits. The Sámi Parliament does not have authority or jurisdiction with respect to matters relating to land use or reindeer husbandry,[199] and no tangible steps have yet been taken to grant a form of indigenous land rights for the Sámi. There is no system of collective management of land and resources, nor has a form of effective co-management been put into place. The question of whether the Sámi collective use of traditional land should be recognised with the same legal force as western concepts of ownership and possession remains an area of some dispute.[200]
Despite the influence of the Sámi Parliament, a more efficient system for the management of resources and the control of land use might be necessary in order to ensure the preservation of certain significant aspects of Sámi culture. This is a common concern for all Norwegians. Eventually, the question of land ownership also requires joint discussion between the Sámi and the wider community.
The assimilationist policies of, in particular, the Norwegian Government as
well as the other Scandinavian Governments, has meant that many Sámi
have chosen, or been forced to relocate from their traditional areas to urban
centres. There they have `blended smoothly'[201] with the majority population and enjoyed greatly
increased living standards and equality of citizenship rights without any form
of blatant discrimination.[202] Yet this has
facilitated a loss, or at least a `passivity'[203] of Sámi cultural identity, and a resultant loss
of unity in the call by Sámi for full traditional indigenous rights.
These are important issues that the Sámi Parliament will first need to
address internally. Several Sámi politicians have emphasised a policy of
moderation. These `Norwegianized Sami'[204]
elements, even within the Sámi Parliament itself, may not regard
Sámi claims for land and water rights as a high priority, and may act to
`water down'[205] any attempts to propel
this issue to the top of the agenda. This would tend to aid the assimilationist
efforts of the Norwegian State and may not allow for tangible gains for the
Sámi.
In addition, the Sámi Parliament is faced with political realities of majority and opposition groups, and these internal `disagreements' and criticisms, often with the next election for the Sámi Parliament in mind, also serve to diffuse the more significant issues of concern to Sámi. Only after the various Sámi interest groups agree on a unified approach to the issue of land, resource and wildlife rights (including management) can they hope to achieve some progress on the matter on a broader plane.
There are approximately 17,000 Sámi in Sweden, of whom about 2,000
constitute an `elite' class of reindeer-breeding Sámi.[206] Another 8,000 live in the Sámi kernel lands in
the north and a further 7,000 live in Stockholm, Gothenburg and other cities.
This last group are generally economically well off.[207]
Unlike the Constitutions of Norway and Finland, the Swedish Constitution makes no specific reference to the Sámi. However, following an increase in the movement for formal recognition of the need for Sámi representation, the Swedish Parliament (Riksdagen) adopted the Sámi Act 1992, which provides the basis for the establishment of a Sámi Parliament in Sweden.
The issue of the Sámi in Sweden arose as an issue for the wider community in the 1970s. In 1977 the Swedish Parliament discussed and approved various proposals based on a Sámi Report which presumed that, as an indigenous people, the Sámi had a special position in the country.[208] The Government established a working group to consider issues of concern to Sámi, which worked in co-ordination with the central national administration. Following the Alta affair in Norway, the Sámi of Sweden became more vocal in their demands for a comprehensive evaluation of their position, and called for the establishment of specific laws dealing with Sámi rights.[209]
Various reports were prepared during the late 1980s and a separate Sámi Act 1992 was approved by the Swedish Parliament on 17 December 1992. The Sámi Act 1992 provided for the establishment of the Sámi Parliament, which began to operate on 26 August 1993. Its powers and jurisdiction are set out in the Sámi Act 1992 and include the following:
... The Saami Parliament shall work for a living Saami culture and thereby take initiatives to work for and propose measures that promote this culture.[210]
The mandate of the Swedish Sámi Parliament is regarded as more clearly
defined than its Norwegian or Finnish counterparts.[211] Despite this, some commentators see it as less
independent than its Norwegian and Finnish counterparts.[212] It is expressly stated to be a State authority and has
administrative authority in a number of areas.
It is authorised to
... deal in the future with questions that concern the Saami culture in Sweden.[213]
In addition, the Swedish Sámi Parliament is expressly mandated with
specific tasks under the Sámi Act. These include:
1. administering various State funds and other financial allocations for
Sámi affairs.
2. appointing members to the Sámi school Boards.
3. leading and supervising efforts to reinforce the Sámi language.
4. safeguarding and catering to specific Sámi needs, including the
interests of reindeer herders concerned about access and use of land and water
resources.
5. taking part in community planning.
6. Informing the public and the wider community about the Sámi people.[214]
The first election of the thirty-one members of the Sámi Parliament took place in 1993 and it began its activities in August of that year. The members of the Sámi Parliament are elected from and by Sámi with Swedish citizenship.[215]
As in Norway, there is no clearly demarcated Sámi homeland in Sweden.[216] Sámi ownership of land they have
traditionally occupied was, for a time, recognised under Swedish-Finnish law.
This concept of ownership had been based on a system whereby each Sámi
family used `a hereditary or tax' land within a Sámi village.[217] In 1928, the Swedish Parliament
introduced a law which `downgraded' Sámi land rights to something akin
to the `privileges' that had been accorded to the Jews of the region by King
Gustavus III in the eighteenth century. The prevailing attitude at this time
was that `a Lapp should be a Lapp' - a true nomad. They should be
entitled to keep their exotic culture and enjoy certain privileges (but not
rights) of access to land for reindeer herding purposes as long as they
kept to that and did not disturb the pace of `progress'.[218]
This concept of `Lapp Privileges' was only recently discounted, following
decisions by the Supreme Court of Norway (the 1968 Altevatn decision) and the
Supreme Court of Sweden (the 1981 Skattefjaell decision).[219]
In the Skattefjaell decision, otherwise known as the Taxed Mountain
Case, the Swedish Supreme Court concluded that the state was to be regarded
as the owner of land in northern Sweden which, under the Sweden-Finnish period,
had been recognised as being under Sámi ownership. The court held that
the Sámi involved in the case only had limited rights of use of the
land, which they concluded were only usufructuary rights to the area.
In addition, the court determined that the Sámi also had reindeer grazing and fishing rights, on the basis of its interpretation of the Swedish Constitution, but were not as conclusive regarding rights of hunting. Sámi were capable of acquiring title to land through its use for traditional Sámi activities, but had not shown sufficient evidence to support this conclusion in the circumstances of the Taxed Mountain Case.[220]
In 1993, the Swedish Parliament unexpectedly passed a law affecting traditional Sámi exclusive hunting and fishing rights. These changes were effected in the name of `equal rights'[221] and entered into force one day before the inauguration of the newly established Sámi Parliament.[222] These changes allowed for small game hunting above the cultivation line and in reindeer grazing mountains and opened traditional Sámi hunting grounds to all Swedish citizens. Up until these changes, hunting and fishing in traditional Sámi areas had been considered as an exclusive Sámi right.[223] The Sámi right to hunting and trapping recognised in a 1971 Act was declared invalid.[224]
Sámi considered this to be a violation of their rights as it interferes significantly with reindeer herding. The Sámi Parliament in its inaugural session adopted a resolution which was highly critical of the policy of the Swedish Government. Representatives of 38 Sámi villages brought an action in the Swedish Supreme Administrative Court which failed, partly on technical grounds. They then brought an action before the European Commission of Human Rights. On 25 November 1996, the European Commission of Human Rights refused to act on the complaint about the 1993 law on the basis that domestic remedies (that is, civil action) had not been exhausted.[225]
Questions regarding rights to use land held under private title for reindeer grazing have also come before the courts. In 1990, three Swedish forest companies and seven hundred private landowners asserted that there were no separate traditional or customary Sámi rights to graze reindeer beyond the village borders. They brought an action before the courts, to which the National Council of Sámi responded by petitioning the Swedish Government and stating
... The mere opening of a case like this means a threat against the Saami industries and culture in the area.[226]
A partial settlement was reached between the parties in 1993.
Subsequently, the private individual landowners brought a number of claims
before the Sveg district court which concluded in February 1996 that the
Sámi did not in fact have any customary rights to use the land in
dispute. This verdict was regarded as a surprise not only to the Sámi
but also to the wider community.[227] An
appeal has been lodged by the Sámi to the Court of Appeal and it is
likely that the matter may end up in the Swedish Supreme Court.[228] This will prove to be very expensive for the
Sámi community should they lose the decision.
As is the case with the Sámi Parliament in Norway, the Swedish Sámi Parliament has no formal legal position or authority with respect to the use and management of traditional Sámi land. These areas can, under Swedish law, be either privately owned or owned by the State. Legislation, such as that passed by the Swedish Parliament in 1993, and developments such as the current dispute regarding reindeer grazing, further threaten Sámi rights to land and water, as well as their use of other natural resources in Sweden.
This affects many aspects of Sámi society and has been partially responsible for the movement of Sámi from the north to southern areas of the country. Stockholm now has the second highest Sámi population in Sweden. Demographic studies show that whilst the overall number of Sámi is increasing, the number engaged in traditional herding activities is declining.[229] Whilst this is not entirely due to the policies of the state, it is apparent that Swedish administrative actions do not encourage these traditional activities, thus placing Sámi culture and identity at some risk given the central importance of the reindeer as a cultural symbol for the Sámi.
Most of the approximately 6,500[230]
Sámi living in Finland inhabit the northern-most part of the country,
which constitutes their traditional area. This area includes four rural
communities, but they constitute a majority in only one of these
municipalities, Utsjoki.[231] Due in large
part to their small numbers in Finland, the political influence of the
Sámi is limited.[232]
Despite this, a number of important steps have been taken to progress the rights of Sámi in Finland. Following amendments in 1995, the Finnish Constitution and the Sámi Act 1995 recognise this area as the `Sámi Homeland'.[233] This area covers approximately 35,000 square kilometres and, within this area, the Sámi have a right to cultural autonomy, by virtue of Article 51(a) of the Finnish Constitution.
In addition, the Sámi language has been given semi-official status in the Sámi Homeland.[234]
Finland was the first of the Scandinavian countries to establish an elected
Sámi body. The first parliamentary elections were held in 1972 and the
Sámi Parliament began to operate in the autumn of 1973. It was
established by Presidential Ordinance to consider questions of concern to
Sámi.
The Government had earlier established a Sámi Commission to look into the legal position of the Sámi in Finland, which recommended the passing of a specific Sámi Act. According to the commission's recommendations, the Sámi were to be regarded as an indigenous people of Finland, with a language and culture different from the majority of the population.[235] Whilst the recommendation for a separate Act was not taken to comprehensive debate in the Finnish Parliament, the Ordinance was completed in 1973 and made provision both for a Sámi Parliament and a Sámi Homeland.[236]
The Finnish Sámi Parliament has no decision-making authority. Its formal
political role was primarily limited to a right to issue statements, as well as
raising various areas of concern for discussion. It originally had twenty
members elected on the basis of a public census among Finnish Sámi.
However, by the end of 1995, the Finnish Parliament had revised the structure
of the Finnish Sámi Parliament. The Sámi Act 1995 had been
passed, and the Finnish Constitution had been amended to strengthen the legal
position of the Sámi. Section 51a of the Finnish Constitution now
provides as follows:
... The Saami as an indigenous people shall, according to the provisions in the law, be ensured cultural autonomy within their Homeland area, in relation to their language and culture.[237]
Part of the reasoning behind the Government's actions in 1995 were not to change the position of the Sámi in Finland but to give them a political position which more accurately reflected their earlier political and administrative position in the country.[238]
The newly constituted Sámi Parliament, the Sameting, had its inaugural meeting in 1996 following elections held during 1995.[239]
The Sameting comprises twenty-one directly elected representatives, each with a four year term. No fewer that three of the representatives and one vice- representative must come from each of the municipalities located within the Sámi Homeland. The Chairman of the Sámi Parliament is also the leader of the executive committee and is elected from among the representatives in the Parliament.
Under the Sámi Act 1995, the Finnish Sámi Parliament is mandated as follows:
... To the Saami Parliament belong the areas that relate to the Saami's language and culture and their position as indigenous people. In the areas that belong to the Saami Parliament, it can take initiatives, make proposals and issue statements to the authorities. In relation to these areas, the Saami Parliament also has the right to make decisions as provided for in this or any other law.[240]
The Sámi Parliament has some delegated authority with respect to funds specifically earmarked in the national budget for Sámi related projects.
The Sámi Act 1995 also expressly declares the Sámi Parliament to be the representative body of all Finnish Sámi in both national and international relations.[241] Pursuant to section 9 of the Sámi Act 1995, all national authorities in Finland are obligated to negotiate with the Sámi Parliament in matters of concern and relevance to the Sámi. This obligation goes beyond consultation. This obligation extends to the following matters in the Sámi Homeland:
1. community planning.
2. the management, use, leasing and designation of state lands, conservation
areas and wilderness areas.
3. applications for mining licences.
4. legislative or administrative changes affecting traditional Sámi
occupations and livelihoods.
5. the development of teaching of the Sámi language and its use in
schools and in the social and health services.
6. any other matters affecting the Sámi language or culture.[242]
This obligation does not give the Sámi Parliament a power of veto - but it does require that state authorities negotiate with the Sámi Parliament to resolve any disagreements that may occur between them with respect to the specified issues.
There is nothing similar to this obligation to negotiate in either Norway or Sweden.[243]
Like Sweden, Finland has not ratified ILO Convention No 169, the main obstacle for both countries being the provisions of Article 14 of that Convention.[244]
Finland has ratified the 1992 European Charter on regional or Minority Languages, and has specifically made the Charter applicable to both the Sámi language and the Swedish language (a Swedish speaking minority currently represents approximately six percent of the Finnish population).[245]
As a result of the legal amendments made by the Finnish Parliament in 1995, the
Sámi have been granted a right to cultural autonomy within the
demarcated area of the Sámi Homeland.
The Government of Finland has also been undertaking a preparatory study to investigate what compensation should be made to Sámi for economic losses towards the end of the nineteenth century when they failed to register their claims to land areas traditionally used for hunting and fishing.[246] At that time, the lands surrounding the Sámi villages became the property of the State. It is the view of the Sámi that the Finnish state has taken over the ownership of their traditional lands unlawfully.[247]
Despite the progress that has been made, the Sámi are not convinced that the state will grant them any further formal rights. There is a feeling among Sámi that their reindeer-herding, fishing and hunting areas are shrinking and that formal environmental protection of these areas is also declining. Overall, the territorial rights that they do have are regarded as relatively weak.[248]
As an example, the reindeer herding Sámi Anni Äärela and Jouni Näkkäläjärvi were unsuccessful in an action against the Finland Government to have all logging in Kariselkä stopped. The case is on appeal to the Supreme Court. The Sámi Parliament supports such attempts to strengthen their traditional economic rights.[249]
In its submission to the Finnish Parliament regarding the proposed ratification by Finland of ILO Convention No 169, the Sámi Parliament has expressed the view that problems regarding Sámi ownership of their traditional territories and the use of natural resources located in the territories, need to be resolved as a condition of ratification.
It is highly likely, however, that the Finnish-speaking population living in the Sámi Homelands would strongly oppose any special rights to the Sámi.[250] They have apparently organised various anti- Sámi activities, which have been a source of concern to the Sámi Parliament.[251] They have formed a registered group, the Association for Lapp Culture and Traditions (Lappalaiskulttuuri - ja perinnedthdistys r.y.) which is seeking to be elected to the Sámi Parliament as Sámi.[252] The members of the Sámi Parliament believe that this group has made efforts to obstruct the work of the Sámi Parliament.[253]
In many ways, the experience of Greenlandic Inuit and the Scandinavian
Sámi may seem far removed from Australian indigenous peoples and their
aspirations for self governance. In no way do we seek to extract `models' from
these experiences to be uncritically applied in Australia. The experience of
the Inuit and the Sámi is very specifically informed by their history,
culture and the various political contexts that they have had to deal with over
time. However, they strongly identify as indigenous peoples and they are
increasingly involved in indigenous international forums and movements.
The colonial powers, such as Denmark and Norway, have a contemporary reputation as being `liberal' democratic nations that are generally supportive of indigenous rights. It would be surprising to many outsiders that the Sámi continue to experience such fundamental difficulties in having their indigenous rights recognised and implemented at the national level. To this extent, there are some significant parallels with the experience of Australian indigenous peoples. Apparently `benign' colonialism can be enduring, divisive of indigenous political action, and extremely difficult to dislocate in order to develop contemporary indigenous self governance.
The claims of Denmark from 1950 to 1979 (the date of Home Rule), and the post war policies of Scandinavian Governments, that they have significantly improved the living standards and services provided to indigenous peoples, have some very real basis. However, in reality such efforts have simply accorded indigenous peoples their basic human and citizenship rights, to which they were always entitled (on an equitable basis with non-indigenous citizens). In a sense these social and economic developments are directed to past `wrongs' and are consistent with assimilationist policies, if no further recognition is given to indigenous rights.
The claims of indigenous peoples (under human rights and indigenous rights standards in international law) is that their indigenous rights are specific (to them) and in addition to these basic citizenship rights. Citizenship rights should not be `traded off' or be a replacement for indigenous rights (particularly in relation to basic needs and services). This is an abuse of non-indigenous governance.
The Greenlandic Inuit and Scandinavian Sámi have followed different strategies in seeking recognition of their specific indigenous rights such as self governance and usufructory rights (for example, access and use of reindeer grazing land).
The Greenland experience demonstrates an evolving form of self governance, having some parallels with the United States' legal concept of sovereign dependent nations. The Greenland Government recognised the need for a `transition period' from colonialism. It appears that their aspirations have always been towards constantly increasing levels of self governance. To a significant extent they have been successful in achieving this through:
1. The Sámi experience indicates some confusion (by non-indigenous governments) about the relationships between citizenship rights and service delivery and the inherent rights of indigenous peoples. To what extent is this evident in current Australian Government policy, the Native Title Act 1993 (as amended) and Australian negotiated agreements (such as project agreements and service agreements)? Historically, the social justice package proposal (under the former Labour Government) appeared to fail to make this important distinction.2. Would proposals for regional agreements with Australian indigenous peoples have the potential for evolving and increasing self governance (as in Greenland) or give the appearance of indigenous rights recognition, without providing a clear national approach to settling indigenous rights to land, waters, seas and resources (including their use and management)?
3. To what extent are there comparable experiences with indigenous Inuit self government in Greenland and Canada?
4. Consider some of the factors that have impeded the recognition of indigenous rights and self governance by the Sámi in Scandinavia.
5. To what extent has the apparently unified, co-operative and internationalist approach of Greenlanders (in the Arctic and globally) assisted the evolution of Greenland self governance?
6. The Inuit have emphasised the central role of environment and natural resource management and use (as part of their integrated rights as indigenous peoples). To what extent have these areas been used to expand Greenland Government power domestically and internationally?