UNDRIP and the Draft Nordic Sámi Convention

As pointed out by Tobin, Indigenous Peoples’ rights to self-determination and cultural survival are both dependent upon and threatened by natural resource use. On the one hand, Indigenous Peoples’ daily subsistence, development, spiritual and cultural well-being is interwined with the natural environment and biodiversity. On the other hand, natural resource exploitation is the single biggest threat to their territorial and cultural integrity and in some cases to their very existence. Efffective and sensitive control of resource use is, there-fore, crucial for the realization of their human rights and the protection of their territorial, environmental and cultural integrity and enjoyment of their cultural heritage and way of life.32

Regarding the UN Declaration on the Rights of Indigenous Peoples (UN-DRIP), it has become a commonplace to state that the instrument did not es-tablish any new rights for Indigenous Peoples but rather codifijied the existing rights.33 However, according to the present authors, this does not do justice to the ambitious Declaration which celebrates a paradigm shift: not only does it explicitly recognise, for the fijirst time, the right to self-determination of In-digenous Peoples, but it also guarantees stronger participatory rights than any earlier instrument, including the free, prior and informed consent ( FPIC) in re-lation to decision-making concerning natural resources and other crucial

mat-den, Martinus Nijhofff Publishers, 2003) 453; GS Alfredsson, ‘Minorities, Indigenous and Tribal Peoples, and Peoples: Defijinitions of Terms as a Matter of International Law’ in N Ghanea and A Xanthaki (eds.), Minorities, Peoples and Self-Determination (Leiden, Marti-nus Nijhofff Publishers, 2005) 163; M Åhren, The Saami traditional dress and beauty pag-eants: Indigenous Peoples’ rights of ownership and self-determination over their cultures, Avhandling leverert for graden Philosophiae Doctor I rettsvitenskap (Thesis supplied for the degree of Philosophiae Doctor of Law) (2010) (unpublished).

32 Tobin, supra note 8, 120.

33 The Ministry of Justice of Finland has also noted that the UN Declaration does not estab-lish new rights. See, Government Bill: Hallituksen esitys eduskunnalle itsenäisten maiden alkuperäis- ja heimokansoja koskevan yleissopimuksen hyväksymisestä sekä laiksi yleis-sopimuksen lainsäädännön alaan kuuluvien määräysten voimaansaattamisesta (20 May 2014).

ters.34 Although the UNDRIP is not strictly a legally binding instrument,35 hu-man rights monitoring bodies have already started to apply it as a legal source and as a basis for the rights of Indigenous Peoples.36 However, the national implementation of UNDRIP will be a challenging process, especially in rela-tion to issues where states should give up their interests in indigenous peoples’

traditional lands and related natural resources.

The right to self-determination, as understood in the UNDRIP, does not af-ford Indigenous Peoples total freedom to determine their political status, since it is also concerned with protection of the territorial integrity of sovereign states.37 Fitzmaurice states that: “the defijinition of self-determination in the Declaration is considered a compromise between the aspirations of Indige-nous Peoples and the reluctance of States to grant a broadly understood right to self-determination.”38 Thus, according to the UNDRIP, self-determination does not entail the right to secession. However, the UNDRIP does recognize full self-determination in terms of the economic, social and cultural devel-opment of Indigenous Peoples. The Declaration guarantees the right to self-determination in internal and local matters, including the protection of In-digenous Peoples’ cultural heritage.39 Article 31 of UNDRIP recognises, in very clear terms, the Indigenous Peoples’ right to tangible and intangible heritage,

34 See Articles 3, 19 and 32 of the UNDRIP.

35 The binding or semi-binding nature of the Declaration is widely discussed amongst in-ternational lawyers. It has been argued, at least partly, to already express customary inter-national law or at least generally accepted principles related to Indigenous Peoples. See, Anaya, J, Report of the Special Rapporteur on the rights of Indigenous Peoples, A/68/317 (14 August 2013) 16-18 http://daccess-dds-ny.un.org/doc/UNDOC/GEN/N13/427/10/PDF/

N1342710.pdf?OpenElement. (accessed 20 August 2015). See also, International Law Asso-ciation (ILA), 75th conference, resolution No 5/2102, para. 2 (5 August 2012); International Law Association, Committee on the Rights of Indigenous Peoples, Final Report (2012).

36 See, Saramaka People v Suriname, Inter-American Court of Human Rights, Judgment of 28 November 2007, Series C, No 172. The Supreme Court of Belize made a decision relating to the rights of the Maya community to their lands and resources, applying the Declaration.

Aurelio Cal v Attorney-General of Belize Claim 121/2007 (18 October 2007) Supreme Court of Belize http://www.elaw.org/node/1620 (accessed 19 January 2014).

37 See UN Doc E/CN.4/Sub2AC.4/1992/3 Add 1 (1992) 5. See Article 46 of the UN Declaration on the Rights of Indigenous Peoples, which explicitly protects the territorial integrity of states.

38 See Fitzmaurice, M, ‘The New Developments Regarding the Saami Peoples of the North’

(2009) 16 Journal on Minority and Group Rights 67-156, 151. See generally, Allen, S and Xan-thaki, A (eds.), Reflections on the UN Declaration on the Rights of Indigenous Peoples (Hart Publishing 2011).

39 Article 4.

and obliges states to take efffective measures to recognize and protect the exer-cise of this right.40

In addition, efffective and meaningful participation – the right to consulta-tion or even FPIC with respect to land and resource use and other important matters, such as participation in international decision-making – plays a key role in the determination of economic, social and cultural development, in-cluding the maintenance and protection of cultural heritage.

The right to FPIC has been seen as a part of the “new” understanding of self-determination of Indigenous Peoples. However, to what degree the FPIC works as intended and how it works in practice, and how it afffects local communities are issues that are not yet well documented.

Efffective realization of Indigenous Peoples’ rights to self-determination is closely linked to their right of self-identifijication, as well as to their involve-ment in decision-making processes and impleinvolve-mentation of requireinvolve-ments for their free, prior and informed consent under international human rights law.41 Self-determination also entails recognition of the inextricable link between Indigenous Peoples’ human rights and the protection of their natural environ-ment and their cultural and economic way of life.

It is important to note that the UN Human Rights Committee has applied Article 1 of ICCPR (the right of peoples to self-determination) on Indigenous Peoples in several concluding observations to States’ reports.42 On the 2009

re-40 Article 31 of UNDRIP.

41 Doyle, C and Carino, J, ‘Making Free, Prior and Informed Consent a Reality: Indigenous Peoples and the Extractive Sector’, PIPLinks and Middlesex University School of Law 2013, available at www.piplinks.org/system/fijiles/Consortium+FPIC+report+-+May+2013+-+web+version.pdf (accessed 10 June 2014), at 7.

42 Article 40 of the CCPR requires States Parties to submit reports on measures taken to give efffect to the rights defijined therein. An initial report is to be submitted one year af-ter the state ratifijies the CCPR, and further reports are required periodically (normally every fijive years). State reports and the Concluding Observations of the UN Human Rights Committee, http://www.unhchr.ch/html/menu2/6/hrc/hrcs.htm (accessed 5 March 2007). See Concluding Observations of the Human Rights Committee on Canada UN Doc. CCPR/C/79/Add.105 (1999). Explicit references to either Article 1 or to the no-tion of self-determinano-tion have also been made in the Committee’s Concluding Obser-vations on Mexico, UN Doc. CCPR/C/79/Add.109 (1999); Norway, UN Doc. CCPR/C/79/

Add.112 (1999); Australia, UN Doc. CCPR/CO/69/Aus (2000); Denmark, UN Doc. CCPR/

CO/70/DNK (2000); Sweden, UN Doc. CCPR/CO/74/SWE (2002); Finland, UN Doc. CCPR/

CO/82/FIN (2004); Canada, UN Doc. CCPR/C/CAN/CO/5 (2005); and the United States, UN Doc. CCPR/C/USA/CO/3 (2006); It should be noted that also the Committee on Eco-nomic, Social and Cultural Rights has applied Article 1 on Indigenous Peoples. See, for instance, CESCR Concluding Observations on the Russian Federation, UN doc. E/C.12/1/

port by Sweden, the Committee expressed its concern about the limited extent to which the Sámi Parliament may participate in the decision-making process on issues afffecting land and traditional activities of the Sámi people, explicitly referring to the right to self-determination and the right to culture and partici-pation.43 The Committee addressed a key component regarding the Sámi peo-ple’s self-determination over their cultural heritage by requesting that the State party should take further steps to involve the Sámi in the decisions concern-ing the natural environment and necessary means of subsitence for the Sámi people.44 Without a real possibility to influence the decision-making related to traditional lands and means of subsistence, the Sámi cannot participate in the maintenance of their cultural heritage. The Committee on the Elimina-tion of Racial DiscriminaElimina-tion (CERD) has also made an important statement concerning Indigenous Peoples’ free, prior and informed consent in relation to the Sámi in Sweden. In 2013, the Committee recommended that Sweden adopt legislation and take other measures to ensure respect for the right of Sámi communities to offfer free, prior and informed consent whenever their rights may be afffected by projects, including extraction of natural resources, carried out in their traditional territories.45

The concerns and the recommendations of the two international human rights monitoring bodies are justifijied. Regarding Sámi rights in Swedish leg-islation, it should be noted that the Swedish Constitution, and in particular the Instrument of Government Chapter 1, section 2, mentions the Sámi as a people since the overhaul of the Act in 2010. Before that, the Sámi were only mentioned as an ethnic minority. The provision, however, creates goals for the public and cannot be evoked by persons before courts. It states: “The opportu-nities of the Sámi people and ethnic, linguistic and religious minorities to

pre-Add.94, 2003, paras. 11,39., http://www.unhchr.ch/tbs/doc.nsf/(Symbol)/E.C.12.1.Add.94.

En?Opendocument (accessed 19 January 2007). See also CESCR General Comment No. 15, on the Right to Water (ICESCR Arts. 11,12) UN doc. E(C.12/2002/11, at para. 7, http://www.

ohchr.org/english/bodies/cescr/comments.htm (accessed 17 January 2007). According the Committee, Article 1, which guarantees peoples’ rights, cannot be used in individual communications because the Optional Protocol provides a procedure under which indi-viduals may claim that their individual rights have been violated. Lubicon Lake Band v.

Canada, supra note 124, para. 32.1.

43 UN Human Rights Committee, Concluding Observations on Sweden, CCPR/C/SWE/

CO/6, 7 May 2009, para. 20. Referred articles are 1,25 and 27 of the CCPR.

44 Ibid., para. 20.

45 Committee on the Elimination of Discrimination, Concluding Observations on Sweden, CERD/C/SWE/CO/19-21, 23 September 2013, para. 17.

serve and develop a cultural and social life of their own shall be promoted”.46 However, as explained by Allard, despite the constitutional protection of Sámi culture and way of life, there exist no specifijic Sámi courts, nor are there spe-cifijic procedures laid down related to Sámi matters.47

Sweden, along with Finland and Norway are currently negotiating a Nordic Sámi Convention, which would, when accepted, create an extensive improve-ment of the legal situation of the Sámi in all the Nordic countries. On October 2005, the Expert Group, nominated by the governments of Finland, Norway and Sweden and respected Sámi Parliaments, presented a draft Nordic Saami Convention.48 The Draft Convention, from the outset, makes the Sámi people a legal subject and recognizes their right to self-determination.49 The acknowl-edgment of this right fundamentally changes their status of an indigenous people, by making them active actors alongside states, at least in matters that directly concern them.50

46 Instrument of Government, 1974, ch. 1 s. 2 para. 5. See an English version of the Act at http://www.riksdagen.se/en/How-the-Riksdag-works/Democracy/The-Constitution/

The-Instrument-ofGovernment/ (accessed 13 March 2014).

47 Allard, C, Legal Pluralism and the Sámi: an Indigenous People in Europe, Conference Pro-ceedings, Indigenous Peoples’ Sovereignty and the Limits of Judicial and Legal Pluralism : American Tribes, Canadian First Nations and Scandinavian Sami, Compared Roberto Toniatti and Jens Woelk (eds.), International Conference Trento, 24-25 October 2013, 49-60, available at http://www.jupls.eu/images/ebook%20JPs%20-%202014.pdf (accessed 27 December 2015).

48 See an analysis of the Draft Convention, Timo Koivurova, ‘The Draft Nordic Saami Con-vention: Nations Working Together’, International Community Law Review 10 (2008), 279-293. See also, Malgosia Fitzmaurice, ‘The New Developments Regarding the Saami People of the North’, Journal on Minority and Group Rights 16 (2009), 67-156.

49 According to the Convention, the Sámi people is the indigenous people of Finland, Nor-way and Sweden. The Sámi thus constitutes one people, living across the national bor-ders. The Expert Group were researching the possibility to include the Russian Federation and Sámi people that live in the Russia, but concluded, with the regrets, that it would be too complicated to agree on a strong and efffective Sámi Convention if the negotiations should have also included the Russian Federation. See Mathias Åhren, in M Åhren et al.

(eds.), “The Nordic Sami Convention: International Human Rights, Self-Determination and other Central Provisions”, 3 Gáldu Cala – Journal of Indigenous Peoples Rights 8, 2007, 13.

50 See an analysis of the self-determination articles of the Draft Nordic Sami Convention, Leena Heinämäki, ‘The Nordic Saami Convention: The Right of a People to Control Issues of Importance to Them’, in N Bankes and T Koivurova (eds.), The Proposed Nordic Saami Convention, National and International Dimensions of Indigenous Property Rights, (Hart Publishing, Oxford and Portland, 2013), 125-147.

One key aspect of the self -determination closely connected to the manage-ment of cultural heritage is the decision-making power related to natural re-sources. Article 36 of the Draft Convention states that: “before public authori-ties, based on law, grant a permit for prospecting or extraction of minerals or other sub-surface resources, or make decisions concerning utilization of other natural resources within such land or water areas that are owned or used by the Sámi, negotiations shall be held with the afffected Sámi, as well as with the Sámi parliament, when the matter is such that it falls within Article 16”

(matters of major importance). Additionally, Article 36 notes that: “permits for prospecting or extraction of natural resources shall not be granted if the activity would make it impossible or substantially more difffijicult for the Sámi to continue to utilize the areas concerned, and this utilization is essential to the Sámi culture, unless so consented by the Sámi parliament and the afffected Sámi.” This article creates a strong basis for the Sámi to safeguard their cultural heritage. Although their traditional lands and people’s interaction with the lands can be seen as the foundation and expressions and of Indigenous Peo-ples’ cultural heritage, there might be places of signifijicant importance, such as cultural heritage sites, that can be safeguarded and managed only in line with Indigenous Peoples’ self-determination when free, prior and informed consent of Indigenous Peoples is applied.

In this respect, the Draft Nordic Sámi Convention would strengthen the commitments created by UNDRIP in relation to FPIC. Article 32 of UNDRIP requires the consent of Indigenous Peoples prior to approval of any project afffecting their lands or territories. Additionally, Article 19 requires the consent of Indigenous Peoples before adopting and implementing legislative or ad-ministrative measures that may afffect them. In the Sámi homeland region (in all Nordic countries), this could mean that Sámi parliaments’ views should be taken into account in all the relevant decision-making that directly afffects the Sámi as an indigenous people, such as cultural heritage. This would set a frame for a strong protection of Sámi people’s cultural heritage, if the Convention will be ratifijied.

Importantly, specifijically related to the cultural heritage, the Draft Conven-tion states that the states “shall respect the right of the Sámi people to manage its traditional knowledge and its traditional cultural expressions while striv-ing to ensure that the Sámi are able to preserve, develop and pass these on to future generations”.51 Traditional knowledge has been defijined to mean the skills and knowledge of flora, fauna and other natural resources and the ways to manage these. Moreover, Sámi cultural heritage is protected via Article 32.

51 Art. 31.

For the Sámi, the cultural landscape has a special meaning, since they have used the environment for generations and thus have created strong connec-tions with their environment. It is this cultural environment which the Sámi have grown into and thus perceive as theirs, and which also consolidates their identity as Sámi.52 This broad understanding of cultural heritage, including cultural landscape, “shall be protected by law and shall be cared for by the country’s Sámi parliament or by cultural institutions in cooperation with the Sámi parliament.”53

Negotiations of the Draft Nordic Sámi Convention have been set to be fijinal-ized by the end of 2016. Time will show whether the three Nordic countries and respective Sámi parliaments will ratify this ambitious instrument. This being the case, the protection of the Sámi people’s rights would meet the required standards of the UNDRIP and general international law. In some respects, however, these standards may to some extent already be fulfijilled in some par-ticular cases, as will be discussed below.