The Duty to Consult the Sámi in Norwegian Law

• Author: Øyvind Ravna
• Position: Professor and Professor II, respectively
• Pages: 370-392

© 2020 Øyvind Ravna. This is an Open Access article distributed under the terms of the Creative Commons Attribu-

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Citation: Øyvind Ravna. “The Duty to Consult the Sámi in Norwegian Law” Arctic Review on Law and Politics,

Vol. 11, 2020, pp. 233–255. http://dx.doi.org/10.23865/arctic.v11.2582

Arctic Review on Law and Politics

Vol. 11, 2020, pp. 233–255

233

*Correspondence to: Øyvind Ravna, email: oyvind.ravna@uit.no

Peer-reviewed article

The Duty to Consult the Sámi in

Norwegian Law

Øyvind Ravna

Faculty of Law, UiT The Arctic University of Norway, Tromsø, and Sámi University of

Applied Sciences, Kautokeino, Norway

Abstract

This article deals with the duty to consult indigenous peoples and the obligation to involve these

peoples in decision-making processes in matters that concern them. After a general review of inter-

national legislation and obligations, particularly the ILO Convention no. 169 on Indigenous and

Tribal Peoples, the article focuses on how these obligations are implemented towards the indige-

nous Sámi in Norwegian law. Here, the consultation agreement from 2005 and the Sámi Rights

Committee’s 2007 draft are still central. The review includes an analysis of the extent to which

these duties meet international law requirements, and a deliberation on the concept of free, prior

and informed consent.

Keywords: consultation, participation, indigenous people, Sámi, ILO 169, UNDRIP,

free prior and informed consent

Responsible Editor: Nigel Bankes, Faculty of Law, University of Calgary, Canada

Received: June 2020; Accepted: October 2020; Published: December 2020

1 Introduction*

1.1 Background and aims of the article

The international indigenous law debate has its roots back in the early colonial era.1

Modern indigenous law, which concerns the rightful place of indigenous peoples in

a nation state’s constitutional system, has, however, only existed for approximately

a century. Indigenous peoples’ access to and participation in decision-making pro-

cesses that concern them, and their right to be consulted are at the center of that law

and also a central to indigenous peoples’ internal rights to self-determination.

Øyvind Ravna

234

The debate of indigenous peoples in a nation state’s constitutional system can

be traced back a century to the League of Nations epoch following World War I.

More precisely, the debate and developments that arose in the early 1920s, when

Chief Deskaheh (Levi General), spokesman for the Haudenosaunee (Iroquois) Con-

federacy of North America, or The Six Nations, brought Confederacy complaints

to the League of Nations.2 He worked – without success – to obtain international

recognition of the Six Nations as a sovereign Indian nation ruled by a hereditary

council of chiefs.

Subsequent developments in international indigenous law must be seen in the

context of the work of the International Labour Organization (ILO), founded in 1919

through the Treaty of Versailles and continued under the 1944 Philadelphia Declara-

tion.3 As a United Nations (UN) institution tasked with the eld of labor issues,4 the

ILO developed the rst indigenous peoples’ convention in 1957, and in 1989 ILO

Convention no. 169 on indigenous peoples and tribal peoples in independent countries (ILO

169). The United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP),

adopted in 2007, is a successor to these developments.

International indigenous law has traditionally focused on protecting against

encroachments on indigenous peoples’ right to enjoy their culture, including the

right to land, waters and natural resources. This right currently comprises the core

of the provision on protection of minorities’ culture in Article 27 of the Interna-

tional Covenant on Civil and Political Rights (ICCPR). In recent times, international

indigenous law has also emphasized the right of indigenous peoples to participate

in decision-making processes, notably in Articles 6, 7 and 15 of ILO 169, and in

the practices of ILO’s supervisory bodies.5 These bodies, in different contexts, have

stated that the principle of consultation and participation forms the cornerstone of

the Convention and is the basis for its individual provisions.6

This article addresses the implementation of consultation and participation obli-

gations in Norwegian law, including the extent to which these domestic laws meet

international law requirements. The text begins with a brief review of Norway’s afl-

iation to ILO 169 and UNDRIP, before examining how the duty to consult is rooted

in international law. The article then analyzes how these consultation and participa-

tion obligations have been implemented in Norwegian law and then reviews recent

proposals to adopt a new law on consultation. The ar ticle also deals with the concept

of free, prior and informed consent.

1.2 Briey on the history of ILO 169 in Norway

Since the 1930s, ILO has been involved in issues related to indigenous and tribal

peoples, originally to protect them from being exploited in working conditions,7 and

gradually with a considerably broader approach. In 1957, as mentioned, the rst

indigenous convention was adopted.8 The main objective of this Convention was

to prevent discrimination of indigenous peoples and promote their integration into