55thth February 2009 February 2009

Malgosia Fitzmaurice: Malgosia Fitzmaurice: Indigenous Peoples and Natural Indigenous Peoples and Natural Resources in the Arctic.Resources in the Arctic.

LAW, DEVELOPMENT AND THE LAW, DEVELOPMENT AND THE ENVIRONMENT, lecture series ENVIRONMENT, lecture series SOASSOAS

British Institute of International British Institute of International and Comparative Law and the and Comparative Law and the

Institute of Advanced Legal Institute of Advanced Legal Studies Studies

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)

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.

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.

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.

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

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.”

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),

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

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.

The 1994 case Länsman v. Finland No. 113 was 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)

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.

Art. 14

1. The rights of ownership and possession of the peoples concerned over the lands which they traditionally occupy shall be recognised. In addition, measures shall be taken in appropriate cases to safeguard the right of the peoples concerned to use lands 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 their rights of ownership and possession.

3. Adequate procedures shall be established within the national legal system to resolve land claims by the peoples concerned.

Art. 15

1. The rights of the peoples concerned to the natural resources pertaining to their lands shall be specially safeguarded. These rights include the right of these peoples to 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 resources or rights to other resources pertaining to lands, governments shall establish or maintain procedures through which they shall consult these peoples, with a view to ascertaining whether and to what 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 peoples concerned shall wherever possible participate in the benefits of such activities, and shall receive fair compensation for any damages which they may sustain as a result of such activities.

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”.

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.

In favour of the Declaration: (states of the Arctic region with indigenous peoples): Denmark, Finland, Norway, Sweden.

Against: Canada, United States.

Abstained: Russian Federation.

Relevant Regional Cooperation

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

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

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)

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.

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)

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.

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)

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)

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.

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

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 .

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.

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

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.

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)

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

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.

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.

Indigenous People of the Arctic II:

The Sámi people are the indigenous people of 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.

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

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.

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 hunt ing 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.

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.

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.

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.

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.

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.

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.

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…

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,

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…

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.

Cont.

Decisions concerning changes in the use of uncultivated land require the support of at least four board members if the whole minority bases its opinion on consideration for Sami culture, reindeer husbandry, use of non-cultivated areas, commercial activity and social life assessed on the basis of the guidelines of the Sami Parliament. If the majority consists of four or less, a collective minority may during the board meeting demand that the matter be placed before the Sami Parliament. If the Sami Parliament does not ratify the decision of the majority or does not consider the matter within a reasonable time, a collective majority of the board may demand that Finnmark Estate place the matter before the King, who shall then decide whether the decision shall be approved. Such approval of the decision has the same effect as such a decision by the board.

Chapter 3: Renewable resources on Finnmark Estate Area

Section 21: Main principles for management

Finnmark Estate shall manage the renewable resources on its land in compliance with the purpose of this Act and within the frameworks provided by the Wildlife Act, the Act relating to salmonids and fresh-water fish and other legislation. The diversity and productivity of nature shall be preserved. The provisions of this chapter shall not apply in so far as otherwise established by special legal relations.

The regulation of non-living natural resources is very complicated and mostly included in 1972 Mining Act.

The main principle is the mining freedom which means in principle that everyone is able to prospect for, claim and be granted a claim area for deposits of claimable minerals also on other parties’ land and property. Parties outside the EEA Area must apply for a license for prospecting activities The mining legislation makes a distinction between claimable and non-claimable minerals. Claimable minerals are metal with a specific gravity higher than 5, as well as ore of such minerals. Claimable minerals are: gold, copper, titanium, etc. Claimable minerals belong to the finder. Non-claimable minerals include diamonds, industry minerals, natural stone and rock that can be crushed to crushed rock, gravel, sand, beds, and bog ore. Non-claimable minerals belong to the landowner.

The residents of Finnmark (both Saami and non-Saami) have the priority in the utilisation of natural resources of this area. Non-residents. However, In compliance with the provisions of this chapter and within the frameworks provided by other legislation, all persons have the access to hunt and trap small game and to fish with a rod and line in watercourses on Finnmark Estate land and to pick cloudberries for their own domestic use. Finnmark Estate may grant other persons than those resident in the municipality or county further access to renewable resources as referred to in sections 22 and 23 (such as big game hunting permit) . Also Section 26 states that: “In connection with restrictions on the exploitation of renewable resources as referred to in the first paragraph, due consideration shall be taken as regards the use of the resource by the various user groups”.

Chapter 5: Survey and Recognition of Existing Rights: Section 29: the Commission The Finnmark Commission shall be established, which, on the basis of current national law, shall investigate rights of use and ownership to the land to be taken over by Finnmark Estate pursuant to section 49.The King shall appoint the members of the Finnmark Commission. The Finnmark Commission shall consist of a chairman and four other members. The chairman shall fulfil the requirements of the Courts of Justice Act regarding Supreme Court judges. Two of the other members shall fulfill the requirements regarding district court judges. At least two members shall be resident in or otherwise have a strong affiliation to the county of Finnmark.

Finnmark Estate manages the ownership rights on state lands. The board o the Finnmark Estate manages these resources within the Finnmark Estate area.

Section 3 of the Act limits the possible prospecting areas, prospecting in fields gardens, parks, industrial areas, public road areas, railroads, power lines, military facilities or training grounds, is not permitted. Parties granted claims (Section 8) do not have the right to make interventions in the ground that will result

in significant damage without the consent of the property owner. If a claim area and license is granted, mining activities may be initiated (Section 36). In the event of damage or drawbacks, the landowner or

user is entitled to compensation (Section

37).(E. Josefsen, “Norwegian Legislation and Administration – Saami Land Rights”, 1Journal of Indigenous Peoples Rights, (2007), 30, at http://www.galdu.org/govat/doc/norwegian_nett.pdf)

Section 36: The Uncultivated Land Tribunal for Finnmark

The Uncultivated Land Tribunal for Finnmark shall be established, which shall consider disputes concerning rights that arise after the Finnmark Commission has investigated a field.

Sweden, Saami and Natural Resources

The position of the Saami in Sweden is very different from Norway mainly due the non-ratification of the 199 IOL Convention. “It is probably not because Sweden feels that the Sami do not have the rights set out in ILO Convention 169”. not have the rights set out in ILO Convention 169. Sweden's decision not to sign the ILO Convention is due rather to practical and political reasons. The central part of ILO Convention 169 sets out the provisions maintaining that indigenous peoples (e.g. the Sami) are entitled to own and use their traditional land and water areas, as well as the natural resources. If Sweden were to recognize the Sami's right to their land and water areas, this would in turn mean that people who are not Sami, but who currently use the Sami areas, would be forced to move a little”. (http://www.eng.samer.se/1126)

The explanation for the non-ratification of the 169 ILO Convention: “Non-Sami people would not be able to fish and hunt as much as before in the area when the Saami live. Furthermore, the forestry industry would similarly not be able to fell forest in the Sami areas without the permission of the Sami. If Sweden were to sign up to ILO Convention 169, the state would also be forced to give up certain land areas and natural resources that Sweden currently believes belong to the state, which would naturally cost money. In summary, it can be said that Sweden has not signed up to ILO Convention 169 because it feels it would be too expensive”. (http://www.eng.samer.se/1126)

There are no provisions in Swedish legislation to claim ownership rights to minerals or oil in their traditional areas. However, they are entitled to special rights due to reindeer herding, i.e. in the areas where they herd no major economic activities can be conduced if they interfere with herding.

Another issue which have not been fully resolved is the ownership of the land where Saami live (Northern Sweden). There were the Court cases which the Saami lost but at the same time the Court did not exclude the possibility that the Saami may have the right of ownership to these areas. “ … (the Skattefjäll case lasted for more than 15 years and cost a huge amount of money - money that the Sami do not have. The Sami are greatly irritated by the fact that, in their Sami policies, the Swedish Government and Parliament take it for granted that the Swedish state owns the traditional Sami areas, despite this never having been examined in the courts and despite a considerable amount of evidence to indicate that these areas are actually owned by the Sami”.

(http://www.eng.samer.se/1126)

However, there are certain exceptions in relation to reindeer husbandry: 2001 Reindeer Husbandry Act, according to which Sami rights have been collectively referred to as reindeer husbandry rights. To certain limited extent also non-Saami can own reindeers. The Act gives the Sami the right to use land and water for their own maintenance and that of their reindeer. This right is based on tradition from time immemorial and is protected in the Swedish Constitution. It belongs to the Sami people and may be exercised by any member of a Sami village.

There are 51 Sami villages for reindeer herding, whose members are entitled to pursue reindeer herding. A member of a Sami village has the right to hunt and fish on outlying land in reindeer grazing mountains in Jämtland and in the traditional grounds of the Sami people. This right to hunt or fish applies regardless of who owns the land (http://www.sweden.gov.se/sb/d/2160/a/66261)

Sweden has been strongly criticized on a number of occasions by various UN bodies, such as the UN Race Discrimination Committee and the UN Human Rights Committee, as a result of Sweden failing to respect the Sami's human rights. The UN has been particularly critical of the fact that the Sami's rights to their land and water areas, as well as the natural resources, are not recognized. The Council of Europe and the OECD (Organisation for Economic Co-operation and Development) have also criticized Sweden for its treatment of the Sami. Sweden has not yet done anything to rectify the faults and shortcomings pointed out by these various bodies, but always refers them to various inquiries. (http://www.eng.samer.se/1126)However, new law concerning the Saami rights is being considered and In its report A new reindeer husbandry policy (SOU 2001:101), the Reindeer Husbandry Policy Committee has proposed extensive changes in areas such as the organisation of Sami villages and the administration of reindeer husbandry. The report is currently under preparation at the Government Offices.

The position of the Saami in Finland in relation to natural resources is similar to this of Sweden, i.e. Saami peoples do not have any special rights of the land ownership or the use of natural resources. Anybody who has the lives in the European Economic Area may use natural resources in the Saami areas, i.e. hunt, fish etc.

The 2005 Saami Draft Convention. The 2005 Saami Draft Convention.

Internationally, theInternationally, the 2005 Saami Draft Convention 2005 Saami Draft Convention is probably one of the is probably one of the most exciting developments regarding indigenous peoples, most exciting developments regarding indigenous peoples, notwithstanding that it may never come into force. However, the ideas notwithstanding that it may never come into force. However, the ideas included therein are of fundamental importance for all indigenous peoples. included therein are of fundamental importance for all indigenous peoples. In the autumn of 2002, the Ministers responsible for Saami affairs in In the autumn of 2002, the Ministers responsible for Saami affairs in Finland, Norway and Sweden, together with the Presidents of the Saami Finland, Norway and Sweden, together with the Presidents of the Saami Parliaments in these three countries, appointed an expert group to prepare Parliaments in these three countries, appointed an expert group to prepare a Nordic Sámi Convention. After three years of intense work, the group of a Nordic Sámi Convention. After three years of intense work, the group of experts submitted its proposal at the annual joint meeting of the Ministers experts submitted its proposal at the annual joint meeting of the Ministers responsible for Saami affairs and the Presidents of the three Saami responsible for Saami affairs and the Presidents of the three Saami Parliaments on 16 November 2005 in Helsinki. Parliaments on 16 November 2005 in Helsinki.

The The Main ProvisionsMain Provisions of the Convention: of the Convention:

•Saami in all three countries are treated as Saami in all three countries are treated as one peoplesone peoples;;

• Saami have the right to Saami have the right to self-determinationself-determination in accordance with the rules and in accordance with the rules and provisions of international law and of this Convention. In so far as it follows provisions of international law and of this Convention. In so far as it follows from these rules and provisions, the Saami people has the rights to from these rules and provisions, the Saami people has the rights to determine its own economic, social and cultural development and to determine its own economic, social and cultural development and to dispose, to its own benefits, of its own natural resources” (Art.3). dispose, to its own benefits, of its own natural resources” (Art.3).

Art. 4 defines who is theArt. 4 defines who is the Saami person: Saami person:

• persons persons residing residing inin Finland, Norway or Sweden Finland, Norway or Sweden that that identifyidentify themselves as themselves as Saami andSaami and who who

• 1. 1. have Saami as domestic language or have at least one parent or have Saami as domestic language or have at least one parent or grandparent who has or had Saami as his/her domestic language; orgrandparent who has or had Saami as his/her domestic language; or

• 2. 2. have a right to pursue Saami reindeer husbandry in Norway or Sweden; have a right to pursue Saami reindeer husbandry in Norway or Sweden; or or

• 3. 3. fulfil the requirements to be eligible to vote in elections to the Saami fulfil the requirements to be eligible to vote in elections to the Saami Parliaments in Finland Norway or Sweden ; or Parliaments in Finland Norway or Sweden ; or

• 4. 4. areare children children of a personof a person referred to in 1, 2 or 3. referred to in 1, 2 or 3.

The Objective of the Convention is to affirm and strengthen The Objective of the Convention is to affirm and strengthen such rights of the Saami people that are necessary to secure such rights of the Saami people that are necessary to secure and develop its language, its culture, its livelihoods and society, and develop its language, its culture, its livelihoods and society, with the smallest possible interference of the national borders with the smallest possible interference of the national borders (Art 1). This Convention also stresses the (Art 1). This Convention also stresses the role of the Saami role of the Saami Parliaments,Parliaments, which wide functions are embodiment of Saami- which wide functions are embodiment of Saami-self-governance (Art.1). Ch. IV is on Saami rights to land and self-governance (Art.1). Ch. IV is on Saami rights to land and water and the utlisation of natural resources. water and the utlisation of natural resources.

Art. 34Art. 34: “Protracted traditional use of land or water areas constitutes : “Protracted traditional use of land or water areas constitutes the basis for individual or collective ownership rights to these areas the basis for individual or collective ownership rights to these areas for the Saami in accordance with national or international norms for the Saami in accordance with national or international norms concerning protracted usage”. Even without ownership of the land, the concerning protracted usage”. Even without ownership of the land, the fact of mere occupation and traditional use, grants the right to fact of mere occupation and traditional use, grants the right to continuous occupation for reindeer husbandry; hunting and fishing continuous occupation for reindeer husbandry; hunting and fishing etc. In areas used by as well as by other users, due regard will be paid etc. In areas used by as well as by other users, due regard will be paid to these uses (in particular to reindeer herders). to these uses (in particular to reindeer herders).

Art. 35Art. 35:: utilisation of natural resources: utilisation of natural resources:

• natural resources falling within the scope of Art, 34 will be accorded natural resources falling within the scope of Art, 34 will be accorded special protectionspecial protection

• all utilisation of natural resources within the Saami area requires the all utilisation of natural resources within the Saami area requires the negotiations with and the consent of the Saami and the Saami negotiations with and the consent of the Saami and the Saami Parliaments;Parliaments;

•The affected Sami have the right to compensation. The affected Sami have the right to compensation.

•Art. 40Art. 40: “The States, are in cooperation with the Saami Parliaments, : “The States, are in cooperation with the Saami Parliaments, obliged to actively protect the environment in order to ensure obliged to actively protect the environment in order to ensure sustainable development of the Saami land…” “…The Saami sustainable development of the Saami land…” “…The Saami Parliaments shall have the right of co-determination in the Parliaments shall have the right of co-determination in the environmental co-management of these areas”. environmental co-management of these areas”.

Finally, Finally, Art. 41Art. 41 grants the special protection of grants the special protection of the Saami livelihoods and the use of natural the Saami livelihoods and the use of natural resources and resources and Art. 42Art. 42 stipulates special stipulates special protection of protection of reindeer husbandryreindeer husbandry as a Saami as a Saami livelihood. livelihood.

The relevant law in Russia for numerically small people (Inuits and Saami) is the 1999 Indigenous Rights Law and various other laws such Land Code. “The new Land Code envisages the right to acquire land as private property. The law gives a priority right to acquisition of land to those already having possession rights on this land, a priority right which is beneficial for indigenous communities. Unfortunately, indigenous communities often cannot take advantage of this provision: many are dispersed across vast areas, cut off from administrative centers, and left uninformed of the legal developments concerning their lands. On the contrary, private companies that also have some rights to indigenous lands take advantage of the priority clause”. (A.Xanthaki, “Indigenous Rights in the Russian Federation:The Case of Numerically Small Peoples of the Russian North, Siberia, and Far East”, Human Rights Quarterly 26.1 (2004) 74-105, p, 89)

Participation of indigenous peoples over issues concerning their natural resources is mainly based on the international standards concerning participation and consultation of minorities and indigenous peoples analyzed previously. The 1999 Indigenous Rights Law complies with all these standards. Article 8.1 provides indigenous peoples with the right to participate in exercising control over the use of land that is necessary for their traditional economic systems; in environmental protection, when these lands and the resources are industrially used; in development and adoption of decisions that concern them; and in environmental and anthropological assessments in the development of state programs of natural resource exploration.

The law also provides rights to compensation for indigenous peoples as well as state, regional, and local support for the realization of these rights. Also, the 2001 Federal Law on Territories of Traditional Natural Use (Traditional Subsistence Territories) of Indigenous Numerically Small Peoples of the North, Siberia and the Far East of the Russian Federation, regulates the establishment, maintenance, and development of "especially conserved wildlife areas formed for the purposes of traditional nature management and peaceful enjoyment of settlement land by the indigenous peoples of the North, Siberia and the Far East of the Russian Federation." Xanthaki, p. 97

However, reality is much bleaker: first, although since 1999 relevant local normative acts that apply the Indigenous Rights Law have been adopted in a few areas of the Federation, such as Buryatia, Yakutia-Sakha, the Tyumen Oblast, and Khabarovsk Krai, most often no action has been taken; in truth, recent temporary instructions and enactments even contradict the above law. For centuries the resources have been exploited and today they provide one-fifth of Russia's gross national product; development in this area is expected to increase even more. (Xanthaki, cont.)

Contrary to the law, consultation with the Russiany "fair "

Contrary to the law, consultation with the Russian indigenous peoples about exploration or exploitation of natural resources in areas they live does not take place. Moreover, no compensation is made for the lands utilized by the state or international companies in traditional land use areas; no funding is provided for the realization of its provisions; and no environmental assessments take place. Indigenous peoples have no participation "in the benefits of such activities," since any benefits are divided between the federal, regional, and local governments, to which indigenous communities often do not have access; nor do they get any "fair compensation for any damages which they may sustain.“ (Xanthaki, p. 98)

Finally, since the adoption of the 2001 law on Territories of Traditional Natural Use, not even a single traditional natural use territory has been established. According to the government, this is because of the "unavailability of essential legislative acts regulating the order of establishing traditional subsistence territories of federal significance as well as specification of the system of rules applicable to their functioning." Yet, the government has taken no steps to reverse the situation. At the same time, cases of hasty abolition of the formerly established traditional subsistence territories have come to the attention of the international community. (Xanthaki, p. 98).

The Inuit in Canada live in the following four regions: Nunatsiavut (Labrador), Nunavik (northern Quebec), Nunavut, and the Inuvialuit region in the Northwest Territories.

Nunavut is a separate territory, under a very complicated legal regime which has self- government and under the 1993 Nunavut Land Claims Agreement and the Nunavut Wildlife Management. In the 2005 Labrador Inuit Land Claims Agreements for Nunatsiavut was established in order to transfer jurisdiction over some territorial matters was transferred to the new government, among them wildlife management (e.g. quotas), land use planning and development, property taxation, and natural resource management.

The Agreement is ethnically neutral and contains specific provisions for Inuit and non-Inuit resource harvesting including hunting, fishing, trapping, cutting firewood and berry picking within the Settlement Area. Inuit have the right to harvest for food, social and ceremonial purposes throughout the Settlement Area. If conservation requires that resource harvesting be limited, Inuit will have priority rights. All harvesting by non-Inuit must be closed before there are any reductions to Inuit harvesting The final agreement predicted for 2009: one of the issues the royalties for oil exploitation.

Until 1971, when the Alaska Native Claims Settlement Act (“ANCSA”) was passed, the very existence of Alaska Native rights remained uncertain. Subsistence hunting and fishing rights were not comprehensively defined until the adoption of the 1980 Alaska National Interest Lands Conservation Act (“ANILCA”). (S. Thérliaut et al, The Legal Protection of Subsistence: a Prerequisite of Food Security for the Inuit of Alaska, 22 Alaska Law Review (2005), 36.

ANCSA extinguished “[a]ll aboriginal titles, if any, and claims of aboriginal title in Alaska based on use and occupancy, including submerged land underneath all water areas, both inland and offshore, and including any aboriginal hunting or fishing rights that may exist” and all claims based on aboriginal rights and title. In exchange, the Act provided that Native regional and village for-profit corporations would receive $962.5 million in compensation and about forty-five million acres of land. In extinguishing aboriginal rights, ANCSA did not provide for specific Native hunting, fishing, and gathering rights… Committee declared that it expected the State of Alaska and the Secretary of the Interior to take any measures necessary to further the protection of subsistence. (S. Thérliaut et al, p. 40 .

Cont. “…after ANCSA, subsistence remained virtually unprotected. Native peoples could only rely on specific exemptions provided in certain fish and game laws, such as the Migratory Bird Treaty Act (MBTA) the Marine Mammal Protection Act of 1972 (MMPA), and the Endangered Species Act of 1973 (ESA), p. 41.

“Subsistence uses” are defined in ANILC as the customary and traditional uses by rural Alaska residents of wild renewable resources for direct personal or family consumption as food, shelter, fuel, clothing, tools, or transportation; for the making and selling of handicraft articles out of non-edible byproducts of fish and wildlife resources taken for personal or family consumption; for barter, or sharing for personal or family consumption; and for customary trade. Whenever the resources are so scarce that restrictions among subsistence users are required, Congress directed that limitations should be based on the following criteria: “(1) customary and direct dependence upon the populations as the mainstay of livelihood; (2) local residency; and (3) the availability of alternative resources.” P. 43.

Alaska subsistence hunting and fishing activities are regulated by a highly complex and confusing jurisdictional system. In July 1990, the federal government took over the management of subsistence activities on federal lands. The United States has authority over subsistence activities exercised on federal lands, which comprise about 59% of Alaska’s total land surface. The U.S. also has jurisdiction over “reserved waters” in which it has an interest by virtue of the reserved water rights doctrine. P. 59.

As for the state, it has jurisdiction over its lands in addition to private lands, including the ones owned by the Native corporations. State laws and regulations that deal, for example, with hunting and fishing methods also apply to federal lands when not preempted by Congress. State lands represent approximately 28% of the territory, while private parties, mainly Native corporations, own approximately 13% of the territory. The ANILCA subsistence scheme does not apply on these lands selected by Native corporations. The land law system is confusing, rendering hunting and fishing rights uncertain, such as e.g. the boundaries separating federal, state, and private lands are not clearly marked. P. 60

A good example of the complications regarding the management of natural resources is aboriginal whaling. This is a a labyrinth of the regulations of the International Whaling Commission (IWC); the Alaska Eskimo Whaling Commission (AEWC) and the National Oceanic and Atmospheric Administration (NOAA is an agency responsible for management of whales) which concluded the agreement on cooperation with AEWC.

Under this agreement, quotas are still set by the IWC, but the allocation of the quotas among whaling communities, the regulation and monitoring of the hunt, and the enforcement of the regulations are the province of the AEWC and the Whaling Captains’ Associations. Once the quotas have been distributed among the villages by the AEWC, each local Whaling Captain’s Association adopts regulations concerning the hunt in its own community. Under the cooperative agreement, the “NOAA may assert its management and enforcement authority only “[i]f the AEWC fails to carry out its enforcement responsibilities or meet the conditions” of the cooperative agreement or the management plan. P. 74.

As to oil, Inuit communities have the right to share the profits.

Greenland is a land rich in natural resources living and non-living: Natural resources: coal, iron ore, lead, zinc, molybdenum, diamonds, gold, platinum, niobium, tantalite, uranium, fish, seals, whales, hydropower, possible oil and gas. Around 60.000 Inuits live in Greenland.

Under the Home Rule, Greenland has the power to manage its natural resources. However, the profits are also shared by Denmark. Therefore, referendum held in the last week of November 2008 in Greenland resulted in 75% of Greenlanders voting towards more separation from Denmark (leading eventually to independence) and no profit-sharing. However independence would mean stop of Danish annual grant of $US 530 million. Although, Greenland (trough) Denmark is bound by whaling quotas relating to big whales. However, there is a pressure on Denmark to withdraw from the IWC. Greenland’s authorities set quotas for medium and small whales. Greenland quit EC in 1982.

It can be noted that at times quotas set by indigenous peoples in Alaska and Greenland are higher than recommended by administration and the organs set by international treaties (such the CITES). Therefore, it cannot be said that living natural resources are always managed sustainably.

In conclusion it may be said that the management of natural resources of the Arctic and indigenous peoples requires further regulation, as with the exception of Norway (whose management of resources by the 2005 Finnmark Act is as well as subject to criticism) there is no satisfactory management as:

• indigenous peoples do not have full rights over natural resources and lands according to Arts 14 and 215 of the 169 ILO Convention and (see especially Russia);

•As in the case of Finnmark, the rights are ethnically neutral; and

•As in the case of Greenland international recommendations by indigenous peoples are not fully taken into account.