Report: Sámi people’s rights should be reinforced to comply with the Constitution and international law
A report on the rights of the Sámi people by an international team of researchers was recently completed. The study is part of the Government analysis, assessment and research activities designed to support decision making. The objective was to take a closer look at the challenges facing the state in its efforts to promote the rights of the Sámi people, e.g. in the context of the Act on the Sámi Parliament and the ratification of the ILO’s Convention No. 169.
The report examines the Sámi people’s right to land and participation in the light of the Constitution and international law and from the point of view of the rights of indigenous peoples in the legal systems of the key countries concerned. The comparative legal study included New Zealand, Canada and Latin American countries, in respect of which the study on the rights to land and participation was complemented by an analysis of how indigenous people are defined in each state.
The international report underlines that, regardless of the ratification of the ILO’s Convention No. 169 or the Nordic Sámi Convention, Finland’s existing legal obligations – the Constitution and international law – require a wider recognition of the rights of the Sámi people. The report recommends that the Act on the Finnish Agency for Forests and other laws related to the enjoyment of land and water essential to the rights of the Sámi people be complemented by a prohibition to undermine the Sámi culture. However, the ILO Convention and the Nordic Sámi Convention are considered to clarify and strengthen the legal status of the Sámi people, which is why their ratification is welcomed.
The report lends support to the 2014 Government proposal to Parliament to expand the Sámis’ self-determination by amending the Act on the Sámi Parliament through the introduction of more rigorous a duty to consult. The researchers found that the proposed duty of cooperation would be more consistent with the latest developments in international law where systematic emphasis is being placed on the right of indigenous people to self-determination and evidence-based advance consent.
According to the report, the ratification of the ILO’s Convention No. 169 does not require, particularly in the conditions prevailing in countries like Finland, that the Sámi people be guaranteed a right of ownership to land. However, strong rights of use and efficient participation in the management of lands are consistent with the ILO’s Convention No. 169, the policy line of the supervisory committee and the practices adopted by the countries that have ratified the Convention. Moreover, the ratification of the ILO’s Convention No. 160 does not require a redefinition of the Sámi.
The report states that the countries included in the comparative legal study have been bolder than Finland in adopting land co-management schemes. The study proposes that Akwé: Kon guidelines related to the Biodiversity Convention could be developed to provide a basis for active cooperation between the Finnish Agency for Forests and the Sámi people.
The study provides an extensive analysis of the cases reviewed by the Supreme Administrative Court regarding the definition of the Sámi. The report states that the principle of overall evaluation adopted by the Supreme Administrative Court in 2011 has proved problematic, and no clear logic is evident in the selection criteria applied by the Court; instead, very similar cases have been reviewed differently by upholding some appeals while rejecting others. In particular, the analysis of the 2015 cases demonstrates that the appeal process is untenable from the point of view of the appellants’ legal protection and certainty. The report recommends that the concept of the Sámi be redefined by minimising the room for interpretation by both the Sámi Parliament and the Supreme Administrative Court.
One option is to adopt the inter-Nordic definition of the Sámi, which, in accordance with the Norwegian practice, does not provide any ethnic definition; instead, Sámis are people who are entitled to vote in the elections to the Sámi Parliament. This would enable the experience of being Sámi irrespective of election lists. At the same time, people who do not meet the language criteria but perceive themselves as Sámi and engage in traditional livelihoods should also be guaranteed the right to land use and participation in decision making.
The report ‘What can international experiences teach us on the indigenous peoples’ affairs?’ was prepared as part of the implementation of the Government Plan for Analysis, Assessment and Research for 2015.
The lead researchers on the project were Leena Heinämäki, Doctor of Laws, Arctic Centre of the University of Lapland, and Christina Alard, Associate Professor, Luleå University of Technology. Other researchers and experts involved in the project: Sanna Valkonen, Doctor of Social Sciences (University of Lapland); Professor Alexandra Xanthaki, Doctor of Laws (Brunel Law School); Associate Professor Ulf Mörkenstam, Doctor of Social Sciences (University of Stockholm); Professor Nigel Bankes (University of Calgary); Professor Jacinta Ruru, Doctor of Laws, (University of Otago); Professor Jéremie Gilbert, Doctor of Laws (University of East London); Professor Per Selle, Doctor of Social Sciences (University of Bergen); Professor Audra Simpson, Doctor of Social Sciences (Columbia University); and Laura Olsén, Master of Laws (University of Lapland).
For more information on the Government’s analysis, assessment and research activities, see tietokayttoon.fi
Inquiries: Leena Heinämäki, Doctor of Laws, tel. +358 (0)40 484 4280, e-mail: [email protected] (away on business 1–27 Feb), and Laura Olsén, Master of Laws, tel. +358 (0)40 484 4277, [email protected], University of Lapland, Arctic Centre