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116 Nigel Bankes

his election in 2000, President Putin issued a decree dividing the Federation into

seven federal zones with each zone incorporating various sub-units of the feder-

ation. The President appoints a presidential representative for each region, with

the responsibility for the implementation of federal decisions within the region as

well as broad powers over the use of federal property and resources within the

region. Domrin (2006) argues that the creation of these seven federal super-

districts is ‘just the beginning of reforms aimed at reversing a decade of fragmen-

tation ... and restoring federal control over Russia’s subject units’. Similarly, in

2004, new legislation was approved abolishing direct gubernatorial elections and

sanctioning instead nomination by the President of the Russian Federation.

Measures to further strengthen federal authority and to reduce the number of sub-

units of the federation through mergers have continued since Putin was elected for

a second term in 2004. The same trend to centralization and diminishing the

authority of the subjects of the Federation is observable in the oil and gas sector.

Thus amendments to the Law on the Subsoil introduced in 2004 effectively termi-

nated the ‘two-key’ approach, which required that disposition decisions were to

be made jointly by federal and regional authorities. Ongoing proposals to amend

or replace the law on the subsoil offer further confirmation of this trend

(Goudina, 2006; Skyner, 2005).

Local governments (e.g. cities, municipalities, regional governments) in each of

the US and Canada are generally creatures of the sub-units of the federation. In

Russia, however, local self-governments have a measure of constitutional protection

insofar as Article 12 of the Constitution recognizes and guarantees local self-

government. The territories of the subjects of the Russian Federation are divided

into raions (and sub-raion towns, township or villages and local regions) and cities

(Salikov, 2004: 11–12). Goudina (2004: 72) suggests that municipal bodies play an

important role in the Russian oil and gas industry, since they will frequently control

surface access, which will be important for infrastructure development.

Canada’s territories

While Canada is a federal state and the principal sub-federal unit of Canada is the

province, that position is complicated in northern Canada by the existence of the

three territories of Yukon, Northwest Territories and Nunavut. Strictly speaking

these three territories are not sub-units of the federation, since Canadian constitu-

tional documents divide the totality of law-making powers between the provinces

and the federal government, and afford no independent status to territories. The three

territorial governments are, therefore, creatures of federal legislation. They are not

constitutionally entrenched and they lack the autonomy, and at least some of the

powers, typically afforded to the provinces; their constitutional status is analogous to

that of Alaska within the US federation prior to Alaska attaining statehood in 1959.

The relative lack of power and autonomy of the Canadian territories is particularly

noticeable in the oil and gas sector. Historically, the federal government has retained

ownership of oil and gas and mineral resources within the territories and has

effectively retained the exclusive power to make laws with respect to these matters.

Consequently, the main oil and gas leasing statute in northern Canada, the

Canada Petroleum Resources Act (Canada, 1985), which applies to Nunavut, the

Northwest Territories (NWT) and the Arctic offshore area, is a federal statute.

More recently, however, there has been a trend for the federal government to

transfer both ownership and control, and the right to make laws with respect to oil

and gas, to the territorial governments. This has already been accomplished for

Yukon (although confined to onshore oil and gas) and there are ongoing devolu-

tion negotiations with both the NWT and Nunavut. In the case of the NWT, these

negotiations are complicated by unsettled land claims and by arguments that, if

resources’ ownership is to be devolved, it should be devolved to aboriginal

governments rather than to non-ethnic territorial governments. While resource

transfers should provide an important revenue source for territorial governments,

such governments will likely be dependent on federal fiscal transfers for a long

time to come.

The degree to which the three territories can be seen as meeting the desires of

northern indigenous people for a greater degree of autonomy and self-government

varies dramatically across the three territories, depending largely upon the ethnic

breakdown of the population. Historically the territorial governments were

appointed rather than elected governments and did not represent indigenous

populations of the territories. This changed in the last two decades of the twenti-

eth century and the territorial governments increasingly came to represent the

interests of their residents. But the demographic breakdown between indige-

nous/non-indigenous residents varies considerable across the northern territories,

as one moves from east to west. While Inuit represent over 80 per cent of the

population of Nunavut (created as a separate territory in 1999), the NWT are

equally divided between indigenous and non-indigenous people, whereas in

Yukon only about 25 per cent of the population is of indigenous ancestry. Hence,

while the Inuit of Nunavut are generally willing to pursue autonomy through the

public government structure of the territorial government, indigenous people in

the NWT and Yukon are more likely to question the legitimacy of the territorial

level of government and to seek instead to empower more ethnically based forms

of self-government.

Local and regional government in Alaska: the North Slope Borough

In addition to the various indigenous governance organizations that serve to

implement the Alaska Native Claims Settlement Act (discussed below), and in

addition to the tribal organizations that preceded that Act (Case and Voluck, 2002:

317–367), state law and the state constitution also recognize local and regional

governments. In some cases, these governments can create significant opportuni-

ties for local communities, including indigenous communities, to obtain impor-

tant economic benefits from oil and gas developments that may occur within their

sometimes extensive boundaries. The best-known example of this is the North

Slope Borough (NSB). Incorporated in 1972, the NSB covers an area approxi-

mately the same size as the state of Montana. The Borough includes within its tax

Legal and institutional framework 117

118 Nigel Bankes

base the oil and gas development infrastructure of Prudhoe Bay. Comprised

of some eight villages from Point Hope in the West to Kaktovik in the east, the

population of the Borough, some 7500 people, is predominantly Inupiat. The

large tax base permits the NSB to offer an impressive range of services and

employment opportunities within each of the Borough’s villages (Northern

Economics Inc., 2006).

Norway as a unitary state

Norway is the one unitary state of the four countries under consideration in this

volume. Like Canada, Norway is a constitutional monarchy, which observes a

separation of powers between the Storting holding legislative authority, to whom

the Executive (in formal terms, the King) is responsible, and a judicial branch.

Furthermore, while Norway has significant agreements with the European Union

(EU), and while EU policies in some areas may be very influential and may

constrain Norway’s freedom to manoeuvre in some policy areas, Norway remains

outside the EU.

The formal implication of a unitary state is that plenary sovereignty is vested

in a single authority (the King and the Storting), and no region or regional govern-

ment has the constitutionally protected (and exclusive) right to make laws in rela-

tion to particular subject areas. But that does not prevent the central government

from delegating (devolving) significant powers to regional or local governments,

and this may afford these jurisdictions considerable practical autonomy.

Furthermore, parliamentary sovereignty may also be self-limited by the adoption

of a Bill of Rights or similar instrument. While Norway does not have a formal

Bill of Rights, the 1999 Human Rights Act (discussed further in Chapter 11)

makes the provisions of the European Convention on Human Rights and the two

International Covenants on Civil and Political Rights and Economic, Social and

Cultural Rights part of domestic law and further stipulates that these conventions

shall take precedence over any conflicting law.

The central government is organized along conventional sectoral lines. For

example, Norwegian petroleum legislation is administered by the Ministry of

Petroleum and Energy, although much of the detailed responsibility for ongoing

regulation has been delegated to the Norwegian Petroleum Directorate.

Regional and local government in Norway is based upon counties and munici-

palities. Norway has 435 municipalities and 19 counties. Municipalities generally

have jurisdiction over local matters, including schooling and social services, but

also land-use planning and local environmental issues. Counties have a land-use

planning jurisdiction over areas outside the municipalities. The planning author-

ity of counties and municipalities is most likely to be engaged by the development

of petroleum infrastructure on land but also through responsibilities for coastal

zone planning (Jentoft and Buanes, 2005). The northernmost county is Finnmark,

which includes five Sámi municipalities: Karasjok, Kautokaino, Nesseby,

Porsanger and Tana. Together these municipalities form the Sámi language

administrative district within which the Sámi language has official status for

many purposes (Sámi Act, 1987, Chapter 3; Norway, 1987). In practice, the plan-

ning power of municipal and county authorities is constrained by the authority of

sector agencies like the Ministry of Petroleum and Energy, since, in the event of

a conflict, the sector authority of the central government will prevail over local or

regional planning rules (Jentoft and Buanes, 2005: 156).

From the perspective of this volume, it seems important to emphasize the signif-

icance of two institutional developments in Norway. The first is the creation of a

Sámi Parliament, the Sameting, in 1989, and the second is the new Finnmark Estate

Act. I discuss the Sameting here and leave discussion of the Finnmark Estate Act to

the final part of this chapter dealing with the legal status and recognition of claims

by indigenous people to title to land and resource harvesting rights.

The Sameting

The Storting created the Sameting following the recommendations of the Sámi

Rights Commission, which was in turn a response to the Alta Dam controversy

(see further discussion below, Sámi Act, 1987–2003). The Sameting is a body

elected by Sámi for Sámi and strengthens Sámi self-identity (Broderstad, 2001:

163). Norway is divided into 13 electoral districts for purposes of elections to the

Sameting, and voter eligibility is based upon a declaration that the person consid-

ers himself/herself to be Sámi and either uses Sámi in the home or whose parents,

grandparents or great grandparents used Sámi, or is the child of a person listed in

the Sámi census.

The terms of reference for the Sameting are broad and s. 2(1) of the Sámi Act

states that the ‘business of the Sameting is any matter that in the view of the

parliament particularly affects the Sámi people’. But the Sameting’s role is prin-

cipally an advisory one, except in relation to its own budget. Section 2(2) of the

Act suggests that other public bodies should give the Sameting ‘an opportunity to

express an opinion’ before making decisions on matters that fall within the busi-

ness of the Sameting but the soft (‘should’) language of this section leads Oskal

(2001: 225) to question whether there is a legal duty to engage in this form of

consultation.

The relationship between the Sámi Parliament and the government of Norway

and the Storting is a dynamic one. While Broderstad (2001) asks how the Sámi

Parliament and the Norwegian government can share competence, Oskal (2001:

254) suggests that it is possible to view the creation of the Sameting as ‘one

attempt to, and a method of, political inclusion of indigenous people as clearly

indigenous people within the framework of a nation state. The challenge consists

in transferring authority to the Sámi Parliament, then integrating this authority

into the higher state governmental jurisdiction’.

While the Sámi Parliament is a national body, Broderstad (2001: 166–167) also

draws attention to the responsibility of counties and municipalities to accommo-

date Sámi interests. She argues that this is especially important in those many

areas outside the few municipalities within Finnmark where Sámi are in a minor-

ity. According to Broderstad, the Norwegian government has been reluctant to be

Legal and institutional framework 119

too prescriptive about how to accommodate Sámi interests because of the value

the government places on local autonomy. But Broderstad urges the need for a

formal acknowledgement that local governments with their responsibility for

land-use planning and other local responsibilities have significant practical

authority to affect Sámi interests, positively or negatively, and that it is important

that they exercise their authorities in a manner that respects both the constitution

and Norway’s responsibilities under international law.

Conclusion

This overview of the forms of government and the allocation of legislative author-

ity within the four states shows considerable variation. It also suggests that, in

some cases at least, the organization of government within the Arctic areas of

these states may depart from the usual mode of organization within that state. For

example, the territorial organization of northern Canada affords the Canadian

government considerably more authority than it would otherwise have. Similarly,

in Alaska, local or regional governments like the North Slope Borough have

proven to be important players in capturing some of the benefits of oil and gas

exploration for residents. By contrast, in Norway, the legislative position in rela-

tion to oil and gas developments is really no different in the Arctic from any other

area in Norway and much the same would follow for Russia.

Public and private ownership of land and natural resources

All four jurisdictions that we cover in this book allow for private ownership of

land but they take different positions with respect to the private ownership of oil

and gas resources.

One jurisdiction, Norway, is completely committed to the

public ownership of oil and gas resources and hence, under Norwegian law, the

state is the owner of all petroleum resources both on land and sub sea [Einarsbøl,

2006; Petroleum Act (Norway, 1996) 1996: Section1-1]. Private ownership of oil

and gas resources is permitted in both Canada and the US, but in both jurisdic-

tions, the relevant governments (federal/state/provincial) have long followed poli-

cies of retaining oil and gas and mineral rights when alienating lands to private

parties. As a consequence, private ownership of oil and gas resources tends to be

confined to those areas of the two countries that were settled early in the history

of colonization rather than later. In northern Canada, subject to the exceptions

provided by modern land claim agreements, there is no private ownership of oil

and gas rights. Ownership of these resources remains vested in the Crown and the

same situation prevails offshore. Alaska presents a similar picture, and the Alaska

Statehood Act, 1958 (US, 1958), s. 6 (i) provides that any grant by the State of

lands that it received pursuant to the terms of that constitutional compact should

include a reservation of all mineral rights (including oil and gas) for subsequent

disposition by the State by way of leasing.

Article 9 of the Russian constitution contemplates that land and resources may

be in private, state, municipal and other forms of ownership, but the ownership

120 Nigel Bankes

Legal and institutional framework 121

rights of private parties do not extend to minerals and oil and gas resources.

Federal and sub-federal laws on the (re-)establishment of obshchinas (a form of

pre-Soviet indigenous territorial organization) provide a mechanism for indige-

nous people to obtain a measure of control over some traditional territory

through the recognition of permanent usufructuary rights and certain exclusion-

ary rights, but in all cases title to the lands remains vested in government.

Furthermore, in some cases raion/ulus (county level governments) are not always

receptive to the creation of obshchinas, resulting in significant geographical vari-

ation in their recognition from region to region (Fondahl, 1995: 9–12; Fondahl

et al., 2001), as discussed further below.

In sum, most of the oil and gas rights in the Arctic areas of the four states are

publicly owned. The principal exceptions are the oil and gas rights owned by

indigenous people (or their wholly owned corporations) as a result of modern

land claim agreements.

Where oil and gas rights are publicly owned, governments typically dispose of

rights to these resources through generally applicable petroleum legislation.

Some such schemes [e.g. the Yukon Oil and Gas Act (Yukon, 1998) and the

Canada Petroleum Resources Act (Canada, 1985)] grant oil and gas rights on the

basis of a competitive bidding system with a single variable bid. Such schemes

are very ‘objective’ and offer little or no opportunity for negotiation. By contrast,

the licensing scheme under the Norwegian Petroleum Act entails the pre-qualification

of companies for eligibility to participate and a careful assessment of proposals

based upon the expertise, financial capacity, geological understanding and

experience of the applicants. There may also be negotiations about work require-

ments and relinquishment provisions.

Alaskan oil and gas authorities use a variety of leasing methods and may

potentially use a broad range of bidding variables, including fixed royalties and

bonus bids and fixed cash bonuses with a variable royalty or a share of net prof-

its (Alaska Statutes, AS 38.05.180). Russia’s petroleum or sub-soil legislation

contemplates that a party may acquire oil and gas rights either by means of a

licence issued as a result of a bid or by means of a negotiated production sharing

agreement.

Under The Law on the Subsoil adopted February 1992 and the rele-

vant regulations, bids are measured against a range of criteria including the tech-

nical characteristics of the project proposal, use of environmental friendly

technologies, and potential social and economic contribution to the local area

(Goundina, 2004).

As indicated above, both the US (Alaska) and Canada recognize one important

exception to the proposition that rights to oil and gas are vested in the government

(whether federal, state or, in the case of Yukon, the territory) in so far as both the

Alaska Native Claims Settlement Act (ANCSA, 1971) and land claim agreements

in Canada recognize that the title to at least some of the lands vested in Alaska

natives by ANCSA or on aboriginal organizations by virtue of Canadian land

claim agreements shall include oil and gas rights. Thus, regional corporations in

Alaska, and First Nations and Inuit in Yukon, NWT and Nunavut are able to

develop their own petroleum leasing policies. While it is difficult to generalize, it

122 Nigel Bankes

seems fair to say that most such groups have adopted leasing policies that involve

negotiated agreements with pre-selected companies rather than standard form

bidding arrangements. Furthermore, at least some such organizations have drawn

on a broad range of international experience using as models the forms of agree-

ments that host states generally try and negotiate with international petroleum

companies (Bankes, 2000).

An important question to pose in assessing public oil and gas disposition legis-

lation relates to the nature of any environmental review that might be required

before lands are posted for disposition. For example, does a proposal to issue

rights trigger an environmental or strategic impact assessment? Or is such an

assessment only conducted for subsequent activities such as drilling activities?

The practice varies in each of the jurisdictions. Perhaps the most formal require-

ments are prescribed in state and federal laws for Alaska. Under Alaskan state

law, the Department of Natural Resources (DNR) can only include lands within a

lease sale where the lands have been the subject of a ‘best interest finding’.

A ‘best

interest finding’ is a lengthy process that includes an assessment of the potential

effects of oil and gas, exploration, development, production and transportation as

well as possible mitigation measures. Preliminary findings are posted for public

comment which opportunity is supplemented by workshops and public hearings in

affected communities. If the lands are included in the coastal zone, DNR will also

assess whether the proposed leasing is consistent with the Alaska Coastal

Management Program and any local management plans. A ‘best interest’ finding is

valid for ten years, although the finding may be supplemented by additional infor-

mation. An equally formal process is required under federal law before federal

authorities can issue leases for the Outer Continental Shelf. Prior to conducting any

sales, the Minerals Management Service (MMS) of the federal Department of the

Interior must prepare a detailed Environmental Impact Statement.

Norway has similar requirements. Thus s. 3.1 of the Petroleum Act (Norway,

1996) requires that an evaluation be undertaken of all the interests involved before

a new area is opened up for granting production licences. The evaluation must

include an assessment of the social, economic and environmental implications, and

must involve consultations with local public authorities as well as others.

Canadian rules are far less prescriptive and, while the provisions of relevant

land claim agreements may require more formal consultations with affected

communities before dispositions occur, at no point does the relevant legislation

require the preparation of an environmental impact statement (EIS)or anything

like a ‘best interest finding’. Instead, environmental assessments are generally

only triggered by particular proposed projects or activities (e.g. an authorization

to drill a well or construct a pipeline) rather than a proposal to lease lands (Bankes

and Rowbotham, 1993). The Russian practice under the Law on the Protection of

the Environment is to conduct an environmental impact assessment of a detailed

development proposal submitted by the successful bidder for a licence (Goudina,

2004: 63–71).

In conclusion, with the exception of indigenous oil and gas ownership rights

recognized as part of modern land claim agreements in Alaska and Canada, oil

and gas rights are vested in the government in each of the four states. Neither

Norway nor Russia recognizes an exception to this rule for indigenous people.

The nature of indigenous land rights in each of the four jurisdictions is explored

in more detail in the following section of the chapter.

The legal status of indigenous people and

their land rights and use rights

This final section of the chapter explores the evolution of the state recognition of

the land rights and resource use rights of indigenous people in each of the four

jurisdictions. The principal vehicle for recognizing, protecting and demarcating

an aboriginal land interest in northern Canada has proven to be negotiated settle-

ments in the form of land claim agreements. Litigation has, at various times, also

proven to be instrumental in bringing government to the negotiating table. While

Alaska’s Organic Act of 1884 and the Statehood Act (US, 1958) recognized an

indigenous but inchoate interest in the lands and resources of the state, it was not

until the federal government imposed a land freeze in1966 on state land selections

that serious steps, culminating in the Alaska Native Claims Settlement Act of

1971 (ANSCA, 1971), were taken to resolve aboriginal title claims in Alaska.

Similarly, it seems to have taken an activist response to the proposed Alta Dam in

the late1970s to bring Sámi land rights issues to the forefront in Norway where

the precise basis of Sámi land rights continues to be debated. Finally, in the case

of Russia, the land and resource rights of indigenous people have acquired a

measure of constitutional and statutory recognition from the post-Soviet state,

although much remains to be done to provide effective and practical protection of

their land and resource rights.

Canada

When Canada was originally created in 1867, it succeeded to a long tradition of

treaty-making between the English Crown and the indigenous people of North

America. Canada continued this policy from the 1870s through to the 1920s,

including two treaties – Treaty 8 (1899) and Treaty 11 (1924) – with indigenous

people in the southwest of the NWT and the southeast of Yukon. But after this,

there followed a long period during which treaty-making ceased in Canada (as did

effective implementation of the northern treaties). Furthermore, Canada’s formal

legal position during this period (from the 1920s to the 1970s) was that it could

not be compelled to enter into negotiations with those indigenous people who did

not have treaties (especially First Nations and Inuit in northern Canada), since it

characterized the Crown’s historical practice of treaty-making as a policy based

upon political expedience and not on the acknowledgement of a legal duty.

That attitude ultimately changed in the 1970s. Confronted with hydro develop-

ments in northern Quebec and a decision of the Supreme Court of Canada

(the Calder decision), which confirmed the legal basis of the concept of aborigi-

nal title, the Crown launched a new period of treaty-making, principally with Inuit

Legal and institutional framework 123

124 Nigel Bankes

and First Nations in northern Canada. This new round of treaty-making has

produced a series of northern land claim agreements (and in some cases self-

government agreements) as depicted in Table 6.1.

In addition to recognizing First Nation/Inuit ownership interests to two cate-

gories of land, surface only and surface and mineral rights (including oil and gas)

and, in addition to providing for capital transfer payments and resource royalties,

the agreements also protect traditional resource harvesting rights and create a

series of co-management boards that exercise authority throughout the traditional

territories of the people concerned.

These boards include land use planning

boards, wildlife management boards, water and land use boards and environmen-

tal impact assessment boards. But the agreements also serve to confirm and

recognize the Crown’s title (subject to the harvesting rights of indigenous people)

to the balance of the lands. These agreements, which are all constitutionally

protected, significantly change the legal environment for oil and gas and other

resource companies working in the Canadian Arctic. Not only do they change the

locus of much decision-making authority, but they also provide a more secure

legal environment for investment for both oil and gas exploration, but also neces-

sary infrastructure such as pipelines.

Not all northern indigenous people have finalized land claim agreements with

Canada. In particular, some Yukon First Nations in the southeast of Yukon and the

Dehcho First Nation in southwest NWT have yet to negotiate agreements. The

latter represents a particularly significant gap in the context of oil and gas devel-

opment, partly because of gas discoveries in the area but also because the DehCho

territory lies on the route of the projected Mackenzie Valley Gas Pipeline.

Table 6.1 Canadian land claim agreements

Agreement Beneficiaries Land, Land, Lump sum

surface minerals payments,

(km

) millions

Inuvialuit, 1984 4,000 91,000 13,000 $78 (1984$)

Gwich’in, 1992 2,500 16,264 4,299 $75 (1990$)

Sahtu Dene and 2,500 41,437 1,813 $75 (1990$)

Metis, 1994

Nunavut, 1993 17,500 351,000 37,000 $580 (1989$)

Tlicho, 2005 5,400 2,000 2,000 $90 (1997$)

Yukon (1993 to date)

†

6,000 41,595 25,900 $146 (1989$)

Based on information summarized in DIAND (2006); copies of the agreements are available at:

http://www.ainc-inac.gc.ca/pr/agr/index_e.html (Accessed 12 November 2006).

†

In the case of Yukon, an Umbrella Final Agreement (UFA) was negotiated and finalized in 1993.

Thereafter each of the 14 First Nations in Yukon were to negotiate there own Final Agreement and

self-government agreement within the framework of the UFA. Since then, 11 of the 14 First Nations

have finalized their agreements.

One of the key implications of land claim agreements in Canada and ANCSA

in Alaska is that the industry can no longer assume that all its exploratory acreage

can be acquired from government, since in some cases these oil and gas rights

will be vested in an indigenous owner. Those owners may be willing to provide

access to those resources by agreement, but those agreements (as we have already

suggested in the last section) may resemble typical international oil and gas

concession agreements rather than the competitive bid/standard form agreement

more frequently used by the governments of US/Alaska, Canada and Norway.

Norway

In his survey of the legal basis of Sámi claims in Norway, Eide (2001) identifies

three distinct stages in governmental policies towards the Sámi. The first stage,

associated with the period prior to the middle of the nineteenth century when the

general attitude was one of ‘benign neglect’, represents a period in which the

government did not claim ownership of lands in Finnmark. A key event during

this period was the 1751 treaty between Sweden (Finland then being part of

Sweden) and Denmark (Norway then being part of Denmark) formally demarcat-

ing the boundary in the northern territories which, prior to that ‘had not been

under the explicit jurisdiction of any nation state’ (Eide, 2001: 138). That treaty

also included the Lapp Codicil, which dealt with the implications of the bound-

ary for the Sámi people. But for Eide, as for other writers, the acquisition or

recognition of various sovereign claims did not result in the automatic acquisition

of title to land in the new territory.

The second stage begins around 1850 and is marked by a deliberate assimila-

tion policy. For Eide this new policy is part of reaction to the threat posed by what

was then Russian-controlled Finland. In addition, failed negotiations designed to

deal with Norwegian Sámi pasturing reindeer in Finland led to the closing of the

border in 1850. During this period, when efforts were made to have the Sámi

adopt Norwegian lifestyles, the state made explicit ownership claims to non-

registered land and at the same time discriminated against Sámi who wished to

acquire title to land. The legal basis for the state claim to unregistered land, while

never formally articulated, came to be accepted legal dogma: ‘generally speaking,

the institutions of the Norwegian legal order, the executive, the parliament, and

the courts, have all taken it for granted that the state could assert ownership of these

lands’ (Eide, 2001: 140; Semb, 2001: 184–186).

The third stage begins for Eide in the late 1970s, a period when the nation state

was seen to be in decline and the discourse on subjects, such as the environment

and human rights, was becoming increasingly internationalized. During this period,

the very public controversy over the Alta project served to focus attention on Sámi

issues and led to the creation of the Sámi Rights Commission in 1984. Minde (2001:

113) notes that, prior to the Alta dispute, Nordic countries generally took the view

that the Sámi were not indigenous people, since they were well integrated into

society: ‘The thought that the Sámi were an indigenous people had indeed been

foreign to Nordic authorities, the general public and to the majority of the Sámi

Legal and institutional framework 125