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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 produced and is producing several articles that study the regulatory framework. Two of the analyze the permitting process for mineral extractions in Norway. The studies contain a comparison with Canadian law, with the aim to bring inspiration on how a balanced legal framework should be designed for Norway as well as other Scandinavian countries. While Sweden is a leading mining and mineral nation within the European Union, Norway and Finland have in their Mining Policies emphasized the goal to promote growth in mining and minerals industry. Canada has a profound knowledge regarding both mining and Indigenous rights and the development in Canada is therefore vital for this project. However, the Canadian legal system is complex given the federal structure. Therefore, focus is placed on analyzing the mining related laws in British Columbia (BC), which also has Indigenous land-rights based on protracted uses (not treaties) similar with the Scandinavian countries. In cooperation with Canadian researchers, this project has identified key differences concerning the regulatory framework and the participation in decisions that affect Indigenous communities. The articles will point to these differences from certain aspects and their larger consequences; a main question is in what way these experiences and regulatory design may include lessons for Sweden and Norway. Different studies in this project relate to how Sámi rights to land areas and resources are understood within the Scandinavian legal systems. One of the studies describes how the Scandinavian domestic jurisdictions (in line with most, if not all liberal democracies) have more recently undergone a transformation through which the mandate to create law has gradually significantly shifted 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 surveys 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 study then questions whether, to the extent this assumption is correct, rational arguments support such a division. The study finds that if the posed question is answered in the negative, one may (again from a purely legal perspective) expect a development resulting in Sami land rights being considered less as questions that fall within the political sphere. Rather, these should then, in line with property rights in general, to a significantly greater degree than today be identified and provided with their scope and content by national and international judicial institutions. Another study on this field shows 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. Regularly, the states seek, and commonly achieve, the Sami parliaments? acceptance for such re-interpretations of rights. Recent processes that can be said to exemplify this trend to varying degrees include the Finnmark Act in Norway, the consultation laws/processes in Norway and Sweden, and the Nordic Sami Convention involving Norway, Sweden, and Finland. While this development could perhaps be viewed as in line with the spirit of Sami self-determination, there are also, it is argued, from a Sami rights perspective considerable risks associated with the described approach. The Nordic state?s position is certainly that the right amounts to nothing more than a right to consultation. By comparison, indigenous communities? property rights to lands and resources are relatively concrete and bestow Sami land and resources with a relatively robust protection. In the part about Sámi customs, the project has studied legal subjects in reindeer husbandry according to Norwegian and Swedish laws. It has also established cooperation with legal scholars in Canada, specialized in Indigenous law. Based on the cooperation the project has produced two studies on Sami law. The project is also investigating which Sami customs and legal opinions exist in reindeer husbandry.

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.

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P-SAMISK-Program for samisk forskning