ILO Convention 169 Concerning Indigenous and Tribal Peoples in Independent Countries

The ILO 169, which Norway ratifijied as the fijirst state in the world, is of ma-jor signifijicance for state parties to the convention, when it comes to securing Sámi rights to lands and natural resources. Notable are the introductory provi-sions of Articles 1 and 2, which defijine indigenous peoples and establish the general purposes of the Convention. Of signifijicance is also Article 6, which safeguards the rights of indigenous peoples to be consulted; Article 7, which safeguards the rights of indigenous peoples to decide their own priorities, and

11 St.meld. nr. 55 (2000-2001) [A white paper] Om samepolitikken, 17.

12 The space, scope and aim of this chapter does not allow for a separate discussion of the UN Declaration on the Rights of Indigenous Peoples, although it is highly relevant to the protection of indigenous peoples’ cultural heritage. However, at the end of section 2.2, there are some considerations of the UN Declaration.

to participate in ‘the formulation, implementation and evaluation of plans and programmes for national and regional development which may afffect them directly’; and Article 8, which protect indigenous customs and customary law and obligates governments to respect these.

However, it is Chapter II, entitled Land, which is the most signifijicant part of the Convention in relation to identifying and securing Sámi traditional lands and livelihood.13 It is not without reason that Article 14 is the most referred among the seven articles forming the land chapter. Article 14 (1) reads:

The rights of ownership and possession of the peoples concerned over the lands which they traditionally occupy shall be recognised. In addi-tion, 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.

Paragraph (2) and (3) of article 14 contains key provisions, too, stating that:

Governments shall take steps as necessary to identify the lands which the peoples concerned traditionally occupy, and to guarantee efffective protection of their rights of ownership and possession.

and:

Adequate procedures shall be established within the national legal sys-tem to resolve land claims by the peoples concerned.

In spite of its unambiguous wording, there has been intense discussion on whether Article 14 requires the states to recognize ownership of indigenous peoples to traditional lands, or whether it is sufffijicient that strong use rights are recognized.14 Today, the prevailing opinion seems to favour a close following to the wording of the convention: i.e. that indigenous communities have rights to

13 NOU 1993: 34 Rett og forvaltning av land og vann i Finnmark, 70.

14 Geir Ulfstein, ‘Indigenous Peoples Right to Land’, Max Planck UNYB 8 (2004): 21-23. See also the discussion in NOU 1993: 34, 70-72 and NOU 1997: 5 Urfolks landrettigheter etter folkerett og utenlands rett, 33-37; the latter with an interpretation more consistent with the current view that indigenous peoples are entitled to ownership.

collectively own their traditional lands.15 Article 14 is therefore of great signifiji-cance, not only for identifying lands to which the Sámi can claim ownership, but also in defijining areas where the Sámi have rights of use.

Although Article 15 has not received the same attention as Article 14, it is no less signifijicant for safeguarding Sámi rights to natural resources, particu-larly in relation to extractive industries within indigenous lands. The provision poses four obligations on state authorities: a general obligation to involve po-tentially-afffected indigenous peoples in decision-making processes, and three more specifijic commitments in cases where the state retains the ownership of mineral or sub-surface resources, or rights to other resources pertaining to traditional indigenous lands. These latter commitments include establishing or maintaining procedures for consultations with indigenous peoples, before undertaking or permitting any programmes for the exploration or exploitation of such resources pertaining to their lands; providing indigenous peoples with benefijits (royalties) of such activities; and ensuring fair compensation for any damages which they may sustain as a result of such activities.

Moreover, Article 15 (1) reads:

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 conser-vation of these resources.

This participation obligation safeguards and clarifijies the terms of participatory rights, such as those ensured in Article 7, by clearly stating that indigenous peoples have rights to participate in the use, management, and conservation of the resources pertaining to their traditional areas.16 Hans Petter Graver and Geir Ulfstein maintain that the provision implies that the indigenous peoples shall be represented in the bodies that make decisions and are responsible for management of natural resources in indigenous areas. However, they argue that since the provision uses the word ‘participate’, it may not require that the management must be left to the indigenous peoples, or that they should be given conclusive influence in matters concerning resources pertaining to their

15 James Anaya, Indigenous Peoples in International Law (Oxford University Press, 2nd ed., 2004), 143 and Mattias Åhren, Indigenous Peoples’ Status in the International Legal System (Oxford University press 2016), 175.

16 NOU 2007: 13 Den nye sameretten, 850.

areas. If one looks at the ILO 169 in conjunction with UN Declaration on Rights of Indigenous Peoples, this becomes even clearer.17

Nonetheless, this means that decisions, such as those made according to the Planning and Building Act, the Nature Conservation Act, and other Nor-wegian domestic legislation, cannot be settled without Sámi representation in the bodies that make such decisions or exercise the management of the re-sources.18

Further, Article 15 (2 ) reads:

In cases in which the State retains the ownership of mineral or sub-sur-face resources or rights to other resources pertaining to lands, govern-ments 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 per-mitting any programmes for the exploration or exploitation of such re-sources pertaining to their lands. The peoples concerned shall wherever possible participate in the benefijits of such activities, and shall receive fair compensation for any damages which they may sustain as a result of such activities.

The consultation obligation safeguarded in the fijirst sentence of Article 15 (2), is imposed on the government when planning the extraction of mineral re-sources that the state retains the ownership of, which is the case in Norway.19 Whether or not the provision requires the government to establish special con-sultation arrangements to determine the extent to which the indigenous inter-ests would be prejudiced as a result of exploration of mineral resources can be debated. However, the case law of the ILO bodies, in the complaints procedure, do not draw any distinction between the obligations derived from Article 6, on

17 In a more binding relationship, participation includes the concept of Free, Prior and In-formed Consent, which is ensured in the UNDRIP (articles 10, 11 (2), 19, 28, 29 (2), 32 (2)). It can be strongly argued that the ILO 169 commitments of Norway must be interpreted in accordance to the UNDRIP. However, the space and aim of this chapter, do not allow me to elaborate on it here.

18 Hans Petter Graver og Geir Ulfstein, Folkerettslig vurdering av forslaget til ny Finnmarkslov (November 3, 2003), see <http://www.regjeringen.no/nb/dep/jd/dok/rapporter_planer/

rapporter/2004/folkerettslig-vurdering-av-forslaget-til/3.html?id=278380> accessed March 10, 2015. The Sámi Rights Committee will not extend the provision so far, see NOU 2007: 13, 1044.

19 See lov [Act] 19 June 2009 nr. 101 om erverv og utvinning av mineralressurser (minerallo-ven) (The Mineral Act) Section 7, para. 1.

one hand, and those derived from Article 15 (2), on the other.20 The fact that there is a special provision for consultations in Article 15 (2) next to the general rule in Article 6, may be reason to suggest that it is particularly important that the governments implement consultations ‘in good faith’, and prior to exploita-tion of natural resources that states have retained ownership of in indigenous traditional territories.21 Article 15 (2) is also designed more specifijically than Article 6, since it poses a particular obligation of consultation regarding plans to allow the exploitation of natural resources to which the state claims owner-ship. In such a way, it strengthens the obligations for consultations settled in Article 6 (1).

The second sentence of Article 15 (2), introduces a benefijit sharing commit-ment, stating that the indigenous peoples ‘shall wherever possible participate in the benefijits of such activities’. This is in addition to a compensation com-mitment, also provided for in Article 15 (2), which states that the indigenous peoples concerned ‘shall receive fair compensation for any damages which they may sustain as a result of such activities’.22 Together, these benefijit sharing and compensation commitments establish that indigenous peoples not only should be fijinancially compensated for damages and losses, but also should partake in the benefijit of the profijits of the industry ‘wherever possible’.

The Norwegian government has not only acknowledged the above men-tioned commitments and obligations by ratifying the ILO 169 in 1990; it has also moved to fulfijil them by adopting and implementing the 2005 Finnmark Act, which ‘shall apply with the limitations that follow from ILO Convention No. 169 Concerning Indigenous and Tribal Peoples in Independent Coun-tries’.23 The Norwegian authorities also signed the UN Declaration on Rights of Indigenous Peoples and actively participated in the work of the declaration since its inception in 1984. On the government’s web page, one can read:

The government’s goal has been a declaration that can contribute to a strengthened legal protection for the world’s indigenous peoples. In the

20 Graver and Ulfstein, supra note 18 and the Sámi Right Committee in NOU 2007: 13 Den nye sameretten, 1044.

21 The Sámi Rights Committee in NOU 2007: 13, 1044.

22 When it comes to compensation for damages, loss, and inconvenience as a result of inter-vention, the Sámi, and others, are secured by the Constitution § 105, Expropriation Act (23 October 1959 no. 3) and other laws including the European Convention on Human Rights, Protocol 1 Article 1 to receive full compensation for interference. This is not discussed further here.

23 The Finnmark Act section 3, see supra note 9.

work, the government has cooperated closely with the Sámi Parliament, which consistently has been represented in the Norwegian delegation to the negotiations at the United Nations on the Declaration.24

That Norway has signed the Declaration, and actively promoted it, is not with-out obligations. It strengthens the legal obligations to the country’s own indig-enous people, both in terms safeguarding the rights to land, water and cultural heritage.

How Finnmark Act implements and safeguards the legal obligations under ILO 169, I will return to below.

2.3 The signifijicance of the relation between the International Covenant