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Coulthard, M. (1977) Introduction to Discourse Analysis, London: Longman.

Coulthard, M. and Montgomery, M. (1981) Studies in Discourse Analysis, London:

Routledge.

Crewe, E. and Harrison, E. (1998) Whose Development?: An Ethnography of Aid, London:

Zed Books.

Dicken, P. (1992) ‘International production in a volatile regulatory environment’,

Geoforum, 23 (3): 303–316.

Dryzek, J. S. (1997) The Politics of the Earth: Environmental Discourses, Oxford: Oxford

University Press.

Dunning, J. H. (2003) Making Globalization Good: The Moral Challenges of Global

Capitalism, Oxford: Oxford University Press.

Elam, M. (1994) ‘Puzzling out the post-Fordist debate’, in Amin, A. (ed.) Post-Fordism: A

Reader, Oxford: Blackwell Publishers, 43–70.

Foucault, M. (1980) Power/Knowledge: Selected Interviews and Other Writings, New York:

Pantheon.

Freeman, R. E. (1984) Strategic Management: A Stakeholder Approach, Boston: Pitman.

Gee, J. P. (1999) An Introduction to Discourse Analysis: Theory and Method, London:

Routledge.

Hajer, M. A. (1995) The Politics of Environmental Discourse: Ecological Modernization

and the Policy Process, Oxford: Oxford University Press.

Hajer, M. A. (1996) ‘Ecological modernization as cultural politics’, in Lash, S.,

Szerzynski, B. and Wynne, B. (eds) Risk, Environment and Modernity: Towards a New

Ecology, London: Sage.

Hancock, G. (1989) Lords of Poverty: The Power, Prestige, and Corruption of the

International Aid Business, New York: Atlantic Monthly Press.

Hirst, P. and Zeitlin, J. (1992) ‘Flexible specialization versus post-Fordism’, in Storper, M.

and Scott, A. (eds) Pathways to Industrialization and Regional Development, London:

Routledge, 70–115.

Jessop, B. (1989) ‘Conservative regimes and the transition to post-Fordism’, in Gottdiener, M.

and Komninos, N. (eds) Capitalist Development and Crisis Theory, New York:

St Martin’s Press, 261–299.

Klitgaard, R. E. (1990) Tropical Gangsters, New York: Basic Books.

Komninos, N. (1989) ‘From national to local: the Janus face of crisis’, in Gottdiener, M.

and Komninos, N. (eds) Capitalist Development and Crisis Theory, New York:

St Martin’s Press, 348–364.

Leyshon, A. (1992) ‘The transformation of a regulatory order’, Geoforum, 23 (3): 347–363.

Moore, M. (1997) ‘Societies, polities and capitalists in developing countries: a literature

survey’, Journal of Development Studies, 33 (3): 287–363.

Peck, J. and Adam, T. (1992) ‘Local modes of social regulation’, Geoforum, 23 (3):

347–363.

Phillips, L. and Jørgensen, M. W. (1999) Diskursanalyse som teori og metode,

Fredriksberg: Samfundslitteratur, Roskilde Universitetsforlag.

Potter, J. (1996) Representing Reality: Discourse, Rhetoric and Social Construction,

Thousand Oaks, CA: Sage.

Potter, J. (1997) ‘Discourse analysis as a way of analysing naturally occurring talk’, in

Silverman, D. (ed.) Qualitative Research: Theory, Method and Practice, Thousand

Oaks, CA: Sage, 144–160.

Scott, A. J. (1988) New Industrial Spaces: Flexible Production Organization and Regional

Development in North America and Western Europe, London: Pion Ltd.

106 Ove Heitmann Hansen, Oluf Langhelle and Robert Anderson

Star, S. L. and Griesemer, J. R. (1989) ‘Institutional ecology, “translations” and boundary

objects: amateurs and professionals in Berkley’s Museum of Vertebrate Zoology, 1907-39’,

Social Studies of Science, 19: 387–420.

Storper, M. and Walker, R. (1989) The Capitalist Imperative: Territory, Technology and

Industrial Growth, New York: Basil Blackwell.

Stubbs, M. (1983) Discourse Analysis: The Sociolinguistic Analysis of Natural Language,

Chicago, IL: University of Chicago Press.

Tucker, V. (1999) ‘The myth of development: a critique of a Eurocentric discourse’, in

Munck, R. and O’Hearn, D. (eds) Critical Development Theory: Contributions to a New

Paradigm, London: Zed Books, 1–26.

Wang, J and Dewhurst, H. D. (1992) ‘Boards of directors and stakeholder orientation’

Journal of Business Ethics, 11(2): 115–123.

Weingart, P., Engels, A. and Pansegrau, P. (2000) ‘Risks of communication: discourses on

climate change in science, politics, and the mass media’, Public Understanding of

Science, 9: 261–283.

Widdowson, H. (1979). ‘Rules and procedures in discourse analysis’, in Myers, T. (ed.), The

Development of Conversation and Discourse, Edinburgh: Edinburgh University Press.

Wynne, B. (1995) ‘Public understanding of science’, in Jasanoff, S., Markle, G. E., Petersen, J.

C. and Pinch, T. (eds) Handbook of Science and Technology Studies, London: Sage, 361–388.

Yin, R. (2003) Case Study Research: Design and Methods. Newbury Park: Sage Publications.

Young, O. R. (2005) ‘Global insights – governing the Arctic: from Cold War theater to

mosaic of cooperation’, Global Governance: a Review of Multilateralism and

International Organizations, 11 (1): 9–15.

Young, O. and Einarsson, N. (2004) ‘Introduction’, in Arctic Human Development Report,

Akureyri: Stefansson Arctic Institute.

Framework and methodology 107

Part II

Legal and institutional

framework

Case studies

6 Legal and institutional

framework

A comparative analysis

Nigel Bankes

Introduction

This chapter provides a background comparative analysis of the legal and institu-

tional framework of each of the four countries examined in this book: Canada,

Norway, Russia and the United States of America (Alaska). In deciding what to

include and what to omit, the chapter takes a very functional approach. The

content focuses upon the types of information that a reader might need to gain

a deeper contextual understanding of the relationships between each of the

three principal actors we consider in this volume: indigenous people, oil and gas

operators, and the state in its various manifestations.

The chapter is organized around three main themes or sets of questions. Part

one poses a set of questions about the form of government in each of the four

jurisdictions. Much of the focus of this part is on the three federal states, Canada,

Russia and the United States (since it is important that the reader have an under-

standing of the distribution of legislative power and public property in each of

those states), but the chapter also discusses the unitary form of government in

Norway and provides some discussion of local and regional forms of government

in each of the jurisdictions.

The second set of questions deals with the ownership of land and resources

and, in particular, the division between public ownership and private ownership.

The premise here is that, in addition to legislative jurisdiction or the power to

make laws, the bundle of rights associated with ownership provides an important

source of power or authority within society as well as a place where the owner

(whether an individual or a collectivity, such as an indigenous community)

may have a greater degree of protection from state authority, and a space within

which to exercise autonomy. At least since the writings of John Locke, the

Western liberal tradition has afforded property claims a special status and, for a

variety of reasons, including utilitarian, personal autonomy and efficiency

reasons (McPherson, 1978). Other traditions, such as those of indigenous people,

emphasize the importance of land for cultural and spiritual reasons, and

frequently view property as a collective rather than individual interest.

But

seen from either perspective, the institution of property continues to be of central

importance.

The right to property and the power to make laws have conceptually distinct

origins but, in some cases, those powers may be vested in the same person or

entity (e.g. the government may be the owner/proprietor as well as the law-maker),

leading to a tendency to conflate the two ideas. But in other cases the two sources

of authority will be vested in very different persons or entities (i.e. the more usual

liberal paradigm of private owner and public legislator). In any event, the oil and

gas sector will always need to know who is the owner of the resource. With whom

must industry negotiate for a lease or concession? To whom must it pay royalties?

A sub-set of ownership questions deals with the distinction between surface rights

and sub-surface rights (i.e. mineral/oil and gas rights). It is entirely possible that

these rights will be vested in different persons (e.g. government may own the sub-

surface rights, and a private owner or an indigenous people may own the surface).

In such a case, how does the legal system mediate the conflict between these

different resource owners? What are the implication for an oil and gas operator

who already has an oil and gas concession from the mineral owner, but who also

needs to obtain access to the surface to drill a well?

The third set of questions deals with the legal status of indigenous people

and their land and resource claims in each of the four jurisdictions. Here, the

sorts of questions that are of interest are: How does the jurisdiction recognize

(or not) indigenous rights to land and resources? And what are the implications

of this for the oil and gas sector? Have indigenous people within the jurisdic-

tion negotiated land claim or similar agreements that clarify the respective

ownership rights of the government and the indigenous people? And what are

the implications of these agreements for the oil and gas sector? How do these

agreements empower indigenous people in their dealings with the oil and gas

sector? Do they enable them to negotiate economic participation agreements

that allow them to participate in, and benefit from, resource development oppor-

tunities within traditional territories? What forms do these agreements take?

As well as property rights, do indigenous people have the power to make laws

within their traditional territories or some sub-set of their traditional territories?

If so, what is the source of this power and how might the exercise of that power

affect the oil and gas sector?

The form of government and the distribution of

legislative authority

Of the four states examined here, three are federal states and only one, Norway,

is a unitary state. But the labels ‘federal’ or ‘unitary’ do not tell us much about the

actual distribution of power within the state. To answer that question we must peel

the onion and ask a series of additional questions. For the three federal states, the

sorts of questions we might have will be the following: What are the sub-units of the

federation? How does the federation allocate the power to make laws? Are these

laws-making powers exclusive or concurrent? In the event of a conflict, which

trumps? How does the federation allocate the ownership of public property

including natural resources? Taking law-making powers and ownership together,

112 Nigel Bankes

Legal and institutional framework 113

how does the federation allocate the power to collect the available economic rent

from the oil and gas sector? Beyond the sub-units of the federation, what other

governments have law-making powers that may affect the conduct of oil and gas

operations?

Within the unitary state of Norway, our questions will focus on issues of devo-

lution to county-level governments, and the relationships between the sector-

specific departments of the central government in Oslo and regional forms of

government. The recent Finnmark Act (Norway, 2005) suggests that it may also

be important to ask questions about the vesting and control of public lands in

those regional-level governments. In discussing the form of government in each

of the four states, it is important to recall that governmental systems are never

static. They change over time not only as a result of formal amendments, but also

as a result of informal practices and court decisions. The constitutions of some

states may appear more stable, for example, the United States (US) and others

more dynamic. For example, the Russian form of government seems to be

constantly evolving in these decades following the collapse of the Soviet Union.

Whereas President Yeltsin encouraged the different regions to seek power,

President Putin has sought to re-centralize authority in the federal government

using several different techniques explored below. But Russia is not the only insti-

tutional innovator within this group of four states. For example, Norway’s

Finnmark Act is a notable experiment in regional devolution while the creation of

Sámi parliaments in each of the three Nordic states (with Norway leading the

way) affords a way of promoting Sámi interests while falling short of a territori-

ally based and constitutionalized form of federalism. In Canada, the distribution

of authority between federal and territorial governments continues to be in flux as

a result of the processes of devolution and some commentators see the institu-

tional apparatus of modern land claim agreements between the federal govern-

ment and aboriginal people as a new form of ‘treaty federalism’, a third level of

federalism within the Canadian polity (White, 2002).

All four jurisdictions profess support for a separation of powers to a greater or

lesser extent, and all formally commit to a separate judicial function and the rule

of law, meaning, at a minimum, that the exercise of executive and legislative

authority is constrained by the operation of law guaranteed by an independent

judiciary and a largely self-regulating legal profession. But the constraints and

disciplines of the rule of law evolve over decades if not centuries and the concept

is at a very early stage in its development in post-Soviet Russia.

The sub-units of the federation and the allocation of

legislative authority: Canada, Russia and the United States

Federal systems provide one way for the nation-state to recognize and accommodate

regional and linguistic differences and claims to autonomy, but there is no ‘normal

way’ to structure a federal system. Each federal system is grounded in a particu-

lar history (Field, 1992). There may be points of similarity between different

federations, but there will also likely be significant differences both in structure

114 Nigel Bankes

and outcomes. Take Canada and the US: at one level there are important similar-

ities between these two federal systems, since they are both basically symmetrical.

Each has a relatively strong central government and, in both cases, each of the

sub-units of the federation (the 50 states, in the case of the US, and Canada’s ten

provinces) has the same set of powers (at least in formal terms) as another sub-

unit of the federation. Thus, while there may be significant wealth and income

disparities between provinces and between states (and in Canada there is a strong

tradition of equalization payments from ‘have’ to ‘have-not’ provinces to reduce

these differences

), each unit has the same power to make laws in relation to spec-

ified subject matters.

By contrast, the Russian form of federation appears starkly different from these

two North American models. Article 1 of Russia’s 1993 Constitution stipulates

that Russia shall be ‘a democratic federal rule-of-law state with the republican

form of government’ but composed (Articles 5 and 65) of some 89 subjects of the

federation consisting of republics [e.g. the Republic of Sakha (Yakutia)], territo-

ries (e.g. Krasnodar Territory), regions (e.g. Murmansk Region or the Sakhalin

Region), federal cities (Moscow and St Petersburg), an autonomous region

(Jewish Autonomous Region) and autonomous areas (e.g. Nenets, Khanty-

Mansior Yamal-Nenets Autonomous Areas). There is some geographical overlap

between some of these subjects, since an Autonomous Region is also a compo-

nent part of another unit (leading to the description ‘nesting dolls’; Salikov, 2004;

Domrin, 2006). Although the constitution suggests that all 89 subjects of the

federation are to be ‘equal subjects’, in fact there are tremendous formal and

practical asymmetries in terms of wealth and power. They vary widely in size [e.g.

Yakutia (Sakha Republic), 3.1 million km

; and Adygeya 7800km

) and popula-

tion (Domrin, 2006). In some cases (e.g. Yakutia), the republic represents the

successor to a former Autonomous Soviet Socialist Republic. Such republics

originally afforded territorial recognition to an ethnic (indigenous) people (the

Sakha in the case of Yakutia), but in-migration of Russians and other nationalities

(often with Moscow’s active encouragement) has resulted in the indigenous

people becoming ‘a minority in their titular republic’.

But seen from another and more formal perspective, there are also significant

differences between the forms of government of Canada and the US. Not only is

one, Canada, a constitutional monarchy with a Westminster-style of government

and the other, the US, a presidential form of democracy with a strict separation of

executive and legislative powers, but the formal statement of the division of

powers is quite different. Whereas Canada’s constitution contains a list of the

legislative powers allocated to each of the federal and provincial governments,

and allocates any residual power to the federal government,

the US Constitution

contains a list of federal powers leaving the residue to the states, a distribution

that the Tenth Amendment simply confirms: ‘The powers not delegated to the

United States by the Constitution nor prohibited by it to the States, are reserved

to the States respectively, or to the people’.

But while these apparently fundamental differences might suggest that the central

government should be much stronger in Canada than the US, this has not really

turned out to be the case because of the important interpretive role performed by

the final appellate courts in each jurisdiction. Thus, the US Supreme Court has

tended to support a very broad interpretation of Congressional authority, while the

Canadian courts have offered a narrow interpretation of federal powers including

the residual clause of the constitution (Field, 1992). The importance of provincial

authority in Canada is especially evident in the oil and gas sector where the

combination of provincial ownership rights and the power to make laws in rela-

tion to the industry is clearly dominant. Federal authority in this sector is generally

limited to certain environmental responsibilities (largely through the fisheries power)

but assumes much greater importance in areas that lie beyond the provinces (the

offshore areas and the northern territories – and see further discussion below).

In the case of the Russian Federation, it is Articles 71–73 of the constitution

that effect the division of legislative authority between the federal jurisdiction and

the subjects of the federation. Thus Article 71 lists areas of exclusive federal juris-

diction, while Article 72 lists areas of joint or concurrent jurisdiction. Article 73

provides that residual jurisdiction lies with the subjects of the federation. The areas

of exclusive jurisdiction allocated to the Russian federation are extremely broad

and include civil and criminal laws, all aspects of foreign and military policy and

defence. The areas of joint or concurrent jurisdiction between the Russian feder-

ation and the subjects of the federation are also very broad and include several

areas that are significant in the context of this volume: protection of the rights of

ethnic minorities; issues of the possession, use and management of the land, mineral

resources, water and other natural resources; delimitation of state property;

management of natural resources, protection of the environment and ecological

safety; land, water and forestry legislation; legislation on the sub-surface and

environmental protection; establishment of the general guidelines for taxation and

levies within the federation; and protection of the original environment and tradi-

tional way of life of small ethic communities. In cases of inconsistency between

the laws of a sub-federal unit and federal law, the federal law prevails. This

general paramountcy norm of federations also applies in the US and Canada.

As head of a presidential republic, the President of the Federation also has signif-

icant law-making authority insofar as Article 90 of the Constitution affords the

President the authority to issue decrees and executive orders on any matter provided

that they do not contravene the Constitution or federal laws. The President also has

certain veto powers over laws adopted by the Duma and Federation Council.

The existence of a federal paramountcy rule combined with a broad statement

of federal powers allows an assertive and active federal government to centralize

authority in its own hands. While in the US the Senate (where the states are

equally represented) serves as a check on this tendency, observers of the Russian

Federation emphasize how the federal government in that jurisdiction has consol-

idated its authority in recent years notwithstanding a similarly structured bicam-

eral system, including as the second chamber the Federation Council composed

of two members from each of the 89 subjects of the federation.

Various measures

have served to centralize authority in the Russian Federation and specifically in

the office of the President. For example, as Domrin (2006) shows, shortly after

Legal and institutional framework 115