Back to search

P-SAMISK-Program for samisk forskning

Sami traditional livelihoods, competing land uses, competing legal sources (SaCC)

Alternative title: Tradisjonelle samiske næringer , konkurrerende arealbruk , rettskilder i konflikt

Awarded: NOK 4.0 mill.

The project has had two aims where the first of them has been to study which provisions and norms that regulate the relationship between traditional Sami livelihoods (reindeer herding) and competing industrial activities, i.e. mining and windmills. The second aim has been to study the content and scope of relevant Sami norms and legal customs, with a particular focus on such that have been developed within the context of Sami reindeer herding. In addition, the project has aimed to produce at least 9 publications. The project work has resulted in studies related to international law, comparative and national laws and Sámi law. The studies related to International law show that the Scandinavian legal systems have undergone a transformation through which the mandate to create law has gradually shifted significantly from democratically elected assemblies to national and international judicial institutions. This process has resulted in rights, and in particular human rights, increasingly gaining traction in the domestic jurisdictions. The study further concludes, however, that one of very few areas of law that to a large extent appears unaffected by the described recent developments is the area relating to Sámi land and resource rights. This is the case irrespective of that from a purely legal perspective, one could expect the opposite to be true; that domestic law on Sami affairs should be a likely candidate to converge with rights-based law. The study examines if one reason why the described development has largely by-passed Sami law could be that the Sami land rights are considered sui generis, as opposed to forming part of property rights in general. The studies also show that there is a clear ambition among the Nordic states with Sami population to treat Sami land and resource rights as peoples´ rather than community rights. This in turn entails that such rights, at least for practical purposes, are viewed as political as distinct from property rights. By comparison, Indigenous communities´ property rights to lands and resources are relatively concrete and bestow Sami land and resources with a relatively robust protection. One of the publications related to national laws, analyses how the Norwegian legislation on mineral extraction relates to Sami interests and reindeer herding rights. How legisaltion is applied is exemplified through a case study, the Nussir mine project. The results of the comparative studies within the Scandinavian legal systems show e.g. that the Minerals Acts, first and foremost protect Sámi interests and not Sámi rights per se. Two other publications (collaboration with scholars in BC) address the legal situation in BC, Canada, as by many believed to be a front-runner state in terms of Indigenous rights. One of them analyses the mining laws in BC and how Indigenous communities can engage in and influence these decisions. The article also asks what the BC regime could offer to Norway and Sweden. In short, BC has, comparatively, a much broader focus on procedural rights. In addition, legislation opens for Indigenous influence and engagement in the decision-making relating to mining development. The second article, addressing two conflict mining cases in BC and Sweden (viewed through the lens of historical institutionalism), points to the important role formal institutions play in the decision-making processes related to mine developments. Two articles (in English and in Swedish) analyse the important Girjas case from the Supreme Court of Sweden, released January 2020. It clarified the exclusive Sami hunting and fishing rights, and how Sami land uses over time immemorial should be assessed according to both historical/archeological evidence and national property law principles. Interestingly, the Court held, e.g. that Article 8 of the ILO Convention 169, relating to Indigenous customs, was applicable to Swedish law despite of the fact that Sweden has not signed or ratified this Convention. One of the publications related to Sámi law studies which the legal subjects in reindeer herding are according to Norwegian and Swedish laws. The study, for instance, shows that the siida, which is a traditional Sámi entity, is a subject according to Norwegian law but not Swedish law. The two other publications address what Sami law is and which relevance it has or can have in relation to mineral extraction projects. The studies are inspired by the development in Canada where Indigenous legal traditions and laws are getting more and more attention and recognition by the Canadian state and their legal system.

The research project has resulted in scientific publications, in national, Nordic and international journals and anthologies. The research has been presented at different international conferences, workshops aso during the whole period, such as an IAIA-conference, different NORSIL workshops and PhD seminars. The results have also been disseminated on the closing webinar where ministries, public authorities, media, and representatives of the mining industry as well as reindeer herders attended. The presentations given at the webinar by the three project members will be available online.

The research project will identify what regulatory framework instructs the relationship between Sami (and other indigenous) traditional livelihoods such as reindeer herding and industrial activities, as well as, insofar research shows that the current normative order is not conducive to promoting respect for the Sami culture and society and sustainable development, or to industrial activities that can be carried out in co-existence with traditional livelihoods, propose how the present regulatory framework should be amended to meet such ends. The research project will do so through a research approach that combines a 'conventional' legal method (rättsdogmatisk metode), both when it comes to identifying domestic and international law, with comparative studies as well as with what can be best described as a legal social method (rättssociologisk metode, see further project description) that serves the purpose of identifying Sami customs and customary norms. The results of the research project will be presented in around ten peer-reviewed articles in the most prominent legal reviews, and at a conference (and a conference report) that brings together academics, Sami reindeer herders, representatives of industry, politicians and officials. The project team might also identify additional channels for dissemination as appropriate depending of the outcome of the research, in particular as far as the de lege ferenda conclusions are concerned.

Publications from Cristin

No publications found

No publications found

No publications found

Funding scheme:

P-SAMISK-Program for samisk forskning