Preliminary Observations: The General (Politica-)Legal Framework
The Indigenous Peoples of the Arctic are currently going through a transition phase, also determined by the conflict between Russia and Ukraine, which affects, among other things, the institutional activity of the organisations representing the Indigenous Peoples.
On the one hand, the reflection on the legal status of the Arctic Aboriginal communities shows an interest in the increasingly intensive exploitation of the natural resources of the Arctic, with a view to improving the social and economic conditions of the local populations. On the other hand, there is the fear, well highlighted by the doctrine, that the use, on a large industrial scale, of the resources in question, especially the mineral ones, will determine the progressive abandonment of the traditional lifestyle of the indigenous communities, including the rules of indigenous customary law.
The transition problems are also complicated by the fact that the Arctic Aboriginal peoples live “encapsulated” in States with different legal systems, namely: a) the Nordic legal systems, which are in some ways similar to the models of the civil law tradition but also present important differentiating features; b) the Canadian and US common law systems; c) a post-socialist and post-Soviet legal system, represented by Russian law.
The national systems protect and promote the respective Arctic indigenous communities in very diverse ways, from the point of view of both legal and jurisprudential formants, also showing very different degrees of openness towards international instruments (both hard law and soft law) for the protection of indigenous peoples.[1]
The Swedish Case in Comparison with the Other Nordic Countries
Among the many national experiences that could be examined, I would like to analyse here that of Sweden, in the comparative perspective with other Northern European countries, because this case, despite being at the forefront in many sectors from the point of view of the protection of fundamental rights and freedoms, would seem not to grant full protection to the rights of the Saami.
In fact, on a comparative level, an important difference between Swedish law and Norwegian and Finnish law is that Sweden has not for a long time adopted internal legislative provisions aimed at guaranteeing the right of the Saami to be consulted. A legislative proposal to this effect was put forward in the autumn of 2017, but there were many objections from various sources, including from Saami organisations who considered the text too “prudent” in recognising the indigenous right to prior consultation. A further draft was therefore prepared in the summer of 2019, opened to consultation of interested parties the following autumn, but the future of the project itself appears queckly very uncertain. Finally, the law passed by the Swedish Parliament (Riksdag)[2] on 26 January 2022[3], called Lag om konsultation i frågor som rör det samiska folket, or the Sami consultation law (Act no. 66 of 2022)[4], does not adequately protect the Sami, both because it does not provide for their right of veto, and because Article 4 of the law itself provides for a wide range of cases in which consultation is excluded.
It should be added that the proposed Nordic Saami Convention[5] is also awaiting ratification, postponed so far indefinitely, and moreover the Convention itself presupposes the consultation of indigenous Saami people. If, therefore, the relevant rules are still missing, or they are too limited, it is clear that indigenous Saami people do not have formal tools to really obtain prior consultation by public/state authorities. There are practical examples of such impossibility, or at least difficulty. When the (51) Saami communities of reindeer herders[6] in Sweden asked the competent ministries to be heard beforehand regarding the granting of mining licenses in their respective traditional settlement territories, their requests were not granted.[7]
The principle of free, prior and informed consent is affirmed by art. 19 and 32 of the UN Declaration on the Rights of Indigenous Peoples of 2007, and even before that by art. 6, paragraph 2, of the International Labour Organization Convention no. 169 of 1989. It is true that the concept is a little vague. In any case, it implies the duty of public authorities to initiate consultations in good faith with the indigenous peoples concerned, with the aim (or ambition) of reaching an agreement, or obtaining consent. In any case, these are rights of participation of indigenous peoples, which represent an expansion of their human rights.[8] There is no doubt that such rights, if recognised, also apply with regard to the procedures aimed at extracting minerals, but, precisely, Sweden has made such a recognition. Nor has Sweden, unlike Denmark and Norway, ratified ILO Convention No. 169/89. Nor has the International Covenant on Civil and Political Rights, with its important provisions on the protection of minority cultures pursuant to Art. 27 of the Covenant, been incorporated into national/internal law. Rather, the European Convention on Human Rights of 1950 has been directly incorporated into Swedish domestic law, but unfortunately – as noted by careful doctrine[9] – no significant advantages have resulted from this Convention for indigenous peoples. In turn, the UN Declaration on the Rights of Indigenous Peoples is a soft law instrument, not legally binding.
In terms of Swedish constitutional law, we can note that relations with the indigenous Saami are attributed to state competence and that, following the constitutional revision of 2010,[10] the indigenous Saami are now expressly mentioned as a people in art. 2 sub chapter 1 of the Instrument of Government, no longer, therefore, as a simple ethnic group.
Ultimately, the Saami in Sweden do not have treaties, nor reservations. They do have some rights over land and natural resources, but the basis of these rights is customary in nature; they are, ultimately, based on the general principles of property rights, as contemplated by the Swedish legal system. In essence, the rights in question are reduced to the exclusive usufruct of some lands used since time immemorial by the Saami to herd reindeer. As ancillary rights, the Saami can practice hunting and fishing in the same areas.
The law on (traditional) reindeer herding is very old, being from 1971. It is not surprising that there have been judicial interventions, aimed at specifying its content. Worth mentioning here, in particular, are the Skattefjäll case of 1981 and the Nordmaling case of 2011, with which the Supreme Court of the Kingdom of Sweden had occasion to affirm that the right of usufruct attributed to the Saami reindeer herders has the same constitutional protection as other property rights.
On the legislative side, however, the 1971 Reindeer Husbandry Act (RHA)[11] still does not define the Saami as an indigenous people, and this is also not the case for sectoral legislation, which can have a great deal of relevance to the lives of the Saami, as is the case with the provisions of the 1991 Mining Act. The conclusion is that the Reindeer Husbandry Act and the Mineral Mining Act[12] treat the positions of the Saami, on the one hand, and those of the mining industries, on the other, as simply conflicting economic interests.[13] As has recently been observed, “there is an increased global interest in natural resource development on Sámi land, inter alia, wind power, hydropower, and extractive industries such as mining. These projects are often in direct conflict with Sámi livelihoods and in areas essential for the existence of Sámi culture. It means the Sámi people are not only highly affected by climate change itself but also by land encroachments justified by governments and companies with the urgent need for the green transition. From the perspective of Indigenous Peoples, this is often referred to as green colonialism”.[14]