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ACT OF 17 JUNE 2005 NO 85 RELATING TO LEGAL RELATIONS AND MANAGEMENT OF LAND
AND NATURAL RESOURCES IN THE COUNTY OF FINNMARK
The purpose of the Act is to facilitate the management of land and natural resources in the county of Finnmark in a balanced and ecologically sustainable manner for the benefit of the residents of the county and particularly as a basis for Sami culture, reindeer husbandry, use of non-cultivated areas, commercial activity and social life.
The Act shall apply to real property and watercourses with natural resources in the county of Finnmark. On the shoreline, the Act shall apply as far out to sea as private right of ownership extends.
The Act shall apply with the limitations that follow from ILO Convention No. 169 concerning Indigenous and Tribal Peoples in Independent Countries. The Act shall be applied in compliance with the provisions of international law concerning indigenous peoples and minorities and with the provisions of agreements with foreign states concerning fishing in transboundary watercourses.
The Sami Parliament may issue guidelines for assessing the effect of changes in the use of uncultivated land on Sami culture, reindeer husbandry, use of non-cultivated areas, commercial activity and social life. The guidelines shall be approved by the Ministry. The Ministry shall examine whether the guidelines lie within the framework laid down in the first sentence and whether they have been drawn up in an appropriate manner.
In matters concerning changes in the use of uncultivated land, state, county and municipal authorities shall assess the significance such changes will have for Sami culture, reindeer husbandry, use of non-cultivated areas, commercial activity and social life. The guidelines of the Sami Parliament shall be followed in the assessment of Sami interests pursuant to the first sentence.
Through prolonged use of land and water areas, the Sami have collectively and individually acquired rights to land in Finnmark.
This Act does not interfere with collective and individual rights acquired by Sami and other people through prescription or immemorial usage. This also applies to the rights held by reindeer herders on such a basis or pursuant to the Reindeer Herding Act.
In order to establish the scope and content of the rights held by Sami and other people on the basis of prescription or immemorial usage or on some other basis, a commission shall be established to investigate rights to land and water in Finnmark and a special court to settle disputes concerning such rights, cf. chapter 5.
Finnmarkseiendommen (Finnmárkkuopmodat) (‘the Finnmark Estate’) is an independent legal entity with its seat in Finnmark which shall administer the land and natural resources, etc that it owns in compliance with the purpose and other provisions of this Act.
Finnmarkseiendommen shall be governed by a board consisting of six persons.
Finnmark County Council and the Sami Parliament shall each elect three members, each with a personal deputy. The members and deputies shall be resident in Finnmark. Among the members elected by the Sami Parliament at least one board member and that person’s deputy shall be representatives for reindeer husbandry. Both as members and as deputies, both bodies shall elect both women and men. The body shall elect members and deputies collectively. Employees of Finnmarkseiendommen, Finnmarkseiendommen’s auditor and members and deputies of the Control Committee may not be elected as board members or deputies.
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Elections of board members and deputies shall be held as proportionally representative elections as mentioned in section 37 of the Local Government Act if so required by at least one member of the body.
If in connection with proportionally representative elections it is necessary in order to fulfil the requirement that among the members and deputies there shall be both women and men, candidates of the under-represented sex shall move up on the list with fewest votes of the lists that shall be represented. In the event of tied votes, the list on which candidates of the under-represented sex are to move up shall be decided by drawing lots.
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In matters concerning changes in the use of uncultivated land, Finnmarkseiendommen shall assess the significance a change will have for Sami culture, reindeer husbandry, use of non-cultivated areas, commercial activity and social life. The guidelines of the Sami Parliament pursuant to section 4 shall be followed in the assessment of Sami interests pursuant to the first sentence.
Decisions concerning changes in the use of uncultivated land require the support of at least four board members if the whole minority bases its opinion on consideration for Sami culture, reindeer husbandry, use of non-cultivated areas, commercial activity and social life assessed on the basis of the guidelines of the Sami Parliament. If the majority consists of four or less, a collective minority may during the board meeting demand that the matter be placed before the Sami Parliament. If the Sami Parliament does not ratify the decision of the majority or does not consider the matter within a reasonable time, a collective majority of the board may demand that Finnmarkseiendommen place the matter before the King, who shall then decide whether the decision shall be approved. Such approval of the decision has the same effect as such a decision by the board.
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Members of the board, persons authorized to sign on behalf of Finnmarkseiendommen, auditors, senior employees authorized to make decisions on behalf of Finnmarkseiendommen within restricted areas of responsibility or members of the Control Committee who show gross lack of judgment in the execution of their responsibilities in respect of Finnmarkseiendommen shall be liable to fines or under aggravating circumstances to imprisonment for a term not exceeding one year.
Members of the board who wilfully or negligently have inflicted a loss on Finnmarkseiendommen during the performance of their duties are obliged to compensate the loss. The Control Committee shall decide whether a claim for compensation shall be made.
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Finnmarkseiendommen shall manage the renewable resources on its land in compliance with the purpose of this Act and within the frameworks provided by the Wildlife Act, the Act relating to salmonids and fresh-water fish and other legislation. The diversity and productivity of nature shall be preserved.
The provisions of this chapter shall not apply in so far as otherwise established by special legal relations.
Pursuant to the provisions of this chapter and within the frameworks provided by other legislation, residents of a municipality in the county of Finnmark have on Finnmarkseiendommen’s land in the municipality the right to:
a) fish for freshwater fish with nets,
b) fish for anadromous salmonids with fixed gear in the sea,
c) gather eggs and down,
d) fell deciduous trees for domestic fuel,
e) cut peat for fuel and other domestic purposes and
f) remove deciduous trees for use as fence posts and poles for hay-drying racks in the reindeer husbandry and agriculture industries.
Reindeer herders have the same right as the persons resident in the municipality for the period during which reindeer husbandry takes place there.
In compliance with the provisions of this chapter and within the framework provided by other legislation, persons residing in the county of Finnmark have on Finnmarkseiendommen’s land the right to:
a) hunt big game,
b) hunt and trap small game,
c) fish in watercourses with a rod and line,
d) pick cloudberries and
e) remove timber for home crafts.
Agricultural holdings shall have grazing rights for as large a herd as can be winter-fed on the holding.
Individuals or groups of persons who are associated with a rural district and whose livelihood is wholly or partly associated with the utilization of renewable resources in the vicinity of the rural district may for up to ten years at a time be assigned special rights by the municipality to utilize renewable resources as mentioned in sections 22 and 23 in specified areas of the municipality. When establishing the area and the specific conditions, the use traditionally made of the area by people associated with the rural district shall be taken into consideration. The area shall preferable constitute a uninterrupted area in the vicinity of the rural district.
Finnmarkseiendommen may issue general rules concerning the procedures and assessment of matters pursuant to this section. Finnmarkseiendommen shall be the appeal body for decisions made by the municipality. The procedures followed by the municipalities and Finnmarkseiendommen are subject to the Public Administration Act.
This section does not apply to hunting of large and small game, fishing in watercourses with a rod and line and fishing with fixed gear in the sea for anadromous salmonids.
Section 25 Access for other persons
In compliance with the provisions of this chapter and within the frameworks provided by other legislation, all persons have the access to hunt and trap small game and to fish with a rod and line in watercourses on Finnmarkseiendommen’s land and to pick cloudberries for their own domestic use.
Finnmarkseiendommen may grant other persons than those resident in the municipality or county further access to renewable resources as referred to in sections 22 and 23.
Section 26 Local management of hunting and fishing
For up to ten years at a time, Finnmarkseiendommen may grant special rights to administer hunting, trapping and fishing in specific areas of Finnmarkseiendommen’s land to local organizations and associations whose purpose lies in the general promotion of hunting, trapping and fishing.
Section 27 Further conditions for utilization of renewable resources and restrictions on such utilization
Finnmarkseiendommen may issue further rules for utilization of renewable resources as mentioned in section 22 (a) to (f) and section 23 (a) to (e). Finnmarkseiendommen may stipulate that utilization is subject to issue of a permit. Conditions may be provided in the permits.
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In connection with restrictions on the exploitation of renewable resources as referred to in the first paragraph, due consideration shall be taken as regards the use of the resource by the various user groups.
Finnmarkseiendommen’s decisions concerning restrictions as referred to in the fifth and sixth paragraphs may be appealed to the Ministry pursuant to the provisions of the Public Administration Act chapter VI. The decision of the Ministry may not be appealed.
Section 28 Fishing in the Tana and Neiden watercourses
In the Tana and Neiden watercourses, the local population holds special rights to fishing on the basis of statutes, immemorial usage and local customs.
The King may issue regulations prescribing further rules concerning administration and exercise of the fishing. Such regulations shall make provision for a local, rights-based administration of fishing resources consistent with agreements with Finland concerning fishing in the Tana and Neiden watercourses.
The preparation of regulations and negotiations with Finland concerning fishing in the Tana and Neiden watercourses shall be conducted in consultation with the Sami Parliament, affected municipalities and holders of special rights to fishing in these watercourses.
Section 29 The Finnmark Commission
A commission (the Finnmark Commission) shall be established, which, on the basis of current national law, shall investigate rights of use and ownership to the land to be taken over by Finnmarkseiendommen pursuant to section 49.
The King shall appoint the members of the Finnmark Commission. The Finnmark Commission shall consist of a chairman and four other members. The chairman shall fulfil the requirements of the Courts of Justice Act regarding Supreme Court judges. Two of the other members shall fulfil the requirements regarding district court judges. At least two members shall be resident in or otherwise have a strong affiliation to the county of Finnmark.
Section 30 Delimitation of fields of investigation, etc.
The Finnmark Commission shall establish the fields for investigation and decide the order of investigation. When so deciding, emphasis shall, inter alia, be placed on due regard for a natural and appropriate delimitation of the field as regards extent and legal and historical contexts and the need to clarify the legal relations.
The Finnmark Commission may restrict or extend a field after initiating the investigation if this is necessary for the creation of a natural and appropriate delimitation.
The Finnmark Commission may omit to investigate rights that are clearly inappropriate for investigation by the Commission. When so deciding, emphasis shall, inter alia, be placed on the nature of the right and the basis on which it is founded.
Section 31 Notification of potential right holders
Investigation in respect of a field shall be announced with a request to potential right holders to make themselves known. Such announcement shall be made in the Norwegian Gazette, in a newspaper that is generally read at the place concerned and locally in any other appropriate manner.
Reindeer husbandry organizations and other representatives for user interests in the field concerned as well as the Sami Parliament, Finnmark County Council, Finnmarkseiendommen and affected municipalities shall be notified separately.
Section 32 Responsibility for obtaining information concerning a matter
The Finnmark Commission is itself responsible for obtaining sufficient information concerning a matter. The Commission may in the manner it finds appropriate obtain statements, documents and other material and conduct surveys and investigations, etc. concerning actual and legal circumstances that may be significant for the Commission’s conclusions.
The parties have the right to give an account of the actual circumstances and provide evidence significant for the Commission’s conclusions. The parties may request the implementation of measures pursuant to the first paragraph. The Finnmark Commission may refuse such a request if it finds it to be unfounded or that it would involve excessive delays or costs to comply with it.
In order to safeguard the interests of the parties, the Finnmark Commission may appoint representatives from various interest groups to monitor the work of the Commission. The costs shall be covered by the state.
Section 33 The Finnmark Commission’s report
After investigating a field, the Commission shall issue a report containing information concerning:
a) who, in the view of the Commission, are owners of the land
b) what rights of use exist in the Commission’s view
c) the circumstances on which the Commission bases its conclusions
The report shall state whether the conclusions are unanimous. If this is not the case, it shall be stated who disagrees and which points the disagreement concerns. Grounds shall be given for the conclusions of both the majority and the minority.
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Section 34 Consideration by Finnmarkseiendommen
Finnmarkseiendommen shall without undue delay assess the Commission’s conclusions. In the case of decisions to accept the conclusions of the Commission that other parties hold rights, section 10, sixth paragraph shall apply correspondingly.
To the extent that Finnmarkseiendommen agrees with the Commission that other parties hold rights, Finnmarkseiendommen is obliged to state this in writing, and without undue delay ensure that the right is officially registered or, if appropriate, bring the matter before the Land Consolidation Court pursuant to section 45.
Section 35 Negotiations
Parties that are not in agreement with the Commission’s conclusions, or that need assistance in ensuring that the conclusions are laid down in a binding agreement may request the Finnmark Commission to mediate. The Commission’s obligation to mediate ceases to apply when the time limit for bringing the dispute before the Uncultivated Land Tribunal has expired.
Section 36 The Uncultivated Land Tribunal for Finnmark
A special court (the Uncultivated Land Tribunal for Finnmark) shall be established, which shall consider disputes concerning rights that arise after the Finnmark Commission has investigated a field.
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Section 39 Dismissal of cases
Cases found inappropriate for consideration by the Uncultivated Land Tribunal may be wholly or partly dismissed by the court. When so deciding, consideration shall be paid, inter alia, to the nature of the claim and to the basis on which it is made.
Before dismissing a case, the plaintiff shall be given the opportunity to make a statement. The case may be dismissed without summoning the parties to a sitting of the Tribunal. Dismissal pursuant to this section may not be challenged by way of an interlocutory appeal or an appeal proper.
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Section 41 Responsibility for obtaining information concerning a case, etc
The parties are responsible for giving an account of the actual circumstances and evidence significant for deciding the case. The Uncultivated Land Tribunal shall of its own motion obtain the report of the Finnmark Commission and use this as a basis for its consideration of the case. The parties may in addition produce as evidence documents received by, submitted to or issued by the Finnmark Commission.
The Uncultivated Land Tribunal may not receive testimony from the members of the Finnmark Commission or from persons who have carried out work for the Commission in connection with the case.
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Section 43 Costs of the case
The state shall cover the costs of the Uncultivated Land Tribunal’s own activities. The state shall also cover the necessary costs of the parties in cases concerning claims for rights opposed by Finnmarkseiendommen.
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In connection with preliminary examination of minerals in the county of Finnmark, a person wishing to conduct such preliminary examination of minerals shall not later than one week prior to the commencement of such preliminary examination provide written notification to the Sami Parliament, the landowner and the appropriate area and district boards for reindeer husbandry. If the person wishing to conduct such preliminary examination intends to make an impact on the land, the location of such impact shall be indicated.
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Applications for licensed prospecting in the county of Finnmark may be rejected if general considerations contraindicate granting of the application. When considering such applications, significant emphasis shall be placed on due consideration of Sami culture, reindeer husbandry, use of non-cultivated areas, commercial activity and social life. If the application is granted, conditions may be stipulated in order to safeguard such considerations.
When considering the application the Commissioner of Mines shall give the landowner, the Sami Parliament, the County Governor, the county authority, the municipality and the appropriate area and district boards for reindeer husbandry an opportunity to comment.
If the Sami Parliament or Finnmarkseiendommen as landowner oppose granting of the application, the application shall be decided by the Ministry.
If the Ministry grants the application in cases mentioned in the third paragraph, an appeal to the King from the Sami Parliament or from Finnmarkseiendommen as landowner will have suspensive effect.
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The full text of the Finnmark Act, in both Norwegian and in English translation, can be found online at <http://www.ub.uio.no/cgi-bin/ujur/ulov/sok.cgi?type=LOV> .
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URL: http://www.austlii.edu.au/au/journals/AUIndigLawRpr/2005/53.html