Indigenous Law Bulletin
By Henry Minde
In January 1997 the Norwegian Sami Rights Commission (‘the Commission’) released two reports about indigenous land rights in Finnmark, the northernmost county in the country and the one with the largest Sami population in Fenno-Scandia. The first report, The Natural Resources of the Sami Culture, was written by the Commission itself. Its main recommendations were:
1. To transfer the land and non-renewable resources from the State to a newly established Finnmark governmental council with equal representation from the County Council and the Sami Parliament (four from each of them);
2. To transfer ownership of most of Finnmark’s renewable resources from the State to the municipalities; and
3. To allow the Sami Parliament to have a delaying vote when Sami interests are at stake.
The second report, Indigenous Land Rights according to International and Foreign National Law,  considers the legality of the Commission’s recommendations according to the international conventions and practice acceded to or accepted by Norway. This report was written by a sub-committee of the Commission, the International Rights Committee (‘the Committee’).
In its report, the Committee first concludes that the Sami people’s use of the lands of Inner Finnmark ‘is sufficient for them to invoke their rights of ownership and possession of these lands’ under Article 14 of the International Labour Organisation’s (‘the ILO’) 1989 Convention No 169 on Indigenous and Tribal Peoples, which the Norwegian Government ratified in 1990. Next, the Committee sets special conditions for transferring the State’s ownership and possession of the land and non-renewable resources of Finnmark to the local population. Irrespective of that population’s ethnic origins, Norway’s international obligations would only be met,
[I]f the majority of the board members were appointed by Sami bodies, the Sami people would be considered as having retained sufficient control over their ownership powers and rights for the requirements of Convention No 169 to be regarded as satisfied.
In relation to the Commission’s proposed governmental council, the International Rights Committee responded as follows:
For those parts of Finnmark to which the Sami people are entitled to recognition of their rights of ownership and possession, a management system, whereby the Sami Parliament appoints half of the boards’ members, the other half being appointed by the County Council, would not, in our view, satisfy the requirements of Convention No 169.
Finally, the Committee proposed the following solution to the apparent trap into which the Sami Right Commission had fallen:
This means that for a system, whereby land management in Finnmark is to be handled by a body in which half of the members are appointed by the Sami Parliament and half by Finnmark County Council, to be justifiable [...] such a system could not be implemented without prior consultation of the Sami people themselves with a view to ascertaining whether they in fact wish to allow their rights under ILO Convention No 169 to be transmitted. The competent body to express an opinion on this issue, on behalf of the Sami people, would have to be the Sami Parliament.
The International Rights Committee’s findings were a surprise not only for the Commission, but for the public in general and the political elite in particular. The key question in the political debate ever since has been: What kind of land rights obligations does the Norwegian State owe the Sami people since the Norwegian Government ratified ILO Convention No 169 in June 1990? In answer to this question, I will limit myself to a consideration of the related histories of the ILO Convention No 169 and the Norwegian State’s recognition of indigenous rights.
The problems of indigenous peoples were met with a certain amount of attention in the International Labour Organization. Initiatives were taken to protect indigenous peoples’ collective land rights as a way of addressing the social and economic difficulties confronting them as a result of colonisation. However, with the rise of Nazism in the Thirties, the ILO’s work on these questions came to a standstill.
After WWII, the work begun by the ILO in the 1920s was taken up once more and culminated in the ILO’s 1957 adoption of Convention No 107 Concerning the Protection and Integration of Indigenous and Other Tribal and Semi-Tribal Population in Independent Countries. Consistent with British colonial law and reflecting the socio-political strategies of the 1920s, ILO Convention 107 was essentially assimiliationist in its policy orientation. At the same time, it did recognise the customary rights of indigenous peoples and to some extent advocated a protection of their essential material conditions.
Towards the end of the 1950s, the Nordic States considered whether or not the Sami were covered by the ILO’s 1957 Convention No 107. The decision was negative on the ground that the Sami were generally well integrated into Nordic society.
In the 1970s, this approach was revised for several reasons. A significant event was the (NAME) report conducted by the Norwegian Foreign Ministry, which highlighted the weak economic situation among the Sami. A second event was a speech delivered by Thorvald Stoltenberg, then Secretary of State and later Foreign Minister, at the opening of the 1978 UN Conference Against Racism, in which he linked the concept of ‘indigenous population’ directly with the Sami of Norway. A third development was what has become known as the Alta conflict.
The Alta conflict started when the Norwegian authorities decided to build a major hydroelectric project, including a 100-metre high dam across the Alta-Kautokeino river canyon and construct a road across reindeer grazing land and calving areas. When the Sami and environmental movements joined forces to oppose the Parliament’s decision, demonstrations and acts of civil disobedience caught fire. After a group of Sami erected their Sami tent, lavvo, in front of the Parliament building in October 1979, the low-key climate of Sami politics was dramatically changed.
As a result, a claim was put forward that Norway should ratify the ILO Convention No 107 as soon as possible. This claim was put to the Sami Rights Commission, which the Norwegian Government appointed in 1980 and charged with the task of updating the political and juridical basis for a new minority policy. It recommended that the Sami population be recognised as falling within the definition used in Convention No 107, and found that Norway complied with most of the minimum requirements of the Convention. The main requirements of the Convention with which Norway did not comply were those relating to land. Subsequent to the release of the Commission’s report, in debates around the Alta case and in other matters concerning them, the Sami were referred to as an indigenous population.
The ILO started the process of revising Convention No 107 before the Norwegian ratification procedure had come to an end. The old Convention’s integrationist approach had been heavily attacked by representatives of indigenous peoples in the first meetings of the UN’s Working Group on Indigenous Populations in 1982. In particular, the indigenous representatives objected to the fact that the Convention’s land provisions did not recognise claims to lands which, though previously occupied by indigenous peoples, had been taken away by force or which had been expropriated on the grounds of national security or national economic development. Lee Swepston, the responsible officer of the ILO Secretariat, proposed to the ILO Governing Body that Convention No 107 be opened for revision.
The reformulation of Convention No 107 was considered in the ILO Conferences of 1988 and 1989. The 1989 Norwegian delegation’s instructions included the following:
to give an account of the juridical situation in Norway, which implies that we cannot ratify a convention that demands the recognition of the rights of ownership and possession to lands which indigenous peoples have traditionally occupied.
Rather than the land rights of ‘indigenous peoples’, the delegation was instructed to support a more obscure notion, like ‘[T]he right of the peoples concerned ...’, which fails to define the subjects of the Convention. While the Norwegian delegation tried to present the proposal to equate ‘land use’ with ‘ownership’ and ‘possession’ as a strengthening of the Convention by giving protection to a broader range of rights, it was considered as a weakening from many groups and was strongly opposed by the NGOs, the Workers unions and a number of State delegations. Given their stance on ILO Convention No 107, the indigenous caucus was always going to object to attempts to lower the threshold for land rights in the new Convention. Nevertheless, Norway instructed its delegates that if an acceptable agreement could not be attained in the land provisions, then they could vote against the whole proposed new Convention.
At the 1989 Conference, the Norwegian delegation attended a ‘working party’ to negotiate a consensus text on the land rights issue. The discussion soon arrived at a stalemate and the whole revision process was on the brink of collapse. In the final days of the Conference, an extraordinary procedure was adopted: the chairman personally conducted an off the record negotiation with representatives of the Workers, Employers, and Governments. This led to the development of a single ‘package’, which covered all of the land provisions in the revised Convention. As a condition to the acceptance of this package, the Workers demanded the withdrawal of the Norwegian proposal. 
The Norwegian delegation announced that the result was consistent with their instructions, finding that Norway’s use of the term ‘land use’ did not contravene the new Convention’s use of the term ‘ownership’ in relation to land rights.
Before the Norwegian Parliament ratified the new ILO Convention No 169, it asked the Ministry of Justice whether,
the new ILO provisions on land rights are changed from the Convention 107 in such a way that one most likely can say that the requirements in the new Convention are [already] met in Norwegian law.
The Ministry advised that a ‘strong protected right of use’ could satisfy the requirements of the new Convention concerning the recognition of the rights of ownership and possession to lands traditionally occupied by indigenous peoples and they recommended that the Parliament ratify the new ILO Convention No 169,  which it did in June 1990.
In its 1997 report, the International Rights Committee refutes the Ministry’s conclusions. According to the Committee, the provisional records of the Conferences prove that:
during the negotiations of ILO Convention No 169 the Norwegian delegation made several attempts to have the Convention equate the ‘right of use’ or ‘right of preferential use’ with the ‘right of ownership’. However, these proposals were rejected because they were perceived as a weakening of the indigenous peoples’ rights under Convention No. 107.
Consequently, the Committee argues,
it is fairly obvious that where lands which indigenous peoples have occupied are concerned, a mere recognition of indigenous peoples’ right to use such lands would not be sufficient to satisfy the Convention No 169. On such lands, indigenous peoples must be entitled to recognition of a right to use these lands which by and large corresponds to the rights which full title would confer.
What the Committee does not mention in its report is the fact that the way Norway acts to implement the Convention domestically will necessarily have an impact on the legal situation for other indigenous peoples in their daily struggles with, for example, oil companies in Ecuador, mining companies in the tropical forest of Bolivia or coffee plantation owners in Guatemala. As the first ratifying State of ILO Convention No 169, Norway’s approach will be used as a benchmark by the ILO Expert Committee in its monitoring of how the Articles of the Convention are interpreted and put into practice.
In light of the conflicting advices of the International Rights Committee and the Ministry of Justice, the Norwegian Government’s alternatives in implementing ILO Convention No 169 include:
It is my opinion that if any of these alternatives were applied, the nation would no longer command international respect as a protector of human rights. Furthermore, since human rights generally (and indigenous peoples’ rights in particular) have a high profile in Norwegian politics, and since the Norwegian Parliament ratified the Convention with bi-partisan support, I believe the options listed above would be politically unacceptable in Norway.
The Norwegian Government might settle the question by appealing to the ILO Expert Committee for an opinion that Norway’s use of the phrase ‘the right of use’ is sufficient to satisfy the requirements of the ‘land’ Articles 14 and 15. Such an opinion would mean that Norway could implement the Convention without changing its domestic law; Sami demands for the veto right could be overruled and the Sami influence in the future land management in Finnmark could be reduced.
However, if Norway were to obtain the opinion necessary, the obligations of State parties under the new Convention would indeed be lower than their obligations under the old Convention. This was exactly what indigenous peoples fought hardest to prevent during negotiations over the new Convention in the 1980s, and the states most supportive of indigenous rights, headed by Norway, assured them that the new Convention could not be interpreted in this manner.
If Norway’s activist strategy of the last ten to twenty years in relation to indigenous peoples’ rights is to have credibility, Norway will have to follow the advice of the International Rights Committee. The basis for developing a positive relationship between the Sami and the Nordic Governments is, first, the welfare state (which gives social and economic safety) and, second, the Sami Parliament model for natural resource management in Finnmark, which contains the possibility of sustainable and effective self-government for Sami in Norway. These are the two conditions that inspire indigenous peoples to establish new political goals.
Henry Minde is Professor of Sami History at the University of Tromsø, Norway and has acted as elected deputy in the Norwegian Sami Parliament.
 A longer version of this article will appear in (volume and name of journal).
 Note that this followed an earlier report: Norges Offentlige Utredninger (State Reports), Om samenes rettsstilling (About the Situation of the Sami Rights) (1984). One extensive chapter of this earlier report was devoted to international and foreign national law. Two of the main recommendations in the 1984 report, the establishment of a Sami Parliament, the Sameting, and amendment of the Norwegian Constitution, were later implemented by the Norwegian Parliament, the Storting. See Terje Brantenberg, ‘Constructing Indigenous Self-Government in a Nation State’ in Peter Jull and Sally Roberts (eds) The Challenges of Northern Regions (1991); Lennard Sillanpää, ‘Political and Administrative Responses to Sami Self-Determination’ (1994) Societas Scientiarum Fennica, 104-107.
 Norges Offentlige Utredninger (State Reports) (1997) 4.
 Norges Offentlige Utredninger (State Reports) 1997: 4, ch. 4 (65-195), ch. 5 (196-277) and ch.8 (383-448).
 Norges Offentlige Utredninger (State Reports) 1997: 5.
 Norges Offentlige Utredninger (State Reports) 1997: 5, 35.
 Article 14 of ILO Convention No 169 states:
1. The rights of ownership and possession of the peoples concerned over the lands which they traditionally occupy shall be recognised. In addition, measures shall be taken in appropriate cases to safeguard the right of the peoples concerned to use lands not exclusively occupied by them, but to which they have traditionally had access for their subsistence and traditional activities. Particular attention shall be paid to the situation of nomadic peoples and shifting cultivators in this respect.
2. Governments shall take steps as necessary to identify the lands which the peoples concerned traditionally occupy, and to guarantee effective protection of their rights of ownership and possession.
3. Adequate procedures shall be established within the national legal system to resolve land claims by the peoples concerned.
 Norges Offentlige Utredninger (State Reports) 1997 5, 42.
 Ibid, 43.
 Ibid, 44.
 See Stotringstidende, Proposisjon (Parliamentary Bill) No 102 (1989-90) and Stortingstidende, Innstilling (Parliamentary Paper) No 197 (1989-90).
 About the ILO’s early work on the matters of indigenous peoples, see UN Doc 4/Sub.2/L.596.
 Einar Høgetvedt, Vern av urbefolkninger (The Protection of Indigenous Peoples), Norges Offentlige Utredninger (State Reports) 1980:53, 19 ff.
 A lot of people involved in the revision process have written about this process and its result: S James Anaya, Indigenous Peoples in International Law (1980) 47-49, 52-53 and 105-7, Harward R Berman The ILO Indigenous and Tribal Peoples Convention (No 169) and its Antecedents: A Critical Appraisal, unpublished on file with author; Russel Lawrence Barsh, ‘An Advocate’s Guide to the Convention on Indigenous and Tribal Peoples’, (1990) 15 Oklahoma City University Law Review 209-236; Lee Swepston, ‘A New Step in the International Law on Indigenous and Tribal Peoples’, (1990) 15 Oklahoma City University Law Review 677-714; Sharon H. Venne, ‘The New Language of Assimilation: A Brief Analysis of ILO Convention 169’ in Without Prejudice (1990) 53-67; Sharon Helen Venne Our Elders Understand Our Rights (1998) 88-92.
 International Labour Office, Draft Minutes of the 234th Session (November 1986), II/1-II/11 and V/1-V/2; and Halldor Heldal (b. 1918), interview made 12 March 1998.
 Department of Foreign Affairs (Norway), Instruks for den norske statlige delegasjonen til ILOs arbeidskonferanse 1989 (the instructions of the Norwegian State delegation before the International Labour Conference 1989),
File 76 14/20B, Vol III, 2.
 This is a phrase mentioned in a clarification paper from the Office of (Human) Rights (1. Rettskontor).
 Barsh, above n 13, 223-29.
Department of Foreign Affairs, Revisjon av ILO-konvensjon Nr 107 om urbefolkninger (English translation, 5 July 1989), Memo from 1 Rettskontor, File 76. 14/20B, Vol III.
 Department of Foreign Affairs, Telefax to delegation to ILO Conference 1989 23 June 1989, file 76. 14/20B, Vol III.
 International Labour Conference, Seventy-Sixth Session, Geneva 1989, Provisional Record 31, 31/13-14.
 Stortingstidende, Proposisjon (Parliamentary Bill) 102 (1989-90), 5.
 1997:5, esp. 33-7.
 Norges Offentlige Utredninger (State Reports) (1997, 5) 36.
 Concerning this and the next point, see the Supreme Court of Norway’s judgement in State v Oljeareidernes Fellessammenslutnin (Union of Oil Workers) 10 April 1997, Rettstidende 1997, 580 ff.