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Masters Of The Land

The Story Of The Sapmi. Who Can Claim A Right To The North?

Sápmi is the Sami people’s name for a region stretching between northern Norway, Sweden, Finland and the Kola Peninsula in Russia. Despite the Sami people’s status as an indigenous people to northern Scandinavia, the north of Sweden remains torn between indigenous rights and large-scale economic interests. This article focuses on the story of Sápmi, and who can claim to have a right to the land.

In 2007, the UN adopted the Declaration on the Rights of Indigenous Peoples (UNDRIP) with the aim to establish minimum standards of protection for indigenous people around the world. Article 3 of the UNDRIP Convention states that indigenous people have a right to self-determination, and Article 19 that all member states have a duty to consult with representatives for the indigenous peoples concerned, to obtain their free, prior and informed consent before deciding upon any measures that may affect them.

However, the convention is merely a framework for indigenous rights and isn’t in itself legally binding. To supervise enforcement the UN Human Rights Council have established a Special Rapporteur on the Rights of Indigenous Peoples. In 2016 the Special Rapporteur investigated the situation of the Sami people of Scandinavia. The report criticised Swedish environmental law for being ignorant of Sami people’s interests, and also pointed out that Sweden hasn’t ratified the ILO Convention nr 169 on Indigenous and Tribal Peoples.  It’s the only international convention which concerns exclusively indigenous rights. The convention served as a starting point for the creation of the judicial norm of free, prior and informed consent subsequently expressed in Article 19 of the UNDRIP Convention. Out of the four countries with Sami minorities, Norway is the only who has ratified the convention.

However, within domestic legislation, the Swedish Sami population do hold some right to the land they call Sápmi. In Skattefjällsmålet (NJA 1981 s.1) the Supreme Court established that Sami people, when joined together in legal entitites called “Samebyar” (i.e. Sami villages or communities) have a right to use of the land stemming from “urminnes rätt” (i.e. ancient right). In Nordmalingsmålet (NJA 2011 s. 109) the Court clarified that this means that Sami citizens who can prove that their ancestors have been using a certain area of land for traditional purposes (such as reindeer herding as was the case in Nordmaling) for more than 90 years have a right to continue using the land for such purposes, although the land itself belongs to somebody else.

Yet when large economic interests are at stake, the Sami people’s right to use of the land sparks a conflict between indigenous rights and local community growth. One example of this is the debate around Kallak, an area close to Jokkmokk in Lapland. In 2013, a British company called Beowulf Mining applied for permission to initiate extraction of iron ore in Kallak. What’s problematic is that the proposed mine would be established right at the heart of traditional Sami land, restricting and, according to Sami spokesmen, essentially obliterating the Sami people’s access to the land for reindeer herding.

For years, the question of Kallak has been mangled around by every administrative board imaginable, before finally ending up on the Swedish Government’s table in Stockholm. As of June 2018, the Government still hadn’t examined the question. The previous Minister for Enterprise and Innovation said in a comment that his party, the Social Democrats “on the one hand recognizes the need for environmental protection, on the other hand wants more mines to be established in Sweden”. Since the area of Kallak lies right at the border to the World Heritage site of Laponia, the issue has also been supplemented to UNESCO for review.

Photographer: Herbert Shin. Source: Flickr.

In June 2017, the Council of Europe adopted a national opinion on Sweden’s treatment of the Sami people. The Council is in charge of monitoring compliance of the European Convention on Human Rights (ECHR), which is directly legally binding to the Swedish authorities. The Council’s opinion described how representatives for the Sami people were dissatisfied with the lack of influence on matters of importance to the Sami culture. The report claimed that the Sami people’s perceived influence on matters regarding use of land and other natural resources remained far behind the concept of self-determination. The Council of Europe joined in with the UN’s Special Rapporteur and called for Sweden to ratify the ILO Convention nr. 169.

To solve some of the issues described by the international institutions, a new legislative proposal was published by the Department of Culture in 2017, with the aim to reform some of the central laws concerning the Sami people. The proposal suggests a new consultation order to be established in relation to the Sami people that would create a legal obligation for the Swedish Government and its subsidiary bodies to consult the Sami Parliament on matters of special importance to the Sami people.

Currently, Sami people are only allowed to participate in the decision-making process as rights owners or parties concerned. The new order would qualify the Sami Parliament to be heard as a representative institution for the Sami people as a group. Although an actual ratification of the ILO Convention would be a matter for the Swedish Government, it seems as though the proposal have been influenced by the norm of free, prior and informed consent. However, the consultation order doesn’t give Sami people the right to initiate consultation, and the proposal expressively states that the right to free, prior and informed consent would not mean a right to veto.

Originally, the plan for the new legislative proposal was to enter into force July 2018. 2018 however, has come and gone, and similarly to Kallak, the new consultation order is still being processed in Stockholm. The Government has not yet produced an actual legislative proposition to be presented to the Parliament. Meanwhile, the fate of Sápmi remains in the hand of public courts and regional administrative boards, while international human rights institutions are following the process at a distance.

Katarina Bungerfeldt

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