Mikkelsen A., Langhelle O. (eds.) Arctic Oil and Gas. Sustanability at Risk?

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developments a broadening of the language and content of human rights law to

embrace collective rights as well as individual rights. And, finally, we can see in

these developments a willingness to explore different avenues for vindicating the

rights of indigenous people. One approach emphasizes the need to develop and

formulate norms that are specific to the position of indigenous peoples. Another

approach argues that it is possible to re-interpret existing human rights protections

(e.g. the right to property and the right to equality) so that they protect indigenous

peoples as well as non-indigenous peoples.

We will discuss four of those developments here. First, we will discuss ILO

Convention 169 and its implementation in Norway. Second, we will see that the

recognition and protection afforded to minority rights by Article 27 of the ICCPR

has implications for the way in which the non-indigenous governments deal with

resources within the traditional territories of indigenous peoples. Third, we

discuss the UN Declaration of the Rights of Indigenous Peoples. And finally, we

refer to a few examples of the increased use of international fora (international

courts and other international investigative bodies) to articulate and vindicate the

land and resource rights of indigenous peoples. In discussing these developments

we will also note some differences in the law and practice of the four states,

Russia, Norway, Canada and the USA. These discourses will give us an impression

of the different views and arguments articulated in the debate about oil and gas

activities in the Arctic by different indigenous peoples.

The first and third of these developments are examples of efforts to develop

new laws that speak specifically to the position of indigenous peoples. The

second and last are examples of the use of existing international norms to protect

the interests of indigenous people. In their way, each of these developments

represents an effort to continue the process of decolonizing the international law

of the nineteenth century and to make international law a truly global law rather

than a law of European settler societies.

Convention concerning indigenous and tribal peoples

in independent countries, ILO 169

In formal legal terms, this Convention represents the most important legal

recognition to date of the land and resource rights of indigenous peoples

international law (Thornberry, 2002; Anaya, 2004: 58-61). Before examining its

terms, however, it is essential to recognize one important limitation on its

application in the present case. Of the four states we are considering in this book,

only Norway has ratified the Convention

and there is little chance that Canada

or the USA will ratify.

Russian researchers and indigenous peoples organizations

also doubt that Russia will ratify the Convention in the near future.

The ILO 169 Convention (which replaces the earlier ILO Convention 107 of

1957) aims to protect indigenous and tribal peoples and their way of life and culture

based upon their own aspirations and priorities (Graver and Ulfstein, 2004: 346).

While much of the Convention deals with labour-related issues, land rights are also

296 K. F. Hansen and N. Bankes

of central significance. The Convention recognizes that indigenous people have

both procedural rights and substantive rights.

Article 6 imposes important procedural obligations on the Contracting Parties.

It requires governments to consult whenever considering legislative or adminis-

trative measures that may affect indigenous peoples directly. The consultation

must be in good faith, appropriate to the circumstances, and ‘with the objective

of achieving agreement or consent to the proposed measures’.

Articles 14 and 15 deal with the land and resource rights of indigenous peoples

and are of central importance here:

Article 14

1. The rights of ownership and possession of the peoples concerned over the

lands

which they traditionally occupy shall be recognized. In addition,

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 tradi-

tional activities. Particular attention shall be paid to the situation of

nomadic peoples and shifting cultivators in this respect.

2. Governments shall take steps as necessary to identify the lands which the

peoples concerned traditionally occupy, and to guarantee effective protec-

tion of their rights of ownership and possession.

3. Adequate procedures shall be established within the national legal system

to resolve land claims by the peoples concerned.

Paragraph 1 recognizes that indigenous peoples may have rights in relation to

two categories of lands, a first category over which they have exclusive rights by

virtue of traditional occupation and a second category of lands over which they

have used rights. Such use rights might include hunting, fishing and gathering

rights, the right to carry on traditional ceremonies and other practices and the

right to graze animals such as reindeer. As to the first category of lands, the state

must recognize the indigenous ownership and possessory interest and to that end

is obliged to identify the lands in question and guarantee their effective protection.

Additional measures may be required to protect use rights.

This Article of the Convention and its implementation has been the subject of

significant debate in Norway, especially in the context of the Finnmark Estate

legislation (discussed below) but also with respect to the offshore. Sámi represen-

tatives argue that ‘lands’ should include both onshore and offshore territories and

connected natural resources. Norwegian politicians and the general public

normally do not acknowledge any special offshore rights for the Sámi population.

This different understanding is important in the context of oil and gas activities

in the Barents Sea. Sámi representatives argue that Sámi fishermen have used the

sea since time immemorial for their subsistence and that, even if offshore oil

activities take place far from land and from places traditionally used by the Sámi,

those activities will affect fish and fish habitat. They argue, therefore, that the

Human rights and indigenous peoples in the Arctic 297

Sámi should have a say in offshore drilling and that they have special rights to

compensation [see e.g.; Russian Association of Indigenous Peoples of the North

(RAIPON), 2002; and different readers’opinions in the daily newspapers Nordlys

and Finnmark Dagblad during the winter of 2006).

For example, the annual conference of Norske Samers Riksforbund (NSR)

in 2004 stated that the Sámi people have had property rights and usufruct rights

since time immemorial to the marine resources and sea areas of the Sámi

territories. The conference emphasized that the term ‘lands’ as used in ILO 169

includes the concept of territories, which covers ‘the total environment of the

areas which the peoples concerned occupy or otherwise use’.

The large major-

ity of the Sámi, if not all, support this view (see Chapter 9 for more detailed

information).

However, the Sámi do not speak with one voice when it comes to whether or

not to allow expanded drilling for oil and gas in the Barents Sea. The Sámediggi

has no official view on this, and the Sámi president says she is not fiercely against

drilling but wants to secure the Sámi right to self-determination on this issue

(see Chapter 9 for further elaborations). The question of expanding oil and gas

activities is also controversial with the Sámi people. The National Association of

Norwegian Sámi has from the very beginning (1968–2004) adopted all resolu-

tions at their national assemblies unanimously. But at its 2005 annual assembly

this question divided the party heavily. Many of the delegates voted for opening

up for offshore oil and gas activities in the Barents Sea, but a tiny majority voted

against.

Article 15 of the Convention deals with rights to resources:

Article 15

1. 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 conservation

of these resources.

2. In cases in which the State retains the ownership of mineral or sub-

surface 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 permit-

ting any programmes for the exploration or exploitation of such resources

pertaining to their lands. The peoples concerned shall wherever possible

participate in the benefits of such activities, and shall receive fair

compensation for any damages which they may sustain as a result of such

activities.

Paragraph 1 of Article 15 deals with the resource rights that pertain to the lands

referred to in Article 14 for which an indigenous people has either exclusive

rights or use rights. While Article 14 deals with the private or proprietary aspects

298 K. F. Hansen and N. Bankes

of these resource rights, Article 15(1) deals with the governmental or regulatory

sphere and affords indigenous peoples the right to participate in the use, manage-

ment and conservation of those resources that they either own exclusively or to

which they have rights.

Paragraph 2 of Article 15 deals with resource rights which the state reserves to

itself. In short, this paragraph recognizes that, in many jurisdictions, mineral

resources are the subject of public ownership rather than private ownership and

concedes that a state need not recognize an indigenous ownership interest in these

resources provided that it does not discriminate against indigenous people as

owners. This is the case, for example, for petroleum and minerals in Norway

(Graver and Ulfstein, 2004: 367, 370). But while the state is not obliged to

recognize private indigenous ownership of these resource rights, it is obliged to

put in place a consultation procedure that provides for a prior assessment of the

impacts of resource exploration or development on any indigenous exclusive

rights or use rights identified under Article 14. Furthermore, indigenous people

shall be afforded the opportunity to participate in such activities. However, the

consultation language of paragraph 2 falls short of requiring ‘prior informed

consent’, and while the last sentence of the paragraph requires compensation for

actual damage, it does not require sharing of economic benefits (e.g. through the

payment of a royalty or some other form of revenue sharing).

Perhaps the key question to ask is what difference has ratification of ILO 169

made to the legal position of Sámi in Norway? This is not the sort of question that

lends itself to a definitive response (since there are many potentially relevant

causal relationships) but it is possible to provide some sort of answer using the

recent Finnmark Act as an example. The government introduced the Finnmark

Act in April 2003 after numerous official reports (e.g. of the Sámi rights board

)

and various consultations with indigenous peoples groups. The Finnmark Act was

introduced partly to clarify uncertainties surrounding land and water rights in

Finnmark, but also to provide a secure basis for Sámi culture (the background to

the Act is explored in more detail in this volume in Chapter 9. A key part of the

bill involved the transfer of land title in much of the region from the state to the

proposed Finnmark Estate, a form of co-management authority where three

representatives from the Sámidiggi, together with three representatives from the

Finnmark County Council, would be represented on the board responsible for

making decisions about land use within Finnmark.

The initial reaction of the Sámediggi to the proposed legislation was negative.

The Sámediggi argued that the government had breached its consultation

obligations under ILO 169 and that the bill did not afford adequate recognition and

protection to existing Sámi rights. As a result, the Storting’s Standing Committee on

Justice commissioned an independent and extensive legal opinion to assess the

conformity of the legislation with Norway’s international legal obligations

(not only with respect to the ILO 169, but also with respect to the ICCPR and the

Convention on the Elimination of All Forms of Racial Discrimination; CERD).

In summary, the opinion concluded that the bill did not meet the requirements of

Article 14 of ILO 169. In particular, the authors concluded that Norway was

Human rights and indigenous peoples in the Arctic 299

obliged to identify the two categories of land to which Sámi had rights, and to

afford the Sámi the same legal and factual control over those lands to which the

Sámi had exclusive rights as typically accrue to an owner and possessor of

property. The bill did not accomplish this. Alternatively, the bill might afford Sámi

ownership-like powers and control over all of the lands to be vested in the Finnmark

Estate, but it did not accomplish that either given the composition of the Board.

The Act as passed in 2005 contains a number of amendments to better protect

the Sámi interest. For example, paragraph 3 makes it clear that the Act is subject

to ILO 169 and paragraph 5 clarifies that the Act and the transfer of title to the

Finnmark Estate does not prejudice the collective and individual rights of

Sámi based on traditional use. A further amendment accords Sámi representatives

on the Board of the Finnmark Estate a more important role when it makes

decisions with respect to land use in the municipalities where Sámi represent the

majority of the population (Karasjok, Kautokeino, Nesseby, Porsanger and Tana).

A further result was that the government and the Sámi parliament adopted an

agreement on procedures for consultation. Those procedures specifically

acknowledge that one of the purposes of the agreement is to ‘provide a practical

implementation of the Central Government’s obligations under international law

to consult indigenous peoples’.

Yet, even if the Finnmark Act, as passed in April 2005, was more favourable to

the Sámi than the original text proposed two years earlier, Sámi representatives

argue that the Act was a compromise they could live with and not a victory. From

their perspective, the Act did little more than legalize some Sámi territorial rights

that had been rejected by the colonizing Norwegian government for more than a

hundred years.

In addition, the Finnmark Act was silent with respect to Sámi

rights to marine resources and did not recognize the Sámi understanding of

‘lands’ as including the sea (www.nsr.no).

In conclusion, it seems possible to say that ILO ratification has changed the

nature of the debate about Sámi land rights in Norway. First, the debate is now

explicitly about the importance of observing international obligations. Second,

examination of the proposed legislation in light of the Convention led both to

improved protection of existing Sámi rights and to improved consultation proce-

dures between the state and the Sámi parliament.

That said, and in the context

of oil and gas developments within the Norwegian Arctic, the Sámi argue that the

consultation process is more of a formality than an affirmation of the Sámi right

to self-determination. For the consultation processes to be authentic, they have to

be conducted in ‘a spirit of partnership and mutual respect’ (United Nations,

2007), ‘undertaken in good faith’ (ILO 169) and ‘with the objective of achieving

agreement’ (Royal Ministry of Labour and Social Inclusion, 2006).

Taking the Norwegian White paper no. 30 (2004-05) Opportunities and

Challenges in the North (Norwegian Ministry of Foreign Affairs, 2005) as an

example, the Norwegian government argues that they have consulted the Sámi

population. However, the Sámi parliament and other Sámi organizations do not

accept that they have been consulted in a fair way. Aili Keskitalo, the Sámi president

until mid-2007, argues that the Sámi people have not been listened to.

For many

300 K. F. Hansen and N. Bankes

Sámi politicians and spokespersons, ‘consultation’ in the context of the right to

self-determination includes a right to veto government proposals. This view has

the support of Professor Dr.juris Carsten Smith (the former Chief Justice of

Norway) in his elaboration on the draft Nordic Sámi convention.

If, say most

Sámi organizations and politicians, consultation does not embrace the right to

veto, then it can be little more than a play for the gallery. In this context, it is

important to note that the newly established guide to the understanding of the

agreed consultation procedures between the Sámidiggi and the Norwegian

government states that ‘the consultation procedures will, to a greater degree,

prepare the ground for a partnership between State authorities and the Sami

Parliament. However, the State authorities still retain the legal authority and

responsibility to make the final decisions in such matters’ (Royal Ministry of

Labour and Social Inclusion, 2006).

Most indigenous peoples worldwide contend that consultation should be based

upon ‘free, prior and informed consent’ and that this principle implies a right to

veto. Andrea Carmen from the International Indian Treaty Council, for example,

argues that free, prior and informed consent ‘must be applied as the operative

human rights framework and standard in conducting all new agreements and

arrangements’ (Carmen, 2006). Similarly, Erica-Irene Daes, the former Special

Rapporteur of the United Nations Working Group on Indigenous Populations

[UNWGIP], argues that ‘in order to be meaningful this modern concept of self-

determination must logically and legally carry with it the essential right of

permanent sovereignty over natural resources’ (Daes, 2003). And the Sámi

Council and the Inuit Circumpolar Conference, in a joint statement at the

UNWGIP in 2004 argued that:

Our organizations have been very concerned with institutions such as the

World Bank Group trying to dilute the concept of free, prior and informed

consent in recent processes such as the Extractive Industry Review and the

review of the Indigenous Peoples Policy, e.g. wanting to transform the right of

free, prior and informed consent to free, prior and informed consultations. . . .

It is imperative that any third party seeking consensus from an indigenous

people, do so only from the body etc. authorized to give consent under the rele-

vant customary legal system of that people. We believe that a thorough under-

standing of the relevance of customary law is important not only for the

safeguarding of indigenous rights. Such an understanding can also mitigate

fears sometimes raised that a right to free, prior and informed consent implies

a right for any indigenous person to stop every development project.

The act of consultation is also addressed in the proposed new common

Sámi convention. The convention states that issues of major importance to the Sámi

must be subject to negotiations with the Sámi parliament prior to any public

authority decision, and adds that such negotiations must be scheduled to give the

Sámi parliament ample time to influence the process and the outcome.

Similar

views are evident amongst indigenous peoples. As reported in Chapter 7 (Alaska),

Human rights and indigenous peoples in the Arctic 301

indigenous people dealing with oil and gas companies say that they have plenty of

time: ‘We can sit and we can wait’.

Protecting land rights and traditional territory through

the recognition of the cultural rights of minorities

While Norway is the only one of the four states that is a party to ILO 169, all

four states have ratified the International Covenant on Civil and Political Rights,

although only Norway has taken the step of making the Covenant part of

domestic law.

As we have seen, the ICCPR, in common with its companion

Covenant on Economic and Social Rights, begins with the recognition that

all peoples (including, therefore, indigenous peoples) have the right of self-

determination. But the ICCPR also offers a degree of protection to minorities

through its Article 27:

In those States in which ethnic, religious or linguistic minorities exist,

persons belonging to such minorities shall not be denied the right, in commu-

nity with the other members of their group, to enjoy their own culture, to

profess and practise their own religion, or to use their own language.

(ICCPR, s 27)

Although Article 27 speaks to the position of minorities, it is clear that, in many

if not all cases, indigenous peoples within a settler society will fall within the

concept of a minority. Certainly this is true of Indian and Inupiat peoples in

Alaska, the First Nations and Inuit of Canada, the Sámi of Norway and the differ-

ent indigenous peoples of Russia. Furthermore, while the text of Article 27 does

not mention rights to land and resources, and seems to speak more obviously to

social issues such as language and education, the UN Human Rights Committee,

the body responsible for monitoring the implementation of the Convention by the

parties (as well the body responsible for considering petitions from aggrieved indi-

viduals where the state – Norway or Canada – has ratified the so-called Optional

Protocol), has given the Article a broad interpretation. In particular, the Committee

has interpreted the Article as imposing upon the state the duty to protect the

distinctive cultures of indigenous peoples, and has emphasized that the economic

and material aspects of culture may include the traditional territories of indigenous

peoples and their special relationship with their territories. The precise contours of

this duty are difficult to identify but we can gain a better understanding of the posi-

tion by examining the Committee’s general interpretive comment on Article 27 as

well as a set of three related decisions (the Lænsman decisions) that it has rendered

in response to petitions from Sámi reindeer herders in Finland.

The Committee’s general comment on Article 27 (adopted in 1994)

emphasized (at para. 7) that ‘culture manifests itself in many forms, including a

particular way of life associated with the use of land resources, especially in the case

of indigenous peoples’. The Committee went on to say that the ‘right may include

such traditional activities as fishing or hunting’ and that ‘the enjoyment of those

302 K. F. Hansen and N. Bankes

rights may require positive legal measures of protection and measures to ensure the

effective participation of members of minority communities in decisions which

affect them’ (ibid.).

The duties imposed on the state therefore include substantive

obligations (the duty to protect) and procedural obligations (effective participation in

decisions that affect minorities and/or indigenous people).

Perhaps more revealing than the general comment, at least in terms of trying to

elucidate the precise content of the substantive duty to protect, are the Committee’s

three Lænsman decisions in 1994, 1996 and 2005.

In each case, the substance of

the complaint was that the government of Finland, by authorizing resource develop-

ments of various forms (either individually or cumulatively) within the traditional

reindeer grazing territory of the petitioner had breached the Article 27 rights of the

petitioners. But, in each case, the Committee denied the petition. The Committee’s

reasoning with respect to the most recent such petition is instructive. The Committee

noted (at para. 10.1) that while:

measures whose impact amounts to a denial of the right are incompatible

with the obligations under article 27 . . . measures with only a limited impact

on the way of life and livelihood of persons belonging to a minority will not

necessarily amount to a denial.

The Committee emphasized that it was important to look at the cumulative effect

(at para. 10.2) of ‘a series of actions or measures taken by a State party over a

period of time and in more than one area of the State occupied by that minority’.

In the end, and recognizing that the petitioner and the state fundamentally

disagreed as to their assessments of the effect of logging operations on herding

activities,

the Committee concluded (at para. 10.3) that ‘the effects of logging

carried out . . . . have not been shown to be serious enough as to amount to a

denial of the authors’ right to enjoy their own culture in community with other

members of their group under article 27 of the Covenant’.

In conclusion, the jurisprudence on Article 27 makes it clear that the protection

of culture extends to a state obligation to protect the relationship between

indigenous peoples and their traditional territory. Consequently, state decisions to

authorize resource activities within traditional territories may come under inter-

national scrutiny where those activities are so extensive or intensive that they

seriously interfere with the ability to practise culturally important activities.

While the ‘Views’ of the Human Rights Committee seem to suggest that the

threshold for intervention is high, the Committee has warned that the cumulative

effects of a number of developments may breach a state’s Article 27 obligations.

The UN Declaration on the Rights of Indigenous Peoples (UNDRIP)

Over the last decade, we have seen one important global effort and at least two

regional efforts to develop comprehensive declarations of the rights of indigenous

peoples.

Here we will focus on the global initiative within the UN to develop a

Declaration on the Rights of Indigenous Peoples. This development can be seen

Human rights and indigenous peoples in the Arctic 303

as a continuation of the process begun after the Second World War to articulate

first a Universal Declaration of Human Rights and later the two international

covenants as well as a Declaration on the Rights of Minorities.

Efforts to draft a declaration within the UN began in 1982 with the establish-

ment of the Working Group on Indigenous Populations. The Working Group first

adopted a Draft Declaration in 1994 after which the Human Rights Commission

formed an open-ended inter-sessional working group to elaborate the draft decla-

ration with the expectation that this work might be completed within the first

International Decade of the World’s Indigenous People (1995–2005). For some

long time it appeared as if the UN process was in serious trouble as key states

seemed to be unable to agree on some very basic points (e.g. acknowledgement

of the right of indigenous peoples to self-determination) and most of the text

remained bracketed. But a breakthrough in 2006 resulted in adoption by the UN

Human Rights Council (the successor to the Human Rights Commission) of the

UN Declaration on the Rights of Indigenous Peoples on June 29, 2006 by a

margin of 30:2 with 12 abstentions. The two dissenting Council members were

Canada and Russia. The Declaration was finally adopted by the UN General

Assembly on September 13, 2007 against the votes of the USA, Canada, Australia

and New Zealand. Russia abstained as did ten other countries.

The text comprises 46 articles. It recognizes the right of indigenous peoples to

self-determination. Articles 25-32 deal with various aspects of the rights of

indigenous peoples to lands, territories and resources. The key statements in

relation to oil and gas development are perhaps Article 26 and 32:

Article 26

1. Indigenous peoples have the right to the lands, territories and resources which

they have traditionally owned, occupied or otherwise used or acquired.

2. Indigenous peoples have the right to own, use, develop and control the

lands, territories and resources that they possess by reason of traditional

ownership or other traditional occupation or use, as well as those which

they have otherwise acquired.

3. States shall give legal recognition and protection to these lands, territo-

ries and resources. Such recognition shall be conducted with due respect

to the customs, traditions and land tenure systems of the indigenous

peoples concerned.

Article 32

1. Indigenous peoples have the right to determine and develop priorities and

strategies for the development or use of their lands or territories and other

resources.

2. States shall consult and cooperate in good faith with the indigenous

peoples concerned through their own representative institutions in order

304 K. F. Hansen and N. Bankes

to obtain their free and informed consent prior to the approval of any proj-

ect affecting their lands or territories and other resources, particularly in

connection with the development, utilization or exploitation of mineral,

water or other resources.

3. States shall provide effective mechanisms for just and fair redress for any

such activities, and appropriate measures shall be taken to mitigate

adverse environmental, economic, social, cultural or spiritual impact.

In common with other articles (and indeed the drafting approach of ILO 169),

these articles provide not only a statement of rights but also articulate the State’s

correlative obligations.

John McNee, Canada’s spokesperson, referred to the lands and resources

articles as a major reason for Canada’s negative vote ‘the[se] provisions’, he said,

‘are overly broad, unclear, and capable of a wide variety of interpretations,

discounting the need to recognize a range of rights over land and possibly putting

into question matters that have been settled by treaty’.

By contrast, the adoption of the Declaration was unanimously applauded

by indigenous peoples worldwide. The National Chief of the Assembly of First

Nations in Canada, for example, said the 13th of September is an important day

in Canada’s history: ‘It’s a day to celebrate, and a day to act’.

The Inuit

Circumpolar Council and Sámi Council stated that the Declaration ‘establish[es]

the necessary foundation for sustainable and equitable development in the Arctic

and will ensure that Indigenous peoples in the Arctic directly benefit from

such resource use’.

The UN Permanent Forum also hailed the declaration as a

breakthrough:

It is a key instrument and tool for raising awareness on and monitoring

progress of indigenous peoples’ situations and the protection, respect and

fulfilment of indigenous peoples’ rights. It will further enflesh and

operationalize the human rights-based approach to development as it applies

to Indigenous Peoples.

And the UN Secretary-General called on governments and civil society to

urgently advance the work of integrating the rights of indigenous peoples into

international human rights and development agendas, as well as policies and

programmes at all levels, so as to ensure that the vision behind the Declaration

becomes a reality.

It remains to be seen how the Declaration will influence state politics,

business behaviour and practical rights for indigenous peoples. Even if the

Declaration is not legally binding, the standards and visions emphasized in the

text should at least influence those governments that voted for the Declaration.

Extractive industries operating within indigenous or contested territories will

also need to take the Declaration into account so as not to damage their

international reputations.

Human rights and indigenous peoples in the Arctic 305