Implementing the State Duty to Consult in Land and Resource Decisions: Perspectives from Sami Communities and Swedish State Officials

• Author: Rasmus Kløcker Larsen, Kaisa Raitio
• Position: Department of Urban and Rural Development, Unit for Environmental Communication
• Pages: 197-216

Arctic Review on Law and Politics

Vol. 10, 2019, pp. 4–23

4

Peer-reviewed article

© 2019 Rasmus Kløcker Larsen & Kaisa Raitio. This is an Open Access article distributed under the terms of the Cre-

ative Commons Attribution-NonCommercial 4.0 International License (https://creativecommons.org/licenses/by-nc/4.0/),

allowing third parties to share their work (copy, distribute, transmit) and to adapt it, under the condition that the authors

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Citation: Rasmus Kløcker Larsen & Kaisa Raitio. “Implementing the state duty to consult in land and resource decisions:

Perspectives from Sami communities and Swedish state officials” Arctic Review on Law and Politics, Vol. 10, 2019, pp. 4–23.

http://dx.doi.org/10.23865/arctic.v10.1323

*Correspondence to: Rasmus Kløcker Larsen, email: rasmus.klocker.larsen@sei.org

Implementing the State Duty to Consult

in Land and Resource Decisions:

Perspectives from Sami Communities

and Swedish State Ofcials

Rasmus Kløcker Larsen*

Stockholm Environment Institute

Kaisa Raitio

Swedish University of Agricultural Sciences

Abstract

The duty of states to consult indigenous communities is a well-established legal principle, but its

implications for practice remain uncertain. Sweden is nding itself at a particularly critical juncture as

it prepares to legislate a duty to consult the Sami people in line with its international obligations. This

paper explores the ability of Swedish state actors to implement the duty to consult, based on lessons

from an already existing duty set out in Swedish minority law, namely to ensure the effective participa-

tion of minorities in land and resource decisions. Presenting novel empirical material on the views of

Sami communities and state ofcials in ministries and agencies, we demonstrate the existence of con-

siderable implementation gaps linked to practice, sectoral legislation, and political discourse. We argue

that if state duties are to promote the intended intercultural reconciliation, then new measures are

needed to ensure enforcement, e.g. via mechanisms of appeal and rules of nullication. In addition,

sectoral resource regulations should be amended to refer to the duties set out in minority law and/or

a potential new bill on consultation duty in a consistent manner. In the near-term, the state should

ensure that Sami communities are adequately resourced to engage in consultation and should invest

in state authorities’ own ability to implement, i.e. through competence development, stafng, intersec-

toral coordination, and independent evaluation. Much could also be gained if state agencies and Sami

communities worked together to develop detailed consultation routines for relevant resource sectors.

Keywords: consultation; participation; natural resources; indigenous rights; Sami rights;

Swedish law; minority law

Responsible Editor: Øyvind Ravna, UiT The Arctic University of Norway, Tromsø,

Norway

Received: July 2018; Accepted: December 2018; Published: January 2019

Implementing the State Duty to Consult in Land and Resource Decisions

5

1. Introduction

One of the cornerstones of international indigenous rights law established in recent

decades is the principle of the duty to consult, i.e. the duty of states to consult indige-

nous communities before planning resource developments on traditional lands. Sev-

eral international conventions and declarations outline what is variously expressed

as procedural or participatory rights, including: the United Nations Declaration on

the Rights of Indigenous Peoples (UNDRIP), the International Labor Organiza-

tion’s Convention 169 on Indigenous and Tribal Peoples in Independent Countries,

and the UN Convention on the Elimination of All Forms of Racial Discrimination.1

Such procedural or participatory rights are important, rst and foremost, since they

function as a means of ensuring indigenous inuence in decision making and giving

effect to their substantive rights to land, resources and culture.2 While UNDRIP is

not binding and ILO 169 remains unratied by many states, they inuence the inter-

pretation of older, binding conventions such as the International Covenant on Civil

and Political Rights, which recognize the right of indigenous peoples to practice their

culture, and highlight the duty to consult as a central means to protect this right.

A central question in the enactment of the duty to consult regards the degree

of inuence affected indigenous communities should have on state decisions, i.e.

the relationship between “consultation” and “consent”. To be sure, debate among

legal scholars continues on this matter.3 One common interpretation is that the

state must genuinely seek but not necessarily reach agreement with indigenous com-

munities prior to resource developments.4 However, in light of the conclusions of

human rights monitoring bodies, indigenous peoples have a right to give or with-

hold consent, with a qualied right to veto in cases where decisions on large–scale

projects may signicantly jeopardize their livelihoods.5 How this duty should be

implemented concretely in decision-making linked to land and resources will vary

between jurisdictions, since practice is not, and cannot be, specied in international

law. Past research has aptly shown how, globally, the concrete implication of the duty

of states to consult indigenous communities has been interpreted and applied in

highly different ways by different countries. In consequence, some consultations are

heralded as successes of proactive relationship-building while other consultations are

seen as dominated by business interests.6 At worst, governments and developers may

employ token consultations only to curtail indigenous protests, whereby communi-

ties are further disempowered.7

To enhance clarity on the general meaning of the duty to consult, one interpreta-

tion advanced by legal scholars is based on the so-called sliding scale theory in rela-

tion to indigenous self-determination, namely that “the more important the issue to

the indigenous people’s culture, society and way of life, the greater inuence the peo-

ple should be allowed to exercise over the decision-making process”.8 Such a view

underpins efforts to clarify consultation procedures. For instance, in parts of Canada,

such as British Columbia, the provincial government approaches the determination