Macquarie Journal of International and Comparative Environmental Law
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Macquarie Journal of International and Comparative Environmental Law |
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JOHANNA LINDQVIST[*]
Sweden is one of the four countries where the Sámi[1], the only acknowledged Indigenous peoples in the European Union, lives.[2] The other countries where the Sámi live are Finland, Norway and Russia. The estimation is that around 70,000 Sámi in total live in these four countries. Around 20,000 live in Sweden, which is 0.2 per cent of Sweden’s population of 9 million.[3] In Finland there are 5,000 – 6,500 Sámi, in Russia approximately 2,000 and 40,000 – 45,000 in Norway.[4]
In Sweden, the Sámi settlement area extends northwards from Dalarna in central Sweden to the borders of Finland and Norway.[5] Today the Sámi occupy some forty percent of the territory of Sweden.[6] Even though the majority of Sámi in Sweden are active in other areas one of the most important livelihoods for Sámi is reindeer herding, which has been practised by the Sámi for millennia.[7] Reindeer herding rights exist in the counties of Dalarna, Jämtland, Västerbotten and Norrbotten. It is estimated that there are 4,525 reindeer owners and amongst these 2,000 earn their main income from the reindeer herding. These Sámi are active in 51 Sámi villages and altogether own 221,000 reindeers.[8]
Today the Sámi’s legal rights to land and water are connected with reindeer herding[9] as a livelihood. Together with some associated rights, reindeer herding is considered the only remaining Sámi land-use. In the Sami culture, a central element is the association of the people with the land and the subsistence on what is provided by nature. Consequently, this association between people and land is today kept alive by the reindeer husbandry practiced as a livelihood, which thereby also produces and manages an essential base for the culture.[10]
The Sámi have, over thousand of years, managed to adapt to the harsh living conditions in the Arctic and in the sub-Arctic. Their practice of reindeer herding has managed to survive into the 21st century despite encroachments on the Sámi traditional lands and increased governmental control.[11] The international importance of this trans-humane relationship, the cultural significance of reindeer herding, and the fact that Sámi still pursue this ancient livelihood was acknowledged when the Laponia area in north-western Sweden was declared as a world heritage site in 1996.[12] It is evident that Sámi reindeer herding is a traditional livelihood, but it is also cultural heritage and a cultural carrier for the Sámi. It is an ancient way of pursuing a livelihood in an area where means for subsistence traditionally have been hard to find due to the harsh climate and low biodiversity.[13]
Indigenous peoples’ right to pursue their culture and have it protected by the government is acknowledged by international law.[14] Since the 1980s there has also been growing international recognition of Indigenous peoples’ traditional knowledge, Indigenous peoples as resource managers, and the benefits for sustainable development when Indigenous peoples are involved in the environmental decision-making process.[15] There are also international instruments that establish that Indigenous peoples have the right to be consulted in decisions affecting them, the right to self-determination, self-government and land rights.[16]
As with many Indigenous peoples around the world, the Sámi in the Nordic countries have experienced and are still experiencing environmental exploitation on their traditional land.[17] Since reindeer herding is dependent upon vast land areas and the reindeers are sensitive to disturbances, the livelihood is vulnerable to environmental exploitation. Today many of the activities posing problems for reindeer herding, such as building of houses, construction of roads and railways, windmills and mining permits, are regulated under planning and environmental legislation[18] Therefore the protection of reindeer herding as a traditional livelihood is closely connected with environmental and planning legislation. Protection of reindeer herding as an indigenous livelihood is at the intersection of human rights, indigenous rights and environmental protection (expressed through the paradigm of sustainable development).[19] Since Sweden is a country with both a high profile in human rights[20] and a comprehensive environmental protection system with a clear goal of ecologically sustainable development[21], it is interesting to investigate how Sweden has managed to protect reindeer herding. Unfortunately the legislation in Sweden aimed at protecting reindeer herding has so far been insufficient, and today there are several signs that reindeer herding is a severely vulnerable and directly threatened livelihood.[22] This paper will focus on how Sámi are able to participate in environmental and planning decision-making. The reason for this focus is twofold; firstly, this is an area where reindeer herding clearly could be protected by taking into account effects on the herding when making decisions on projects and usage of natural resources in the reindeer herding area; secondly, there is growing international recognition of the importance of Indigenous peoples’ participation and involvement in decisions affecting them. The purpose of this paper is to investigate how reindeer herding, which clearly is a symbol of Sámi culture, can be better protected by increased involvement and participation of Sámi in environmental and planning decision-making.[23]
Of course, reindeer herding has environmental effects in the area where it is practised. These effects are mainly regulated under the Environmental Code 1998 and the Reindeer Herding Act 1971, but this side of environmental protection will not be discussed any further in this paper.[24] Some researchers on reindeer herding have pointed out the need for reindeer herders to be flexible in their herding practises in order to be able to adapt to changes in both the socio-economic and natural environment.[25] Today the Sámi flexibility in reindeer herding is reduced because of loss of habitat, predators and increased governmental control.[26] However, in this paper there will be no discussion of this issue,[27] except to say that when new environmental problems like climate change occurs it is important that reindeer herders are flexible and involved in the development of strategies to deal with these problems.[28]
Section 2 and 3 of the paper will include a historical description of the Sámi and a presentation of reindeer herding and the needs of and threats to it. ISection 4 takes an international perspective on policy and law with a focus on human rights, indigenous rights, Indigenous peoples and sustainable development. There will also be an investigation of some regional initiatives in the Arctic and in the Nordic on indigenous rights and sustainable development. In section 5 there will be an examination of the Swedish conditions, starting with a brief description of Sweden’s international obligations and its current policies and laws with regards to the Sámi. In this section there will also be an investigation of the environmental and planning legislation in the reindeer herding area, focusing on how Sámi are able to participate in the decision-making process.
Long before the present national state of Sweden emerged the northern part of what today is Sweden was inhabited by the Sámi.[29] According to historic sources the Sámi have lived in this area since the late Middle Ages, but archaeological sources indicate that Sámi might have lived there as early as 100-200 A.D.[30] The first written record of Sámi, or as they then were called the ‘fenni’, was made by Roman historian Cornelius Tacitus in the year 98 A.D.[31] The area in Finland, Norway, Russia and Sweden traditionally occupied by Sámi is called Sápmi by the Sámi themselves, which means ‘our land’ in the Sámi languages. The area is commonly called Lapland.[32] The Sámi in these four countries are a distinct ethnic group with their own languages, customs and traditions.[33]
The first contacts between the Swedes and the Sámi were probably established more than one thousand years ago, but it was not until much later that the Swedish state became interested in the land and natural resources in Lapland.[34] During the 16th and 17th centuries the Swedish administration started to be active in Lapland, and the Sámi were taxed in the same way as farmers. These areas were called Taxed Lapp Lands.[35] Despite the attention of the Swedish authorities, the Sámi were pretty much left to themselves in their traditional area until the 18th century. After that the Sámi history changes to that of colonisation.[36] In the middle of the 18th century Border-treaties were concluded between Sweden-Finland and Denmark-Norway. As an addendum to one of these treaties the so called ‘Lapp Codicil’ from 1751, regarding the Sámi was made. The Lapp Codicil recognizes the Sámi as the ‘Lapp nation. The Lapp Codicil formalized the rights of the Sámi across state boundaries, including the right to continue their traditional nomadic reindeer-herding across the newly established border between Sweden and Norway.[37] This was the first recognition by the Nordic states of Sámi customs and rights.[38]
For a long time the Sámi pursued a nomadic lifestyle and their livelihoods were mainly based on hunting, gathering and fishing. During this period a family only had a few tame reindeer. Over time Sámi people picked up new forms of livelihood and altered their way of living. In the coastal areas (in what today is Norway) the Sámi communities that were established lived predominantly on fish and other marine resources such as seal and whales, these Sámi are referred to as Fishing, Coastal or Sea Sámi. The Sámi that took up reindeer herding are divided into two groups; Mountain Sámi which developed a semi-nomadic lifestyle and moved their reindeer seasonally between the mountain areas and coastal areas; and Forest Sámi, which pursued their reindeer herding in the forest areas (mainly in what is today Västerbotten and Norbotten in Sweden and in the northern and middle part of Finland).[39] For the Sámi involved in reindeer herding the 17th century saw a transition to large-scale reindeer nomadism with reindeer herds as the main source of livelihoods.[40]
Today the reindeer herders are organized in Sámi villages, but originally the Sámi divided the land and natural resources in Sápmi through the Siida system. This traditional Sámi organisation started evolving in the late 800s and existed right through to the 1930s.[41] This system was recognised by the different states operating in Sápmi, as a viable self-government with taxation responsibilities and privileges.[42] Within the Siida system, the Sámi developed customary law regarding the division of land between siidas, as well as household and families within the different siidas. The way this customary law evolved reflects the Sámi traditional livelihoods and their surrounding environment, which is based on a respect for nature and a desire to leave no traces upon it. The siidas all had their own summer and winter pasturage areas and designated migration paths between these areas. The siida system also divided rights to fishing and hunting.[43]
Even though the Swedes colonized Lapland in the 18th century it was not until the period of industrialisation, which began at the end of the 19th century and continued well into the 20th century, that Sámi culture began to change in a crucial manner, largely as a result of the migration of new people into Sápmi. This in-migration gradually had a profound impact on traditional living and settlement patterns among the Sámi.[44] During a period referred to as “avvittringen” in the middle of the 1800s, the state gave away substantial parts of the Sámi people’s traditional land as if no Sámi population existed in the area.[45] The colonisation by the majority population was a national objective for both the Swedish (Finish) and Danish-Norwegian governments. The governments had little interest in the widely scattered Sámi population of the region. According to the governments the Sámi were without any rights to land, and in annexing these lands within their national borders the states had taken possession of ‘ownerless land’.[46] The land was considered ‘ownerless’ because the Sámi were deemed to belong to an inferior culture that should not be allowed to hinder the development of modern society.[47] The state encouragement of non-Sámi settlers in the area (from the mid 18th century until the 20th century) led to conflict over land, especially where Sámi previously had exclusive use of reindeer herding, fishing and hunting.[48] The 19th century also meant the closing of borders between, Sweden, Norway, Finland (which 1809 became a Grand Duchy of Russia) and Russia. This boundary closing had grim consequences for the Sámi since they traditionally had been able to migrate across state boundaries. Many Sámi lost their summer pasture rights on the Norwegian Atlantic Coast and their pasturage areas became smaller, which led to more permanent settlements.[49]
The Swedish policy towards Sámi during the 19th century and until some time after the World War II was based on both segregation and assimilation.[50] It was based on theories of superior and inferior cultures and race, which led to discrimination of the Sámi. The catch phrase ‘A Lapp shall remain a Lapp’ was commonly used. In order to keep the reindeer herding Sámi from mixing with the Swedes, reindeer herding was paternalistically protected from the degenerative influences of civilisation. For example permanent residences for reindeer herding Sámi were not allowed, since they might impede reindeer herding. Neither were the children of reindeer herding Sámi allowed to go to the same schools as non-reindeer herding Sámi children and Swedish children. This division made the Sámi reindeer herders the only official carriers of the Sámi culture and identity.[51]
The reindeer herding laws protected this group, while simultaneous making it possible to exploit regional resources. The Saami, deprived of access to the decision making process, had no say in the use of these resources. In contrast to reindeer-herding Saami other Saami were classified as regular Swedish citizens. No reforms were made at their behalf.[52]
As a result of the theory that nomad cultures were inferior to farmers[53], the Sámi had to give up many of their winter grazing areas. On account of negative public reaction to the ill treatment of Sámi, the government in the middle of the 19th century tried to make sure that the Sámi were not entirely pushed back by the farmers. The authorities established a cultivation border (this work started in 1867 and the process went on for 25 years[54]) stretching from north to south through Lapland, land to the west of the border was reserved for reindeer herding and agriculture was not allowed. The government also started to buy back land on behalf of the Sámi reindeer herders.[55] However, despite the government’s attempt to protect the reindeer herding Sámi it is safe to say that after the colonisation of Lapland the interests of the Sámi were often outweighed by the stronger support for development of other industry. This conflict between different interests has been the source of many remarkable and sometimes outright racist, attitudes and public decisions.[56]
The area where reindeer herding is practised is situated in the sub-arctic and arctic north. These areas are characterised by a harsh barren environment, with low biodiversity and low biological productivity. These factors increase the vulnerability and delay the self healing process after human activities negatively impact on the environment.[57] The herding practises used by herding peoples represent models for the sustainable exploitation and management of northern terrestrial ecosystems.[58] The reindeer is considered to be a successful occupant of the arctic and sub-arctic region.[59] The reindeer have specialized digestive mechanisms that enable them to cope with the very large seasonal change in the nutritional quality and availability of forage available in the region.[60] Generally, habitats rich in green plants are grazed by the reindeer during the snow-free season while lichen-rich habitats are grazed during winter.[61] During the winter and early spring 80 percent of the reindeer forage consists of lichen.[62] The winter pastures are often referred to as the ‘bottle-neck’ of the industry since the grazing capacity in the winter grazing areas are usually much lower.[63] Reindeer herding is dependent on the reindeer being able to move from summer to winter grazing land. In the summer the reindeers graze in the mountain areas, which are situated in the north western part of Sweden, and in the winter they move down to the forest areas, where they can find shelter and food in the long artic winter.[64] The reindeer herder chooses grazing grounds for the reindeer by considering factors such as vegetation, terrain, weather and the risk of disturbance.[65]
As discussed above the Sámi people were not originally reindeer herders, but hunters, fishers and gatherers. They hunted both moose and reindeer.[66] This culture was based on the subsistence economy, which was almost entirely self-sufficient and used the natural resources in a sustainable matter.[67] In the 17th century the Swedish Sámi started to herd reindeer. In the beginning it was an intensive form of herding where the Sámi lived close to their reindeers and moved with them between different areas in different seasons.[68] Today reindeer herding is a modern business and it is mainly focused on meat production. Even if the reindeer herders today use modern equipment like snowmobiles, trucks (to transport the reindeer), mobile slaughterhouses and helicopters, the basics of reindeer herding have changed little over the centuries.[69]
As stated in the introduction, reindeer husbandry is a severely vulnerable and directly threatened livelihood.[70] Reindeer herding represents a highly extensive form of land use. For herders the principle issue is generally the securing of habitats where the reindeer can graze. The loss of suitable grazing grounds is seen as the greatest threat to reindeer herding today.[71]
Several of the threats to reindeer husbandry today are connected to the winter herding grounds. For reindeer to survive the winter they must have access to winter grazing grounds in the forest. These forests must have a good supply of ground-growing lichens and there must also be old growth forest with tree hanging lichen available.[72] The modern management of forestry (used since the 1940s and 1950s) is posing a threat to reindeer herding.[73] The reason for this is that the modern forestry techniques are based on clear cutting of large areas, cultivation of the ground after cutting and planting of new trees for regeneration of the forest.[74] These techniques destroy both ground growing and tree hanging lichen, and make the areas hard to use for reindeer herding for 30-40 years.[75] Today it is estimated that 50 percent of the lichen-rich winter grazing grounds may have been lost since the 1950s.[76]
Other problems are the increased populations of predators, which are protected against hunting.[77] Increased tourism, including the establishment of remote hotels, ski resorts, and increased activity like snowmobile safaris infringe on grazing grounds and disturb the reindeer, who especially during calving times are sensitive to disturbance (female and calves constitutes the majority of semi-domesticated herds). Even less noise producing activities like hiking (particularly in the mountain area) seem to cause reindeer to move more frequently than otherwise, which may thereby also lead to increased trampling damage in areas with hiking tracks.[78] Many of the threats to reindeer herding lead to diminished and lower quality grazing grounds, which in turn leads to increased presence of reindeer in the remaining grazing ground and consequently an increased risk of trampling damage in those areas.[79]
Today it is widely acknowledged that it is highly important for the survival and development of Indigenous peoples that they have access to and rights over their land and natural resources.[80] Internationally there is increasing attention given to indigenous perspectives on resource use, environmental management and development.[81] There is also a growing recognition that Indigenous peoples are entitled to exercise fundamental responsibilities within their traditional territories.[82] Scholars have emphasised that it is thanks to the traditional systems of resource management that we have any resources left on earth at all.[83] Global organisations like United Nations Economic Scientific and Cultural Organization (UNESCO), the World Conservation Union (IUCN) and the World Bank are increasingly linking global sustainability to a greater awareness of indigenous knowledge.[84]
The UN decided in 2005 that, 2005 to 2015 should be the Second International Decade of the World’s Indigenous Peoples.[85] The second decade for Indigenous peoples has five main objectives, of which one is to promote
full and effective participation of indigenous peoples in decisions which directly or indirectly affect their lifestyles, traditional lands and territories, their cultural integrity as indigenous peoples with collective rights or any other aspect of their lives, considering the principle of free, prior and informed consent.[86]
The United Nations (UN) noted in 1991 that Indigenous peoples are at one and the same time ‘victims of environmental degradation and protectors of vulnerable ecosystems’.[87] As stated above, the international community is today increasingly aware of these problems and the benefits of recognising Indigenous peoples as resource managers. Richardson has discussed the interrelationship between human rights, indigenous rights and environmental protection and notes that it has been manifested in the ideas of environmental justice.[88] He goes on to state that environmental justice for Indigenous peoples at a minimum level may be interpreted as:
the recognition of ownership of land and other resources traditionally utilized; allowing for their effective participation in resource management decision-making; and securing an equitable share of the benefits arising from the use of traditional resources.[89]
Since Indigenous peoples’ demands for recognition of ownership, participation and benefit sharing are of a collective character they have not been recognised by the major international human rights instruments[90]. Traditionally these instruments have been constructed around notions of individual citizen rights, and individual property rights; they have not been able to provide endangered indigenous cultures with sufficient protection.[91] In order to regain control over land and natural resources Indigenous peoples have instead long asserted their rights to self-determination and collective rights to their land and resources.[92] The right to self-determination is set out in Article 1 of both the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR).[93] There is an ongoing controversy within the international community as to whether Indigenous peoples should be considered as peoples under these articles and thereby given the same rights to self-determination as other groups within the society.[94] For Indigenous peoples the international community has not been able to agree on what the scope of self-determination should be and the main reason behind this is that some countries fear internal imbalance if indigenous groups were to start demanding external self-determination and secession.[95] Thus far the international community has only seemed to be able to agree that indigenous peoples have the right to internal self-determination, which means that they have the right to freely pursue their economic, social and cultural development without outside interference.[96] The external aspect of self-determination that would grant all Indigenous peoples the right to freely determine their political status and place in the international community has not been fully acknowledged.[97] Indigenous peoples’ right to self-determination means that they are entitled to significant and meaningful participation in shaping the policies that influence their natural and cultural environment.[98] The right to self-determination will be discussed more under the section of indigenous rights instruments, since the specific rights for Indigenous peoples have been spelled out in these instruments.[99]
Indigenous peoples are often minorities within the states they live; therefore instruments dealing with minorities’ interests provide an avenue for the protection of Indigenous peoples’ livelihoods.[100] The first UN instrument that started to address the right of minorities is the ICCPR. In Article 27 of this instrument it is stated that
In those States in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practise their own religion, or to use their own language.
This article is regarded as ‘the key international provision dealing with the protection of minorities under international law’.[101] The Human Rights Committee, which monitors the state compliance of ICCPR[102] has stated that the term culture has a wide meaning and involves Indigenous peoples’ access to traditional land, water areas, natural resources and economic resources, to the extent it is necessary to preserve and develop their culture.[103] In Kitok v Sweden the Committee stated that reindeer herding, a Sámi livelihood with central importance for the Sámi culture, is protected under Article 27.[104] Another important provision when it comes to Indigenous peoples’ right to participate in decision-making is Article 25 in ICCPR. According to this article every citizen is, without unreasonable restrictions, entitled to take part in the conduct of public affairs directly or through freely chosen representatives.
In the two Länsman Cases the Human Rights Committee established that even if the Sámi modernize their reindeer herding and use snowmobiles the livelihood is still protected by Article 27.[105] In these cases the Committee also emphasised that Indigenous peoples have to be able to participate in decisions on projects in traditional Sámi land that would affect Sámi traditional cultural activities, and that proposed projects that pose a threat to traditional Sámi activities should not be allowed. The Länsman and the Kitok cases also establish that land rights are included in the right to culture.[106]
The Human Rights Committee also dealt with the issue of Indigenous peoples’ participation in environmental decision-making in Apirana Mahuika et. al. v. New Zealand[107]. This case concerned the Maori, the government’s decision to issue fishing licenses and their right to do so under the Treaty of Waitangi.[108] In this case the Human Rights Committee emphasised its previous general comments on article 27 that governments may need to undertake positive legal measures in order to ensure the effective participation of Indigenous peoples, and to enable them to enjoy the right to their own culture. The Committee also referred to previous case law under the Optional Protocol which held that
the acceptability of measures that affect or interfere with the culturally significant economic activities of a minority depends on whether the members of the minority in question have had the opportunity to participate in the decision-making process in relation to these measures and whether they will continue to benefit from their traditional economy’.[109]
In the case under consideration the Committee found that the process of consultation undertaken by the state was enough. New Zealand had undertaken a complicated consultation in order to secure nation-wide Maori support. Maori communities and national Maori organizations had been consulted and their proposals did affect the result of the arrangement.[110]
The Brundtland Report released in 1987 established the term ‘sustainable development’, as development that meets the needs of present generations without compromising the needs of future generations.[111] The Brundtland report also had a section on Indigenous peoples. In the report it is stated that Indigenous peoples and tribal peoples
…are the repositories of vast accumulations of traditional knowledge and experience that links humanity with its ancient origins. Their disappearance is a loss for the larger society, which could learn a great deal from their traditional skills in sustainably managing very complex ecological systems. It is a terrible irony that as formal development reaches more deeply into rain forests, deserts and other isolated environments, it tends to destroy the only cultures that have proved able to thrive in these environments.[112]
The report recommends that just and humane policy for these groups should be based on the recognition and protection of their traditional rights to land and the other resources that sustain their way of life.[113] The report acknowledges that these groups’ own institutions are crucial to maintaining the harmony with nature and the environmental awareness characteristic of the traditional way of life.[114] Therefore, measures must be taken to protect the local institutions that enforce responsibility in resource use. This recognition must also give local communities a decisive voice in decisions about resource use in their area.[115]
With regards to the involvement of Indigenous people in the management of their resources
Principle 22 in the Rio Declaration states that:
Indigenous peoples and their communities and other local communities have a vital role in environmental management and development because of knowledge and traditional practises. States should recognize and duly support their identity, culture and interest, and enable their effective participation in the achievement of sustainable development.
In chapter 26 of Agenda 21[116] the inclusion of Indigenous peoples in the management of natural resources is addressed. In the chapter the importance of indigenous knowledge about the management of natural resources is emphasised. It is stated that Indigenous peoples should be able to participate in development decisions that affect them, and in the creation of protected areas, such as parks.[117] Both the Rio Declaration and Agenda 21 are soft law instruments. None of them address the issues of self-determination and self-government for Indigenous peoples.[118] Despite the fact that these instruments are soft law agreements they are widely adopted and several international environmental agreements now build upon ideas in these instruments.[119]
The only international human rights treaty that deals solely with Indigenous peoples is the Convention (No. 169) concerning Indigenous and Tribal Peoples in Independent Countries (ILO in 169).[120] Norway was the first country to sign and ratify this convention[121], Sweden and Finland are not parties to ILO 169. The position of the Swedish government will be further discussed below. ILO 169 gives Indigenous peoples the right to land and ownership, the right to participate in the management of land and natural resources and also the right to self-determination. Article 1 of states that.
Indigenous people are tribal peoples in independent countries whose social, cultural and economic conditions distinguish them from other sections of the national community, and whose status is regulated wholly or partially by their own customs or traditions or by special laws or regulations.
Article 6 establishes far reaching rules concerning the government’s obligation to consult with Indigenous peoples.[122] In Article 7 it is stated that Indigenous peoples shall have the right to decide their own priorities for the process of development as it affects their lives, beliefs, institutions, spiritual well-being and the lands they occupy or otherwise use. They should also be able to exercise control, to the extent possible, over their own economic, cultural and social development. In Article 14 of the Convention it is stated that land rights “shall be recognised” and that their right to use lands not exclusively occupied by them, but to which they have traditionally had access for their subsistence and traditional activities should be safeguarded. Article 15 (1) declares that indigenous peoples have the right to participate in the use, management and conservation of their natural resources. Article 23 obliges governments to promote the subsistence economy of Indigenous tribes taking into account the ‘importance of sustainable and equitable development’.
On the 13 September 2007 the United Nations General Assembly adopted the United Nations Declaration on the Rights of Indigenous Peoples (DRIP).[123] This is a soft law agreement but in many ways it reflects human rights incorporated into other documents, however this instrument only concerns Indigenous peoples. For example, Article 3 states that Indigenous peoples have the right to self-determination; this is a reflection of Article 1 in the ICCPR and the ICESCR.[124] While it is a separate soft law agreement it has been said that many of the provisions reflect established customary law.[125] However, with regards to collective rights like self-determination and rights to lands, territories and natural resources, DRIP is offering a further development of indigenous rights. Article 26 (2) states that “Indigenous peoples have the right to own, use, develop and control the lands, territories and resources that they possess by reason of…traditional occupation or use…”. In Article 28 (1) it is stated that Indigenous peoples have the right to restitution when such lands have been taken from them without their free, prior and informed consent. According to Åhrén this is a stretch of the rights stipulated in ILO 169, since it is more precise in the ownership right than ILO 169 and also offers the right to restitution when land have been taken away without free, prior and informed consent.[126]
These international instruments have an important standard setting role, but do not offer a detailed description on how to protect Indigenous people’s culture and traditional livelihoods and how to include them in management of land and natural resources. What they offer is a broad framework which states and Indigenous people can use when looking at how governance structures should be designed.[127] It is clear that Sweden has an obligation under international law to preserve the Sámi culture and traditional means of livelihoods.[128] Lawrence Watters, in an article called ‘Indigenous Peoples and the Environment: Convergence from a Nordic Perspective’, examined how international law on the environment, human rights and Indigenous peoples has influenced the legislation on Sámi rights in Norway. In this article he states that there is a profound relationship between principles and norms applicable to environment, culture and rights. In his opinion domestic law will be influenced by international law and this will lead to a framework which will develop and influence the way forward for Sámi rights in relation to land and natural resources.[129] The section on Swedish domestic legislation will investigate if this could also be said about the Swedish policy and laws adopted to protect Sámi reindeer herding.
Sweden, together with Canada, Denmark, Finland, Iceland, Norway, the United States, and the Russian Federation constitute the eight Arctic states. In 1991 the governments of these states gathered in Rovaniemi, Finland to discuss cooperation on the protection of the environment in the Arctic. This led to the signing of an agreement called the Arctic Environmental Protection Strategy (AEPS). In 1996 the same eight governments established a more formal administrative body, the Arctic Council, through the signing of the Ottawa Declaration.[130]
The Arctic is inhabited by inter alia thirty different Indigenous peoples, one of these groups being the Sámi. Indigenous people are represented in the Arctic Council through the representation of Indigenous organizations as Permanent Participants.[131] In the Declaration of the Establishment of the Arctic Council, it is stated that the Arctic states specially recognise the special relationship and unique contributions Indigenous peoples have to the Arctic. It is also stated that they recognise the importance of Indigenous people’s traditional knowledge and that there should be full consultation and involvement of Indigenous people in protecting the Arctic environment.[132] In the AEPS there was the same recognition of Indigenous people’s special relationship to the Arctic environment and the importance of their knowledge.[133] According to Nuttall the AEPS and the creation of the Arctic Council has institutionalised and given greater international recognition to Indigenous knowledge and expertise.[134]
With respect to cooperation between reindeer herders in the Arctic region the Association of World Reindeer Herders (WRH), which was established in 1997, is an important organisation. In 2000 WRH was granted observation status in the Arctic Council.[135] At the third congress, which was held in 2005, the WRH adopted the ‘Yaktusk Declaration’.[136] In this Declaration it is inter alia stated that traditional knowledge and ancient skills should be the basis for future sustainable management strategies in the Arctic. It also underlines the importance of reindeer herders participation in the Arctic Council’s work on sustainable development in the Arctic region.
In 1953 Sámi from Sweden, Norway and Finland met to discuss issues of common concern to Sámi culture and livelihoods, which in 1956 lead to the establishment of the Nordic Sámi Council in 1956, today called the Sámi Council and also includes Russian Sámi.[137]
In 1996 the Sámi Council initiated work on a Nordic Sámi Convention[138] and in 2005 the proposed Nordic Sámi Convention (Sámi Convention) was presented. [139] This Convention has been created by a group of experts and government representatives from Sweden, Norway and Finland.[140] The Nordic Sámi Convention addresses Sámi rights to land and water in Chapter IV, and in Chapter V the Sámi traditional livelihoods are addressed. Of relevance for this paper is Article 16, which states that the Sámi Parliament should have a right to negotiate in matters of major importance to the Sámi. The Article also establishes that the the states shall not adopt or permit measures that may significantly damage the basic conditions for Sámi culture, Sámi livelihoods or society, unless consented to by the Sámi parliament concerned.
In Article 40 it is stated that the states shall, in cooperation with the Sámi parliaments, actively protect the environment in order to ensure sustainable development of Sámi land and water areas. Allard believes that the Convention is well-balanced and encompasses several legally difficult questions. In her view the fact that the Convention has made particular progress regarding procedural rights, primarily consultation rights between the state and the Sámi, is positive.[141]
It is three years since the Nordic Sámi Convention was presented and it has been subject to remittance procedures. It has still not been adopted and it does not seem likely that the proposed Convention will be agreed upon. In a meeting between the ministers with Sámi responsibilities and the head of the three Sámi Parliaments in November 2008 it was decided that the negotiations on the Convention should continue.[142] As will be evident from the investigation below and the few rights Sámi have to actively participate in the management of natural resources in their traditional lands, the adoption of the Nordic Sámi Convention is highly important.
Sweden is a party to the ICCPR[143], ICESCR[144] and ICERD[145]. Since Sweden is bound by these conventions there is an international obligation for the Swedish government to protect the Sámi culture and livelihoods and not discriminate against the Sámi.[146] A recent development in the field of Indigenous rights is the adoption of DRIP. Sweden voted in favour of DRIP, but made clear that in regards to the Sámi the question of self-determination could not be separated from the question of land rights and that Sámi land rights were at heart of the matter.[147] Sweden clearly stated that there were competing interests between the Sámi and other people living in the north and that the government had to balance those interests.[148] Sweden also stated that a large part of the realization of the right to self-determination could be ensured through article 19 DRIP, which deals with the duty of states to consult and cooperate with Indigenous peoples.[149] In Sweden’s opinion article 19 could be implemented in different ways, including that the requirements are fulfilled through a consultative process between institutions representing Indigenous peoples and the state or through participation in democratic systems, such as the current Swedish system.[150]
Sweden has also ratified the European Convention of Human Rights and Fundamental Freedoms[151] and the Framework Convention for the Protection of National Minorities[152], and the Charter for Minority Languages.[153] Another treaty that is of relevance with regards to the public’s right to participate in environmental decision-making is the Convention on Access to Information, Public Participation in Decision making and Access to Justice on Environmental Matters (the Aarhus Convention), which Sweden is a party to.[154]
With regards to Sweden’s obligations under ICERD, Sweden was (as late as August 2008) criticised for the insufficient protection of the rights of the Sámi.[155] The Committee on the Elimination of Racial Discrimination (CERD) inter alia noted that the recent governmental investigations performed in Sweden with regards to Sámi rights have made limited progress in resolving Sámi issues, that the most recent investigation’s terms of reference had been too narrow and that the financial resources allocated to the investigations were too limited.[156] CERD also stated that it was concerned over Sweden’s slow process towards ratifying ILO 169 and the Nordic Sámi Convention, and urged Sweden to take action.[157]
In 1977 the Swedish Parliament confirmed that the Sámi are an Indigenous peoples. The Parliament also stated that the Sámi therefore hold a unique postion.[158] Today the Sámi policies in Sweden can be said to be based on special rights for Sámi.[159] The Sámi position as Indigenous peoples is not recognised in the constitution.[160] However, as a consequence of Sámi being a minority in Sweden they enjoy special protection under the fourth part of section 2 of chapter 1 of the Constitution.[161] There is no recognition of the colonial intervention of Sweden in Sápmi, or of Swedish policies and legislations concerning the Sámi. This has lead to several problems in Sámi participation in the decision-making process over their traditional land areas (the issue will be discussed under section 5).[162]
One part of the development in the Swedish recognition of Sámi as an Indigenous peoples was the establishment of the Sámi Parliament in 1993.[163] The Sámi Parliament is regulated through the Sámi Parliament Act 1992.[164] According to chapter 1 section 1 n the Act is the role of the Sámi Parliament is to protect the Sámi culture. The Sámi Parliament is both an electoral body and a governmental authority, which has meant that the body is in many instances bound by governmental instructions. This and internal divisions within the Sámi Parliament have lead to serious concerns both within the Sámi community and the Swedish administrators, as to whether Sámi Parliament will be able to function under its current mandate.[165]
In 1999 the Sámi were one of five groups[166] that the Swedish Parliament acknowledged as Swedish minorities, in respect to the European Convention on Minorities and Minority Languages.[167] Johansson, who in his doctoral thesis has investigated Sweden’s Sámi policts between 1986-2005, states that the Swedish Sámi policies have not followed the latest international development in indigenous rights. Instead, especially with its ratifications of the two European Minority Conventions, Sweden has formed its polices around Sámi as a minority. Johansson argues that those special rights to land and water that Sámi have are a result of their historical rights instead of influences from international development of indigenous rights, such as the ILO 169. In his view Sweden is treating the Sámi as a ‘minority de luxe’, where the special historical rights, which are not derived from international indigeous rights, constitues the ‘de luxe’ status.[168]
Among the Nordic states Sweden is considered to be the most conservative in relation to recognizing Sámi rights - in particular, collective rights, which inter alia has lead to the decision not to adopt ILO 169.[169] The only customary right that is currently recognised is the reindeer herding right, which will be discussed further below.[170] Sweden has also traditionally been reluctant to acknowledge the right to self-determination of Indigenous peoples. However, according to Henriksen there has during the last five to six years been a gradual change in the Swedish position on this issue. As an example he mentions that in the 2006 periodic report to the United Nations Committee on Economic, Social and Cultural Rights, the Swedish government acknowledges that Indigenous peoples have the right to self-determination under common Article 1 of the two 1966 international human rights covenants, the ICCPR and ICESCR.[171] This is clearly a result of international influences on Swedish official views. However, this has so far had no effects on the Swedish legislation, where Sámi land rights are still only a special right under the reindeer herding right. As will be discussed further, the reindeer herding right does not give the Sámi sufficient power to participate in the management of land and natural resources.[172] Johansson has identified the official Sámi policy on the right to self-determination to be an acknowledgment of cultural autonomy with a certain amount of self-government. He clearly states that the Swedish official policies towards Sámi self-determination today are not in line with the right to self-determination that Indigenous peoples have under international law.[173]
In 2006 the Swedish ombudsman against ethnical discrimination (DO) gave a remittance answer to four governmental investigations.[174] In these investigations the Commissions looked at different issues with regards to the Sámi. DO was critical of all four investigations and pointed out that none of them had taken a rights-based approach as a starting point. Instead all four investigations discussed conflicts between Sámi and other interest groups and made their recommendations based on a weighing up of those interests. The DO was also concerned by the fact that the investigations did not address Sweden’s colonial past in the Sápmi areas, and thereby recognised that the current legislation in many instances is coloured by the colonisation and the later discrimination against Sámi.[175] The DO is critical towards all the governmental investigations that have been performed between the years 1986 and 2006 concerning Sámi, since none of these investigations have based their work on the rights that the Sámi has as an Indigenous peoples.[176] The limited scope of these investigations is a sign that the government does not take the recognition of Sámi as an Indigenous peoples and the implications of international development of human rights and indigenous rights into account in the legislative process.
The Sámi Parliament has also noted that the governmental investigation on a new reindeer policy,[177] did not sufficiently investigate the state’s responsibility to protect Sámi culture under international and national legislation. The Sámi Parliament also criticised that the investigation did not mention Indigenous peoples’ participation in the management of natural resources despite the fact that these rights are acknowledged in Agenda 21 and other international instruments.[178] This clearly shows that there very little official recognition of the growing international acknowledgment of Indigenous peoples as resource managers and important stakeholders in the development of sustainable development in Sweden.
The national goals or obligations to protect reindeer herding are found in the 1977 acknowledgment of Sámi as an Indigenous people, the protection of ethnical minorities in the Constitution and the fact that reindeer herding is a monopoly right within the Sámi community. Allard has pointed out that there is no clear or explicit national goal to promote reindeer herding.[179] However it is clear from official statements that the government sees reindeer herding as an important part of the Sámi’s living, cultural heritage, and their politics with regards to the reindeer herding industry is said to be built on this recognition .[180] The power of the administration of land and supervision of herding is vested within the Swedish Board of Agriculture and the County Administrative Boards.[181]
The Sámi were never given any ownership rights to the land areas where they practice their traditional rights to reindeer herding, hunting and fishing. Instead the areas are owned by the state, forest industry or private landholders. In the 18th and 19th centuries the government acknowledged that the Sámi have the right to use land in the northern part of Sweden for herding, fishing and hunting, and that these rights date from time immemorial. However, the extent of these rights has never been fully clarified, which has led to a number of disputes, in particular with private landowners.[182] The Sámi right to use the land has been established in the judgment from the Supreme Court 1981 in the so called Taxed Mountain Case.[183] Even if the Sámi lost this case it established that the reindeer herding right is based on immemorial prescription and not on the creation of such a right through legislation, which was the state’s main position during the 20th century.[184]
As mentioned previously Sweden has not ratified ILO 169 and there are no signs that the government will do so in the near future.[185] It is noteworthy that all municipalities in the northern part of Sweden are against a ratification of the convention.[186] Sweden had plans to adopt the Convention and there was a governmental investigation established in 1997 in order to determine if Sweden could ratify the Convention and what legal changes needed to be undertaken if ILO 169 was ratified. The investigation, which presented its result in 1999, came to the conclusion that the current recognition of Sámi customary rights to their traditional lands is too weak to be abiding to article 14 in ILO 169. The reason for this is that the Sámi land rights can be subject to encroachments. In order for Sweden to fulfil the requirements of the ILO 169, the Sámi herding rights should be given the same kind of protection as other land-user rights such as easements.[187]
There have been further governmental investigations undertaken in order to determine the borders of the reindeer herding area, the land over which the Sámi hold land rights and also a investigation to examine the Sámi villages and private property owners hunting and fishing rights. These investigations presented their results in 2006, but so far there have been no legislative changes as a result of these investigations.[188] Despite the fact that the main concern with the ILO 169 is the issue of land rights, Sweden has taken no steps to implement other parts of the convention.[189] According to Johansson is there a lack of interest amongst the Parliamentary majority in Sweden to let the international development of indigenous rights serve as a foundation for Swedish Sámi policies.[190] Sweden was criticised for this in the 2008 CERD, where the Committee recommended that Sweden should take effective measures to ensure that studies conducted in the area of Sámi rights result in concrete action, including the adoption of new legislation.[191]
Even if Sweden is seen as the most conservative of the Nordic states, the problem with lack of recognition of Sámi customary rights also exists in Norway and Finland. Reasons behind the Nordic states reluctance to recognise Sámi customary rights could arise from: the fact that Sámi are a tiny minority in nations widely regarded as homogenous; that the reindeer herding Sámi count only for a few thousand peoples, but hold property rights over vast amounts of land in Scandinavia; and the geographical proximity and the assimilation policies which have lead to less difference between the Sámi and the non-Sámi population.[192]
In 1886 the first legislation concerning reindeer herding was passed this act was called the Reindeer Grazing Act; this act was followed by further legislation in 1898, 1928 and 1971. All of these Acts have placed increasing state restrictions on the practice of reindeer husbandry.[193] The 1886 Reindeer Grazing Act abolished the Taxed Lapp Land system, and declared the Sámi people’s traditional land the property of the Crown. The state did not offer any explanation as to how the Sámi could loose their rights, other than a people belonging to an inferior nomadic culture cannot acquire title to land.[194] The 1866 Reindeer Grazing Act and the 1928 Act, which all the following acts are built on, had two serious consequences for the Sámi population. First, the 1866 Reindeer Grazing Act introduced a paternalistic approach where the state holds the ultimate power to regulate reindeer herding with little or no involvement by the Sámi. Second, the 1928 Act vested all the historic rights to natural resources in the Sámi territory only to the Sámi that were reindeer herders, which led to a separation of the Sámi as a people, where the non-reindeer herding Sámi lost all their legal rights as an Indigenous people.[195] This separation has lead to conflicts within the Sámi group which still exists today. For example, there is no consensus amongst the Sámi parties in the Sámi Parliament regarding adoption of the ILO 169 and the Nordic Sámi Convention. The party called jakt- och fiskesamerna (the hunting and fishing Sámi) are opposed to ratification of the ILO 169, since they believe the Convention would only strengthen the rights of the Sámi villages.[196] The separation of the Sámi people and the legal rights that the non-reindeer herding Sámi might be entitled to is clearly outside the scope of this paper, but it is a highly contemporary issue that needs to be addressed by the legislature.
Today reindeer herding is regulated through the Reindeer Herding Act 1971. This Act establishes that it is only Sámi people who are allowed to pursue reindeer herding. The Reindeer Herding Act is based on the Sámi peoples’ historical use of the land, which has given them a particular right to make use of property: the reindeer management right. The reindeer management right means that a person who is a Sámi is entitled to make use of land and water in a particular fashion for the maintenance of himself/herself and his/her reindeer.[197] The reindeer management right is applicable to the Sámi population and is based on prescription from time immemorial.[198] Among other things, rights to reindeer pasture, hunting and fishing are included in the reindeer management right.[199] The Sámi reindeer herding right has to take place within the membership in a Sámi village.[200] The regulation of Sámi villages does not recognise the Sámi customary system noted above, where reindeer herding units are structured in siidas.[201]
When the Reindeer Herding Act was adopted, the idea behind it was that reindeer herding was an industry that needed to be rationalised, in the same way as forestry or agriculture.[202] This led to the establishment of large reindeer herding units and increased mechanisation in the reindeer herding industry. This policy have been criticised because it leads to very few Sámi being able to be involved in the industry, which means that it loses its role as a culture carrier.[203] In 2001 a governmental investigation on reindeer herding policies presented its report and inter alia proposed that the Sámi themselves should be able to decide the direction of the Sámi policies, and that there should be a deregulation of the structure and institutions controlling the reindeer herding industry.[204] This should allow for the Sámi villages themselves to create an ecological and economical sustainable reindeer herding industry, based on the conditions in the particular region were they are practising.[205]
The Reindeer Herding Act is the only legal expression of special Native title rights for the Sámi, but it is important to keep in mind that it is a reindeer act not a Sámi Native Claims Act.[206] The areas were Sámi are allowed to herd their reindeer are determined by section 3 in the Reindeer Herding Act. Rights connected to the so called ‘year-round pasture’, the area where Sámi are allowed to herd their reindeer are stronger than rights relating to the winter grazing area. Winter grazing is allowed in areas outside the permanent reindeer herding areas if the Sámi village by custom have herded their reindeers in those areas.[207] The uncertainty of the actual borders in regards to winter grazing has been the reason for conflict and has lead to lawsuits.[208] If a Sámi village is sued by a landowner, claiming that the village does not have winter grazing rights on the land in question since time immemorial, it is the Sámi village that bears the burden of proof.[209] The right to use land since time immemorial is a Western legal principle . and Allard has pointed out the difficulty of treating the reindeer herding right as analogous to this Western principle and the challenges for Sámi seeking to prove their right in a court.[210] Another reason for conflicts between other users and Sámi may be due to the fact that there are uncertainties as to what the customary right to reindeer herding means and its relationship to private property rights.[211]
As discussed in the introduction and in section 2, many of the threats to reindeer herding are due to activities undertaken in the reindeer herding area by other actors. Some of the mentioned activities include house construction, wind mills, road or railway construction, mineral extraction or forestry and are regulated under the Environmental Code, the Planning and Building Act, the Reindeer Herding Act and some other special legislation.[212] This section will discuss how the Sámi villages today are involved and able to participate in the environmental and planning decision-making process.
Reindeer herding is usually benefited by strong environmental protection since less exploitation means that areas needed for grazing are kept intact and the reindeer can move between the different areas uninterrupted. As discussed above development that leads to encroachments on reindeer grazing grounds might also increase pressure on other areas.[213] Allard has also pointed out that Sámi participation in the decision-making process may strengthen resource management and promote a sustainable use of the reindeer herding area.[214] The right to participate in the management of natural resources should not only be considered as a right to be consulted, it should also be a right to actively take part in decision-making processes relating to how the area should be used in the future. This is acknowledged in Article 3 DRIP, where Indigenous peoples’ right to self-determination is established and also in Article 26 where the right of Indigenous peoples’ to own, use, develop and control their traditional land is recognised.
The current Reindeer Herding Act gives no right to self-determination or self-government over the areas where Sámi have the right to herd their reindeer. There are basically no consultation requirements under the sections established to protect the area from environmental degradation in the reindeer herders’ interests.[215]
In section 30 of the Reindeer Herding Act it is stipulated that owners of traditional reindeer herding rights within the year-round pasture must not engage in activities which would cause substantial detriment to reindeer herding in the area. The background of this section was that the technical and economic developments in the area where the Sámi herded their reindeers made it necessary to establish some form of protection for the reindeer herding industry with regards to other competing industries.[216] It is up to the land owner to decide if an activity will cause substantial detriment to the reindeer herding right.[217] There is no requirement that the Sámi village affected should be consulted when determining what constitutes ‘substantial detriment’. Furthermore, there are no sanctions if a landowner does not uphold the rule. The only remedy for a Sámi village, claiming that an activity is hampering their reindeer herding right, is to sue on civil grounds in a court. Another problem with this section is that it is not applicable in the winter grazing areas.[218] Furthermore, the provision does not acknowledge the fact that the reindeer herding right is a civil right, which has as strong protection as private property rights under chapter 2 section 18 in the Constitution.[219] Already in 1989 the Sámi Rights Commission concluded that this section does not lead to the protection that it was meant to when it was established; the Commission in 2001 came to the same conclusion.[220] The 2001 governmental investigation on reindeer herding policy suggested that there should be a general provision applicable between landowners and reindeer herding Sámi within the whole reindeer pasture area.[221]
In section 32 of the Reindeer Herding Act it is stated that the government has the right to lease out land in certain parts of the reindeer herding area, but that this will only be allowed if there is no severe detriment to the reindeer herding. There is no consultation required under this provision. These decisions are often taken by the county administrative reindeer herding delegations, where Sámi are represented, but there is no absolute legal right for the Sámi to be heard under this provision.[222] However, if the entire fishing right belonging to a Sámi village is going to be leased out the Sámi village have to give their consent.[223] The lack of Sámi participation and opportunity to influence decisions in the Reindeer Herding Act are significant and there is a clear inconsistency in that the Sámi have to give there consent if the entire fishing right is leased, but in relation to other activities there are no express requirements granting the Sámi a veto right. If land rights are leased out it is obvious that this can have effects on the reindeer herding right, but in that case there is not even a consultation required.
The goal of sustainable development is incorporated in Sweden both through legislation and action programmes. The Swedish Parliament has adopted 16 environmental goals which act as a guide for different stakeholders and decision-makers, on what should be accomplished through environmental work, in order to achieve sustainable development.[224] The goals with relevance for the management of the reindeer herding area are; Magnificent Mountains and Living Forests. Reindeer herding is also protected as a national interest (riksintresse) under chapter 3 section 5 in the Environmental Code, where reindeer herding amongst other interests of national importance is protected from measures that would significantly interfere with the business. This provision is included in the so called natural resource management provisions set out in chapter 3 and 4. These provisions are intended to give guidance to decision-makers in environmental or planning decisions.[225] Since April 2008 the Sámi Parliament have been responsible for deciding which areas should be considered to be of national interest to reindeer herding.[226] It is the County Administrative Board who is in charge of ensuring that areas of national interest are included in environmental and planning decision-making.[227] Allard has noted that a problem with the County Administrative Board’s responsibility is that the authority also has to regard many other interests. This means that the interest of the reindeer herding Sámi is often submerged by other interests.[228] Today there is no general requirement in the Environmental Code that the Sámi should be consulted or allowed to participate in the management of natural resources in the reindeer herding area.[229] Instead Sámi are only able to participate in the same way as other stakeholders or the general public.
A large part of Sweden’s national parks, nature reserves or Natura 2000 areas are situated in the reindeer herding area.[230] These forms of nature protection are regulated in chapter 7 of the Environmental Code. National parks can only be established on state owned land.[231] It is the County Administrative Board that is responsible for the management of the national park and a management plan shall always be adopted for each park.[232] The park is also governed through by-laws established by the Environmental Protection Agency in consultation with the County Administrative Board. These by-laws regulate the management of the park and obligations for the public.[233] There are no provisions establishing any rights for the Sámi to be involved in the management of the national parks. With regards to the above mentioned Laponia area, which is largely situated within national parks, there is an ongoing discussion on the management of this area. The active Sámi villages have demanded that it should be managed through a co-management system.[234] The nature reserves are also managed through management plans, which are decided by the County Administrative Board or the concerned municipality.[235] Hence, the Sámi village are not able to participate in the management of a nature reserve situated on their traditional land. When compared to other countries Sweden is clearly lagging behind the development of Indigenous peoples’ participation in protected areas. In Australia and New Zealand, co-management of protected areas has long been established.[236]
This section will discuss how the Sámi can be involved in the decision-making process when a permit is sought to undertake hazardous activities or water activities. Hazardous activities are regulated under chapter 9 in the Environmental Code and are activities such as pits for the extraction of gravel, sand or peat, windmills and activities connected to agriculture such as animal farms.[237] Almost all water operations require a permit and are regulated under chapter 11 in the Environmental Code. A water activity could be activities such as building of dams, bridges or filling or piling in the water.[238] The way the Sámi can be involved in the decision-making process is through environmental impact assessment (EIA), which is mandatory for all activities requiring a permit under the Environmental Code.[239] The Sámi villages or individuals carrying out reindeer herding in the Sámi village are to be consulted under the EIA process, it is the applicant who is required to perform the consultation, if the Sámi village is adversely affected, or if the proposed activity have a ‘significant environmental impact’.[240]
The opportunity for the Sámi, mainly through the Sámi village, to influence decisions arising during the EIA process is small.[241] This is because the EIA process, only requires one mandatory consultation meeting, which means that the Sámi villages only have a limited time to present and discuss the environmental impacts on places such as migratory routes, holy sites and important calving grounds. Furthermore, the aim of the EIA is oriented towards the environmental implications of a specific activity, and there is no requirement that effects on the reindeer herding should be assessed, which means that the room for an assessment of the activity’s impact on reindeer herding is negligible.[242] Allard has suggested the establishment of a provision in the Reindeer Herding Act making an assessment of the impacts on reindeer herding and its sub-rights mandatory, and apart from the already prescribed consultation process requiring the competent permit authority to undertake consultation with the affected Sámi village.[243]
Mineral extraction is regulated under the Mineral Act 1991. Mineral extraction is common in Sweden and a large and potentially increasing threat to reindeer herding.[244] The Mineral Act has two types of permits, exploration permits ( a permit to investigate if there are minerals in the area) and exploitation concessions ( a permit to extract the minerals).[245] The main rule is that the Mineral Inspector is both the permitting authority and the supervisory authority.[246]
The Mineral Inspector may grant an exploration permit without consulting any party to the case.[247] With regards to the mineral exploitation permit the EIA process undertaken does not include a process where those affected by the activity should be consulted.[248] The reason for this is that the structures needed for mining have to be assessed under relevant provisions in the Environmental Code so there is no need for the same procedural rules in the Mineral Act.[249] Allard rejects this way of handling mining exploitation permits, and is of the opinion that:
[w]ithout prior and mandatory consultation with the affected Saami village, the effects on the husbandry and accommodation measures are difficult to assess. Knowledge of the preconditions for the reindeer herding industry is generally scarce.[250]
The Sámi also object to the current handling of mineral exploitation and exploration permits and reindeer herding Sámi feel that they are currently under high pressure from mining companies to allow mining on their traditional land.[251] The Sámi Council and the National Swedish Sámi Association are demanding that the companies and the Swedish state take responsibility to ensure that Sámi rights are protected before development projects such as mining go ahead. These organisations are of the opinion that the Swedish state, instead of protecting Sámi interests, is making it easier for development projects to go ahead without impacts on Sámi customary rights being taken into account.[252]
The Road Act 1971 regulates construction of new roads for public use and the Railway Act 1995 regulates buildings of tracks for railway traffic. A problem for reindeer herding with this type of infrastructure is that pasture areas become scattered. It also has indirect effects such as ,increasing accessibility for tourism.[253] In both laws it is established that an EIA needs to be carried out and it is under this process that the affected Sámi villages would be able to participate in the decision-making process.[254] There are also requirements for consultation with affected property owners, authorities and others that may have significant interest in the matter.[255] There is no pointing out of the Sámi villages as a particular group that should be consulted, but they are regarded as having a significant interest if the road or railway is situated in their herding area.[256]
The Environmental Code is to be used parallel with other administrative laws and the most important one with regards to Sámi opportunities to participate in the environmental and planning system is the Planning and Building Act.[257] When it comes to planning under the Planning and Building Act, the municipalities have a significant power, since it is a decentralised act that gives the public powers through the municipal planning monopoly.[258] There are many peoples who might wish to use areas where the Sámi traditionally herd their reindeer. One building, a hiking track or snowmobile track might not have severe impacts on the reindeer herding, but cumulatively such activities can hamper the Sámi right to use the land for reindeer herding.[259] For the protection of reindeer herding it is important that the Sámi villages have the opportunity to participate in the planning of the land areas. The way the Sámi could be involved in planning at the municipality level is by being viewed as stakeholders in a building, demolition or site improvement permit, or by making comments or being consulted in the process of establishing different plans in the municipality.[260] Here only the comprehensive plan, the detailed plan and the building permit process, will be discussed.
Each municipality is required to have a comprehensive plan, but this plan is not legally binding. The purpose of a comprehensive plan is to give guidance to the use of land and waters, and how the built area should be developed and conserved.[261] According to the preparatory works, the comprehensive plan is meant to be a guiding tool for future decisions on permits in the area.[262] So even if the comprehensive plan is not binding is it of significant importance and the municipalities’ future decisions will to a large extent be guided by this plan.[263] When a comprehensive plan is developed it is stated that the municipality shall consult with the concerned County Administrative Board, and any regional planning body and municipality that may be affected by the proposal. The municipality shall provide an opportunity for consultation with associations and individuals that have an essential interest in the proposal.[264]
The detailed development plan regulates the usage of land and water resources in the municipality. It is not mandatory to have a detailed plan in the entire municipality area and usually it is the areas with aggregated settlements that are covered.[265] A detailed development plan is binding.[266] For the detailed development plan it is mandatory for the municipality to consult the concerned County Administrative Board, the Cadastral Authority and other municipalities affected by the plan. Other stakeholders should be given the opportunity to consult; groups mentioned in the section are property owners, tenants or authorities, associations and other individuals with an essential interest in the program or the proposal.[267] As can be seen, the Sámi are not specifically mentioned as stakeholders and there are no obligations to consult them in any of these two important planning instruments.
It has been stated that Sámi villages in the development of both the comprehensive plan and the detailed plan should be considered as being individuals with an essential interest.[268] However, this is not always the case and Sámi villages have reported that they have had problems convincing municipalities that they are stakeholders and have the right to be given consultation opportunities at an early stage.[269] Another problem with the consultation process is that there is no regulation of how the consultation should be undertaken and how the results of the consultation process should be implemented in the plan.[270]
If the comprehensive plan or detailed development plan is likely to have a significant environmental effect the municipality has to make an EIA.[271] However, the EIA process within the comprehensive or detailed development plan does not give the Sámi villages any right to be consulted since the consultation process within the EIA process does not include persons or organisations.[272] The only way a Sámi village could influence an EIA is by making written submissions on the plan when it is exhibited.[273] This is a late stage of the process and therefore the opportunities to influence the plan is limited.[274]
Building permits are regulated in chapter 8 of the Planning and Building Act and it is the Building Committee in the municipality that approves or dismisses the application.[275] The circumstances under which a building permit should be sought is regulated under chapter 8 section 1. A building permit is required in order to inter alia erect a building, make extensions to a building, erect mobile masts or windmills. In chapter 8 section 22 of the Planning and Building Act the information and consultation process is set out. According to this provision the municipality shall inform known affected parties, and some examples of affected parties are included in the Act. Sámi villages with reindeer herding rights are not specially mentioned. According to the preparatory works, a known party should be regarded as those registered in the land registry.[276] The reason behind this legislation is that it would be too time consuming for the Building Committee to find each and every person who would consider themselves affected by the building application.[277] The reindeer herding right is not registered in the land registry, but according to case law the fact that the Sámi village’s activities in the municipality and their interest must be known to the Building Committee, they are to be regarded as known parties.[278]
However, the municipalities’ actual handling of cases where Sámi are concerned is not always in line with the Planning and Building Act and praxis from the municipalities has shown that the Sámi villages are often not considered as stakeholders.[279] One example of this is the municipality Krokom, which during a long period has not regarded the Sámi village Jovnevaeries as a stakeholder in building permit processes. Krokom has continued with this behaviour even after the Administrative Court of Appeal and the government decided that the Sámi village were to be considered as stakeholders and criticised the municipality. The municipality is now, after the Sámi village reported the municipality to the DO in 2005, being sued by the DO. As the cause of action the DO has referred to national legislation prohibiting discrimination[280], and provisions in the Criminal Code regarding breach of duty by the responsible officers in the Municipality, inter alia because article 27 of the ICCPR has not been adhered to.[281] The case is still pending in the district court. However, this case clearly shows how weak the provisions in the Planning and Building Act are and the need for a provision establishing that the Sámi villages are stakeholders. It also shows the need to establish clearer legislation on the special duties the state has towards the Sámi resulting from their status as Indigenous peoples.
As discussed above, modern forestry techniques used today are posing problems for reindeer herding. The interests of the Sámi, to keep old growth forest intact in order to have a good supply of lichen for the reindeer, coincide with biodiversity protection. In Sweden as in the rest of Scandinavia old growth forest is threatened and in the region is it estimated that only five percent of boreal forest remains.[282] Many species that are regarded as threatened in Sweden live in old growth forest.[283]
The forestry is regulated through the Forestry Act 1979. In 1991 there was an introduction of three new sections that would ensure that consideration was taken of reindeer herding within forest management.[284] The most relevant provision for this paper is section 20, which gives Sámi villages the right to be consulted before any logging takes place in an area used as year-round pasture. This is the only regulation in regards to Sámi participation, which could be viewed as giving the Sámi a right to participate in the management of natural resources. However, Sámi have questioned this consultation process and asserted that they think that the rule has been practised in a manner which neglects the Sámi opinions given in the consultation process.[285] Another weakness of this section is that it is only applicable in the year-round pasture area.[286] As with the legislation above the Forestry Act does not give the Sámi any decisive voice and it has been pointed out the authorities have never refused a request to deforest Sámi traditional pasture areas.[287]
In 2007 the Sámi Parliament was given the right to take some decisions regarding reindeer herding. However, the rights they were given are mainly administrative such as the right to decide the boarders of the Sámi village or the number of reindeers.[288] The power to administer land and supervise herding is still vested within the Swedish Board of Agriculture and the county administrative boards.[289] In the preparatory works[290] to the decision to transfer rights to the Sámi Parliament, it was stated that the decision making powers of the Sámi Parliament would not extend to areas where non-Sámi would be affected. This was due to criticism made by the remittance bodies on granting such powers to the Sámi Parliament.[291]
According to chapter 2 section 1 subsection 4 in the Sámi Parliament Law one of the tasks for the Sámi Parliament is to participate in community planning and make sure that the Sámi needs are taken into account. The interest in land and water for reindeer herding is pointed out as such a need. In the preparatory works it is stated that the Sámi Parliament is an important remittance body before decisions on regional or national level which affect the reindeer herding are taken. It is also stated that other authorities shall cooperate with the Sámi Parliament when planning important community policies. However, it is not stated that there is any obligation for them to take the opinion of the Sámi Parliament into account.[292] Furthermore, there are no general rules that the county administrative boards or other authorities shall consult the Sámi Parliament before decisions affecting Sámi interests are taken.[293]
The weak powers of the Sámi Parliament with regards to deciding issues such as land rights and rights to natural resources means that the Sámi Parliament is not in any way contributing to enhancing the Sámi right to self-determination with regards to the usage of the natural resources in their traditional land.[294]
As seen by the discussion above the Environmental Code and the discussed special legislation are far from living up to the requirements set out in article 15 of the ILO 169 with regards to Indigenous peoples’ involvement and participation in the management of the natural resources in their traditional lands.[295] Therefore it must also be concluded that Sweden is not fulfilling the obligations set out in DRIP. Neither can Environmental Code be said to fulfil the requirements established by the Human Rights Committee in the case Apirana Mahuika et. al.v. New Zealand, where government decisions about the resources in Maori traditional land were only deemed a non-breach of article 27 in ICCPR because the government had undertaken comprehensive consultations with the Maori and a majority of Maori approved the decisions. There are no provisions in the Environmental Code or any other legislation regulating land use or extraction of natural resource, requiring such a process.
During the 1999 governmental investigation on ILO 169, the Commissioner suggested that a new rule should be implemented in chapter 4 of the Environmental Code, which would give the Sámi right to comment on the usage of natural resources in the reindeer herding area. This should just not be a right to comment, but the authorities should also as far as possible take the Sámi comments into account.[296] However, the investigator was not of the opinion that the Sámi should have any decisive role or right to actively participate in the management of the resources.[297] In my opinion these suggestions are not in line with the current evolvement of international indigenous rights with regards to self-determination.
Allard has recommended that the Swedish legislation should facilitate mandatory consultation between the state and the Sámi in regards to decisions on resource management. She notes that this would indirectly promote both Sámi customary rights and environmental objectives. Since the reindeer herding area is used by many different land users there should also be a strengthening of the existing consultation processes. This would lead to less conflict between the different sectors and support a better understanding of the different interests involved.[298] With regards to consultation requirements there are some articles in the proposed Nordic Sámi Convention which establish direct consultation between the state or state authorities and the Sámi. Allard approves of the Nordic Sámi Convention and particularly to the provisions that establish consultation obligations.[299] Mörkenstam has gone further than Allard and suggested that the customary right to reindeer herding and its sub rights, should be extended to include a veto right concerning questions of land and water exploitation.[300]
Research has shown that the Sámi lost the owner ship to their land and access to the decision-making process regarding natural resources during industrialisation as the Swedish state wanted to exploit the resources in the northern parts of Sweden.[301] The legislation put in place during this period was based on notions of cultural hierarchy that considered the nomadic Sámi to be worth less than the non-Sámi population.[302] Recent research has pointed out that Sweden has not dealt with its colonial past in its current policies towards the Sámi.[303] This is reflected in Sweden’s continued unwillingness to adopt instruments such as ILO 169, which builds on ideas of historical rights for Indigenous peoples. Sweden’s official view on increased Sámi participation is clearly that the government considers Sámi to be able to participate through consultation with the Sámi Parliament or through participation in the democratic system.[304] Johansson has identified that the official Sámi policy on the right to self-determination advocates cultural autonomy with a certain amount of self-government. He clearly states that the Swedish official policies towards Sámi self-determination today are not in line with the right to self-determination that Indigenous peoples have under international law.[305] In my opinion it is evident that the non-recognition of the colonial past and the fact that the Sámi only have limited cultural autonomy means that reindeer herding cannot be protected in a sufficient way, neither in the legislation aimed particularly at protecting reindeer herding (such as s. 30 and 32 in the Reindeer Herding Act) nor in environmental and planning legislation.
The current situation of Sámi participation in the environmental and planning decision-making process in the reindeer herding area is not satisfactory. In my view it is clear that Sweden is not fulfilling its obligations to allow for Sámi participation in the management of natural resources under international law, since there are hardly any consultation requirements and where consultation is held the Sámi have little power to actually influence the decisions. Allard has emphasised that there are no consultation requirements between the state and the Sámi.[306] This must be seen as a result of the fact that the government has not acknowledged Sweden’s colonial past in Sápmi. The consultation obligations that exist in the Environmental Code in regards to activities requiring permits are to be gained through consultation between the operator and the Sámi village, and the operator and the authorities, but not particularly between the government and the Sámi. The government and the municipalities are under no direct obligation to consult with the Sámi, except where the state or municipality is the operator and a consultation process is required under the EIA process. Allard sees this as a weakness in the law.[307] It is obvious that there should be such a provision. The case of Krokom, where the municipality continued to exclude the Sámi as stakeholder despite decisions from higher authorities, underlines the need for a legislative change, including a direct obligation upon the state to consult with the concerned Sámi village. In the Nordic Sámi Convention there are suggestions for mandatory negotiations between the Sámi Parliament and the government, see Articles 16 and 40. This is an important improvement over the current situation where there is no requirement for the authorities to cooperate with the Sámi Parliament. However, I agree with Allard that there also needs to be a strengthening of the already existing consultation processes.[308]
In 2008 the DO presented a report on Sámi discrimination in the society. The DO found that Sámi were discriminated against in all sectors of society and proposed a number of actions to be taken by the government. Of relevance for this paper is that the DO inter alia proposed that Sweden should ratify the ILO 169, and with this Convention and the DRIP as a basis, remove the legal obscurities surrounding the Sámi customary rights. The DO also suggested that there should be an investigation on how the Sámi status as Indigenous peoples and their human rights could be given stronger constitutional protection. The DO also emphasised that the government needs to ensure that the Sámi have the opportunity to really participate in society in all areas of interest to them as Indigenous peoples.[309] As the DO has stated, the government is not approaching the issue from a rights-based perspective and is constantly letting other interests override the Sámi interests.
It is evident that as long as the reindeer herding Sámi have no self-determination rights in regards to the areas where they practise their traditional livelihood it is hard to implement the other requirements of international law with regards to the participation of Indigenous peoples in resource management as a means of reaching sustainable development. Such soft-law agreements as Rio Declaration and Agenda 21, seem to have very little influence on how the Sámi villages participate and influence decisions regarding their reindeer herding grounds. This has, as discussed above, been noted by the Sámi Parliament in a remittance answer regarding SOU 2001:101.[310] Sweden is a part of the Arctic Council and in both the Declaration Arctic Council and the Declaration establishing AEPS, Indigenous peoples and the importance of involving Indigenous peoples in the protection of the Arctic are underlined.
In the Swedish laws on planning and environmental decision-making there is no recognition of the Sámi villages as having a special right to be consulted or involved. This would, in my opinion, be a first step that needs to be taken if the Swedish legislation is going to be able to accommodate reindeer herding as an indigenous livelihood and follow the international development of indigenous rights. This is especially the case given Sweden voted in favour of DRIP.
Books/articles
Aarseth B The Sami Past and Present 2, 1993
Alfredsson G, ‘Minimum Requirements for a New Nordic Sami Convention’, (1999) 68 Nordic Journal of International Law, 397
Allard C, Two Sides of the Coin: Rights and Duties. The Interface between Environmental Law and Saami Law Based on a Comparison with Aoteoaroa/New Zealand and Canada, Doctoral thesis, Luleå University, 2006
Anaya J, ‘Indigenous Peoples’ Participatory Rights in Relation to Decisions About Natural Resource Extraction: The Most Fundamental Issue of What Right Indigenous Peoples Have in Land and Natural Resources’, (2005) 22(1) Arizona Journal of International & Comparative Law, 7-17
Aikio P, Beyond the Last Line of Forest Trees, in Story Earth Native Voices on the Environment, Inter Press Service, 1993
Beach H, ‘The Phase-out Clause in Minority Rights Legislation: A Comparison of the Swedish and Alaskan Methods’, (1986) 55 Nordic Journal of International Law, 64- 67
Berg A et al, ‘A century of logging and forestry in a reindeer herding area in northern Sweden,(2008) 256 Forest Ecology and Management, 256, 1009-1020
Berkes F, Sacred Ecology, 2nd ed, 2008
Berkes F and Farvar M T, ‘Introduction and Overview’ in Fikret Berkes (ed), Common Property Resources Ecology and community-based sustainable development, 1989
Borrows J, ‘Domestication Doctrines: Aboriginal Peoples after the Royal Commission’, (2001) 46 McGill Law Journal, 615-661
Briggs C M, ‘Science, local knowledge and exclusionary practises: Lessons from the Alta Dam case’, (2006) 60 Norsk Geografisk Tidskrift – Norwegian Journal of Geography, 149-160
Brundtland G H, Our Common Future, 1987
Burkhard B and Müller F, ‘Indicating human-environmental system properties: Case study northern Fenno-Scandinavian reindeer herding’, (2008) 8 Ecological Indicators, 828-840
Chapin F.S. et al, ‘Resilience and Vulnerability of Northern Regions to Social and Environmental Change’, (2004) Vol 33 Ambio, 344-349
Danell Ö, ‘Renskötselns robusthet – behov av nytt synsätt för att tydliggöra rennäringens förutsättningar och hållbarhet i dess socioekologiska sammanhang’, 2005 Rangifer Report No 10, 39-49
Daes E-I A, ‘An Overview of the history of indigenous peoples: self-determination and the United Nations’, (2008) 21:1 Cambridge Review of International Affairs, 7-26
Debeljak J, ‘Barriers to the Recognition of Indigenous Peoples’ Human Rights at the United Nations’, (2000) 26 (1) Monash University Law Review, 159-194
Forrest S, ‘The territorial dimension of state-Saami politics’, in Kristiina Karppi and Johan Eriksson (eds), Conflict and Cooperation in the North, (2002),
Henriksen J B, ‘The continuous process of recognition and implementation of the Sami people’s right to self-determination, (2008) 21:1, Cambridge Review of International Affairs, 27-40
Johansson P, Samerna – samerna ett ursprungsfolk eller minoritet? En studie av svensk samepolitik 1986-2005, (doctoral thesis, Göteborgs Universitet) 2008
Josefsen E, ‘The Saami and the National Parliaments – Channels for Political Influence’, (2007) 2 Gáldu Čála Journal of Indigenous Peoples Rights, 7
Kyllönen S et al., ‘Conflict Management as a Means to the Sustainable Use of Natural Resources’, 40 (4) (2006) Silva Fennica, 687-728
Langton M, Rhea Z M and Palmer L, ‘Community-Orientated Protected Areas for Indigenous Peoples and Local Communities’, (2005) 12 Journal of Political Ecology, 23-50
Lehtola V-P, ’The Saami siida and the Nordic States from the Middle Ages to the beginning of the 1900s’, in Kristiina Karppi and Johan Eriksson (eds), Conflict and Cooperation in the North, (2002)
Lewis D, ‘Ethnic mobilisation: The case of indigenous political movements’, in Kristiina Karppi and Johan Eriksson (eds), Conflict and Cooperation in the North, 2002
Magga O H, ‘The Saami Parliament: Fulfilment of self-determination?, in Kristiina Karppi and Johan Eriksson (eds), Conflict and Cooperation in the North, 2002
Minde H, ‘Sami Land Rights in Norway: A Test Case for Indigenous Peoples’, (2001) 8 International Journal on Minority and Group Rights, 107-125
Moen J and Danell Ö, ‘Reindeer in the Swedish Mountains An Assessment of Grazing Impacts’, (2003) 31 Ambio, 397-402.
Moyers A, ‘Linguistic protection of the Indigenous Sami in Norway, Sweden and Finland’, (2005-2006) 15 Transnational Law and Contemporary Problems, 363
Mörkenstam U, The power to define: The Saami in Swedish legislation, in Kristiina Karppi and Johan Eriksson (eds) Conflict and Cooperation in the North, (2002), 113-145, at 138.
Nettheim, Meyers and Craig D, Indigenous Peoples and Governance Structure. A Comparative Analysis of Land and Resource Management Rights, 2002
Nuttal M, Protecting the Arctic. Indigenous Peoples and Cultural Survival, 1998)
Parks P J, Bostedt G and Kriström B, ‘An Integrated System for Management and Policy Analysis’, (2002) 21 Environmental and Resource Economics, 203-220
Richardson B J and Razzaque J, ‘Public Participation in Environmental Decision-Making’, in Benjamin J Richardson and Stephan Wood (eds) Environmental Law for Sustainability, 2006
Richardson B J, ‘Indigenous Peoples, International Law and Sustainability’, (2001) 10:1 RECIEL, 1-12
Riseth J Å, ‘So the last shall be first, and the first last? Sámi Reindeer Management vs other land users in Mid-Scandinavia’, in Cant, Goodall and Inns (eds), Discourses and Silences. Indigenous Peoples, Risks and Resistance, 2005
Rådelius C, Självstyre eller samförvaltning? Problem och möjligheter utifrån en studie av världsarvet Laponia (Self governance or co-management? Problems and possibilities based on a study on the World Heritage Laponia). Licentiatuppsats (Licentiate dissertation) (2002), Luleå Tekniska Universitet
Strömgren J, ‘Sápmi – Sweden’, The Indigenous World 2008, International Working Group for Indigenous Affairs, 29-33
Sandström Pet al, ‘Conflict Resolution by Participatory Management: Remote Sensing and GIS as Tools for Communication Land-Use Needs for Reindeer Herding in Northern Sweden’, (2003) 32:8 Ambio, 557-567
Shaw M N, ‘The Definition of Minorities in International Law in Yoram Dinstein and Mala Tabory (eds), The Protection of Minorities and Human Rights, 1992
Sillanpää L, ’Government responses to Saami self-determination’, in Kristiina Karppi and Johan Eriksson (eds), Conflict and Cooperation in the North, 2002
Strömholm, Stig, ‘Introduction’ in Stig Strömholm (ed), An introduction to Swedish Law, 1981
Svensson T G, ‘On Customary Law: Inquiry into and Indigenous rights Issue’, 2 (2003) Acta Borealia, 95-119
Svensson T G, ‘Indigenous rights and Customary Law Discourse, at 100-108. Comparing the Nisga´a and the Sámi’, 47 (2002) Legal Pluralism & Unofficial Law
Torp E, ‘Reindeer-herding and the call for sustainability in the Swedish mountain region’, (1999) 16 Acta Borealia, 83-95
Torp E, Renskötselrätten och rätten till naturresuserna. Om rättslig reglering av mark- och resursanvändingen på renbetesmark I Sverige, doctoral thesis, 2008
Tyler N J C et al, ‘Saami reindeer pastoralism under climate change: Applying a generalized framework for vulnerability studies to a sub-arctic social-ecological system’, (2007) 17 Global Environmental Change,191-206
Watters L, ‘Indigenous Peoples and the Environment: Convergence from a Nordic Perspective’, (2001-2002) 20 UCLA Journal of Environmental Law & Policy, 237-304
Åhrén M, ‘The UN Declaration on the Rights of Indigenous Peoples – How was it adopted and why it significant?, Gáldu Cála Journal of Indigenous Peoples Rights 2007 No 4, 84-128
Åhrén M, ‘Indingenous peoples’ culture, customs ad traditions and customary law – the Saami people’s perspective’, Arizona Journal of International & Comparative Law, (2004) Vol 21 No 1, 63-112
Legislation
Reindeer Grazing Act 1886 (replaced by Reindeer Herding Act 1928)
Reindeer Herding Act 1928 (replaced by Reindeer Herding Act 1971)
Reindeer Herding Act 1971
Road Act 1971
The Constitution 1974 (Instrument of Government)
Forestry Act 1979
Mineral Act 1991
Sámi Parliament Act 1992
Railway Act 1995
Environmental Code 1998
Act on the right to Speak Sámi at Public Bodies and Courts1999
Act prohibiting discrimination, 2003
Regulation (1987:938) on National Parks
Regulation (1998:1252) on Protection of Areas Subject to the Environmental Code
Regulations (1998:905) on Environmental Impact Assessments
Council Directive 79/409/EC of 2 April 1979 on the conservation of wild birds, OJ L 103, 25/04/79 P. 1
Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora, OJ L 206, 22/07/92 P. 0007-0050
Case Law
Kitok v. Sweden (Communication No. 1971/1985), Views adopted 27 July 1988, Report
of the HRC, GAOR, Forty-third Session, Suppl. No. 40 (A/43/40), s. 221–230
Länsman et al. v. Finland (Communication 511/1992), Views adopted: 26 October 1994,
Report of the Human Rights Committee, Vol. II, GAOR, Fiftieth Session, Suppl. No. 40
(A/50/40), s. 66–76 och J. Länsman et al. v. Finland, Communication no. 671/1995), UN
Doc. CCPR/C/58/D/671/1995.
Apirana Mahuika et al. v. New Zealand, Communication No. 547/1993, U.N. Doc. CCPR/C/70/D/547/1993 (2000)
Swedish cases
The Swedish Supreme Court
NJA 1981 s. 1 (Skattefjällsmålet, Taxed Mountain case)
Supreme Administrative Court
RÅ 2000 s. 7
Court of Appeal
Hovrätten för Nedre Norrland (Court of Appeal for Lower Norrland) T 58-96, decided 15 February 2002
Administrative Court of Appeal
RH 1990:18
District court
Svegs tingsrätts (Svegs district court) T88/90.
Treaties
Universal Declaration of Human Rights, GA Res 217 A (III) U.N. Doc A/810 at 71, 183rd plen mtg, (1948)
European Convention of Human Rights and Fundamental Freedoms, opened for signature 1950, 213 UNTS 222, (entered into force 3 September 1953)
Convention concerning the Protection and Integration of Indigenous and Other Tribal and Semi-Tribal Populations in Independent Countries (ILO 107), opened for signature 26 June 1957, (entered into force 2 June 1959)
International Covenant on Civil and Political Rights, opened for signature 16 December 1966 UNTS 171 (entered into force March 23 1976)
International Covenant on Economic, Social and Cultural Rights, opened for signature 16 December 1966, 999 UNTS 3 (entered into force 3 January 1976)
The International Convention on the Elimination of All Forms of Racial Discrimination Adopted and opened for signature 21 December 1965, (entered into force 4 January 1969)
Optional Protocol to the International Covenant on Civil and Political Rights, adopted by General Assembly Resolution 2200A (XXI) 16 December 1966, (entered into force 23 March 1976)
Convention Concerning the Protection of the World Cultural and Natural Heritage (1972), Opened for signature 16 November 1972 and in force 17 December 1975, (1972) 1037 UNTS 151
Convention (No. 169) concerning Indigenous and Tribal Peoples in Independent Countries, opened for signature 27 June 1989, 28 ILM 1382 (1989) (entered into force 5 September 1991)
Charter for Minority Languages, opened for signature 1992, ETS 148 (entered into force 1 March 1998)
Framework Convention for the Protection of National Minorities, opened for signature 1995, ETS 157, (entered into force 1 February 1998)
Convention on Access to Information, Public Participation in Decision making and Access to Justice on Environmental Matters, opened for signature 25 June 1998, 2161 UNTS 447 (entered into force on 30 October 2001)
Other Sources
Adams M, Beyond Yellowstone? Conservation and Indigenous rights in Australia and Sweden, Research Online (2005), http://ro.uow.edu.au/scipapers/27, accessed 28 November 2008
Ad Hoc Open-ended Intersessional Working Group on Article 8 (j) of the Convention on Biological Diversity, Fith meeting, 15-19 October 2007. Report on Indigenous and local communities highly vulnerable to climate change inter alia of the Arctic, Small Island States and High Altitudes, with a focus on causes and solutions, (2007), http://arcticportal.org/ uploads/p7/MP/p7MPTlMGpsmLQsPmdzfzvQ/wg8j-05-inf-18-en.pdf, accessed 26 October 2008
Arctic Council;
Declaration on the Establishment of the Arctic Council, http://arctic-council.org/filearchive/Declaration%20on%20the%20Establishment%20of%20the%20Arctic%20Council-1..pdf, accessed 10 October 2008.
Declaration on the Protection of the Arctic environment, Arctic Environmental Protection Strategy, June1991, http://arctic-council.org/filearchive/artic_ environment.pdf, accessed 15 October 2008
http://arcticportal.org/ipy; http://arcticportal.org/en/icr/ealat, http://arctic-council.org/article/about, accessed 15 October 2008.
http://www.arcticpeoples.org/.
Association of World Reindeer Herders;
The Yakutsk Declaration, http://arcticportal.org /uploads/4v/HZ/4vHZQ5rLq_jWAb9L_bEYJA/Yakutsk-Declaration.pdf, accessed 26 October 2008
The Anar (Inari) Declaration, http://arcticportal.org/uploads/ nO/hV/nOhVOoVOxX6TxyrxhINooQ/Anardek.pdf, accessed 26 October 2008
Barry J and Kalman J, Our Land, Our Life, Indigenous Peoples´ Land Rights, Taiga Rescue Fact Sheet, Taiga Rescue Network, http://www.taigarescue.org/_v3/files/pdf/181.pdf, accessed 30 April 2008
Borchert N, Land is Life: Traditional Sàmi Reindeer Grazing Threatened in Northern Sweden, (2001), at 20, http://www.oloft.com/landislife.pdf, accessed 21 October 2008
CAFF, (2006) World Reindeer Husbandry, Conservation of Artic Flora and Fauna (CAFF) (one of the working groups within the Arctic Council) (2006) World Reindeer Husbandry, http:// arcticportal.org/uploads/O_/is/O_is46WVjAGOi2kosn7J-Q/CBMP-world-reindeer-husbandry.pdf, accessed 20 October 2008
CERD, Consideration of reports submitted by state parties under Article 9 of the Convention, Concluding observations of the Committee on the Elimination of Racial Discrimination, Sweden, CERD/C/SWE/CO/18
Dudley N, Gilmour D and Jeanrenaud J-P, Boreal forests: policy challenges for the future, Abor Vitae Supplement, (1998), http://cmsdata.iucn.org/downloads/ avspecial_boreal.pdf, accessed 20 November 2008
Edmonds S, Sweden’s Sami struggle over land rights, (7 January 2007), International Work Group for Indigenous Affairs, http://www.iwgia.org/graphics/Synkron-Library/Documents/Noticeboard/News%202007/Arctic/SwedenSami struggleoverlandrights.htm, accessed 3 May 2008
Eira et al, ‘The challenges of Arctic reindeer herding: the interface between reindeer herders’ traditional knowledge and modern understanding of the ecology, economy, sociology and management of Sámi reindeer herding, http://arcticportal.org/ uploads/XV/oJ/XVoJqij0zWvCr2U_QBMCHg/Eira_127801.pdf, accessed 14 October 2008
European Commission, Languages of Europe: http://ec. europa.eu/education/policies/lang/languages/langmin/euromosaic/sv2_en.html, accessed 8 June 2008
International Centre for Reindeer Husbandry, http://www.npolar.no/ansipra/english/Items/ICR.html, accessed 1 December 2008.
http://arcticportal.org/en/icr, accessed 20 November 2008.
International Work Group for Indigenous Affairs, Region and Country Reports, The Artic, Sápmi – Sweden, Indigenous World 2001-2002, http://www.iwgia.org/graphics/Synkron-Library/Documents/publications/Downloadpublications/IndigenousWorld/ YB02.pdf, accessed 1 May 2008
Jernsletten JL L and Klokov K, Sustainable Reindeer Husbandry, Executive Summary, (Arctic Council 2000-2002) http://www.reindeer- husbandry.uit.no/online/Final_Report/executive_summary.pdf, accessed 20 October 2008
Jernsletten JL L and Klokov K, Sustainable Reindeer Husbandry, Basic Concepts, (Arctic Council 2000-2002), http://www.reindeer-husbandry. uit.no/online/Final_Report/basic_concepts.pdf, accessed 1 December 2008
Lundmark L, Sami Policy in the shadow of racism, in the Sami – an Indigenous people in Sweden, (2005) the Sami Parliament and the Ministry of Agriculture, Food and Consumers Affairs, http://www.regeringen.se/content/1/c6/03/97/ 02/0acf930d.pdf, accessed 10 June 2008
Lundmark L, ‘Reindeer pastoralism in Sweden 1550-1950’, in Nordic Council for Reindeer Husbandry Research, Proceedings – Konferanserapport The 14th Nordic Conference on Reindeer and Reindeer Husbandry Research Den 14. nordiske forskningskonferansen om rein og reindrift Vantaa, Finland, 20.-22 mars 2006, Rangifer Report No. 12 2007, http://www.rangifer.no/norge/rr12_full.pdf, accessed 6 October 2008
Länsstyrelserna (County Administrative Boards): http://www.lst.se/lst/, accessed 25 November 2008
Mijá Ednan, Samebyarnas Laponiaprogram, at 17 (Mijá Ednan the Sámi villages Laponia Programme), http://www.sameportalen.se/Webbsidor/ Filbibliotek/Laponiaprogrammet.pdf, accessed 28 November 2008
Naturvårdsverket (Environmental Protection Agency) Miljömålen i korthet (The Environmental Goals in short), http://www.naturvardsverket.se/D ocuments/publikationer/620-8321-2.pdf, accessed 10 May 2008
NOU, 2001:34, Samiske Sedvaner og Retsoppfatninger – Bakgrunnsmateriale for Samerettsutvalget
Nordic Sámi Convention, unofficial translation to English, http://www.saamicouncil.net/includes/file_download.asp?deptid=2213&a mp;fileid=2097&file=Nordic%20Saami%20Convention%20(Unofficial%20English%20Translation).doc, accessed 10 October 2008
Ombudsmannen mot etnisk diskriminering (the DO), Remittance answer, on SOU 2005:116, 2005:17, 2005:79 and 2006:14, http: //www.do.se/upload/remissvar/nationella_minoriteter/jakt_fiske_sou_2005_116_17_79_14_do347_2006.pdf, accessed 23 November 2008
Ombudsmannen mot etnisk diskriminering. Discrimination of the Sami – the rights of the Sami from a discrimination perspective, DO:s rapportserie 2008:1 (DO report 2008:1), http://www.do.se/upload/Ladda%20ner/discri mination-of-the-Sami.pdf, accessed 20 November 2008
Ombudsmannen mot etnisk diskriminerig, application for a summons to the district court in Östersund, in the case between the DO and the Municipality of Krokom, http://www.do.se/ upload/rattsfall/dfl_tingratt/Stamning_Dnr733-2005_Krokoms_kommun.pdf, accessed 25 November 2008
Persson U, ‘Vill, vill inte eller vet inte’, Norrländska Socialdemokraten (http://www.nsd.se/nyheter/artikel.aspx?artic leid=4171229, accessed 25 November 2008
Regeringskansliet (The Government Office): http://www.regeringen.se/sb/d/6410/a/58131, accessed 10 October 2008
Ren 2000, http://www.ren2000.se/sapmi.htm, accessed 22 November 2008
Sámi Council and National Swedish Sámi Association, Joint Press release, 21 November 2008, http://arcticportal.org/en/icr/blog, accessed 28 November 2008
Samiskt informationscenter, http://www.eng.samer.se/, accessed 25 November 2008
Sámi Parliament, http://www.sametinget.se/1042, accessed 25 November 2008.
Sandström E and Tivell A, Lokal naturresursförvaltning i Västerbottens Län – En studie om förutsättningar och möjliga former, (Local nature resource management and planning in the County of Västerbotten – A study on possibilities and forms), Länsstyrelsen i Västerbottens Län (County Administrative Board in Västerbotten) http://www.ac.lst.se/files/qGJJEqqV.pdf, accessed 6 May 2008
Shelton D, ‘A rights based approach to public participation and local management of natural resources’, http://www.iges.or.jp/en/fc/phase1/3ws-26-dinah.pdf, accessed 26 November 2008
Spiliopoulou Åkermark S and Talah M, Samernas rätt till deltagande och samråd. Fysisk planering och infrastruktur, (The right for Sámi to participation and consultation. Planning and Infrastructure) (April 2007), Svenska Avdelningen av Internationella Juristkommissionen (Swedish section of International Commission of Jurists), http:/ /www.icj-sweden.org/upload/Publikationer/Samernasr%E4tttilldeltagandeochsamr%E5d1%281%29.pdfaccessed 22 November 2008
Statistiska Centralbyrån; http://www.rennaringsstatistik.scb.se/basfakta.asp, accessed 8 October 2008
Strömgren, J Sápmi Sweden, The Indigenous World 2008, at 29, International Work Group for Indigenous Affairs, http://www.iwgia.org/graphics/Synkron-Library/Documents/publications/ Downloadpublications/IndigenousWorld/IW%202008/THE%20INDIGENOUS%20WORLD-2008.pdf, accessed 20 October 2008.
Swedish government material;
Prop. 1971:51, Förslag till rennäringslag m.m.
Prop. 1975/76:209, Om ändring i regeringsformen
Prop. 1992/93:32, Samerna och samisk kultur m.m.
Prop. 2002/03:1, Förslag till budget
Prop. 2003/04:1, Förslag till budget
Prop. 2005/06:86, Ett ökat samiskt inflytande
Prop. 2006/07:1, Förslag till Budget
Regeringens skrivelse 2001/02:83, En nationell handlingsplan för de mänskliga rättigheterna
SOU 1986:36, Samernas folkrättsliga ställning
SOU 1989:41, Samerätt och Sameting
SOU 1990:91, Samerätt och samiskt språk
SOU 1999:25, Samerna – ett ursprungsfolk i Sverige – Frågan om Sveriges Anslutning till ILO:s convention nr 169
SOU 2001:101, En ny rennäringspolitik – öppna samebyar och samverkan med andra markanvändare
SOU 2002:77, Sametingsutredningen
SOU 2005:79, Vem får jaga och fiska? – historia folkrätt och miljö
SOU 2005:116, Jakt och fiske i samverkan
SOU 2006:14, Samernas sedvanemarker
Swedish Government (2006) ‘Report from Sweden on implementation of the International
Covenant on Economic, Social and Cultural Rights’, 2006–07–21 Ministry of Health and Social Affairs, can be viewed at http://www.sametinget.se/1675, accessed 25 November 2008
Swedish Government webpage;
http://www.manskligarattigheter. gov.se/extra/pod/?id=32&module_instance=5, accessed 10 October 2008
http://www.manskligarattigheter.gov.se/dynamaster/file_archive/040414/ecd61c0c53d47f6f 5eefca12b20a7012/konventioner_komplett_eng.pdf, accessed 1 December 2008
Swedish Research Council for Environment, Agricultural Science and Spatial Planning, (Formas), Hållbar rennäring och övrig samerelaterad forskning (Sustainable Reindeer herding and other Sámi related research), Formas, http://www.for mas.se/upload/dokument/PDF%20filer/Rapport%20renar%20och%20samer%20original1.pdf, accessed at 1 May 2008
United Nations;
Agenda 21 http://www.un.org/esa/sustdev/documents /agenda21/english/agenda21toc.htm, accessed 6 October 2008
Department of Public Information, General Assembly Adopts Declaration on Human Rights of Indigenous Peoples, (2007), http://www.un.org/News/Press/docs/2007/ga10612.doc.htm, accessed 12 June 2008
General Assembly Resolution A/RES/59/174 for a Second International Decade of Indigenous peoples, http://www.un.org/esa/socdev/unpfii/en/second.html, accessed 27 November 2008
Human Rights and the Environment. Preliminary Report submitted to the Sub-Commission on Prevention of Discrimination and Protection of Minorities, (UN Doc E/CN.4/Sub.2/1991/8)
International Labour Organisation, http://www.ilo.org/ilolex/cgi-lex/ratifce.pl?C169, accessed 20 November 2008
International Labour Organisation, http://www.ilo.org/indigenous/Conventions/lang--en/ index.htm, accessed 18 November 2008
Office of the High Commission for Human Rights; Fact Sheet No.9 (Rev.1), The Rights of Indigenous peoples http://www.unhchr.ch/html/menu6/2/fs9.htm, accessed 27 November 2008
Office of the High Commissioner for Human Rights, Status of ratification for the principal international human rights treaties, http://www.unhchr.ch/pdf/report.pdf, accessed 20 November 2008.
United Nations Economic Commission for Europe, http://www.unece.org/env/pp/ctreaty_files/ct reaty_2007_03_27.htm, accessed 20 November 2008
UNESCO, World Heritage, http://whc.unesco.org/en/list/774, accessed 6 November 2008
UNESCO, Partnership between UNESCO, Discovery Communications, Inc. and UN Works Programme on endangered languages, http://www.unesco.org/culture/ich/index.php?pg=00140 #TOC3, accessed 8 June 2008
United Nations Declaration on the Rights of Indigenous Peoples, adopted by the United Nations General Assembly 13 September 2007, UN Doc. A/61/67 of 7 September 2007
Wiben Jensen M, ´editorial’, Indigenous Affairs, Land Right: A Key Issue, 4/04, at 4, International Work Group for Indigenous Affairs, http://www.iwgia.org/graphics/Synkron-Library/Documents/publications/Downloadpublications/IndigenousAff airs/IA42004.pdf, accessed 10 May 2008
Zachrisson A, Co-management of Natural Resources; Paradigm Shifts, Key Concepts and Cases,
http://www.mistra .org/download/18.51ddd3b10fa0c64b24800016555/Fj%C3%A4llMistrarapport+nr+1.pdf, accessed 10 October 2008
[*] LLM (Lund’s University), LLM (International and Environmental Law, Macquarie University); Law Clerk at the Environmental Court of Appeal, Svea Court of Appeal. Email: Johanna.lindqvist@dom.se.
1 In this paper the word Sámi will be used, synonyms for it are Sami and Saami. For general information on the Sámi see samiskt informationscenter; http://www.eng.samer.se/, accessed 25 November 2008.
[2] F.S. Chapin et al, ‘Resilience and Vulnerability of Northern Regions to Social and Environmental Change’, (2004) Vol 33, Ambio, 344-349, at 346.
[3] Johan Strömgren, ‘Sápmi – Sweden’, The Indigenous World 2008, International Working Group for Indigenous Affairs, 29-33, at 29.
[4] Eva Josefsen, ‘The Saami and the National Parliaments – Channels for Political Influence’, (2007) 2, Gáldu Čála Journal of Indigenous Peoples Rights, 7, at 8.
[5] John B Henriksen, ‘The continuous process of recognition and implementation of the Sami people’s right to self-determination, (2008) 21:1, Cambridge Review of International Affairs, 27-40, at 27.
[6] Statistiska Centralbyrån (the governmental authority responsible for producing official statistics on Sweden); http://www.rennaringsstatistik.scb.se/basfakta.asp, accessed 8 October 2008.
[7] Anna Berg et al, ‘A century of logging and forestry in a reindeer herding area in northern Sweden, (2008) 256 Forest Ecology and Management, 256, 1009-1020, at 1009.
[8] Statistiska Centralbyrån; http://www.rennaringsstatistik.scb.se/basfakta.asp, accessed 8 October 2008. For a map over the Sámi villages in Sweden and their herding grounds see, Ren2000, http://www.ren2000.se/sapmi.htm, accessed 22 November 2008.
[9] There is a difference between the concept of reindeer ‘husbandry’ and reindeer ‘herding’, where reindeer husbandry is a more general, inclusive term that refers to the possession, maintenance and management of the herds as the harvestable resource of its owners. Herding is a subset of this and refers to the gathering and movement of the herds and having reindeer under ones supervision without necessarily tending to them continuously. In this paper the term reindeer herding will be used in a broad term including both husbandry and herding. Nicholas J.C. Tyler et al, ‘Saami reindeer pastoralism under climate change: Applying a generalized framework for vulnerability studies to a sub-arctic social-ecological system’, (2007) 17 Global Environmental Change, 191-206, at 191-192; Inger Marie G. Eira et al, ‘The challenges of Arctic reindeer herding: the interface between reindeer herders’ traditional knowledge and modern understanding of the ecology, economy, sociology and management of Sámi reindeer herding, http://arcticportal.org/uploads/XV/oJ/XVoJqij0zWvCr2U_QBMCHg/Eira_127801.pdf, accessed 14 October 2008. This is a paper that reports preliminary results from the International Polar Year (IPY) EALÁT project, the project is a follow up by the Arctic Council report Arctic Climate Assessment (ACIA) in 2004, and focuses on adaptation to future climate change in the north, for more information see http://arcticportal.org/ipy and http://arcticportal.org/en/icr/ealat. In this paper the threats towards reindeer herding due to climate change is also discussed.
[10] Öje Danell, ‘Renskötselns robusthet – behov av nytt synsätt för att tydliggöra rennäringens förutsättningar och hållbarhet i dess socioekologiska sammanhang’, 2005 Rangifer Report No 10, 39-49, at 39-40, http://www.rangifer.no/norge/rr10_full.pdf, accessed 10 October 2008.
[11] Tyler et al, above note 9, 194.
[12] Under the Convention Concerning the Protection of the World Cultural and Natural Heritage (1972), Opened for signature 16 November 1972 and in force 17 December 1975, (1972) 1037 UNTS 151; UNESCO, World Heritage, http://whc.unesco.org/en/list/774, accessed 6 November 2008. Laponia is one of four world heritage sites around the world which represents the landscape of Indigenous peoples, the other world heriatge sites doing this is Kakadu National Park and Uluru-Kata-Tjuta National Park in Australia, and Tongariro National Park in New Zealand. Christina Rådelius, Självstyre eller samförvaltning? Problem och möjligheter utifrån en studie av världsarvet Laponia (Self governance or co-management? Problems and possibilities based on a study on the World Heritage Laponia). Licentiatuppsats (Licentiate dissertation) (2002), Luleå Tekniska Universitet, at 30.
[13] Eira et al, above note 9.
[14] See for example, Article 27 International Covenant on Civil and Political Rights, opened for signature 16 December 1966 UNTS. 171 (entered into force March 23 1976) (ICCPR); Convention concerning Indigenous and Tribal Peoples in Independent Countries ILO, opened for signature 27 June 1989, 28 ILM 1382 (1989) (entered into force 5 September 1991) (ILO 169).
[15] Fikret Berkes, Sacred Ecology, (2nd ed, 2008), at 39. For an interesting discussion on indigenous environmentalism and a presentation on different views on the issue, see Mark Nuttal, Protecting the Arctic. Indigenous Peoples and Cultural Survival, (1998), at 149-157.
[16] ILO 169; United Nations Declaration on the Rights of Indigenous Peoples, adopted by the United Nations General Assembly 13 September 2007, UN Doc. A/61/67 of 7 September 2007, (DRIP); Berkes, above note 15, at 274; James Anaya, ‘Indigenous Peoples’ Participatory Rights in Relation to Decisions About Natural Resource Extraction: The Most Fundamental Issue of What Right Indigenous Peoples Have in Land and Natural Resources’, (2005) 22(1) Arizona Journal of International & Comparative Law, 7-17, at 7. James Anaya here notes that Indigenous peoples’ right to be consulted on decisions affecting them is part of customary international law.
[17] The most well known example is the construction of the Alta Dam in traditional Sámi land in Norway, which led to the Alta Dam conflict 1979-1982. For a description of the project and the Sámi resistance to it, see Chad M Briggs, ‘Science, local knowledge and exclusionary practises: Lessons from the Alta Dam case, (2006) 60 Norsk Geografisk Tidskrift – Norwegian Journal of Geography, 149-160, 150-157.
[18] Eira et al, above note 9. The Environmental Code 1998, the Planning and Building Act 1987, the Mineral Act 1991, the Road Act 1971, the Railway Act 1995, the Forestry Act 1979.
[19] Benjamin J Richardson, ‘Indigenous Peoples, International Law and Sustainability’, (2001) 10:1, RECIEL, 1-12; Dinah Shelton, ‘A rights based approach to public participation and local management of natural resources’, http://www.iges.or.jp/en/fc/phase1/3ws-26-dinah.pdf, accessed 26 November 2008.
[20] Gudmundur Alfredsson, ‘Minimum Requirements for a New Nordic Sami Convention’, (1999), 68, Nordic Journal of International Law, 397, at 411; Peter Johansson, Samerna – samerna ett ursprungsfolk eller minoritet? En studie av svensk samepolitik 1986-2005, (doctoral thesis, Göteborgs Universitet 2008), at 5-6. For a list of all human rights treaties adopted by Sweden see, Swedish government; http://www.manskligarattigheter.gov.se/dynamaster/file_archive/040414/ecd61c0c53d47f6f5eefca12b20a7012/konventioner_komplett_eng.pdf, accessed 1 December 2008.
[21] In the Environmental Code, Ch. 1 s. 1, it is stated that [t]he purpose of this Code is to promote sustainable development, which will assure a healthy and sound environment for present and future generations. Such development will be based on recognition of the fact that nature is worthy of protection and that our right to modify and exploit nature carries with it a responsibility for wise management of natural resources. The Environmental Code shall be applied in such a way as to ensure that: 1. Human health and the environment are protected against damage and inconvenience, whether caused by pollutants or other impacts; 2. Valuable natural and cultural environments are protected and preserved; 3. Biological diversity is preserved; 4. The use of land, water and the physical environment in general is such as to secure a long term good management in ecological, social, cultural and economic terms; and 5. Reuse and recycling, as well as other management of materials, raw materials and energy are encouraged with a view to establishing and maintaining natural cycles.
[22] Danell, above note 10, at 39.
[23] Norway have since the establishment of the Sámi Rights Commission 1980 done investigations of Sámi traditional knowledge and customary law, for an overview of these investigations see Tom G. Svensson, ‘On Customary Law: Inquiry into and Indigenous rights Issue’, (2003) 2 Acta Borealia, 95-119 and Tom G. ‘Indigenous rights and Customary Law Discourse Comparing the Nisga´a and the Sámi’ (2002) 47 Legal Pluralism & Unofficial Law, 1-35, at 6-13. The most comprehensive of the investigations seems to be NOU (Norges Offentlige Utredninger, Norwegian Public Investigations) 2001:34, Samiske Sedvaner og Retsoppfatninger – Bakgrunnsmateriale for Samerettsutvalget (Sámi customs and legal perceptions). For the benefit of the reindeer herding is the International Centre for Reindeer Husbandry (ICR) an important research centre. ICR was established by the Norwegian government in 2005 and is responsible for documenting and informing on traditional knowledge in reindeer herding. For more information on ICR see http://arcticportal.org/en/icr, accessed 20 November 2008.
[24] For a discussion on environmental requirements in relation to reindeer herding see Christina Allard, Two Sides of the Coin: Rights and Duties. The Interface between Environmental Law and Saami Law Based on a Comparison with Aoteoaroa/New Zealand and Canada, (Doctoral thesis, Luleå University, 2006), at 24-25 and 325-383. Allard is of the opinion that the environmental requirements on Sámi reindeer herding are sufficient. However, there could be reasons for establishing specific environmental requirements in certain areas within the reindeer herding area in order to acknowledge specific Sámi customary rights, see Allard at 382. Another doctoral thesis which deals with environmental law in the reindeer herding area is Eivind Torp’s doctoral thesis which was presented in June 2008, Renskötselrätten och rätten till naturresuserna. Om rättslig reglering av mark- och resursanvändingen på renbetesmark I Sverige (Reindeer herding rights and the right to natural resources. The regulation of land and natural resources in the reindeer herding area in Sweden). The thesis is only available in Swedish. For a discussion on the effects of reindeer herding on the mountains see, Jon Moen and Öje Danell, ‘Reindeer in the Swedish Mountains An Assessment of Grazing Impacts’, (2003) 31, Ambio, 397-402.
[25] Eira et al, above note 9. Eira et al. states that: ‘For Sámi reindeer herders the ability to adapt to change is based on the traditional and Indigenous knowledge base and their traditional institutions. In order to advance the development of sustainable development of reindeer herding it is critical to empower Indigenous peoples with the best technologies available in combination with Indigenous knowledge. Therefore is it essential that the education and management institutions within reindeer herding are transformed in order to enable them to understand reindeer herders traditional knowledge.’
[26] Lennart Lundmark, ‘Reindeer pastoralism in Sweden 1550-1950’, in Nordic Council for Reindeer Husbandry Research, Proceedings – Konferanserapport The 14th Nordic Conference on Reindeer and Reindeer Husbandry, Rangifer Report No. 12 2007, http://www.rangifer.no/norge/rr12_full.pdf, accessed 6 October 2008. Tyler et al, above note 9, at 202, has stated that the fact that the County Administrative Boards are responsible for key aspects of the economic and socio-political environment in which reindeer husbandry exists means that the traditional fluidity and flexibility of practise developed to meet the vagaries of the natural environment in the North have been seriously eroded.
[27] S. 65 a in the Reindeer Herding Act 1971, regulates the environmental goals for the reindeer herding industry. For a discussion of sustainable reindeer numbers and governmental control in Sweden during the 1990s, see Eivind Torp, ‘Reindeer-herding and the call for sustainability in the Swedish mountain region’, (1999) 16 Acta Borealia, 83-95 and Eira et al, above note 9. For a discussion on the issue of acknowledging Sámi customary law with regards to the division of village areas see Allard, above note 24, at 299-323.
[28] Tyler et al, above note 9, at 197; Ad Hoc Open-ended Intersessional Working Group on Article 8 (j) of the Convention on Biological Diversity, Report on Indigenous and local communities highly vulnerable to climate change inter alia of the Arctic, Small Island States and High Altiditues, with a focus on causes and solutions, (2007), http://arcticportal.org/uploads/p7/MP/p7MPTlMGpsmLQsPmdzfzvQ/wg8j-05-inf-18-en.pdf, accessed 26 October 2008.
[29] Nanna Borchert, Land is Life: Traditional Sàmi Reindeer Grazing Threatened in Northern Sweden, (2001), http://www.oloft.com/landislife.pdf, accessed 21 October 2008.
[30] Bjorn Aarseth, The Sami Past and Present 2, (1993) referenced in Lawrence Watters, ‘Indigenous Peoples and the Environment: Convergence from a Nordic Perspective’ (2001) 20 UCLA Journal of Environmental Law & Policy, 237-304, at 251, note 59.
[31] Veli-Pekka Lehtola, ’The Saami siida and the Nordic States from the Middle Ages to the beginning of the 1900s’, in Kristiina Karppi and Johan Eriksson (eds), Conflict and Cooperation in the North, (2002), at 184.
[32] Watters, above note, 30, at 252.
[33] UNESCO, Partnership between UNESCO, Discovery Communications, Inc. and UN Works Programme on endangered languages, http://www.unesco.org/culture/ich/index.php?pg=00140#TOC3, accessed 8 June 2008.
[34] European Commission, Languages of Europe: http://ec.europa.eu/education/policies/lang/languages/langmin/euromosaic/sv2_en.html, accessed 8 June 2008.
[35] SOU 2006:14, (Swedish Government Publication), Samernas Sedvanemarker (The Sámi customary lands), also referred to as the Boundary Commission, at 109.
[36] Anna Moyers, ‘Linguistic protection of the Indigenous Sami in Norway, Sweden and Finland’, (2005-2006), 15, Transnational Law and Contemporary Problems, 363, at 365.
[37] Garth Nettheim, Gary D Meyers and Donna Craig, Indigenous Peoples and Governance Structures, A Comparative Analysis of Land and Resource Management Rights, (2002), at 210; Henriksen, above note 5, at 28; Mattias Åhrén, ‘Indingenous peoples’ culture, customs ad traditions and customary law – the Saami people’s perspective’, Arizona Journal of International & Comparative Law, (2004) Vol 21 No 1, 63-112, at 78.
[38] Svensson, ‘Indigenous rights and Customary Law Discourse Comparing the Nisga´a and the Sámi’, above note 23, at 3.
[39] Åhrén, above note 37, at 66.
[40] SOU 2006:14, at 34.
[41] Lehtola, above note 31, at 183 and 186.
[42] Ibid, at 187. For a more thorough investigation on how the Nordic states historically have acknowledged Sámi customary law and how and why this acceptance disappeared and how the situation is today, see Åhrén, above note 37.
[43] Åhrén, above note 37, at 68-69 and 71.
[44] European Commission, Languages of Europe: http://ec.europa.eu/education/policies/lang/languages/langmin/euromosaic/sv2_en.html, accessed 8 June 2008.
[45] Åhrén, above note 37, at 92.
[46] Lennart Sillanpää, ’Government responses to Saami self-determination’, in Kristiina Karppi and Johan Eriksson (eds), Conflict and Cooperation in the North, (2002), at 84-85.
[47] Åhrén, above note 37, at 82 and 88-92.
[48] SOU 1999:25, (Swedish Government Publication), ‘Samerna – ett ursprungsfolk i Sverige – Frågan om Sveriges Anslutning till ILO:s convention nr 169’ (The Sámi - an indigenous people in Sweden – the question of a Swedish ratification of ILO 169), at 25.
[49] Lehtola, above note 31, at 190-191. A treaty from 1826 forbade crossing the boundaries established by the Treaty of Strömstad 1751, the Norwegian Russian border was closed in 1852, and the border between Sweden and Finland was closed 1889, see Lehtola, at 190-191.
[50] Josefsen, above note 4, at 9.
[51] Lehtola, above note 31, at 195. For a further discussion on the assimilation and segregation policies in Sweden see Scott Forrest, ‘The territorial dimension of state-Saami politics’, in Kristiina Karppi and Johan Eriksson (eds), Conflict and Cooperation in the North, (2002), 251, at 258-261.
[52] Lehtola, above note 31, at 195.
[53] Åhrén, above note 37, at 81-82.
[54] SOU 2001:101, (Swedish Governmental Publications), En ny rennäringspolitik – öppna samebyar och samverkan med andra markanvändare, (A new reindeer policy), at 212.
[55] Lennart Lundmark, Sami Policy in the shadow of racism, in the Sami – an Indigenous people in Sweden, (2005) the Sami Parliament and the Ministry of Agriculture, Food and Consumers Affairs, http://www.regeringen.se/content/1/c6/03/97/02/0acf930d.pdf, accessed 27 November 2008.
[56] SOU 2006:14, at 35.
[57] The Swedish Research Council for Environment, Agricultural Science and Spatial Planning, (Formas), Hållbar rennäring och övrig samerelaterad forskning (Sustainable Reindeer herding and other Sámi related research), Formas, http://www.formas.se/upload/dokument/PDF%20filer/Rapport%20renar%20och%20samer%20original1.pdf, accessed at 1 May 2008.
[58] Eira et al, above note 9.
[59] Per Sandström et al, ‘Conflict Resolution by Participatory Management: Remote Sensing and GIS as Tools for Communication Land-Use Needs for Reindeer Herding in Northern Sweden’, Ambio Vol 32 No 8 December 2003, 557-567, at 557.
[60] Tyler et al, above note 9, at 198.
[61] Moen and Danell, above note 24, at 397; Anna Berg et al., above note 7, at at 1009.
[62] Moen and Danell, above note 24, at 397; Anna Berg et al, above note 7, at 1009.
[63] Johnny-Leo L. Jernsletten and Konstantin Klokov, Sustainable Reindeer Husbandry, Basic Concepts, (Arctic Council 2000-2002), http://www.reindeer-husbandry.uit.no/online/Final_Report/basic_concepts.pdf, accessed 1 December 2008.
[64] Borchert, above note 29.
[65] SOU 2001:101, at 211.
[66] Berg et al, above note 7, at 1011.
[67] Pekka Aikio, Beyond the Last Line of Forest Trees, in Story Earth Native Voices on the Environment, Inter Press Service, (1993), at 194.
[68] Berg et al, above note 7, at 1011.
[69] Peter J. Parks, Göran Bostedt and Bengt Kriström, ‘An Integrated System for Management and Policy Analysis’, (2002), 21, Environmental and Resource Economics, 203-220, at 204.
[70] Danell, above note 10, at 39-40.
[71] Conservation of Artic Flora and Fauna (CAFF) (one of the working groups within the Arctic Council) (2006) World Reindeer Husbandry, http://arcticportal.org/uploads/O_/is/O_is46WVjAGOi2kosn7J-Q/CBMP-world-reindeer-husbandry.pdf, accessed 20 October 2008.
[72] Borchert, above note 29.
[73] Danell, above note 10, at 41.
[74] Ibid.
[75] Ibid.
[76] Berg et al, above note 7, at 1010.
[77] Danell, above note 10, at 42.
[78] Simo Kyllönen et al., ‘Conflict Management as a Means to the Sustainable Use of Natural Resources’, 40 (4) (2006) Silva Fennica, 687-728, at 697; Moen and Danell, above note 24, at 400.
[79] Benjamin Burkhard and Felix Müller, ‘Indicating human-environmental system properties: Case study northern Fenno-Scandinavian reindeer herding’, (2008) 8 Ecological Indicators, 828-840, at 832.
[80] Marianne Wiben Jensen, ´editorial’, Indigenous Affairs, Land Right: A Key Issue, 4/04, at 4, International Work Group for Indigenous Affairs, http://www.iwgia.org/graphics/Synkron-Library/Documents/publications/Downloadpublications/IndigenousAffairs/IA42004.pdf, accessed 10 May 2008.
[81] Nutall, above note 15, at 175.
[82] John Borrows, ‘Domestication Doctrines: Aboriginal Peoples after the Royal Commission’, (2001) 46 McGill Law Journal, 615-661, at 616; ILO 169, Articles, particularly 6, 7, 8, 13, and 15.
[83] Fikret Berkes and M Taghi Farvar, ‘Introduction and Overview’ in Fikret Berkes (ed), Common Property Resources Ecology and community-based sustainable development, (1989) at 6.
[84] Marcia Langton, Zane Ma Rhea and Lisa Palmer, ‘Community-Orientated Protected Areas for Indigenous Peoples and Local Communities’, (2005) 12, Journal of Political Ecology, 23-50, at 26.
[85] On 22 December 2004, the General Assembly adopted Resolution A/RES/59/174 for a Second International Decade, which commenced on 1 January 2005. UN proclaimed 1993 as the international year for Indigenous peoples, and 1995 to 2004 was the International Decade of the World’s Indigenous Peoples, see Office of the High Commission for Human Rights; Fact Sheet No.9 (Rev.1), The Rights of Indigenous peoples http://www.unhchr.ch/html/menu6/2/fs9.htm, accessed 27 November 2008.
[86] UNPFII; http://www.un.org/esa/socdev/unpfii/en/second.html, accessed 27 November 2008.
[87] United Nations, Human Rights and the Environment. Preliminary Report submitted to the Sub-Commission on Prevention of Discrimination and Protection of Minorities, (UN Doc E/CN.4/Sub.2/1991/8), para. 23.
[88] Richardson, above note 20, at 1.
[89] Ibid.
[90] Universal Declaration of Human Rights, GA Res 217 A (III) U.N. Doc A/810 at 71, 183rd plen mtg, (1948); International Covenant on Civil and Political Rights, opened for signature 16 December 1966 UNTS 171 (entered into force March 23 1976); International Covenant on Economic, Social and Cultural Rights, opened for signature 16 December 1966, 999 UNTS 3 (entered into force 3 January 1976).
[91] Dave Lewis, ‘Ethnic mobilisation: The case of indigenous political movements’, in Kristiina Karppi and Johan Eriksson (eds), Conflict and Cooperation in the North, (2002), at 47.
[92] Ibid at 40 and 47; James Anaya, above note, 16 at 7-9.
[93] For a thorough review on the Sámi self-determination in Russia, Finland, Sweden and Norway see Henriksen, above note 5.
[94] Erika-Irene A Daes, ‘An Overview of the history of indigenous peoples: self-determination and the United Nations’, (2008) 21:1 Cambridge Review of International Affairs, 7-26, at 12-18.
[95] Ole Henrik Magga, ‘The Saami Parliament: Fulfilment of self-determination?, in Kristiina Karppi and Johan Eriksson (eds), Conflict and Cooperation in the North, at 301-302.
[96] See inter alia Articles 25 and 26 in DRIP.
[97] Julie Debeljak, ‘Barriers to the Recognition of Indigenous Peoples’ Human Rights at the United Nations’, (2000) 26 (1) Monash University Law Review, 159-194, at 159-160 and 171.
[98] Watters, above note 30, at 265; Anaya, above note 16, at 9.
[99] See inter alia Articles 1 of the ICCPR and the ICESCR; Debeljak, above note 97, at 170.
[100] The International Convention on the Elimination of All Forms of Racial Discrimination, adopted and opened for signature 21 December 1965, (entered into force 4 January 1969), have been important in this aspect.
[101] Malcom N. Shaw, ‘The Definition of Minorities in International Law in Yoram Dinstein and Mala Tabory (eds), The Protection of Minorities and Human Rights, (1992), at 11.
[102] If the state party to ICCPR also has ratified the Optional Protocol to the International Covenant on Civil and Political Rights, adopted by General Assembly Resolution 2200A (XXI) 16 December 1966, (entered into force 23 March 1976).
[103] SOU 2005:79, (Swedish Government Publication) Vem får jaga och fiska? Historia, folkrätt och miljö, (Commission on Hunting and Fishing Rights), at 60.
[104] Kitok v. Sweden (Communication No. 1971/1985), Views adopted 27 July 1988, Report
of the HRC, GAOR, Forty-third Session, Suppl. No. 40 (A/43/40), s. 221–230. The case was initiated by Ivan Kitok, a ethnic Sámi, which had lost his membership in his ancestral village, and been denied readmission by the village, which meant that he could not pursue reindeer herding. The Committee found that Ivan Kitok’s rights had not been violated, since the legislation demanding membership in a Sámi village in order to be able to herd reindeer was justified as a means of ensuring the viability and welfare of the Sámi as a whole.
[105] Länsman et al. v. Finland (Communication 511/1992), Views adopted: 26 October 1994, para 9.3.
[106] Länsman et al. v. Finland (Communication 511/1992), Views adopted: 26 October 1994,
Report of the Human Rights Committee, Vol. II, GAOR, Fiftieth Session, Suppl. No. 40
(A/50/40), s. 66–76 and J. Länsman et al. v. Finland, Communication no. 671/1995), UN
Doc. CCPR/C/58/D/671/1995.
[107] Apirana Mahuika et al. v. New Zealand, Communication No. 547/1993, U.N. Doc. CCPR/C/70/D/547/1993 (2000).
[108] The Treaty of Waitangi was signed by some Maori chiefs and the British Crown in 1840, and constitutes the basis for Maori rights to land and water. For a more thorough review see Allard, above note 24, at 75-86.
[109] Apirana Mahuika et al. v. New Zealand, para. 9.5
[110] Apirana Mahuika et al. v. New Zealand, para 9.6
[111] Gro Harlem Brundtland, Our Common Future, WCED, (1987), at 8.
[112] Ibid, at 114-115.
[113] Ibid, at 115-116.
[114] Ibid.
[115] Ibid.
[116] Agenda 21, UNESCO, http://www.un.org/esa/sustdev/documents/agenda21/english/agenda21toc.htm, accessed 6 October 2008.
[117] Ibid.
[118] Nutall, above note 15, at 175.
[119] Richardson, above note 20, at 6.
[120] As of the 18 November 2008 the ILO 169 have bee ratified by 19 states (predominantly Latin American countries), http://www.ilo.org/indigenous/Conventions/lang--en/index.htm, accessed 18 November 2008; Janice Barry and Jessica Kalman, Our Land, Our Life, Indigenous Peoples´ Land Rights, Taiga Rescue Fact Sheet, Taiga Rescue Network, http://www.taigarescue.org/_v3/files/pdf/181.pdf, accessed 30 April 2008.
[121] International Labour Organisation: http://www.ilo.org/ilolex/cgi-lex/ratifce.pl?C169, accessed 20 November 2008.
[122] In applying the provisions of this Convention, governments shall: (a) consult the peoples concerned, through appropriate procedures and in particular through their representative institutions, whenever consideration is being given to legislative or administrative measures which may affect them directly; (b) establish means by which these peoples can freely participate, to at least the same extent as other sectors of the population, at all levels of decision-making in elective institutions and administrative and other bodies responsible for policies and programmes which concern them; (c) establish means for the full development of these peoples’ own institutions and initiatives, and in appropriate cases provide the resources necessary for this purpose. 2. The consultations carried out in application of this Convention shall be undertaken, in good faith and in a form appropriate to the circumstances, with the objective of achieving agreement or consent to the proposed measures.
[123] Adopted by the United Nations General Assembly 13 September 2007, UN Doc. A/61/67 of 7 September 2007. The Declaration was approved with 143 votes in favour and 11 abstentions (Azerbaijan, Bangladesh, Bhutan, Burundi, Colombia, Georgia, Kenya, Nigeria, Russian Federation, Samoa and Ukraine). Only four states – namely, Australia, Canada, New Zealand and the United States – voted against, http://www.un.org/esa/socdev/unpfii/en/declaration.html, accessed 14 November 2008.
[124] Nettheim, Meyers and Craig, Indigenous Peoples and Governance Structures, (2002), above note 37, at 9.
[125] Mattias Åhrén, ‘The UN Declaration on the Rights of Indigenous Peoples – How was it adopted and why it significant?, (2007) 4, Gáldu Cála Journal of Indigenous Peoples Rights, 84-128, at 128.
[126] Ibid, at 127.
[127] Nettheim, Meyers and Craig, above note 37, at 24-25.
[128] Allard, above note 24, at 480.
[129] Watters, above note 30, at 303-304.
[130] Arctic council, http://arctic-council.org/article/about, accessed 15 October 2008.
[131] Currently the following organizations are Permanent Participants; Aleut International Association (AIA), Arctic Athabaskan Council (AAC), Gwich'in Council International (GCI), Inuit Circumpolar Council (ICC), Saami Council and Russian Arctic Indigenous Peoples of the North (RAIPON).The Permanent Participants are supported by the Indigenous Peoples Secretariat, http://www.arcticpeoples.org/.
[132] Declaration on the Establishment of the Arctic Council, http://arctic-council.org/filearchive/Declaration%20on%20the%20Establishment%20of%20the%20Arctic%20Council-1..pdf, accessed 10 October 2008.
[133] Declaration on the Protection of the Arctic environment, Arctic Environmental Protection Strategy, June1991, http://arctic-council.org/filearchive/artic_environment.pdf, accessed 15 October 2008.
[134] Nuttall, above note 15, at 23.
[135] International Centre for Reindeer Husbandry, http://www.npolar.no/ansipra/english/Items/ICR.html, accesed 1 December 2008.
[136] The Yakutsk Declaration can be accessed at; http://arcticportal.org/uploads/4v/HZ/4vHZQ5rLq_jWAb9L_bEYJA/Yakutsk-Declaration.pdf, accessed 26 October 2008. On 22 June 2001 the WRH has adopted the Anar (Inari) Declaration, http://arcticportal.org/uploads/nO/hV/nOhVOoVOxX6TxyrxhINooQ/Anardek.pdf, accessed 26 October 2008.
[137] Nettheim, Meyers, and Craig, above note 37, at 210.
[138] Ibid.
[139] Nordic Sámi Convention, unofficial translation to English, http://www.saamicouncil.net/includes/file_download.asp?deptid=2213&fileid=2097&file=Nordic%20Saami%20Convention%20(Unofficial%20English%20Translation).doc, accessed 10 October 2008.
[140] Allard, above note 24, at 264.
[141] Ibid.
[142] Swedish Government webpage;
http://www.manskligarattigheter.gov.se/extra/pod/?id=32&module_instance=5, accessed 10 October 2008.
[143] Since the 23 March 1976, Office of the High Commissioner for Human Rights, Status of ratification for the principal international human rights treaties, http://www.unhchr.ch/pdf/report.pdf, accessed 20 November 2008.
[144] Since the 3 January 1976, Office of the High Commissioner for Human Rights, Status of ratification for the principal international human rights treaties, http://www.unhchr.ch/pdf/report.pdf, accessed 20 November 2008.
[145] Since the 5 January 1972, Office of the High Commissioner for Human Rights, Status of ratification for the principal international human rights treaties, http://www.unhchr.ch/pdf/report.pdf, accessed 20 November 2008.
[146] Particularly Article 27 ICCPR establishes a commitment for the government to protect Sámi culture.
[147] General Assembly GA 10612, Department of Public Information, General Assembly Adopts Declaration on Human Rights of Indigenous Peoples, (2007), http://www.un.org/News/Press/docs/2007/ga10612.doc.htm, accessed 12 June 2008.
[148] Ibid.
[149] Ibid.
[150] Ibid.
[151] European Convention of Human Rights and Fundamental Freedoms, opened for signature 1950, 213 UNTS 222, (entered into force 3 September 1953).
[152] Framework Convention for the Protection of National Minorities, opened for signature 1995, ETS 157, (entered into force 1 February 1998). The Convention has been in force in Sweden since 1 June 2000.
[153] Open for signature 1992, ETS 148 (entered into force 1 March 1998), Sweden ratified this Convention the 9 February 2000. The adoption of the European minority conventions has lead to the adoption of prop. 1998/99:143 Nationella minoriteter i Sverige, (Governmental Bill, National minorities in Sweden) and with regards to Sámi a special language regulation that gives Sámi the right to speak Sámi in with contact to public authorities in a certain area in the northern part of Sweden, Act on the right to Speak Sámi at Public Bodies and Courts 1999.
[154] Convention on Access to Information, Public Participation in Decision making and Access to Justice on Environmental Matters, opened for signature 25 June 1998, 2161 UNTS 447 (entered into force on 30 October 2001). As of the 20 November 2008 the Convention has 42 parties, including the European Union. The convention is a product of the United Nations Economic Commission for Europe but it is open to accession by any member of the United Nations United Nations Economic Commission for Europe, http://www.unece.org/env/pp/ctreaty_files/ctreaty_2007_03_27.htm, accessed 20 November 2008.; Benjamin J Richardson and Jona Razzaque, ‘Public Participation in Environmental Decision-Making’, in Benjamin J Richardson and Stephan Wood (eds) Environmental Law for Sustainability, (2006), at 175.
[155] CERD, Consideration of reports submitted by state parties under Article 9 of the Convention, Concluding observations of the Committee on the Elimination of Racial Discrimination, Sweden, CERD/C/SWE/CO/18.
[156] SOU 2005:116, SOU 2005:17, SOU 2005:79, SOU 2006:14, (Swedish Government Publications).
[157] CERD, Consideration of reports submitted by state parties under Article 9 of the Convention, Concluding observations of the Committee on the Elimination of Racial Discrimination, Sweden, CERD/C/SWE/CO/18.
[158] SOU 1999:25. Before this the Swedish state had been reluctant to acknowledge the Sámi as an Indigenous peoples. At their ratification of Convention concerning the Protection and Integration of Indigenous and Other Tribal and Semi-Tribal Populations in Independent Countries (ILO 107), opened for signature 26 June 1957, (entered into force 2 June 1959). Sweden and the other Nordic states based their decision not to consider the Sámi as Indigenous peoples on the fact that most Sámi were well integrated into society, see Henry Minde, ‘Sami Land Rights in Norway: A Test Case for Indigenous Peoples’, (2001) 8 International Journal on Minority and Group Rights, 107-125, at 113.
[159] Ulf Mörkenstam, The power to define: The Saami in Swedish legislation, in Kristiina Karppi and Johan Eriksson (eds) Conflict and Cooperation in the North, (2002), at 138.
[160] SOU 1999:25, at 65.
[161] Prop. 1975/76:209, at 138.
[162] Allard, above note 24, at 500-501; Johansson, above note 20, at 153-159; Ombudsmannen mot etnisk diskriminering (DO) (Swedish ombudsman against ethnical discrimination), Discrimination of the Sami – the rights of the Sami from a discrimination perspective, DO:s rapportserie 2008:1 (DO report 2008:1), http://www.do.se/upload/Ladda%20ner/discrimination-of-the-Sami.pdf, accessed 20 November 2008.
[163] This followed recommendations made by the Sámi Rights Commission (Samerättsutredningen) established in 1982 and presenting its result in three reports (SOU 1986:36; SOU 1989:41 and SOU 1990:91).
[164] Norway opened a Sámi Parliament in 1989 and Finland have had a Sámi Parliament since 1973, http://www.sametinget.se/1042, accessed 25 November 2008.
[165] Sillanpää, at 99. There has been a governmental investigation on the Sámi Parliament and some issues that had occurred since its opening in 1993, SOU 2002:77 (Swedish Government Publications), Sametingets roll i det svenska folkstyret. For a discussion of the investigation see Johansson, above note 20, at 168-180.
[166] The others are Swedish Finns, Torne peoples, Gypsies and Jewish People.
[167] DO Report 2008:1, at 14.
[168] Johansson, above note 20, at 244 and 301-303.
[169] Henriksen, above note 5, at 34.
[170] Allard, above note 24, at 264. Allard is also of the opinion that there might be Sámi customary rights outside the reindeer herding right, Allard, above note 24, at 258.
[171] Swedish Government (2006) ‘Report from Sweden on implementation of the International
Covenant on Economic, Social and Cultural Rights’, 2006–07–21 Ministry of Health and Social Affairs, can be viewed at http://www.sametinget.se/1675, accessed 25 November 2008; Henriksen, above note 5, at 34; Johansson have noted a change in the Swedish official documents and refers to the Swedish national action plan for human rights in 2002 (Regeringens skrivelse 2001/02:83, En nationell handlingsplan för de mänskliga rättigheterna, at 91), where both Indigenous peoples and Sámi are linked to the concept of self-determination. Johansson also mention the governmental budget bill prop. 2002/03:1, Förslag till budget, annex 36, and budget bill, prop. 2003/04:1, Förslag till budget, annex 18). Johansson however states that it remains to see if this is just a linguistic general usage of the concept or if it is steps towards realising Sámi self-determination, Johansson, above note 20, at 298.
[172] Mörkenstam, above note 159, at 113 and 136-138.
[173] Johansson, above note, 20, at 169 and 180-182.
[174] DO remittance answer, on SOU 2005:116, SOU 2005:17, SOU 2005:79 and SOU 2006:14, http://www.do.se/upload/remissvar/nationella_minoriteter/jakt_fiske_sou_2005_116_17_79_14_do347_2006.pdf, accessed 23 November 2008.
[175] Ibid.
[176] DO report 2008:1, at 23. As an exception to this I would say that the SOU 1999:25 should not be criticised as not starting from the Sámi peoples right as an Indigenous peoples since it investigated ILO 169 and the rights under this Convention and what changes needed to be undertaken if Sweden were to ratify this Convention.
[177] SOU 2001:101.
[178] Prop. 2005/06:86, Ett ökat samiskt inflytande, (Governmental Bill, An increased Sámi influence) at 30.
[179] Prop. 1975/76:209 Om ändring i regeringsformen (Governmental Bill about changes in the Constitution), at 138; Allard, above note 24, at 480.
[180] Prop. 2006/07:1, Förslag till Budget, (Governmental Bill, Budget Proposal); Regeringskansliet (The Government Office): http://www.regeringen.se/sb/d/6410/a/58131, accessed 10 October 2008.
[181] Johan Strömgren, Sápmi Sweden, The Indigenous World 2008, at 29, International Work Group for Indigenous Affairs, http://www.iwgia.org/graphics/Synkron-Library/Documents/publications/Downloadpublications/IndigenousWorld/IW%202008/THE%20INDIGENOUS%20WORLD-2008.pdf, accessed 20 October 2008. Sweden is divided in to 21 Counties, each County has a County Administrative Board, which are state coordinative authorities which provide monitoring-, service- and appeal- services, Länsstyrelserna (county administrative Boards): http://www.lst.se/lst/, accessed 25 November 2008.
[182] Anna Zachrisson, Co-management of Natural Resources; Paradigm Shifts, Key Concepts and Cases,
http://www.mistra.org/download/18.51ddd3b10fa0c64b24800016555/Fj%C3%A4llMistrarapport+nr+1.pdf, accessed 10 October 2008.
[183] Skattefjällsmålet, NJA 1981 s. 1 (Taxed Mountain Case).
[184] Allard, above note 24, at 258.
[185] Johansson, above note 20, at 302.
[186] Sandström and Tivell, Lokal naturresursförvaltning i Västerbottens Län – En studie om förutsättningar och möjliga former, (Local nature resource management and planning in the County of Västerbotten – A study on possibilities and forms), Länsstyrelsen i Västerbottens Län (County Administrative Board in Västerbotten) http://www.ac.lst.se/files/qGJJEqqV.pdf, accessed 6 May 2008.
[187] SOU 1999:25, at 145; Nettheim, Meyers and Craig, above note 37, at 224-225.
[188] SOU 2005:79, Vem får jaga och fiska? – historia folkrätt och miljö, SOU 2005:116, Jakt och fiske i samverkan and SOU 2006:14, Samernas sedvanemarker.
[189] Swedish Government (2006) ‘Report from Sweden on implementation of the International
Covenant on Economic, Social and Cultural Rights’, 2006–07–21 Ministry of Health and Social Affairs, can be viewed at http://www.sametinget.se/1675, accessed 25 November 2008; Johansson, above note 20 at 299.
[190] Johansson, above note 20, at 299.
[191] CERD, Consideration of reports submitted by state parties under Article 9 of the Convention, Concluding observations of the Committee on the Elimination of Racial Discrimination, Sweden, CERD/C/SWE/CO/18, para 19.
[192] Jan Åge Riseth, ‘So the last shall be first, and the first last? Sámi Reindeer Management vs other land users in Mid-Scandinavia’, in Garth Cant, Anake Goodall, Justine Inns (eds), Discourses and Silences. Indigenous Peoples, Risks and Resistance, (2005), at 49.
[193] Sillanpää, above note 46, at 91.
[194] Åhrén, above note 37, at 89.
[195] Sillanpää, above note 46, at 91. With the 1886 Act there was an introduction of the Lappfogde (a Swedish administrative officer) system. The Lappfogde’s role was to represent the Sámi population before administrative authorities officially seeing to their economical and social interest. This meant that the Sámi people lost their ability to represent themselves in issues relating to their traditional land, waters and natural resources, see Åhrén, above note 37, at 90. This system was in place until 1971.
[196] Ulf Persson, ‘Vill, vill inte eller vet inte’, Norrländska Socialdemokraten (http://www.nsd.se/nyheter/artikel.aspx?articleid=4171229, accessed 25 November 2008.
[197] Reindeer Herding Act, s. 1.
[198] Allard is of the opinion that the current situation with immemorial prescription is not suitable for Sámi rights claims. She is of the opinion that the Sámi customary rights should be treated as historic and cultural rights, collective and unique in character. In her view should Sámi rights claims be treated as sui generic rights, endorsing an adaptation of the real property right, see Allard, above note 24, at 264-297 and 493-494.
[199] Reindeer Herding Act, s. 25.
[200] Reindeer Herding Act, s. 6.
[201] Johnny-Leo L. Jernsletten and Konstantin Klokov, Sustainable Reindeer Husbandry, Executive Summary, (Arctic Council 2000-2002) http://www.reindeer-husbandry.uit.no/online/Final_Report/executive_summary.pdf, accessed 20 October 2008.
[202] SOU 2001:101at 144-145.
[203] SOU 2001:101at 144-145.
[204] SOU 2001:101at 144-145.
[205] SOU 2001:101at 144-145; This commission was followed up by prop. 2005/06:86, Ett ökat samiskt inflytande, (Governmental Bill, An increased Sámi influence) but only limited rights concerning the reindeer herding industry and not affecting non-Sámi were handed over to the Sámi Parliament, prop. 2005/06:86, at 1.
[206] Hugh Beach, The Phase-out Clause in Minority Rights Legislation: A Comparison of the Swedish and Alaskan Methods, (1986) 55 Nordic Journal of International Law, 64- 67.
[207] SOU 1999:25, at 25.
[208] From the beginning of the 1990s there have been several cases between private landowners and Sámi, and the Sámi have lost all cases except one. In the 2008 CERD report, Consideration of reports submitted by state parties under Article 9 of the Convention, Concluding observations of the Committee on the Elimination of Racial Discrimination, Sweden, CERD/C/SWE/CO/18, Sweden was criticised because the burden of proof rests on the Sámi and does not acknowledge the Sámi Sweden the state report to the latest CERD report the Swedish government stated that there currently are no new cases concerning private landowners suing Sámi villages in the courts. However, the state have so far not undertaken any measures to change the legal situation from how it was when the law suits started, that is a change of the burden of proof and legal aid to the Sámi villages. The cases that have gained attention are the firstly the so called Reindeer grazing case, where a forest company and 700 private land owners in 1990 sued five Sámi villages and claimed that they did not have winter grazing rights, the Sámi villages lost the process both in the district court and in the court of appeal. The case was not granted permission to be tried in the Supreme Court, Hovrätten för Nedre Norrland (Court of Appeal for Lower Norrland) T 58-96, decided 15 February 2002 Svegs tingsrätts (Svegs district court) T88/90. One of the aims of the Boundary Commission, established 2001, was to determine the boarders for reindeer herding areas to avoid future court procedures, the Boundary Commission presented its result in SOU 2006:14, but so far has no legislative changes been the result of this investigation, see Åhren, above note 37, at 98-102, for a further discussion on the jurisprudence in both Swedish and Norwegian courts.
[209] Allard, above note 24, at 280.
[210] Ibid, at 279-282.
[211] SOU 2001:101, at 215; SOU 1999:25, at 25.
[212] See, below, Mineral Act, Road Act and Railway Act.
[213] Allard, above note 24, at 385; SOU 2001:101, at 214.
[214] Allard, above note 24, at 473.
[215] Sia Spiliopoulou Åkermark and Miriam Talah, Samernas rätt till deltagande och samråd. Fysisk planering och infrastruktur, (The right for Sámi to participation and consultation. Planning and Infrastructure) (April 2007), Svenska Avdelningen av Internationella Juristkommissionen (Swedish section of International Commission of Jurists),
http://www.icj-sweden.org/upload/Publikationer/Samernasr%E4tttilldeltagandeochsamr%E5d1%281%29.pdf, accessed 22 November 2008.
[216] Prop. 1971:51, Förslag till Rennäringslag m.m., at 123 and 129, (Governmental Bill, Proposal to a new Reindeer Herding Act), which lead to the adoption of s. 30 in the Reindeer Herding Act.
[217] Prop. 1992/93:32, Samerna och samisk kultur m.m., at 101, (Governmental Bill, The Sámi and the Sámi culture). A interpretation of the term ’substantial detriments’ has been made in a the case called RH 1990:18. Allard, has commented on the case, see Allard, above note 24, at 449-450.
[218] SOU 1999:25, at 139.
[219] SOU 2001:101, at 218.
[220] SOU 1989:41, at 279; SOU 2001:101, at 219.
[221] SOU 2001:101, 76 and 281-224. Allard does not see how this general provision would solve the underlying issue of adequate protection of the reindeer herding right, see Allard, above note 24, at 448.
[222] SOU 1999:25, at 189-190.
[223] Reindeer Herding Act, s. 32.
[224] Naturvårdsverket (Environmental Protection Agency) Miljömålen i korthet (The Environmental Goals in short), http://www.naturvardsverket.se/Documents/publikationer/620-8321-2.pdf, accessed 10 May 2008.
[225] Allard, above note 24, at 399. Allard is of the opinion that the fact that reindeer herding is singled out as a national interest is not enough to protect it in the long-term, see Allard, above note 24, at 407-410.
[226] http://www.regeringen.se/sb/d/7233/fromdepartment/4366/pressitem/104237#anc104237, accessed 28 November 2008.
[227] Environmental Code, ch. 1 s. 2; Planning and Building Act, ch. 4 s. 5 and ch. 4 s. 9; SOU 1999:25, at 188.
[228] Allard, above note 24, at 475.
[229] Ibid, at 25 and 473.
[230] Ibid, at 414-415. Natura 2000 is a system established within the EU and the goal is to create an ecological corridor through the European Union, through the creation of special protected areas under the Bird Directive 79/409/EC and the Habitat Directive 92/43/EC. Natura 2000 areas have to be protected under the national system for protecting areas and in Sweden most areas are protected under nature reserves or national parks, Allard, at 423. For a more thorough discussion on protection of reindeer herding and protected areas see Allard, above note 24, at 414-426.
[231] Environmental Code, ch. 7 s. 2.
[232] Regulations (1987:938) on National Parks, s. 1, and s. 4 point 1.
[233] Regulations (1987:938) on National Parks, s. 3, and s. 4.
[234] Mijá Ednan, Samebyarnas Laponiaprogram, at 17 (Mijá Ednan the Sámi villages Laponia Programme), http://www.sameportalen.se/Webbsidor/Filbibliotek/Laponiaprogrammet.pdf, accessed 28 November 2008.
[235] Regulation on Protection of Areas Subject to the Environmental Code s. 3.
[236] Adams M, Beyond Yellowstone? Conservation and Indigenous rights in Australia and Sweden, Research Online (2005), http://ro.uow.edu.au/scipapers/27, accessed 28 November 2008.
[237] Environmental Code, ch. 9 s. 1; Allard, above note 24, at 429.
[238] Environmental Code, ch. 11 s. 2. For a further discussion on different water activities see Allard, above note 24, at 429.
[239] Environmental Code, ch. 6 s. 1.
[240] Environmental Code, ch. S. 4.
[241] Allard, above note 24, at 432.
[242] Environmental Code, ch. 6 s. 3; Allard, above note 24, at 432.
[243] Allard, above note 24, at 432.
[244] Allard, above note 24, at 451.
[245] Ibid, at 451.
[246] Mineral Act, ch. 8 s. 1 and ch 15 s. 1. Allard has pointed out that this is rather unusual for the Swedish system of public supervision, Allard, above note 24, at 453.
[247] Mineral Act, ch. 8 s. 1.
[248] Mineral Act, ch. 4 s. 2.
[249] Allard, above note 24, at 455.
[250] Ibid, at 455. For a more thorough discussion on the Mineral Act and reindeer herding see Allard,above note 24, at 450-456.
[251] Sámi Council and National Swedish Sámi Association, Joint Press release, 21 November 2008, http://arcticportal.org/en/icr/blog, accessed 28 November 2008.
[252] Sámi Council and National Swedish Sámi Association, Joint Press release, 21 November 2008 http://arcticportal.org/en/icr/blog, accessed 28 November 2008.
[253] Allard, above note 24, at 462.
[254] Ibid.
[255] Road Act s. 16 and Railway Act, ch. 2 s. 5.
[256] Allard, above note 24, 477.
[257] For a more thorough investigation see Allard, above note 24, at 385-482 and Spiliopoulou and Talah, above note 214.
[258] Allard, above note 24, at 390-391.
[259] Spiliopoulou and Talah, above note 214, at 28.
[260] Allard, above note 24, at 390-391, apart from the comprehensive and detailed plan there are also regional plans, property regulation plans and area regulations, see Planning and Building Act ch. 6 ss. 3-11.
[261] Planning and Building Act, ch. 1 s. 3.
[262] Prop. 1994/95:230, Kommunal översiktsplanering enligt plan och bygglagen, (Governmental Bill, Municipality planning of water and land resources according to the Planning and Building Act), at 46.
[263] Spiliopoulou and Talah, above note 214 at 29; SOU 2001:101, at 285.
[264] Planning and Building Act, ch. 4 s. 3.
[265] According to ch. 5 s. 1, Planning and Building Act, is the municipality required to have a detailed development plan for, (1) new continuous development; (2) a new individual building, the use of which will cause a significant impact on surroundings or which is to be located in an area where a considerable demand exists for building sites, unless it is admissible to carry out the development examination as part of the processing of the application for a building permit or a tentative approval; (3) built environment, which is going to be altered or preserved, if the regulations should be based on an overall perspective.
[266] Planning and Building Act, ch. 5 s. 29. According to the Planning and Building Act, ch. 5 s. 1 must a detailed plan be established when there will be new aggregate settlements, new single building if it will have significant impact on the surroundings, or if the building is localised in an area with high demand for building sites, or if the settlement shall be altered or preserved.
[267] Planning and Building Act, ch. 5 s. 20.
[268] Planning and Building Act, ch 4 s. 3 and ch 5 s. 20; Internationella juristkommissionen, at 31-32.
[269] Spiliopoulou and Talah, above note 214, at 31.
[270] Ibid, at 475.
[271] Planning and Building Act, ch. 4 s. 2 and ch. 5 s. 18.
[272] Regulations (1998:905) on Environmental Impact Assessments, s. 4 and referred Appendixes, Planning and Building Act, ch. 5 s. 18 subsection 3-4. Allard, above note 24, at 395.
[273] Planning and Building Act, ch. 4 s. 7 and ch. 5 ss. 23 and 33.
[274] Allard, above note 24, at 397.
[275] Planning and Building Act, ch. 8 s. 19.
[276] Prop. 1985/86:1, Ny plan- och bygglag, (Governmental Bill on a New Planning and Building Act), at 731.
[277] Spiliopoulou and Talah, above note 214, at 34.
[278] RÅ 2000 s. 7; Allard, above note 24, at 398: Spiliopoulou and Talah, above note 214, at 34-35.
[279] Spiliopoulou and Talah, above note 214, at 35.
[280] Act prohibiting discrimination, 2003.
[281] For a copy of the application for a summons to the district court in Östersund see the DO webpage, http://www.do.se/upload/rattsfall/dfl_tingratt/Stamning_Dnr733-2005_Krokoms_kommun.pdf, accessed 25 November 2008.
[282] Nigel Dudley, Don Gilmour and Jean-Paul Jeanrenaud, Boreal forests: policy challenges for the future, Abor Vitae Supplement, (1998), http://cmsdata.iucn.org/downloads/avspecial_boreal.pdf, accessed 20 November 2008.
[283] Ibid.
[284] Forestry Act, Sections 20. 30 and 31.
[285] SOU 1999:25, at 190.
[286] For a further discussion on the impacts of forestry and the lack of understating of the needs of the reindeer herding industry see, Åhrén, above note 37, at 104.
[287] Åhrén, above note 37, at 104.
[288] Sarah Edmonds, Sweden’s Sami struggle over land rights, (7 January 2007), International Work Group for Indigenous Affairs, http://www.iwgia.org/graphics/Synkron-Library/Documents/Noticeboard/News%202007/Arctic/SwedenSamistruggleoverlandrights.htm, accessed 3 May 2008.
[289] Johan Strömgren, Sápmi Sweden, The Indigenous World 2008, at 29, International Work Group for Indigenous Affairs, http://www.iwgia.org/graphics/Synkron-Library/Documents/publications/Downloadpublications/IndigenousWorld/IW%202008/THE%20INDIGENOUS%20WORLD-2008.pdf, accessed 20 October 2008.
[290] Preporatory works, or travaux préparatories, is the opinion of the parliamentary committee to which the Government bill is referred, in the last step before the vote in the Parliament (the Riksdag). These opinions are used as a source of interpretation in preparations of judicial and administrative decisions. For a more thorough description on the process of legislation and legal interpretation in Sweden, see Stig Strömholm ‘Introduction’ in Stig Strömholm (ed), An introduction to Swedish Law, 1981, at 35-38.
[291] Prop. 2005/06:86, at 37.
[292] Prop. 1992/93:32, at 42-43.
[293] Spiliopoulou and Talah, above note 214, at 23.
[294] International Work Group for Indigenous Affairs, Region and Country Reports, The Artic, Sápmi – Sweden, Indigenous World 2001-2002, http://www.iwgia.org/graphics/Synkron-Library/Documents/publications/Downloadpublications/IndigenousWorld/YB02.pdf, accessed 1 May 2008.
[295] SOU 1999:25, at 184.
[296] SOU 1999:25, at 184
[297] SOU 1999:25, at 187.
[298] Allard, above note 24, at 517.
[299] Particularly Articles 16, 21 and 36.
[300] Mörkenstam, above note 159, at 138.
[301] Lehtola, above note 31, at 195.
[302] Åhrén, above note 37, at 109.
[303] Johansson, above note 20, at 153-159; Allard, above note 24, at 500-501.
[304] General Assembly GA 10612, Department of Public Information, General Assembly Adopts Declaration on Human Rights of Indigenous Peoples, (2007), http://www.un.org/News/Press/docs/2007/ga10612.doc.htm, accessed 12 June 2008.
[305] Johansson, above note 20, at 169 and 180-182.
[306] Allard, above note 24, at 473-474.
[307] Ibid.
[308] Allard, above note 24, at 517.
[309] DO report 2008:1, at 34-35.
[310] See, discussion in section 5.2.
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