3. Human Rights Protection against Interference in cultural practices – International Law

Article 27 of the UN Convention on Civil and Political Rights (ICCPR) is the most important provision on the protection of indigenous peoples’ cultural practices. Other provisions in the ICCPR, as well as provisions in ILO 169 and ICERD, are also important for this protection.

3.1 Introduction

Several human rights conventions have provisions that are particularly relevant for the protection of indigenous peoples (and other minorities) from interference in their traditional business practices and culture. As mentioned, ICCPR Article 27 is the most important provision on the protection of indigenous peoples’ cultural practices in a broader sense. This is particularly because the Human Rights Committee has, through its extensive practice, contributed to the fact that this has also become the most specific protection against interferences in indigenous peoples’ areas.⁴³ This chapter will therefore largely deal with Article 27, but also other provisions of the ICCPR, as well as provisions of ILO 169 and the ICERD will be discussed.⁴⁴

The interpretation of conventions is regulated by the Vienna Convention on the Law of Treaties.⁴⁵ The Convention has not been ratified by Norway, but expresses customary international law by which Norway is bound. Article 31 of the Vienna Convention refers to several interpretive factors used to establish the content of conventions. The central interpretive factor is the wording of the relevant treaty or convention. This is because states are sovereign and not as a point of departure subject to the will of other states. The principle of state sovereignty means that states must make agreements on what will be binding rules between them. States choose whether they want to be party to an individual convention or treaty, and it follows from the principle of sovereignty that they are only bound by the text of the agreement to which they have acceded. The text of a treaty shall be interpreted in accordance with the ordinary meaning of the terms of the treaty. Furthermore, Article 31 states that treaties shall be interpreted in their context, and in the light of its object and purpose. Human rights are an area of international law where courts and monitoring bodies have developed what is often referred to as a dynamic interpretation of convention provisions. Where the wording is general, the purpose of the provision shall be given increased weight. Many human rights provisions are general, and the development of societal conditions and legal perceptions develops over time. The content of many provisions will therefore also be developed over time.

The Human Rights Committee in particular has interpreted Article 27, in individual complaints cases, in General Comments and in Concluding observations. In the so-called Diallo case from 2010, the International Court of Justice (ICJ) ruled that in particular the views of the Human Rights Committee in individual complaints and General Comments must be given “great weight”.⁴⁶ The Supreme Court has, as mentioned, also stated that the committees’ views may have considerable weight as a source of law, but that such views must be given weight based on a “complex and concrete assessment”.⁴⁷

3.2 UN International Covenant on Civil and Political Rights (ICCPR)

The ICCPR’s general implementation provision in Article 2 (1) states that the parties to the Covenant are obliged to “respect” and “ensure” the rights recognised in the Covenant.

The Covenant contains several provisions that are central to indigenous peoples and minorities, including Articles 1, 2, 25, 26 and 27. Article 1 (which has the same wording as Article 1 of the ICESCR) deals with, among other things, the right to self-determination of peoples. Articles 2 and 26 deal with equality before the law and non-discrimination, and Article 25 deals with political participation. As mentioned, however, Article 27 is the most important provision on the protection of indigenous peoples’ and minorities’ right to practice their own culture.

Many of the rights of the Covenant give the authorities the right, under certain conditions, to interfere in the rights, so-called right of limitation or restriction. Such access to interference or restrictions is not part of ICCPR Article 27. However, pursuant to Article 4 of the ICCPR, several human rights, including Article 27, can be derogated from in cases of emergency that threaten the life of the nation.

3.3 Regarding ICCPR Article 27

3.3.1 Introduction

As noted, the key human rights provision in the area of human rights protection against interferences on Sami traditional areas is ICCPR Article 27. It is especially this provision that is discussed by the Supreme Court in the Fosen case, which was dealt with in Grand Chamber in October 2021, where the Supreme Court concluded that this particular provision had been violated through the permit to build wind power plants in a reindeer grazing district. The Fosen judgment clarified several important questions as to the application and scope of Article 27 in Norwegian law. This is discussed in more detail in Chapter 4 on Supreme Court case law.

The question of whether Article 27 has been violated must be decided on the basis of an overall assessment, where various factors are included in the consideration of whether the threshold for violation has been reached. Therefore, in the following review of Article 27, the question of where the threshold lies is addressed at the conclusion.

ICCPR Article 27 reads:

In those States in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community 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.⁴⁸

The provision thus provides protection for ethnic, religious or linguistic minorities. It protects national minorities, but also other linguistic, ethnic or religious minorities in each state. The provision includes indigenous peoples. ICCPR Article 27 protects the right to practice culture, profess religion and use of one’s own language. This report is limited to the part of the provision that relates to the practice of culture, especially in the form of reindeer husbandry.

3.3.2 The relationship to ICCPR Article 1 – the right to self-determination

In its General Comment 23 (on ICCPR Article 27), the Human Rights Committee states that the rights under Article 27 do not prejudice the sovereignty and territorial integrity of the state parties. The provision concerning peoples’ right to self-determination in Article 1 of the ICCPR is regarded as a purely collective right that cannot be invoked individually, nor may it be subject to individual complaints.⁴⁹ Nevertheless, in several decisions, the Human Rights Committee has pointed out that Article 1 of the ICCPR, on the right to self-determination for “peoples”, may have significance on the interpretation of the individual rights in the Covenant, including Article 27. Indigenous peoples in particular have a way of life that is closely related to land, and there may therefore be a need to restrict states’ right to intervene in such lands.⁵⁰

The content of indigenous peoples’ right to self-determination was a challenging question during the negotiations on the Declaration on the Rights of Indigenous Peoples. It is assumed that the term, as used in ICCPR Article 1, refers to both external and internal right of self-determination, but that the threshold for requiring external right of self-determination (status as a state) is extremely high.⁵¹ The wording of UNDRIP Articles 3, 4 and 5 reflects that indigenous peoples’ right to self-determination encompasses a right to internal self-determination within a state.

In several cases, the Human Rights Committee has pointed out that Article 1 of the ICCPR may be relevant to the interpretation of Article 27.⁵² In the so-called Diergaardt case, the Committee stated, among other things, that although it does not deal with individual complaints alleging violations of Article 1, Article 1 may be relevant in connection with the interpretation of other rights protected in the Covenant, in particular Article 25 (on political participation), Article 26 (on discrimination) and Article 27 (on minority protection).⁵³

The Sami Rights Committee (II) discussed, among other things, ICCPR Article 1 in light of the practice of the Human Rights Committee.⁵⁴ Regarding the decision in the so-called Mahuika case, it was stated:

In its decision the Committee does not elaborate on the specific significance of Article 1 as a factor in the interpretation of Article 27. However, it may seem that Article 1 was part of the backdrop for the Committee going relatively far in interpreting Article 27 as a right for the indigenous peoples to be consulted in the determination of matters of direct relevance to their material cultural practice.⁵⁵

The Sami Rights Committee believes that in light of the Human Rights Committee’s views on the relationship between ICCPR Article 1 and several other provisions of the Covenant, the right to self-determination is a “fundamental condition for effective compliance with individual human rights”. The Committee also says that for “development and strengthening of these rights, it must be assumed that the significance of self-determination as a factor of interpretation will particularly have an impact on purpose-oriented and dynamic interpretations and not in restrictive or strictly wording-based interpretations. This must also apply to the interpretation of ICCPR Article 27.”⁵⁶

In two individual complaint cases on Sami rights in Finland from 2018, the Human Rights Committee emphasised the right of indigenous peoples to self-determination.⁵⁷ The Committee’s assessments in these two cases are largely identical. They concerned the validity of the Supreme Administrative Court’s (SAC) decision to allow 93 people to stand in the electoral count of the Finnish Sami Parliament. The Finnish Sami Parliament had decided that these persons did not have the right to stand in the electorate. In both cases, the Committee concluded that SAC’s decision was invalid, and found that there was a breach of Article 25 concerning the right to political participation, seen in connection with Article 27 and Article 1 on the right to self-determination.⁵⁸ In the decisions, the Committee expressed its view on the significance of ICCPR Article 27 in light of the right to self-determination. The Committee observed that Article 27, interpreted in the light of the Indigenous Declaration and ICCPR Article 1 on self-determination, gives indigenous peoples a fundamental right to “freely determine their political status and freely pursue their economic, social and cultural development”.⁵⁹

In the White Paper on the enactment of the right to consultation, the Ministry of Local Government and Regional Development stated that, in line with the Declaration on the Rights of Indigenous peoples, the Sami have a right to self-determination that entails something more than a right to be consulted, but that “at the same time the right to be consulted is a key element in the implementation of the right of self-determination in areas where both the Sami and others are affected by the measure in question”.⁶⁰

In other words, the right to self-determination provides important guidelines for the interpretation of other provisions. This includes the right to consultation, but is not limited to it.

3.3.3 Negative and positive rights

States have both positive and negative human rights obligations. The term “negative obligations” refers to states having to refrain from an act or omission in order to avoid violating a human right, while positive obligations mean that the state must actively take action to ensure a right.⁶¹

ICCPR Article 27 states that the minorities covered by the provision “shall not be denied” their rights according to the Article. Although Article 27 is thus negatively formulated, it speaks of “the right, in community with the other members of their group, to enjoy their own culture, to profess and practice their own religion, or to use their own language” (our emphasis). The Human Rights Committee has assumed that this right must be protected, also through active actions on the part of the state, i.e. states must not only refrain from interfering in the right, but are also obliged to take positive measures to ensure it.⁶²

Nevertheless, the state’s negative obligation forms the core of Article 27, and it is the negative obligation that has mainly been considered in the Committee’s practice. The scope and content of the state’s positive obligations appear to have been clarified by the Human Rights Committee to a limited extent. The Committee states, however, that Article 27 requires states to safeguard the survival and continued development of the cultural, religious and linguistic identity of the minority concerned, and that the protection of these rights contributes to the enrichment of society as a whole.⁶³

Positive measures to ensure indigenous peoples’ right to cultural practice according to Article 27 may entail exceptions to the principle of equal treatment. Such positive measures, however, may in certain cases be lawful and necessary. The Human Rights Committee has stated that although the rights in ICCPR Article 27 are individual, the realisation of them depends on the minority group in question being able to maintain its culture, language or religion. In this regard, it must be assumed that any positive measures pursuant to Article 27 shall not violate the prohibitions on discrimination (Articles 2 and 26) of the Covenant. Differentiental treatment may be permitted, while discrimination is not. Permitted different treatment must be based on factual and objective criteria that appear legitimate in relation to the purpose of the Covenant.⁶⁴ Although Article 27 includes both positive safeguarding obligations and negative obligations for the state, it is mainly the latter that have been clarified by the Human Rights Committee.

3.4 More about the assessment topics in ICCPR Article 27

3.4.1 The material basis for culture

The term culture is not precisely defined in ICCPR Article 27. A natural linguistic understanding of the wording of the provision implies that it is cultural practice related to minority protection that is particularly protected. According to the Human Rights Committee, the term culture must be understood in such a way that, in addition to other cultural expressions, it encompasses the material preconditions for culture, including traditional business activities.⁶⁵ This means that the provision may limit states’ right to intervene in indigenous peoples’ ability to operate traditional businesses.

Since the end of the 1980s and to this day, the Human Rights Committee has explicitly interpreted an obligation on states to protect the material basis of indigenous people’s culture. The Committee points out that cultures can manifest themselves in various ways, including as special ways of life related to the use of land and other natural resources. This applies in particular to indigenous peoples.⁶⁶ The minority protection under ICCPR Article 27 includes traditional business activities and traditional activities such as fishing or hunting, and gives the right to live in areas where the relevant minority is protected. This must be seen in the context of indigenous peoples having a special relationship with land areas and associated natural resources in order to carry out their traditional activities.⁶⁷ The Committee has emphasised that states may be obliged to provide legislative measures to safeguard these rights.⁶⁸

The Committee stated this in its handling of the complaint raised by Ivan Kitok against Sweden.⁶⁹ The main question in the case was whether the complainant, who had a reindeer herding Sami background, was entitled to continued membership in the Sami village after working outside the reindeer herding for more than three years. The Sami village opposed continued membership. Under strong doubt, the Committee concluded that this exclusion was not in conflict with ICCPR Article 27, since Kitok would nevertheless have the right to graze his reindeer and to hunt and fish in the area.⁷⁰ Concerning the connection between indigenous peoples and their traditional ways of life, the Committee stated, among other things, that although regulation of economic activities is usually something the state can decide on its own, this activity may be covered by Article 27 when it is an essential part of a minority group’s culture.⁷¹ In the decision, the Committee referred, among other things, to the so-called Lubicon Lake Band case.⁷² In this case, the Committee had concluded that the authorities’ permission to use traditional indigenous areas for various business activities, including drilling for oil and gas, could constitute a violation of Article 27, because these activities, as long as they were ongoing, together with previous interferences, would threaten the way of life and culture of the Lubicon Lake Band.⁷³

In the first of the three Länsman v Finland cases, the state had granted a licence for a quarry in an area where reindeer husbandry was conducted. It was assumed that not only traditional operating methods are protected under Article 27. The Committee stated that the Sami use of modern work tools in reindeer husbandry did not result in weakened legal protections according to Article 27. Such methods are thus also covered by the material concept of culture.⁷⁴

In the Länsman II case, the state forestry authorities had approved logging in a reindeer herding area. The main issue in this case was whether completed and planned forestry in the area was compatible with ICCPR Article 27.⁷⁵ The Human Rights Committee emphasised that although some of the complainants nearby the reindeer herding were also engaged in other (non-traditional Sami) activities to obtain income, it did not affect their right to the protection of their culture according to Article 27.⁷⁶

In other words, the practice of the Committee shows that it is the material cultural practice that is protected, that this concept is interpreted broadly, and that this protection is not weakened by the replacement of traditional work tools and methods by more modern ones.

3.4.2 Individual or collective rights?

ICCPR Article 27 gives individual rights. This follows directly from the wording “persons belonging to” in ICCPR Article 27. This has also been emphasised by the Human Rights Committee, for the first time in 1981 in the case Lovelace v Canada.⁷⁷

In General Comment 23, the Committee explains precisely how ICCPR Article 27 differs from Article 1 on the right to self-determination in that the right to self-determination applies to “peoples”. It is explained in the Comment that Article 27 contains individual rights that are covered by the right to make individual complaints.⁷⁸

The rights pursuant to ICCPR Article 27 are nevertheless of such a nature that they make little sense if they cannot be exercised jointly with other members of the minority group, as the wording of Article 27 also underscores. Linguistic and cultural rights, for example, can hardly have real content if one does not have someone to talk to in their language, or practice their culture together with. In legal theory, reference is often made to “The Collective Element in Article 27” which alludes to, among other things, the wording “in community with the other members of their group”.⁷⁹

The collective element was also highlighted by the Human Rights Committee in the Lubicon Lake Band v Canada case.⁸⁰ The complaint was raised by the chief of a tribe on behalf of the group. This was accepted by the Committee.⁸¹ Even though the provision in the wording gives individual rights, in the Committee’s view, there is nothing preventing that groups of individuals can be behind complaints concerning violations. This has since been the Committee’s practice, in a number of cases that have been raised on behalf of a group.⁸²

The Sami Rights Committee (II) also emphasised that ICCPR Article 27, according to the Committee’s interpretation and practice, protects both individual and collective rights: “The individual’s right to cultural practice will necessarily depend on the group’s possibility for cultural practice. If the culture is not maintained, the individual rights to cultural practice cannot reasonably be exercised.”⁸³

In the Fosen judgment, it was clarified that ICCPR Article 27 grants individual rights, but that the right can also be invoked by groups of individuals.⁸⁴

3.4.3 Effective participation in decision-making processes (consultations)

Although the wording of ICCPR Article 27 does not explicitly mention consultations, the Human Rights Committee has, through its practice, interpreted a right in Article 27 for minorities to effectively participate in decisions concerning their economic, social and cultural rights, and that positive measures to ensure such participation may be necessary.⁸⁵ The safeguarding of this right of consultation is included in the overall assessment of whether the authorities have overstepped the threshold according to Article 27. This has been the basis for several individual complaints, including the aforementioned Länsman cases.⁸⁶ The fact that the authorities consulted with the complainants during the proceedings was probably contributing to the fact that the Committee in these cases found that Article 27 had not been violated.⁸⁷ In the case Angela Poma Poma v Peru, the Committee concluded that Article 27 had been violated, and assumed that the question of violation depends, among other things, on whether the members of the affected minority community had had the opportunity to participate in the decision-making processes in the case in an effective manner.⁸⁸

Effective participation was also central to the case Apirana Mahuika et al. v New Zealand.⁸⁹ The complainants, who were a group of Maori, alleged that fishery regulations introduced by the state violated their rights under ICCPR Article 27 by limiting their right to participate in commercial fishing. The authorities’ general measures in the 1980s to limit commercial fishing due to strong pressure on fish resources, including through a quota system, had also resulted in many Maori losing the right to engage in such fishing. To remedy this, in 1988, an agreement was negotiated between the Government and representatives of a majority of Maori. A separate law was also passed. A group of Maori claimed, however, that the agreement and the law violated their right to fish in saltwater. The Human Rights Committee assumed that the original quota system was a possible violation of Article 27 because in practice, the Maori had no part in this, which in turn meant that they were deprived of their right to fish. Under the agreement that was signed, however, the Maori gained access to a large share of the quota. In this case, the Committee concluded that the state, by consulting prior to the implementation of the original bill, and by emphasising the sustainability of Maori fishing, had complied with ICCPR Article 27’s requirement for effective participation.⁹⁰ In this case, the Committee emphasised that the right to consultation must also be understood on the basis of the right to self-determination in ICCPR Article 1.⁹¹

The Human Rights Committee’s interpretation of effective participation in decision-making processes as an important element of ICCPR Article 27 is possibly inspired by provisions on consultations in ILO 169. Article 6 of ILO 169 states that states should “consult the peoples concerned, […] whenever consideration is being given to legislative or administrative measures which may affect them directly”. Consultations shall be undertaken in good faith, and in a form appropriate to the circumstances, with the objective of achieving agreement or consent to the proposed measures.⁹²

One question that has been raised in Norway through cases concerning wind power plants, is the extent to which the developer can enter into individual (and secret) agreements with individual reindeer owners on development projects.⁹³ It is uncertain whether such individual agreements will prevent violation of ICCPR Article 27, if the negative consequences of the interference are serious enough. Such individual agreements may also be problematic in terms of the Sami right to be consulted in matters relating to the collective natural basis for Sami culture.

Although the Human Rights Committee has emphasised the extent to which the minority has been consulted in interference cases as an important factor, there are some individual complaints under ICCPR Article 27 where the Committee has not mentioned effective participation.⁹⁴ This may indicate that there is no general and absolute requirement for effective participation or consultations in all types of matters that may concern Article 27. The cases in question, however, are from 1981 and 1988 respectively, i.e. from before consultations were established in ILO 169 and in the UN Declaration on the Rights of Indigenous Peoples. It is clear that consultations are a factor that can be included in, and have an impact on, the overall assessment of whether cultural protection has been violated.⁹⁵

3.4.4 Free, prior and informed consent (FPIC)

As stated above, the question of the right to participate in decision-making processes (consultations) is an important factor in the Human Rights Committee’s assessments of whether interference or other measures may constitute a violation of ICCPR Article 27. A central question in connection with this is whether a general requirement can be made for prior consent in cases of interference or other measures affecting indigenous peoples.⁹⁶

The Human Rights Committee assumes that indigenous peoples’ participation in decision-making must be effective. In the Poma Poma case, the Committee stated that in this case, where the indigenous people’s livelihoods were in danger of being destroyed, the group’s “free, prior and informed consent” from the affected indigenous peoples was required. In this case, neither the complainant nor the group to which she belonged had been consulted by the state regarding the interference that threatened their livelihoods.

ILO 169 Article 16 and UNDRIP Article 10 specify when free, prior and informed consent is required. ILO 169 Article 16 stipulates that indigenous peoples shall not be forcibly removed from their areas. The provision further states that if “relocation” (resettlement) of such persons is nevertheless deemed strictly necessary, this can only happen with the group’s free, prior and informed consent. If such consent cannot be obtained, “relocation” can only take place if the indigenous peoples are given “effective representation” in the process.⁹⁷ A further requirement is that the people shall have the right to move back to their lands, or where this is not possible, be granted lands of at least the same quality and legal status as the area that has been lost, or if they prefer, receive compensation in the form of money.⁹⁸

Article 10 of the UNDRIP confirms that indigenous peoples shall not be forcibly relocated from their lands or territories. Any resettlement shall take place with the free, prior and informed consent of the affected indigenous peoples, in accordance with a compensation agreement, and if possible, the group shall be allowed to return. This provision in the UNDRIP therefore requires free, prior and informed consent for measures that lead to “relocation”, and if the indigenous peoples refuse to move, then it must be respected. The provision thus goes somewhat further than its “model” ILO 169.⁹⁹

None of these provisions expresses a general requirement for free, prior and informed consent in all interference cases. When the Human Rights Committee in the Poma Poma case ruled that a free, prior and informed consent was required,¹⁰⁰ the Committee emphasised that the interference was so serious that the complainants’ livelihood was destroyed, which was tantamount to forced relocation. The Committee stated about the interference that “it has ruined her way of life and the economy of the community, forcing its members to abandon their land and their traditional economic activity” (our emphasis).¹⁰¹

The question as to whether also other measures besides those that will lead to forced relocation, are covered by a requirement for prior consent, has been the subject of debate in international fora, academics and civil society organisations for many years. The debate has been about whether the rules on FPIC constitute a general requirement that consent must be obtained before decisions that affect indigenous peoples can be made. While, among other things, the UN Expert Mechanism on the Rights of Indigenous Peoples (EMRIP) has suggested that this may be the case,¹⁰² the ILO has, inter alia, rejected that such a claim can be derived from the wording of ILO 169 or UNDRIP.¹⁰³ ILO has, among other things, referred to the rules of international law on treaty interpretation, and determined that a general requirement for prior consent in all matters affecting indigenous peoples cannot be derived from the provisions of ILO 169, and thus not from UNDRIP.¹⁰⁴

The Supreme Court has ruled, citing the Poma Poma case, that the requirement to obtain free, prior and informed consent applies in cases where the livelihood is completely destroyed, but that otherwise no unconditional requirement can be made that the participation of the minority must have had an impact on the decision.¹⁰⁵

In other words, according to ILO 169 and the UNDRIP, the requirement to obtain free, prior and informed consent applies in cases where interference will lead to forced relocation or the equivalent. The Human Rights Committee has interpreted ICCPR Article 27 as containing a requirement for informed prior consent for interferences that threaten or will destroy the indigenous peoples’ continued livelihoods in their traditional lands. The implications of ILO 169 Article 16 and UNDRIP Article 10 are that in other types of interference cases, free, prior and informed consent will be a goal, but not an absolute requirement.

3.4.5 Overall effect or cumulative effects

A common challenge related to ICCPR Article 27 is how to assess several interference measures over time. This is important because it is often not singular measures that alone will threaten indigenous peoples’ cultural practices, but many such measures over time may collectively amount to a violation. The Human Rights Committee has therefore ruled that the combined effects, i.e. the cumulative effect of several interferences, each of which is not large enough to constitute a violation, may lead to Article 27 being violated. In the Lubicon Lake Band case, which is the first case concerning interference in traditional indigenous areas, the Committee pointed out that there was no major interference in that specific case. The Committee emphasised, however, that the combined effects of historical injustices and recent developments combined posed a threat to the Lubicon Lake Band’s way of life and culture, and would therefore be a violation of Article 27.¹⁰⁶

The question of cumulative effects of interferences was also discussed in the three Länsman cases against Finland. In the first of these cases, the Committee pointed out that the scope of the interference that had already taken place did not violate ICCPR Article 27. The Committee determined, however, that it could lead to violation if the interferences in the area were allowed on a large scale and significantly expanded. In the two subsequent Länsman cases, the Committee stated that even if the logging that was approved did not violate Article 27, new interferences could change this, even if the various activities in isolation would not in themselves constitute a violation of Article 27. In the assessment of whether a measure is in conflict with Article 27, the Committee could therefore not only consider interferences in an area traditionally used by the indigenous peoples concerned at a given time, but had to assess the effects of past, present and future forestry on the minority’s ability to continue practicing their culture.¹⁰⁷

This is central because the right to cultural practice is often threatened precisely by different types of natural interferences of varying magnitude, over time, which together can become so extensive that it exceeds the threshold for what is permitted under ICCPR Article 27. The condition for assessing cumulative effects of interferences tightens the requirements for decision-makers who must not only consider the interference in question, but also see it in the context of previous and planned interferences. This also places demands on the factual basis to be considered, because an assessment of cumulative effects of interferences requires a sufficient overview of both historical and future planned interferences.

3.4.6 Remedial measures

Even if interferences or other measures in principle would have constituted a violation, remedial measures may nevertheless prevent violation of ICCPR Article 27. Remedial measures may, for example, constitute special guidelines for how the interference is to be implemented, compensation for lost income, allocation of other lands to the protected cultural practice or other measures.

In the Lubicon Lake Band case, it was assumed that the planned measures could be implemented if the culture of the minority group were taken into account and necessary adjustments were made. The Human Rights Committee noted that the state wanted to rectify the situation in a way that satisfied the requirements of the ICCPR Article 2 (3) a on “effective remedy”. In this case, Canada allocated an area of 250 square kilometres and paid compensation equivalent to 45 million Canadian dollars to the group.

In the Länsman I case, one important reason why the Human Rights Committee believed reindeer husbandry had not been “adversely affected” was that the authorities had set conditions for the activities of the quarry. The Committee pointed out that the authorities had sought to limit the permit for extraction so that it caused minimal damage to reindeer husbandry and the environment. It had been agreed that the extraction would take place during the periods when the area was not used for grazing, which was a remedial measure.¹⁰⁸ This contributed to the conclusion that, according to the Committee, the operation did not constitute a breach of ICCPR Article 27.

Conversely, the Human Rights Committee pointed out in the Poma Poma case that no measures had been taken to minimise the effect of the measure or to repair the damage that had occurred.¹⁰⁹

Although remedial measures are central to the Committee’s practice, it is nevertheless worth noting that there is a limit as to how far a remedial measure can reach. For example, the Supreme Court in the Fosen judgment stated that despite the fact that the Court of Appeal required the developer to provide comprehensive remedial measures in the form of e.g. winter feeding of the reindeer in a fenced area, this was still not sufficient to prevent ICCPR Article 27 from being violated, see Chapter 4.

3.4.7 The threshold for violation of ICCPR Article 27 and proportionality assessments

3.4.7.1 Requirements for significant negative impact

The wording that minorities should not be “denied the right to […]” in ICCPR Article 27 provides only limited guidance on what it takes for someone to be denied the right to practice their culture.¹¹⁰ In its General Comment 23 (on ICCPR Article 27), the Human Rights Committee specified that indigenous peoples’ rights should be protected against “denial or violation” – i.e. the protection includes both total denials of cultural practice, but also other violations.¹¹¹

Practice from the Human Rights Committee shows that the threshold for ascertaining violations of ICCPR Article 27 is relatively high. This is illustrated for example by the three Länsman cases. In the first Länsman v Finland case, the state had granted a licence to develop a quarry in an area where reindeer husbandry was practiced. The Committee concluded that interferences in the form of extraction and transport of stone through a grazing area were not so extensive that there was a violation of ICCPR Article 27.¹¹² The Committee noted that measures that have a limited impact on the way of life of a minority do not necessarily constitute a violation of Article 27.¹¹³ Certain interferences that affect the possibility to practice the culture, or that complicate the practice, can be accepted. The Committee emphasised that the affected Sami had been consulted in the process and that reindeer herding in the area did not appear to have been “adversely affected” by such activities that had taken place.¹¹⁴ The Committee, however, assumed that a significant increase in activities related to the quarry could lead to violation of Article 27. In order to comply with the requirements of Article 27, such interferences, according to the Committee, must not have led to a lack of financial sustainability for Sami reindeer husbandry or other traditional industries.¹¹⁵ In this case, remedial measures were the reason why no violation was found.¹¹⁶

In the Länsman II case, the Committee stated that the state forestry authorities had approved logging to an extent that, admittedly, led to additional work and additional costs for the traditional activity (reindeer husbandry), but which did not threaten the existence of reindeer husbandry. The fact that reindeer husbandry was not very profitable was not due to the state’s economic activities in the area in question, but to external economic factors.¹¹⁷ If the interference, or the additional work and expenses it inflicted on the complainants, had threatened the survival of reindeer husbandry, however, it would have been different.

An important clarification was that when the Committee here referred to “the survival of reindeer husbandry”, it referred not to Sami reindeer husbandry in Finland as a whole, but to the specific reindeer herding in the area where the effects of the interference occurred.

In 2001, Jouni E. Länsman et al. brought a new case against Finland (the Länsman III case), alleging, among other things, that continued and expanded timber operations threatened the existence of reindeer herding in the area in question.¹¹⁸ The complainant argued that the decision of the Finnish Ministry of Agriculture and Forestry to reduce the number of permitted reindeer in Muotkatunturi reindeer grazing district by 15 per cent, showed that forest operations caused greater damage to reindeer husbandry than the Committee had assumed in the Länsman II case. The Committee, however, also in this case came to the conclusion that ICCPR Article 27 had not been violated. Although it could not be ruled out that the timber operation adversely affected the reindeer husbandry activity in the area, the effects of the operation were not serious enough to constitute a violation of Article 27.¹¹⁹

Nor in the so-called Howard case against Canada did the Committee find that regulating traditional use of outlying areas was a violation of ICCPR Article 27.¹²⁰ Here, a tribal member did not prevail in claiming that the state’s regulation of licenses, as well as restrictions on access to fishing and hunting, were a violation of Article 27. The Committee pointed out that states can regulate areas that are part of a minority’s culture, as long as the regulation does not constitute a denial of practicing the culture.¹²¹

In the case Angela Poma Poma v Peru, the Committee concluded that there was a violation of ICCPR Article 27.¹²² The case concerned interference in the form of development projects in the grazing resources of a woman who was engaged in llama farming, an industry that constituted an essential part of her culture. The complainant and her group lost their grazing resources after the authorities, in the 1990s, allowed the drilling of a number of water wells. The well drilling led to the drying up of 10,000 hectares of grazing land and this completely destroyed the livelihoods of the complainant and her group, and forced them to give up living in their areas and conduct their traditional business activities.¹²³ No impact assessment been carried out on the well construction by any independent professional bodies to assess the impact on the traditional way of life of this group, and no measures were taken to minimise the damage caused by well construction.¹²⁴

In this case, the Committee recognised the right of states to decide on measures to promote their economic development, but emphasised that this should not undermine rights protected under ICCPR Article 27. The Committee pointed out that measures which constituted a denial of a community’s practicing its own culture, were incompatible with Article 27. This was in contrast to measures which have only a limited negative effect on the conduct of business for members of such communities.¹²⁵ The Committee assumed that the question was as to whether the consequences of well drilling were of such a nature that they had “a substantive negative impact” on Poma Poma’s right to exercise her culture.¹²⁶

In contrast to the Länsman cases, the interference in this case was so extensive that complainants were completely deprived of the opportunity to continue to benefit financially from their traditional business. The Committee found that the state’s actions had significantly compromised the traditional way of life of the complainant and her group, and that her right to practice her own culture with members of her group under ICCPR Article 27 had been violated.¹²⁷ In the Committee’s rationale, emphasis was placed on the extent of the interference (the complainant’s livelihood was completely torn away) and the fact that the indigenous peoples concerned had not been consulted. The lack of independent impact assessments was also emphasised.

The threshold for violation of ICCPR Article 27 was thus reached in the Poma Poma case, both because the affected minority had not been given the opportunity to effectively participate in the decision-making process, because the impact and consequences of the interference had not been assessed, because no remedial measures had been implemented and because the interference was so extensive that it hindered cultural practice and forced the minority to leave their traditional lands. In other words, the procedure had a significant negative impact on the complainant and her group.

3.4.7.2 Proportionality assessment

Although ICCPR Article 27 does not provide absolute protection against all forms of interference into indigenous peoples’ culture, the provision is written in an “absolute” form in the sense that it does not contain the legal basis for restricting or limiting the right under certain conditions. Such legal bases for restrictions or limitations can be found in human rights provisions on freedom of religion and belief, freedom of expression, freedom of assembly, the right to privacy, etc.¹²⁸ These rights can be restricted on the condition that the restrictions are prescribed by law, serve a legal purpose, and are necessary, i.e., they must be proportional. States may be obliged to have legislation that, for example, prohibits certain statements despite having freedom of expression, often justified in the consideration of the rights of others.

ICCPR Article 27 does not provide for such restrictions. If Article 27 is in danger of being violated due to an interference in the cultural practice of minorities, it does not follow from Article 27 that one may balance the interests of the minority against the interests of society.¹²⁹ ICCPR Article 27 can, according to its wording, only be derogated from in cases of public emergency that threaten the life of the nation, cf. Article 4.¹³⁰ In the first Länsman case, the Human Rights Committee stated that “A State may understandably wish to encourage development or allow economic activity by enterprises. The scope of its freedom to do so is not to be assessed by reference to a margin of appreciation, but by reference to the obligations it has undertaken in article 27.”¹³¹

In the Poma Poma case, the Committee stated that interferences in indigenous peoples’ rights had to “respect the principle of proportionality as not to endanger the very survival of the community and its members”.¹³² While the Committee confirms that interferences that completely destroy cultural practice are considered disproportionate, it is difficult to draw any broader conclusions regarding proportionality assessments from this sentence. As referred to in Chapter 5.3.6 of this report, the authorities (Ministry of Petroleum and Energy) in the Fosen case appeared to assume that this sentence allowed for balancing between the interests of indigenous peoples and the interests of society as a whole. In the Fosen judgment, however, the Supreme Court ruled that ICCPR Article 27 does not in principle allow for a balance of interests or proportionality assessment, other than in cases where fundamental rights are opposed to each other, see Chapter 4.2.6.

3.4.8 Summary of ICCPR Article 27

ICCPR Article 27 sets out a threshold. This chapter has discussed each of the assessment factors before discussing the threshold. Whether the threshold has been overstepped, will depend on an overall assessment of the factors discussed in this chapter: whether the participation of the affected minority in the decision on interference has been effective, whether the cumulative effects of the interference together with previous interferences constitute a violation of Article 27, or whether remedial measures have been implemented that may result in the threshold not being reached after all. These factors are included in the assessment of the negative effects of the interference and thus of whether Article 27 has been violated. If these factors indicate that the threshold for significant negative impact has been reached, the state’s scope to allow other interests to take precedence over the rights of indigenous peoples is very limited.

3.5 UN International Convention on the Elimination of All Forms of Racial Discrimination (ICERD)

As the ICCPR, the ICERD contains a prohibition against discrimination on the basis of ethnicity, but the definition of such discrimination is more detailed and comprehensive than it is in the ICCPR. Racial discrimination is defined as various forms of discrimination on the basis of race, ethnic origin or the like, which has the purpose or effect of making it difficult to enjoy human rights in the same way as others.¹³³ The wording shows that racial discrimination can consist of both acts and omissions that constitute different treatment, if this has occurred due to a person’s “race, skin colour, descent, or national or ethnic origin”.¹³⁴ When the definition refers to “purpose or effect”, this means that it is sufficient that the act has had differential treatment due to ethnic origin etc. as an effect, it need not have been the intention.

In order for differential treatment to be permitted, it must be proportionate. In the Femund sijte judgment, the Supreme Court ruled that both the constitutional provisions and the international conventions imply that “[…] in the question of whether there is discrimination, special consideration must be given to the protection of Sami culture. In concrete terms, this means that in the assessment of objectivity and proportionality that must be made, it must be important that the case concerns Sami reindeer husbandry.”¹³⁵

The ICERD allows for positive special measures of certain groups when the purpose is equal treatment with the majority population.¹³⁶ Article 1 (4) states that special measures taken to ensure adequate advancement for ethnic groups and/or individuals who need special protection shall not be regarded as racial discrimination in the meaning of the Convention. The premise is that the positive measures are terminated when the purpose of equality has been achieved. Article 2 (2) obliges states to take special measures to protect these groups when circumstances make it necessary.

The Committee on the Elimination of Racial Discrimination, which monitors the convention, has stated that the implementation of human rights of minorities and indigenous peoples, among others, is not in itself positive special measures, but positive special measures can be implemented to help realise these rights.¹³⁷ According to the Committee, positive special measures must be based on needs. In addition, they must be legitimate, necessary, proportionate and temporary.¹³⁸ The measures should also be implemented through consultations and active participation from those affected.

Article 5 of the convention lists a number of areas where it prohibits discrimination on ethnic grounds and requires equality before the law. Article 5 (d)(v) mentions “the right to own property, alone as well as in association with others” as one of these areas. This provision has been invoked in cases concerning indigenous peoples’ land rights.¹³⁹

Article 6 states that the courts and other authorities shall provide all effective protection and effective remedies against all racial discriminatory acts that violate the human rights of the person concerned.¹⁴⁰

3.5.1 The Racial Discrimination Committee on FPIC

The prohibition against discrimination in Article 5 (d)(v) was assessed by the Committee on the Elimination of Racial Discrimination in a complaint from members of Vapsten Sameby v Sweden.¹⁴¹ The complaint was that the state had granted a licence to establish a mine in Rönnbäcken in 2020, in an area used for reindeer herding.¹⁴² The members of the Swedish reindeer grazing district (Sami village) argued in the complaint, among other things, that they had not been involved in a process of free, prior and informed consent (FPIC)¹⁴³ in the event of the state’s violation of safeguarding property rights.¹⁴⁴

The Committee on the Elimination of Racial Discrimination stated that the state had not taken the Sami land rights into account, which should have been done.¹⁴⁵ In the view of the Committee, the Swedish authorities had violated ICERD Article 5 (d)(v) on the right to own property without discrimination on the grounds of ethnicity.

Part of the rationale for the Committee on the Elimination of Racial Discrimination was that the authorities should have carried out a consultation process that was both suitable for, and that actually led to a free, prior and informed consent.¹⁴⁶ Shortcomings in the impact assessment and in assessing the cumulative effects of previous interferences were also elements of the assessment.¹⁴⁷ The Committee also concluded that Sweden had violated ICERD Article 6 since the Swedish judicial system had not been able to examine the rights of the affected Sami based on their fundamental right to traditional territory.¹⁴⁸

In this case, the Committee on the Elimination of Racial Discrimination interpreted both consultation rights and a requirement for free, prior and informed consent into the right to own property without discrimination pursuant to Article 5 (d) (v). In this case, usage rights were equated with property rights. The fact that the usage rights of the Sameby (Sami village) were hindered as a result of the establishment of the mine, was regarded as discrimination on ethnic grounds because ethnicity and usage rights in this case were so closely related.

It is unclear what basis the Committee used when it came to the conclusion that the ICERD, including Article 5 (d)(v), contains a requirement for consultations and for a free, prior and informed consent as a condition for granting the mining operation permission at the expense of the Sami usage rights. According to the Vienna Convention on the Law of Treaties, the wording of treaties must be interpreted in accordance with the natural understanding of the terms used.¹⁴⁹ Human rights are, however, often subject to what is referred to as dynamic interpretation. This is done to adapt the human rights to changing societal conditions. Interpretations that go beyond the natural understanding of the wording still have to be kept within the purpose of the provision. Interpreting usage rights in the concept of property rights will be a typical example of such dynamic interpretation, as ECtHR has also done.¹⁵⁰ Interpreting a positive obligation for the state to actually secure the prior agreement of the affected indigenous peoples, arguably add new purposes into Article 5(d)(v). This provision contains only a negative obligation to refrain from discriminating on ethnic grounds. The Committee on the Elimination of Racial Discrimination, however, considers that FPIC is a “norm stemming from the prohibition of racial discrimination”.¹⁵¹

The Committee on the Elimination of Racial Discrimination moreover seems to maintain that there is a general legal requirement for a free, prior and informed consent from the indigenous peoples, in order for interference to take place. The Committee states that FPIC must be safeguarded when indigenous peoples’ “rights may be affected by projects carried out in their traditional territories […]”, in other words in any interference case affecting indigenous peoples’ rights. As mentioned previously, the Human Rights Committee in the Poma Poma case has understood FPIC less broadly, stating that the condition of free, prior and informed consent in ICCPR Article 27 was linked to the indigenous peoples being in practice forcibly relocated.¹⁵² The complainants in the Vapsten case claimed that they were in danger of having to shut down the reindeer husbandry and leave the area if mining were allowed.¹⁵³ It is nevertheless unclear whether the Committee on the Elimination of Racial Discrimination linked the requirement for free, prior and informed consent to the terms of ILO 169 and the UNDRIP, whereby FPIC is a requirement where the interference may result in forced relocation.¹⁵⁴ In the decision on Vapsten on the other hand, the condition of free, prior and informed consent appears to be referred to as a general requirement for interference cases.¹⁵⁵

3.6 ILO Convention 169 concerning indigenous and tribal peoples in independent states (ILO 169)

3.6.1 Introduction

ILO 169 is the only international convention that specifically concerns the rights of indigenous peoples. The convention has provisions that affect many aspects of indigenous peoples’ lives. Several of the provisions are central to the Sami protection against interferences in their culture and traditional business practices. This applies in particular to the provisions on the right to consultation and provisions on land rights. As concerns monitoring of ILO conventions, reference is made to 2.4.

3.6.2 Consultations and indigenous peoples’ own priorities

The right to consultation is a fundamental right of indigenous peoples’. This right implies that states have an obligation to consult indigenous peoples whenever consideration is being given to legislative or administrative measures that may have a direct impact on them.¹⁵⁶ Article 6 of ILO 169 contains provisions on the state’s obligation to consult indigenous peoples in such matters, and that they shall establish appropriate means to ensure that this is implemented. The obligation to consult is regarded as a key part of states’ obligations to indigenous peoples, and in 2021, it was laid down in national legislation as a separate chapter of the Sami Act.¹⁵⁷

As previously mentioned, the issue of whether the indigenous peoples concerned have been consulted and have been allowed to participate actively in the decision-making process is also an important part of the assessments made by the UN Human Rights Committee when assessing interference cases according to ICCPR Article 27.^{¹⁵⁸In the Mahuika case, the Committee emphasised that i.a. ICCPR Article 27 had to be interpreted in light of ICCPR Article 1 on self-determination, HRC, Apirana Mahuika et al. v New Zealand (Communication No. 547/1993), para. 9.2.}

ILO 169 contains several provisions that more explicitly impose an obligation on states to consult. Article 6 imposes an obligation on states to consult, and Article 7 gives indigenous peoples the right to participate in decision-making processes and to adopt their own priorities in matters that directly concern them. Article 15 contains rules on the right of indigenous peoples to participate in the use and management of natural resources and to be consulted in connection with plans to exploit natural resources in their traditional areas. The Sami Rights Committee (II) assumed that ILO 169 Articles 6, 7 and 15 “require states to consult with their indigenous peoples and ensure that they, through real consultations and in other ways, are ensured active participation in decision-making processes in matters that may have a direct impact on the peoples concerned”.¹⁵⁹

The provisions of the convention presuppose that the consultations must be organised in such a way that they are suitable for reaching an agreement.¹⁶⁰ Indigenous peoples must have an actual opportunity to influence the process, and the parties must consult with a view to reaching an agreement, in good faith. It is, however, not an absolute requirement that the indigenous peoples’ prior consent must be obtained before a project is implemented, see Article 16. This provision stipulates that indigenous people shall not be forcibly relocated from their areas and that if the “relocation” of such peoples is nevertheless deemed strictly necessary, this may only take place with the group’s free, prior and informed consent, or if such consent cannot be obtained, only if the indigenous peoples are given “effective representation” in the process.¹⁶¹

ILO 169 ARTICLE 6

In applying the provisions of this Convention, governments shall:
1. consult the peoples concerned, through appropriate procedures and in particular through their representative institutions, whenever consideration is being given to legislative or administrative measures which may affect them directly;
2. establish means by which these peoples can freely participate, to at least the same extent as other sectors of the population, at all levels of decision-making in elective institutions and administrative and other bodies responsible for policies and programmes which concern them;
3. establish means for the full development of these peoples’ own institutions and initiatives, and in appropriate cases, provide the resources necessary for this purpose.
The consultations carried out in application of this Convention shall be undertaken, in good faith and in a form appropriate to the circumstances, with the objective of achieving agreement or consent to the proposed measures.

Article 6 applies in all cases where measures that may have a direct impact on indigenous peoples are examined or implemented, not only measures that affect land rights.¹⁶² The obligation to consult applies at all administrative levels in the relevant case, and must be seen in light of the rights of indigenous peoples pursuant to Article 7 and Article 15.

Central to Article 7 is that indigenous peoples have the right to adopt their own priorities when it concerns the development of their traditional lands, and they shall participate in the design, implementation and evaluation of plans that may have direct consequences for them.

Article 7 (3) requires governments to ensure that, whenever appropriate, studies are carried out in cooperation with the peoples concerned, to assess the social, spiritual, cultural and environmental impact on them of planned development activities. This must be seen as a requirement for the content of impact assessments. The results of these studies shall be considered as fundamental criteria for the implementation of these activities. Central to both the impact assessments and the measures to protect and preserve the environment is that they should be carried out in cooperation with the indigenous peoples.

3.6.3 Land rights

ILO 169 Article 15 (1) provides special protection for indigenous peoples’ right to natural resources in their lands.¹⁶³ The provision states that “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.” ILO’s manual on interpretation of ILO 169 states that the Convention recognises both individual and collective aspects of the concept of “land areas”. This includes land that a community or peoples use together, and land that is owned and used individually.

According to the Sami Rights Committee (II), Article 15 establishes a general restriction on the public sector’s right to regulate the use of land and resources in the indigenous peoples’ traditional areas of use. The Committee states that the first sentence of Article 15 (1) appears “to provide material protection against measures that may interfere with the rights of indigenous peoples.”¹⁶⁴ Article 15 (2) provides special provisions on counselling and compensation in mineral cases. The provisions of Article 15 shall also be read in conjunction with the obligation of consultation and the right to priorities and participation in planning, impact assessments and implementation pursuant to Articles 6 and 7.

ILO’s Expert Committee for Monitoring the Implementation of Conventions and Recommendations (CEACR) has, in the same manner as the Sami Rights Committee (II), assumed that Article 15 (1) provides substantive rights, and thus goes further than simply regulating the more procedural consultation and participation rights.¹⁶⁵ This approach nevertheless does not clarify the scope of indigenous peoples’ right to natural resources, nor the threshold for legal interference. This is also the conclusion of the Sami Rights Committee (II),¹⁶⁶ which states that “ICCPR Article 27, as interpreted by the UN Committee on Human Rights”, still seems “to be the central instrument of international law when it concerns the protection against interference with indigenous peoples’ ability to exercise their land rights”. The reason for this is probably partly because ICCPR Article 27 can provide strong protection if the threshold has been exceeded, and partly in the way the complaint mechanisms are organised and who has the right to complain. For example, ILO 169 does not have an individual complaints mechanism, as opposed to the ICCPR. This means that although ILO 169, according to its wording, provides more explicit rights to natural resources than ICCPR Article 27, the more extensive practice according to Article 27 has resulted in protection in interference cases which provides at least as strong protection as the ILO Convention.

3.6.4 ILO 169 in Norwegian legislation

ILO 169 is incorporated into the Finnmark Act, which has provisions on administration of land and natural resources as well as on survey and recognition of existing land rights in Finnmark. Section 3 of this Act states that “the Act shall apply with the limitations that follow from ILO Convention No. 169 concerning Indigenous and Tribal Peoples in Independent Countries”.¹⁶⁷ This means that the provisions of the ILO Convention take precedence in Finnmark (where the Act applies).

When the question of incorporation of this convention was discussed in Parliament, the majority of the members of the Pariament’s Justice Committee stated that the ILO Convention was unsuitable for incorporation due to ambiguity regarding the interpretation of the convention. The majority pointed out that the convention in any case would be an important source of law, due to the so-called “presumption principle”. The majority nevertheless proposed “a limited incorporation of the convention by adopting a rule in Section 3, saying that the Act shall apply ‘with the limitations’ that follow from the ILO Convention. At the same time, this will highlight the law’s international legal background in a good way”.

The Justice Committee further stated that the formulation “with the limitations” means that the ILO Convention will take precedence over the Finnmark Act if it turns out that provisions of the Act contradict provisions in ILO 169. The committee said:

If, however, it is concluded on the basis of the ILO Convention that the law lacks provisions of certain content, this will be a task for the legislature. In other words, the Courts shall not use the ILO Convention to expand the scope of the Finnmark Act. It will be easier to predict the consequences of such a limited incorporation than if one were to give the ILO Convention general precedence over all Norwegian legislation.¹⁶⁸

The state’s obligations under ILO 169 constitute an important background for legislating the obligation to consult, in the Sami Act in 2021.¹⁶⁹ The international law’s requirement for holding consultations in the event of interferences in indigenous peoples areas has largely been followed up by the authorities – albeit to varying degrees.¹⁷⁰ Both the Finnmark Act and the Minerals Act incorporate ILO 169, so that the provisions on consultation (Articles 6 and 7) apply to the extent that these laws apply.¹⁷¹

To have the right to consultation explicitly enshrined in the legislation has for years been requested by Sami communities. In 2007, the Sami Rights Committee (II) recommended that the Government propose a new general law on consultations with regard to measures or interference that may have an effect on the natural basis in traditional Sami areas.¹⁷² As noted, the right to consultations was enshrined in the Sami Act in 2021.¹⁷³

The new statutory provisions in the Sami Act entail that the obligation to consult will cover all cases that may have a direct impact on Sami matters, including language and education, in addition to interference cases. The main rule is that legislation, regulations and other decisions or measures that may affect Sami interests directly must be subject to consultations.¹⁷⁴ The obligation to consult applies primarily to state, municipal and county authorities, but may also apply to state enterprises and private legal entities when exercising authority on behalf of the state.¹⁷⁵

Several provisions of the Minerals Act are also intended to implement Norway’s obligations pursuant to ILO 169 and ICCPR Article 27. Section 2 of the Minerals Act, shall, among other things, safeguard “the foundation of Sami culture, commercial activity and social life”, and pursuant to Section 6 of the Minerals Act, the Act shall be applied in “accordance with the rules of international law relating to indigenous peoples and minorities”.¹⁷⁶ Section 17 of the Minerals Act also contains special provisions on applications relating to exploration in Finnmark, but not corresponding special provisions for other traditional Sami areas outside Finnmark.¹⁷⁷

ILO 169 has been invoked and given weight in several cases before the Supreme Court, but not in cases solely about interference. This report therefore does not address case law concerning ILO 169. In case law on interference cases, it is instead ICCPR Article 27 that has been of decisive importance, see Chapter 4. ILO 169, conversely, has had a significant footprint in the legislation that is central to interference cases.

Fotnoter:

¹The Human Rights Committee has decided on a total of approximately 50 individual complaints concerning ICCPR Article 27.
²UN Convention on Economic, Social and Cultural Rights (CESCR), UN Convention on the Rights of the Child (CRC) and the UN Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) and the UN Convention on the Rights of Persons with Disabilities (CRPD) are also important for indigenous peoples’ rights. The Convention on Biological Diversity (CBD), which is a global agreement on the conservation and sustainable use of biological diversity, is particularly relevant to the precautionary principle, the traditional use of nature and traditional knowledge in natural resource management. Other regional agreements under international law, such as the Council of Europe Framework Convention for the Protection of National Minorities and the European Charter for Regional or Minority Languages (the minority language charter), are also important for the rights of indigenous peoples in Europe. For further information on the framework convention and the minority language charter, see NHRI’s report Norges Nasjonale Minoriteter, (Norway’s National Minorities), 2019. https://www.nhri.no/2019/temarapport-2019-norges-nasjonale-minoriteter/.
³Vienna Convention on the Law of Treaties of 1969, entered into force 27 January 1980, 1155 UNTS 331.
⁴ICJ, Guinea v Democratic Republic of Congo, “Case concerning Ahmadou Sadio Diallo”, 30 November 2010, para. 66. In an article, Hellerslia points out that “In the Diallo case, the ICJ stated that great weight had to be placed on statements in individual complaints cases and General Comments from the Human Rights Committee in understanding the Convention. It must be assumed that it was conscious that the ICJ did not mention ‘concluding observations.”, Thom Arne Hellerslia, “Uttalelser fra FN-komiteene–en strukturell analyse” (“Statements from the UN committees – a structural analysis”), Jussens Venner 53, no. 02 (2018), p. 10.
⁵HR-2016-2591-A para. 57.
⁶The Norwegian translation of the authoritative English text, “I de stater hvor det finnes etniske, religiøse eller språklige minoriteter, skal de som tilhører slike minoriteter ikke nektes retten til, sammen med andre medlemmer av sin gruppe, å utøve sin egen kultur, bekjenne seg til og praktisere sin egen religion, eller bruke sitt eget språk.”
⁷HRC, Lubicon Lake Band v Canada (Communication No. 167/1984), para. 32.1. See also HRC General Comment No. 12: The right to self-determination of peoples (Art. 1), 1984.
⁸HRC General Comment No. 23, para. 3.2: “The enjoyment of the rights to which article 27 relates does not prejudice the sovereignty and territorial integrity of a State party. At the same time, one or other aspect of the rights of individuals protected under that article - for example, to enjoy a particular culture - may consist in a way of life which is closely associated with territory and use of its resources. This may particularly be true of members of indigenous communities constituting a minority.”
⁹Article 1 on “self-determination” for “all peoples” in both ICCPR and ICESCR must be seen against the background of the decolonisation that had taken place after World War II, and which was still an inflamed political theme in the 50s and 60s. In any case, Article 1 on self-determination must be read in the light of the provisions of the UN Charter on the sovereignty and territorial integrity of states.
¹⁰HRC, Diergaardt et al. v Namibia (Communication No. 760/1997), HRC, Apirana Mahuika et al. v New Zealand (Communication No. 547/1993).
¹¹“Furthermore, the provisions of article 1 may be relevant in the interpretation of other rights protected by the Covenant, in particular articles 25, 26 and 27”, HRC, Diergaardt et al. v Namibia, (Communication No. 876/1999), para. 10.3. Also in the Mahuika case, the Committee stated that the provisions of art. 1 could be relevant in interpreting other provisions of the Covenant, in particular Article 27, HRC, Mahuika et al. v New Zealand (Communication No. 547/1993), para. 9.2.
¹²NOU 2007:13A, Chapter 5.
¹³NOU 2007:13 A, point 5.4.3.2.
¹⁴NOU 2007:13 A, point 5.4.3.2.
¹⁵HRC, Tiina Sanila-Aikio v Finland (Communication No. 2668/2015), Klemetti Näkkäläjärvi et al. v Finland
¹⁶HRC, Tiina Sanila-Aikio v Finland (Communication No. 2668/2015), para. 6.11, Klemetti Näkkäläjärvi et al.
¹⁷HRC, Sanila-Aikio v Finland (Communication No. 2668/2015), para. 6.8 cf. and HRC, Klemetti Näkkäläjärvi et al. v Finland (Communication No. 2950/2017), para. 9.8. The Committee also referred to its General Comment 12 on Article 1.
¹⁸Prop. (Law Proposal to Parliament) 86 L (2020–2021), p. 47.
¹⁹There is not necessarily a sharp distinction between positive and negative rights in practice. Even where the state must refrain from interfering with rights (e.g. the ban on arbitrary deprivation of liberty), the state must take positive steps (provide for procedural guarantees of legal security) to ensure the right.
²⁰The Committee emphasises this in its General Comment 23. It states here that although ICCPR Article 27 is formulated in a negative way (shall not be denied), the provision recognises positive rights that the parties to the Covenant are obliged to ensure, including through positive measures. HRC General Comment No. 23, para. 6.1, reads: “Although article 27 is expressed in negative terms, that article, nevertheless, does recognise the existence of a ‘right’ and requires that it shall not be denied. Consequently, a State party is under an obligation to ensure that the existence and the exercise of this right are protected against their denial or violation. Positive measures of protection are, therefore, required not only against the acts of the State party itself, whether through its legislative, judicial or administrative authorities, but also against the acts of other persons within the State party.”
²¹The Committee states i.a. that: “The Committee concludes that article 27 relates to rights whose protection imposes specific obligations on States parties. The protection of these rights is directed to ensure the survival and continued development of the cultural, religious and social identity of the minorities concerned, thus enriching the fabric of society as a whole.”, HRC General Comment No. 23, para. 9.
²²“However, as long as those measures are aimed at correcting conditions which prevent or impair the enjoyment of the rights guaranteed under article 27, they may constitute a legitimate differentiation under the Covenant, provided that they are based on reasonable and objective criteria.”, HRC General Comment No. 23, para. 6.2.
²³HRC General Comment No. 23, para. 7.
²⁴HRC General Comment No. 23.
²⁵HRC General Comment No. 23, para. 3.2.
²⁶HRC General Comment No. 23, para. 7.
²⁷HRC, Kitok v Sweden (Communication No. 197/1985).
²⁸HRC, Kitok v Sweden, paras. 9.6 and 9.8.
²⁹HRC, Kitok v Sweden, para. 9.2.
³⁰HRC, Lubicon Lake Band v Canada (Communication No. 167/1984).
³¹HRC, Lubicon Lake Band v Canada, para. 33. When the Committee nevertheless did not find that there was a violation of ICCPR Article 27, this was because the state had implemented extensive remedial measures.
³²HRC, Ilmari Länsman et al. v Finland (Communication No. 511/1992), para. 9.8.
³³HRC, Jouni E. Länsman et al. v Finland (Communication No. 671/1995).
³⁴Also in this case, the Committee concluded that there was no violation, i.a. on the basis that
³⁵HRC, Sandra Lovelace v Canada, (Communication No. 24/1977), para. 14.
³⁶The Committee states i.a. “Article 27, on the other hand, relates to rights conferred on individuals as such and is included, like the articles relating to other personal rights conferred on individuals, in Part II of the Covenant and is cognizable under the Optional Protocol”, HRC, General Comment No. 23, para. 3.1.
³⁷Manfred Nowak, U.N. Covenant on Civil and Political Rights - CCPR-Commentary, 2nd ed. (Kehl: N.P. Engel Publishers, 2005), p. 655.
³⁸HRC, Lubicon Lake Band v Canada (Communication No. 167/1984).
³⁹In its decision on this complaint, the Committee stated, inter alia on the individual complaints scheme, which is authorised in the First Additional Protocol to the Covenant, HRC, Lubicon Lake Band v Canada, (Communication No. 167/1984), para. 32.1.
⁴⁰The Committee’s practice in the Sami cases Länsman I, II and III, Sanila-Aikio and Näkkeläjärvi v Finland are examples of this.
⁴¹NOU 2007:13 A, point 5.5.3.4.
⁴²See Chapter 4.2.2.
⁴³HRC General Comment No. 23, para. 7.
⁴⁴HRC, Ilmari Länsman et al. v Finland (Communication No. 511/1992), para. 9.6.
⁴⁵HRC, Ilmari Länsman et al. v Finland, para. 9.6.
⁴⁶The Committee stated: “In the present case, the Committee observes that neither the author nor the community to which she belongs was consulted at any time by the State party concerning the construction of the wells”, HRC, Poma Poma v Peru (Communication No. 1457/2006), para. 7.7.
⁴⁷HRC, Apirana Mahuika et al. v New Zealand (Communication No. 547/1993).
⁴⁸HRC, Apirana Mahuika et al. v New Zealand, para. 9.8.
⁴⁹HRC, Apirana Mahuika et al. v New Zealand, para. 9.2: “Furthermore, the provisions of article 1 may be relevant in the interpretation of other rights protected by the Covenant, in particular article 27.”
⁵⁰A similar wording is used in Article 32, 2^nd paragraph, on prior consent for the development and utilisation of natural resources.
⁵¹See nrk.no, about the case of Davvi wind farm: “Vindkraftutbygger tilbyr hver enkelt reineier millionbeløp for beiteområder – igjen” (“Wind power developer offers each individual reindeer owner millions for grazing areas – again”), Lene Marja Myrskog, June Grønnvoll Bjørnback and Thor Werner Thrane. Retrieved 15 November 2021 from https://www.nrk.no/sapmi/grenselandet-as-tilbyr-millioner-til-hver-enkelt-driftsenhetseier-i-distrikt-13-1.15727952 See on the same case, “Fálle 9 miljovnna ruvnno njuolga kontui, Ávvir”, Roy Arthur Olsen. Retrieved 15 November 2021 from https://www.avvir.no/fallet-miljovnnaid-boazodolliide-vai-besset-cegget-bieggamilluid/#plus.
⁵²HR-2017-2428-A (Sara), para. 74: “In the Lovelace case and the Kitok case, the issue of consultations was not touched upon, which indicates that one cannot claim that there is an unconditional requirement that the minority’s participation must have influenced the decision.”
⁵³Cf. HR-2021-1975-S (Fosen), para. 121. With effect from 1 July 2021, the right to consultation is further regulated in the Sami Act, Chapter 4.
⁵⁴Cf. Prop. (Law Proposal to Parliament) 86 L (2020-2021), p. 62.
⁵⁵ILO 169, Article 16: “Where the relocation of these peoples is considered necessary as an exceptional measure, such relocation shall take place only with their free and informed consent. Where their consent cannot be obtained, such relocation shall take place only following appropriate procedures established by national laws and regulations, including public inquiries where appropriate, which provide the opportunity for effective representation of the peoples concerned.”
⁵⁶It can be noted, however, that the MPE in the Fosen case stated: “The Ministry should nevertheless note that replacement land may be relevant, but then as a remedial measure and not a requirement under international law”, (our emphasis), MPE, “Vindkraft og kraftledninger på Fosen – klagesak” (“Wind power and power lines at Fosen - complaint case”), 2013, pp. 89–90, https://webfileservice.nve.no/API/PublishedFiles/Download/200700502/761649.
⁵⁷But see the Supreme Court decision in Nesseby, where it is stated about UNDRIP that “It is not legally binding, and the individual provisions in the declaration do not seem to go beyond what follows from binding conventions, primarily ILO Convention no. 169.”, HR-2018-456-P (Nesseby), para. 97.
⁵⁸The Committee’s views were adopted on 27 March 2009, while the Indigenous Declaration was adopted on 13 September 2007. The Declaration’s use of the term free, prior and informed consent was therefore known to the Committee.
⁵⁹HRC, Poma Poma v Peru (Communication No. 1457/2006), para. 7.5.
⁶⁰HRC, Study of the Expert Mechanism on the Rights of Indigenous Peoples: Free, prior and informed consent: a human rights-based approach, A/HRC/39/62, 2018. See also on the CERD’s handling of the case Vapsten Sameby v Sweden, (CERD/C/102/D/54/2013), discussed in Chapter 3.5.1.
⁶¹Comments submitted by the ILO to the Human Rights Council Expert Mechanism on the Rights of Indigenous Peoples Eleventh Session, 9–13 July 2018 Item 4: Study on free, prior and informed consent, p. 4: “Such a reading does not appear to be borne out by the wording and drafting history of Articles 19 and 32, a view that is shared by academic writers and experts, including experts cited by the draft study.” See also ILO Manual on the Convention: ILO Convention on Indigenous and Tribal Peoples 189 (169) A Manual, p. 22.
⁶²ILO Convention on Indigenous and Tribal Peoples 189 (169) A Manual, pp. 5–6.
⁶³HR-2017-2428-A (Sara), para. 74.
⁶⁴Due to the state’s remedial measures, however, the Committee did not find any violation in this case, HRC, Lubicon Lake Band v Canada (Communication No. 167/1984), para. 33.
⁶⁵107 HRC, Jouni Länsman et al. v Finland (Communication No. 1023/2001), para. 10.2. See also HRC, Lubicon Lake Band v Canada (Communication No. 167/1984), para. 33 and Länsman et al. v Finland II, para. 10.7.
⁶⁶HRC, Ilmari Länsman et al. v Finland (Communication No. 511/1992), para. 9.7.
⁶⁷HRC, Poma Poma v Peru (Communication No. 1457/2006), para. 7.7.
⁶⁸The Sami Rights Committee (II) stated i.a. the following about how extensive an interference must be in order for it to cause a violation of the right to cultivate one’s culture: “A denial in Article 27’s meaning will consequently include not only total denials, but also violations of the right to cultural practice. In addition to the measures that will actually constitute a total denial of the right to cultural practice, measures that significantly restrict the complainant’s or complainants’ opportunities for cultural practice, but without involving a total denial, will probably also be in conflict with the provision. Such an interpretation is also in accordance with the purpose of the provision, in that cultural protection becomes more effective when the expression ‘denied’ in Article 27 is given a wider scope than just the total refusals.”, NOU 2007:13 A, p. 203.
⁶⁹HRC, General Comment No. 23, para. 6.1.
⁷⁰HRC, Ilmari Länsman et al. v Finland (Communication No. 511/1992), para. 9.6.
⁷¹HRC, Ilmari Länsman et al. v Finland, para. 9.4.
⁷²HRC, Ilmari Länsman et al. v Finland (Communication No. 511/1992), para. 9.6.
⁷³HRC, Ilmari Länsman et al. v Finland, para. 9.8.
⁷⁴HRC, Ilmari Länsman et al. v Finland, para. 9.7.
⁷⁵HRC, Jouni Länsman et al. v Finland (Communication No. 671/1995), para. 10.6.
⁷⁶HRC, Jouni Länsman et al. v Finland (Communication No. 1023/2001).
⁷⁷HRC, Jouni Länsman et al. v Finland, (Communication No.1023 / 2001), para. 10.3.
⁷⁸HRC, Howard v Canada (Communication No. 879/1999).
⁷⁹HRC, Howard v Canada, para. 12.7. That Howard still had the opportunity to fish appears to be an important factor, see paras. 12.8–12.11.
⁸⁰HRC, Poma Poma v Peru (Communication No. 1457/2006).
⁸¹HRC, Poma Poma v Peru, para. 7.5.
⁸²HRC, Poma Poma v Peru, para. 7.7.
⁸³HRC, Poma Poma v Peru, para. 7.4.
⁸⁴HRC, Poma Poma v Peru, para. 7.5, cf. 8, where the Committee concluded that the case “discloses a violation of Article 27 and Article 2, paragraph 3 (a), read in conjunction with article 27”.
⁸⁵The Committee stated: “[...] The Committee also observes that the author has been unable to continue bene ting from her traditional economic activity owing to the drying out of the land and loss of her livestock. The Committee therefore considers that the State’s action has substantially compromised the way of life and culture of the author, as a member of her community. The Committee concludes that the activities carried out by the State party violate the right of the author to enjoy her own culture together with the other members of her group, in accordance with Article 27 of the Covenant.”, HRC, Poma Poma v Peru, para. 7.7.
⁸⁶ICCPR Articles 18, 19, 21 and 22.
⁸⁷See e.g. Länsman I, HRC, Ilmari Länsman et al. v Finland (Communication No. 511/1992), para. 9.4: “A state may understandably wish to encourage development or allow economic activity by enterprises. The scope of its freedom to do so is not to be assessed by a reference to a margin of appreciation, but by reference to the obligations it has undertaken in article 27.”
⁸⁸Article 4 allows states to derogate from (deviate from) some human rights in war or crisis situations, under certain conditions.
⁸⁹HR-2021-1975-S (Fosen), para. 125, cf. para. 124.
⁹⁰HRC, Poma Poma v Peru, para. 7.6.
⁹¹The Convention’s Article 1 defines racial discrimination as follows: “[] any distinction, exclusion, restriction or preference based on race, colour, descent or national or ethnic origin, which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise on an equal footing of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life”.
⁹²ICERD Article 1. The UN International Convention on the Elimination of All Forms of Racial Discrimination is incorporated into the Equality and Anti-Discrimination Act, see Section 5.
⁹³HR-2018-872-A (Femund sitje), para. 44. The judgment, however, does not contain further assessments of provisions of international law.
⁹⁴ICERD Article 1 (4).
⁹⁵CERD General Recommendation No. 32, (CERD/C/GC/32), 2009. The meaning and scope of special measures in the International Convention on the Elimination of All Forms of Racial Discrimination, paras. 14 and 15. The Committee stated in para. 8 as a central point of departure for understanding the concept of discrimination is that: “To treat in an equal manner persons or groups whose situations are objectively different will constitute discrimination in effect, as will the unequal treatment of persons whose situations are objectively the same”.
⁹⁶CERD General Recommendation No. 32, para. 16. The Committee also stated in para. 17 that measures should be designed on the basis of statistics on the groups’ living conditions. See more about Sami statistics in “En menneskerettslig tilnærming til samisk statistikk i Norge” (“A human rights approach to Sami statistics in Norway” (Norwegian National Institution for Human Rights, Oslo, 2020).
⁹⁷This basis was invoked by the reindeer owners in the Fosen case, but the Supreme Court found that this allegation was not relevant to the question of the validity of the license, HR-2021-1975 (Fosen), para. 154. The Fosen case has otherwise been appealed to CERD with a claim for violation of Article 5 (d) (v), but not decided as of December 2021.
⁹⁸ICERD Article 6: “States Parties shall assure to everyone within their jurisdiction effective protection and remedies, through the competent national tribunals and other State institutions, against any acts of racial discrimination which violate his human rights and fundamental freedoms contrary to this Convention, as well as the right to seek from such tribunals just and adequate reparation or satisfaction for any damage suffered as a result of such discrimination.”
⁹⁹The appeal was filed in 2013 in Vapsten Sameby v Sweden, (CERD/C/102/D/54/2013) and was decided on 18 November 2020. Opinion adopted by the Committee under Article 14 of the Convention, concerning communication No. 54/2013, CERD/C/102/D/54/2013.
¹⁰⁰See the judgment of the Supreme Administrative Court, 29 October 2014, Case no. 7425–7427-13, see https://www.domstol.se/globalassets/ler/domstol/hogstaforvaltningsdomstolen/avgoranden-2008-2018/2014/mal-nr-7425-7427-13.pdf.
¹⁰¹See more about FPIC in Chapter 3.4.4.
¹⁰²The state pointed out that the right to reindeer husbandry under Swedish law is a right of use, and not a right of ownership, and that the concept of free, prior and informed consent as expressed in UNDRIP does not give a collective right to veto (does not entail a collective right to veto). The state also pointed out that UNDRIP is not legally binding.
¹⁰³Vapsten Sameby v Sweden (CERD/C/102/D/54/2013), paras. 6.5–6.10.
¹⁰⁴Vapsten Sameby v Sweden, para. 6.20.
¹⁰⁵Vapsten Sameby v Sweden, paras. 6.11 and 6.18.
¹⁰⁶Vapsten Sameby v Sweden, para. 6.29 and para. 7. Sweden does not have as of December 2021 a system for consultations in line with ILO 169, and in the Swedish court review, ICCPR Article 27 was not further assessed. The Swedish Minerals Act also does not contain provisions on consultations, but the authorities recommend voluntary consultations in connection with so-called processing licenses. This differs a great deal from similar processes in Norway. For further information about the processes of mining establishment in Sweden, please contact SGU, the Swedish Geological Survey, which is the authority for questions concerning rocks, soil and groundwater in Sweden. See the Swedish Geological Survey, “Vägledning för prövning av gruvverksamhet”
¹⁰⁷Vienna Convention on the Law of Treaties Article 31 states: “A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.”
¹⁰⁸The right to property is protected in the ECHR’s Additional Protocol 1. The ECtHR assumes that the right to property also includes rights of use. The court has dealt with a number of cases concerning other forms of connection to property than the classic property right itself, e.g. cases concerning various forms of tenancy rights or land lease, see e.g. James et al. v Great Britain (8793/79), 1986 and Lindheim et al. v Norway (13221/08 and 2139/10).
¹⁰⁹As reasoning for this conclusion, CERD refers to the EMRIP (Expert Mechanism on the Rights of Indigenous Peoples) study from 2018, para. 10, which in turn refers back to CERD’s own General Recommendation No. 23 (1997). This is a recommendation to states to ensure the informed consent of indigenous peoples in matters concerning their rights, and not an interpretation of provisions of the Convention itself. See Vapsten Sameby v Sweden (CERD/C/102/D/54/2013), para. 6.16.
¹¹⁰HRC, Poma Poma v Peru, para. 7.5.
¹¹¹Vapsten Sameby v Sweden, para. 6.11.
¹¹²ILO 169 Article 16 and UNDRIP Article 10, see Chapter 3.4.4.
¹¹³Vapsten Sameby v Sweden, see e.g. para. 6.7, which i.a. refers to “[...] their right to offer free, prior and
¹¹⁴In its report to the ILO Labour Conference in 2011, the Committee of Experts on the Application of Conventions and Recommendations (CEACR) states that consultations and participation constitute “the cornerstone” of ILO 169. International Labour Office, “Report of the Committee of Experts on the Application of Conventions and Recommendations (Articles 19, 22 and 35 of the Constitution)” (Geneva: International Labour Office, 2011), p. 786.
¹¹⁵See the Sami Act Chapter 4. Prop. (Law Proposal to Parliament) 86 L (2020–2021).
¹¹⁶In the Mahuika case, the Committee emphasised that i.a. ICCPR Article 27 had to be interpreted in light of ICCPR Article 1 on self-determination, HRC, Apirana Mahuika et al. v New Zealand (Communication No. 547/1993), para. 9.2.
¹¹⁷NOU 2007:13, para. 5.6.3.2.
¹¹⁸ILO 169 Article 6 (2). See also ILO Manual on the convention, ILO Convention on Indigenous and Tribal Peoples 189 (169) A Manual, p. 22, and Handbook for Tripartite Constituents. Understanding the Indigenous and Tribal Peoples Convention, 2013. These publications are not direct sources of law, but show how ILO itself interprets the provisions of the convention.
¹¹⁹See Chapter 3.4.4. where also a memorandum from ILO is referred to, see ILO, “Comments submitted by the ILO”, 2018, https://www. ilo.org/wcmsp5/groups/public/---ed_protect/---protrav/---ilo_aids/documents/genericdocument/ wcms_634380.pdf.
¹²⁰The obligation to consult according to the wording in Article 6 applies “in applying the provisions of this Convention”. In Prop. (Law Proposal to Parliament) 86 L (2020-2021) p. 41, it is “assumed that the obligation to consult also arises when the state considers measures that are not related to the specific application of the provisions of the Convention, but which nevertheless directly affect the indigenous peoples concerned.” This appears to be in line with ICCPR Article 27, seen in the light of the right to self-determination.
¹²¹Part of the core of the land rights chapter in ILO 169 is Article 14, which provides that the land rights of indigenous peoples shall be identified and recognised. The main purpose of this chapter, however, is to discuss the protection against interference that follows from ILO 169.
¹²²NOU 2007:13 A, chapters 5.6 and 5.9.
¹²³In requests to Norway from CEACR of 2014, the Committee has i.a. asked the Government to continue to keep it informed on measures to secure Sami rights to natural resources in their lands. The Committee also requested an assessment of the effects of changes in reindeer husbandry management. Furthermore, the Committee requested information on measures to ensure Sami fishing rights, as well as Sami participation in fishing management, ILO, “Direct Request (CEACR) - adopted 2014, published 104th ILC session (2015)”, 2015.
¹²⁴NOU 2007 A:13, p. 239.
¹²⁵ILO 169 is also partially incorporated in the Tana Act Section 3.
¹²⁶Inst. O. no. 80 (2004–2005) (Finnmark Act), p. 33.
¹²⁷Prop. (Law Proposal to Parliament) 86 L (2020–2021).
¹²⁸Procedures for consultations between state authorities and the Sami Parliament were based on an agreement between the Government and the Sami Parliament from 2005 and determined by Royal Decree on 1 July 2005. The procedures only applied to authorities directly under the Government, not municipalities and county municipalities, and only directly to consultations with the Sami Parliament.
¹²⁹Sections 13 and 17 of the Minerals Act. Partial incorporation of ILO 169 is mentioned in the Finnmark Act and the Tana Act together with rules on so-called “sector monism”. Section 3 of both Acts states that: “The Act shall apply with the limitations that follow from ILO Convention No. 169 concerning Indigenous and Tribal Peoples in Independent Countries”. Provisions that clarify the presumption principle, and which may have a wider scope than this principle, are found in the Reindeer Husbandry Act Section 3 and the Minerals Act Section 6, which states in both Acts that “The Act shall be applied in accordance with the rules of international law relating to indigenous peoples and minorities”. Section 8 of the Nature Diversity Act essentially corresponds to CBD Article 8 on traditional knowledge. Section 9 of the Nature Diversity Act refers to the precautionary principle in environmental law.
¹³⁰NOU 2007:13 B, cf. p. 54 onwards, p. 824 onwards, Chapter 18 p. 917 onwards and Chapter 24.5, p. 1234 onwards.
¹³¹Prop. (Law Proposal to Parliament) 86 L (2020-2021), p. 6.
¹³²With the exception of matters concerning the state budget and matters of a general nature which must be assumed to affect the whole society in the same way. The right to be consulted applies to the Sami Parliament and other representatives of those affected Sami interests.
¹³³Prop. (Law Proposal to Parliament) 86 L (2020-2021), respectively Chapters 6, 7 and 8.
¹³⁴The Energy Act, which regulates wind power, does not have similar provisions.
¹³⁵How the Government processes within the framework of the Minerals Act can safeguard the international law obligations for the whole country is per 1 December 2021 under consideration by the Minerals Act Committee, see Chapter 7.2.3.