Legal Framework for Arctic Indigenous Rights

1. 5th February 2009 Malgosia Fitzmaurice: Indigenous Peoples and Natural Resources in the Arctic. LAW, DEVELOPMENT AND THE ENVIRONMENT, lecture series SOAS British Institute of International and Comparative Law and the Institute of Advanced Legal Studies

3. The Arctic is an enormous area, sprawling over one sixth of the earths' landmass; more than 30 million km2 and twenty-four time zones. It has a population of about four million, including over thirty different indigenous peoples and dozens of languages. The Arctic is a region of vast natural resources and a very clean environment compared with most areas of the world. (http://arctic-council.org/article/about)

4. The topic of today’s presentation is enormous, as it relates to the issues of indigenous peoples and natural resources in Arctic or anywhere else and is encompasses as well as the discussion of such contentious problems of international law as self-determination; self-governance; issues of general international law and domestic regulation.

5. Therefore, certain selection had to be made and today the following issues will be discussed: • the general international issues relevant to indigenous peoples (as well as these of the Arctic) • the general outline of domestic legislation in relation to indigenous peoples of Arctic region will be presented: Nordic countries (Finland, Norway Sweden, Denmark (Greenland)); Russia, Canada and United States. • Special case study of Norway-2005 Finnmark Act.

6. General and Regional International Law Instruments which have bearing on Arctic region indigenous peoples and natural resources in the nexus of international treaties (general and regional) and soft law instruments. The situation is very complicated as international law instruments having bearing on indigenous peoples and natural resources belong to two categories: human rights and environmental law instruments.

7. Human Rights General Treaties:: The 1966 United Nations International Covenants on Civil and Political Rights and on Social, Ecnomic and Political Rights, especially Article 1 of the both Covenants. 1. All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development. 2. All peoples may, for their own ends, freely dispose of their natural wealth and resources without prejudice to any obligations arising out of international economic co-operation, based upon the principle of mutual benefit, and international law. In no case may a people be deprived of its own means of subsistence. 3. The States Parties to the present Covenant, including those having responsibility for the administration of Non-Self-Governing and Trust Territories, shall promote the realization of the right of self-determination, and shall respect that right, in conformity with the provisions of the Charter of the United Nations

8. 27: of the ICCPR: “In those States in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practice their own religion, or to use their own language.”

9. International Labour Organisation Convention (No. 169) concerning Indigenous and Tribal Peoples in Independent Countries, 27 June 1989 entered into force 5 September 1991. Status of ratifications by States of the Arctic region with indigenous peoples: Denmark (1996) and Norway (1990) (not very widely ratified Convention-only 18 ratifications in total),

10. Relevant general case –law of the Human Rights Committee, such as Lubicon Band case (Bernard Ominayak et al v. Canada) where it was held that the rights protected by Article 27 include rights of persons, in community with others to engage in economic and social activities which are part of the culture of the community to which they belong. Historical inequities and certain more recent developments threaten the way of life and culture of the Lubicon Lake Band, and constitute a violation of Article 27 so long as they continue. See also Aspirana Mahuik case. In relation to the Saami peoples HRC had before it 1985 Ivan Kitok case. It is stated that Ivan Kitok belongs to a Sami family which has been active in reindeer breeding for over 100 years. On this basis the author claims that he has inherited the "civil right" to reindeer breeding from his forefathers as well as the rights to land and water in Sörkaitum Sami Village, had been denied the exercise of these rights because he is said to have lost his membership in the Sami village. A non-member cannot exercise Sami rights to land and water

11. Although Mr Kitok had, because of his absence from his local community, lost full membership in the Sami village and consequently full reindeer herding rights, he was not prevented from moving back to the community and from participating in the reindeer herding activities which are constitutive for the Sami culture. In the circumstances, the Committee considered that there was no violation of article 27. However, the Committee expressed its concern over the operation of Swedish legislation, and emphasized the need to apply (also) objective criteria in the determination of whether an individual who wishes to identify himself with the group is recognized as a member.

12. The 1994 case Länsman v. Finland No. 113was related to the harmful effects of a stone quarry in relation to reindeer herding activities of the indigenous Sami. Although no violation of article 27 was found, the Committee established several general principles for the interpretation of article 27. It emphasized that article 27 does not protect only traditional means of livelihood but relates as even to their adaptation to modern times. As to what kind of interference with a minority culture constitutes ‘denial’ in the sense of article 27, the Committee developed the combined test of meaningful consultations with the group and the sustainability of the indigenous or minority economy. The 1995 Länsman v. Finland No. 217 case related to governmental logging activities in the reindeer herding lands of the same Sami community. M. Scheinin, “Indigenous Peoples' Land Rights Under the International Covenant on Civil and Political Rights”,(http://www.galdu.org/govat/doc/ind_peoples_land_rights.pdf)

13. The ILO 169 Convention The main reason for the limited ratifications are Arts. 14 and 25 of the Convention on the rights to LAND and NATURAL RESOURCES.

14. Art. 14 1.The rights of ownership and possession of the peoples concerned over thelandswhich they traditionally occupy shall be recognised. In addition, measures shall be taken in appropriate cases to safeguard the right of the peoples concerned to uselands not exclusively occupied by them, but to which they have traditionally had access for their subsistence and traditional activities. Particular attention shall be paid to the situation of nomadic peoples and shifting cultivators in this respect. 2. Governments shall take steps as necessary to identify the lands which the peoples concerned traditionally occupy, and to guarantee effective protection of theirrights of ownership and possession. 3. Adequate procedures shall beestablished within the national legal system to resolve land claims by the peoples concerned.

15. Art. 15 1. The rights of the peoples concerned to thenatural resourcespertaining to their lands shall be speciallysafeguarded. These rights include the right of these peoplesto participate in the use, management and conservation of these resources. 2. In cases in which the State retains the ownership of mineral or sub-surface resourcesor rights to other resources pertaining to lands, governmentsshall establish or maintain proceduresthrough which they shall consult these peoples, with a view to ascertaining whether and towhat degree their interests would be prejudiced, before undertaking or permitting any programmes for the exploration or exploitation of such resources pertaining to their lands. The peoplesconcerned shall wherever possibleparticipate in the benefitsof such activities, and shallreceivefair compensationfor anydamageswhich they may sustain as a result of such activities.

16. Soft Law Instruments The 2007 United Nations Declaration on the Rights Indigenous Peoples. Art.3: Article 3: “Indigenous peoples have the right to self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development”; Article 4: “Indigenous peoples, in exercising their right to self-determination, have the right to autonomy or self-government in matters relating to their internal and local affairs, as well as ways and means for financing their autonomous functions”.

17. Art. 26: “1. Indigenous peoples have the right to the lands, territories and resources which they have traditionally owned, occupied or otherwise used or acquired. 2. Indigenous peoples have the right to own, use, develop and control the lands, territories and resources that they possess by reason of traditional ownership or other traditional occupation or use, as well as those which they have otherwise acquired. 3. States shall give legal recognition and protection to these lands, territories and resources. Such recognition shall be conducted with due respect to the customs, traditions and land tenure systems of the indigenous peoples concerned.

18. In favour of the Declaration: (states of the Arctic region with indigenous peoples): Denmark, Finland, Norway, Sweden. Against: Canada, United States. Abstained: Russian Federation.

19. Relevant Regional Cooperation The European Convention of Human Rights and Fundamental Freedoms (especially relevant case-law of the European Court of Human Rights).

20. General Environmental Treaties which have bearing on Arctic natural resources and indigenous peoples: the 1946 Convention on Regulation of Whaling; 1973 Convention on the International Trade in Endangered Species of Fauna and Flora; and 1992 Convention on Biological Diversity.

21. Regional Arctic Cooperation: The Arctic Council. The Ottawa Declaration of 1996 formally established the Arctic Council as a high level intergovernmental forum to provide a means for promoting cooperation, coordination and interaction among the Arctic States, with the involvement of the Arctic Indigenous communities and other Arctic inhabitants on common Arctic issues, in particular issues of sustainable development and environmental protection in the Arctic.(http://arctic-councilorg/article/about)

22. Member States of the Arctic Council are Canada, Denmark (including Greenland and the Faroe Islands), Finland, Iceland, Norway, Russian Federation, Sweden, and the United States of America. In addition to the Member States, the Arctic Council has the category of Permanent Participants. This category is open equally to Arctic organizations of Indigenous peoples with a majority of Arctic Indigenous constituency.

23. There are six Working Groups of the Arctic Council: Arctic Contaminants Action Program (ACAP) Arctic Monitoring and Assessment Programme (AMAP) Conservation of Arctic Flora and Fauna (CAFF) Emergency Prevention, Preparedness and Response (EPPR) Protection of the Arctic Marine Environment (PAME) Sustainable Development Working Group (SDWG)

24. Environmental issues play a fundamental role in Arctic. It started in 1989, on the initiative of the government of Finland, when officials from the eight Arctic countries met in Rovaniemi, Finland to discuss cooperative measures to protect the Arctic environment.

25. Working Group on Arctic Fauna and Flora (CAFF). CAFF's mandate is to address the conservation of Arctic biodiversity, and communicate the findings to the governments and residents of the Arctic, helping to promote practices which ensure sustainability of the Arctic's living resources. The conservation of biodiversity is a necessary condition for sustainable development. Arctic biodiversity is experiencing stress from a number of factors such as climate change and rapid economic growth in the Arctic region, as well as the loss of wintering habitats for those species migrating outside the Arctic region. (http://arctic-council.org/working_group/caff)

26. The CAFF Strategic Plan 1998-2002 sets forth four Guiding Principles for the CAFF Program as follows: • the involvement of indigenous and local people and use of traditional ecological knowledge; • the use of broad, ecosystem-based approach to conservation and management; • cooperation with other conservation initiatives to minimize duplication and increase effectiveness; • communication of CAFF program activities. (http://arctic-council.org/working_group/caff)

27. The most important current issue ecnomic growth and the protection of natural resources. With the CAFF 2006-2008 Work Plan, CAFF calls for long-term data series on status and trends of Arctic biodiversity and the need for further research, observations monitoring and modeling. It is possible to successfully conserve the natural environment and allow for economic development, but this requires solid baseline data on long-term status and trends of Arctic biodiversity, habitats and ecosystem health.

28. Many species and habitats in the Arctic have been harmed by over-exploitation. While some stocks have recovered, other populations remain precariously low.

29. Over-exploitation remains a problem, particularly in marine fisheries. In addition, certain harvest methods pose a serious threat to non-target species. By-catch mortality of non-target fish, seabirds, and marine mammals is high in some fisheries. Similarly, overgrazing has historically contribute to extensive degradation and loss of vegetatation and the loss of habitat .

30. The problems are: • The increase in population in many areas; • commercial harvesters seek new stocks, the exploitation of stocks increases • These factors put pressure on Arctic species.

31. Worldwide the disturbance, loss, and fragmentation of habitat is considered the most serious threat to biodiversity. • Fires, floods, storms; erosion, and volcanoes can be catastrophic. • Disturbances by humans such as oil and gas exploration and development roads and other infrastructure, off-road us of motorized vehicles, deforestation, hydropower development, bottom trawling, and dredging, affect Arctic habitats in various areas

32. Long-range pollution, in the form of heavy metals, persistent organic pollutants, radionuclides, and other substances, has reached every part of the Arctic. Some freshwater systems are stressed as a consequence of acid rain.

33. Climate change is perhaps the greatest threat to the Arctic environment as it exists today. Observed change in species abundance and distribution, and to permafrost and sea ice, are evidence that climate change is already having an impact. (Arctic Fauna and Flora, Status and Conservation http://arctic-council.org/filearchive/AFF%20Status%20and%20Trends.pdf)

34. Sustainable use must be the goal of resource management, both for commercial and other uses of Arctic flora and fauna.

35. CAFF's projects for the upcoming inter-ministerial period will provide data for informed decision making in resolving conflicts which are now arising in trying to both conserve the natural environment and permit regional growth.

36. Indigenous People of the Arctic I: • Inuit communities are found in the Arctic, in the Northwest Territories, Labrador and Quebec in Canada, above tree line in Alaska (where people are called the Inupiat and Yupik), and in Russia (where people are called the Yupik people). In some areas, Inuit people are called “Eskimos” however many Inuit find this term offensive. The word “Inuit” means “the people” in the Inuktitut language.

37. Indigenous People of the Arctic II: The Sámi people are the indigenous peopleof northern Europe inhabiting Sápmi, which today encompasses parts of northern Sweden, Norway, Finland and the Kola Peninsula of Russia. Their ancestral lands span across an area the size of Sweden in the Nordic countries. The Sámi people are among the largest indigenous ethnic groups in Europe. Their languages are the Sámi languages, which are classified as Finnic in the Finno-Ugric group.

38. 40,000 Saamis Norway • 20,000 Saamis in Sweden • 7,500 Saamis in Finland • 2,000 Saamis in Russia

39. The legal regulation of indigenous peoples in all countries they inhabit is very different, even between the Saami people in the Nordic countries (Norway, Finland and Sweden), although their won legal systems are similar.

40. The core of the Saami livelihood and culture is the reindeer. No one can say for sure how long the Sami have used reindeer. In 98 A.D. the Roman historian, Tacitus, wrote about the Fenni, a hunt­ing people in the far north who were probably Sami. In 500 A.D., Chinese sources wrote of a people in the northeast who used "deer" for transportation and as dairy animals. In the late 9th century a Norwegian magnate, Ottar, told of the "wealth" of the Sami-the reindeer. Even then, tame reindeer were being used for transportation or as lures when hunting wild reindeer. There are thus indications that the Sami have lived together with reindeer for more than 1,000 years. Various kinds of tame reindeer breeding gradually developed later. The nomadic style of living and the reindeer breeding changes into more intensive and localised.

41. The most advanced and special legislation within the world indigenous peoples context regarding the use of land and the management of natural resources is 2005 Finnmark Act in Norway.

42. The FinnmarK Act was adopted by the Storting (Norwegian Parliament) in 2005. The Act involves the transfer of approximately 95 % (about 46,000 km2, the area of Belgium, the Netherlands and Luxembourg) of the area in Finnmark to inhabitants of Finnmark through a new agency called the Finnmark Estate.

43. The Finnmark Act and the establishment of the Finnmark Estate is in response to demand from the Saamis that Saami rights to lands and natural resources needed acknowledgement and resolution. In 1984, the Government appointed the Sámi Rights Committee to discuss these questions and make the necessary conclusions and recommendations. The Saami Rights Committee’s recommendations have formed the basis for the Finnmark Act and the establishment of the Finnmark Estate.

44. The Finnmark Act is established on the main principle that the Saami through protracted traditional use of the land and water areas, have acquired individual and/or collective ownership and right to use lands and waters in Finnmark County. One of the most important objectives of the Act is to give the population in Finnmark greater influence in the administration of the property in the county of Finnmark. Discussion and recognition of existing rights is an important element of the Finnmark Act, and the rights of use and ownership in Finnmark must still be discussed and clarified further.

45. To this end the Commission and the Tribunal will be set up for this purpose. The principles of established custom and immemorial usage will form the foundation for this work. Fishing rights as mining rights in the sea are not included in the Act. However, fishing rights in saltwater in Finnmark County are subject to further elaborations and discussions.Finnmark Estate is managed by a board of directors, with six members, three appointed by Finnmark County Council District, and an equal number appointed by the Saami Parliament.

46. The main provisions of the Finnmark Act Chapter 1: General Provisions: • Section 1: The purpose of the Act • The purpose of the Act is to facilitate the management of land and natural resources in the county of Finnmark in a balanced and ecologically sustainable manner for the benefit of the residents of the county and particularly as a basis for Sami culture, reindeer husbandry, use of non-cultivated areas, commercial activity and social life. • Section 2: Scope The Act shall apply to real property and watercourses with natural resources in the county of Finnmark. On the shoreline, the Act shall apply as far out to sea as private right of ownership extends. • Section 3: Relationship to International Law The Act shall apply with the limitations that follow from ILO Convention No. 169 concerning Indigenous and Tribal Peoples in Independent Countries. The Act shall be applied in compliance with the provisions of international law concerning indigenous peoples and minorities and with the provisions of agreements with foreign states concerning fishing in transboundary watercourses.

47. Section 4: The guidelines of the Sami Parliament regarding changes in the use of uncultivated land The Sami Parliament may issue guidelines for assessing the effect of changes in the use of uncultivated land on Sami culture, reindeer husbandry, use of non-cultivated areas, commercial activity and social life. The guidelines shall be approved by the Ministry. The Ministry shall examine whether the guidelines lie within the framework laid down in the first sentence and whether they have been drawn up in an appropriate manner. In matters concerning changes in the use of uncultivated land, state, county and municipal authorities shall assess the significance such changes will have for Sami culture, reindeer husbandry, use of non-cultivated areas, commercial activity and social life…

48. Section 4: Relationship to Established Rights: Through prolonged use of land and water areas, the Sami have collectively and individually acquired rights to land in Finnmark. This Act does not interfere with collective and individual rights acquired by Sami and other people through prescription or immemorial usage. This also applies to the rights held by reindeer herders on such a basis or pursuant to the Reindeer Herding Act in order to establish the scope and content of the rights held by Sami and other people on the basis of prescription or immemorial usage or on some other basis, a Commission shall be established to investigate rights to land and water in Finnmark and a special court to settle disputes concerning such rights,

49. Chapter 2: The Finnmark Estate Section 7: The Board of Finnmark Estate Finnmark Estate shall be governed by a board consisting of six persons Finnmark County Council and the Sami Parliament shall each elect three members, each with a personal deputy. The members and deputies shall be resident in Finnmark. Among the members elected by the Sami Parliament at least one board member and that person’s deputy shall be representatives for reindeer husbandry. Both as members and as deputies, both bodies shall elect both women and men. The body shall elect members and deputies collectively…

50. Section 10:Matters concerning changes in the use of uncultivated land and transfer of real property, etc In matters concerning changes in the use of uncultivated land, Finnmark Estate shall assess the significance a change will have for Sami culture, reindeer husbandry, use of non-cultivated areas, commercial activity and social life. The guidelines of the Sami Parliament pursuant to section 4 shall be followed in the assessment of Sami interests pursuant to the first sentence.