Many states offer constitutional protection to the traditional lands of indigenous peoples. International treaties protecting ethnic minorities and indigenous peoples also require protection of the rights of indigenous communities with respect to traditional territories. States have followed different routes in identifying the ownership and resource rights of indigenous communities. In Norway, the Courts have traditionally applied the rules on prescription and immemorial usage, developed through centuries in the farming societies of Scandinavia. The legislature has chosen to follow the same approach in the Finnmark area of Norway under the terms of the Finnmark Act (2005). By contrast, in Canada, a settled colony with an English common law tradition, the Courts have developed a sui generis approach to the recognition of Aboriginal title. This article examines the rules for identifying and legally recognising the traditional lands of indigenous people in Norway and Canada with a view to reflecting on similarities and differences.
The Alta case and the Sámi struggle for “rights to lands and waters” put political pressure on the Norwegian government to broadly explore the rights of the indigenous Sámi people to such resources. Both Norway’s ratification of the International Labour Organization (ILO) Convention No. 169 concerning Indigenous and Tribal Peoples in Independent Countries in 1990, and the 2005 Finnmark Act are results of that exploration. To meet the obligations Norway undertook by signing the ILO Convention, the Finnmark Act authorises the Finnmark Commission to investigate land rights held by Sámi and other people in the most central part of Sámi areas in Norway. In March 2012, the Commission submitted its first report, which is the first specific legal clarification of a particular area after 30 years of examinations and discussions of Sámi rights. The report is therefore met with high expectations. This article analyses the main findings of the Commission, including the interpretation of its mandate and thus also Norway’s obligations in regards to the ILO Convention. The article concludes with reflections as to whether the investigation fulfils Norway’s commitments to identify and recognise the lands of the Sámi, both under national and international law.
During the two last decades of the 20th century, Norway has undertaken several commitments pursuant to international law that protect Sámi lands, culture, language and way of life. Norway’s 1988 constitutional amendment framed after the International Covenant on Civil and Political Rights (ICCPR) Article 27 and the ratification of the International Labour Organization (ILO) Convention no. 169 concerning Indigenous and Tribal Peoples in Independent Countries in 1990 are the most prominent of these. The adoption of the 1999 Norwegian Human Rights Act incorporating the ICCPR as internal Norwegian law should also be mentioned. This article examines how Norway complies with the international legal obligations the country has undertaken to protect the indigenous Sámi culture, in relation to land-based renewal resources, marine resources, and mineral resources.