In spite of its initial intentions, the Sámi Convention will convert the Sámi people into an ethnic minority and seal the colonization of the Sámi through a devious legal document that claims to strengthen the status and rights of the Sámi as an Indigenous people but in reality does the very opposite.
A final draft of the Nordic Sámi Convention was recently released after more than a decade of negotiations between the three Sámi Parliaments and the three Nordic states (Norway, Sweden and Finland). Considered a development and renewal of the existing Sámi rights codified in the 1751 Lapp Codicil, the Nordic Sámi Convention is intended confirm and strengthen the rights of the Sámi people “with the least possible interference by national borders” (Art. 1). The Lapp Codicil, a largely forgotten and unknown legal addendum to the Peace Treaty of Stromstad, recognized the transboundary rights of the reindeer herding Sámi and included provisions on Sámi internal autonomy, citizenship and taxation.
The draft Convention consists of a preamble and 46 provisions that include general rights of the Sámi people, governance, language and culture, rights to land and water, Sámi traditional livelihoods and implementation of the convention. Sámi leaders have long called for the adoption of the Sámi Convention as in their view it would constitute a new foundation for the relationship between the Sámi and Nordic states and a potential transformation of the state-centered framework of Sámi self-determination.
Legal scholars have previously viewed the Nordic Sámi Convention as a groundbreaking instrument in international law as well as a global example of good practice of Indigenous rights. It has been considered to represent an unprecedented undertaking to implement Article 36 of the UNDRIP on the right of those Indigenous peoples who are divided by national borders seeking to maintain and develop relations and cooperation across state boundaries.
It is perhaps telling that the final draft of the Convention was released on Friday the 13th this month. The reaction by Sámi organizations and individuals has been largely a shock and outrage, especially with regard to the Convention’s radical limitations to Sámi self-determination, state authority of defining and deciding who counts as Sámi and the failure to recognize Sámi land and resource rights.
A handful of Sámi praising the document are those who have internalized the colonizing logic of the state so thoroughly they think that the Sámi have to agree to whatever minimal crumbs that the states are willing to hand them. If such an attitude gains ground, the Sámi will accept the colonial logic that the Sámi rights constitute only of what states will give them. It is the opposite of the view widely shared by Indigenous peoples, according to which “You do not ask for rights, you assert them. When rights are asserted, they grow. No state will ‘give’ rights to Indigenous peoples, and no state will ‘offer’ them. Indigenous peoples must assert and exercise our inherent rights. Exercising our rights is what makes us who we are.” (1)
Deceptive, Misleading Language
The draft Sámi Convention is a deeply deceptive document, giving the impression of recognizing the rights of the Sámi as an Indigenous people but which, in close reading, amounts to nothing but a blatant obfuscation at its worst and the recognition of (already existing) minority rights at its best. In spite of the lofty rhetoric of the preamble, the devil is in the detail of the individual articles. While the preamble endorses the UNDRIP and refers to the ILO Convention 169 ratified by Norway, the articles only provide for minority rights directed towards preserving their culture, traditions and language. (2)
In international human rights instruments, Indigenous peoples’ rights and minority rights are considered overlapping but distinct. They share related concerns of non-discrimination and cultural integrity. Indigenous rights, however, extend beyond minority rights. The key difference between Indigenous rights and minority rights concerns rights to self-determination, land and natural resources. The minority rights instruments contain no such rights, whereas they are core elements in Indigenous rights instruments (ILO Convention 169 and UNDRIP).
Although some of the provisions in the draft Convention recognize the importance of Sámi rights to land and water “for the preservation their culture, language and society,” nowhere in the text is explicitly stated that Sámi culture consists of and depends on its material foundations (that is, land and resources) which is the way Sámi culture has been construed in interpretations of Article 27 of the International Covenant of the Civil and Political Rights (the so-called minority provision). Article 20 on the right to language and culture does not specify how culture is understood or construed for the purposes of the Convention. It simply (and simplistically) states that the Sámi have the right to exercise, use, develop, preserve and pass on to future generations their language and culture and that states must respect, promote and protect these rights.
In other words, without specifically providing that the land is the foundation of Sámi culture or defining culture as an activity based on the land, the only safe assumption is that that the draft Convention relies on a narrow conception of culture which makes the least demands states (comparable to the already existing Sámi cultural autonomy legislation in Finland). The states don’t mind if we speak our languages and wear our gáktis in our festivals and cultural activities. It fits well with the intentions of the neoliberal state of displaying and commodifying Indigenous peoples and their traditions – in fact, one of the articles (Art. 35) recognizes the commodity value of Sámi culture, history and nature for creative industries and tourism. The provision is a travesty of Indigenous rights.
In contrast to minority rights, Indigenous rights as they stand in international law center on self-determination as well as land and resource rights. Some commentators have mistakenly noted that the draft Convention recognizes Sámi land and resource rights albeit simultaneously justifying infringement by extractive and other industries. Yet there is absolutely nothing in the Convention that recognizes Sámi rights to land and resources, only very opaque language about access to land and water.
The chapter on Land and Water of the draft Convention is plain pathetic. The first article of the chapter, Article 27 “The right to land and water” states that the areas that the Sámi have traditionally used forms the basis for Sámi to preserve, practice and develop their culture, language and social life. It further notes that the Sámi have acquired ownership or land use rights in the Sámi region through their long-standing traditional land use practices. Significantly, the article does not unequivocally or explicitly recognize the Sámi rights to land or resources.
Even more opaque, the following article provides the right to, access to and possibilities to use natural resources that the Sámi have traditionally used in the Sámi region. A limited right to use natural resources, never mind right to accessing these resources, does not constitute a real right to land or resources. The task of specifying the content of Sámi land rights has been left to the prospect of domestic law in each Nordic state.
Sámi Self-Determination as Consultation
As already mentioned, minority rights instruments do not recognize the collective right to self-determination or land and resource rights. While the draft Sámi Convention gives the illusion of recognizing both, in reality it does not. This is what makes it a deceptive and dangerous document. Although international minority rights do not recognize the collective right to self-determination, some minorities do enjoy limited forms of self-government. However, only Indigenous peoples possess a right to collective political identity and self-determination in international law. (3)
When assessing the text of the draft Convention vis-à-vis to the right to self-determination, it is critical to distinguish between cultural and political forms of self-government. Thus far the Sámi have exercised, through the Sámi Parliaments, a form of cultural autonomy typically granted to minorities. The draft Convention does not correct this or strengthen Sámi self-determination as an Indigenous right. As experts have noted, self-government of minorities is typically practiced through “a degree of non-territorial autonomy in regard to religious, linguistic or broader cultural matters.” (4)
What distinguishes self-government of minorities from that of Indigenous peoples is the territorial element. For Indigenous peoples, the right to self-determination is conceived as “the right of a group to govern itself within a recognized geographical area, without State interference.” (5) In the draft Sámi Convention, there is nothing that provides that the Sámi have a right to govern itself within a recognized geographical area. Instead, it undermines the existing structures of limited cultural autonomy practiced through the Sámi Parliaments by reducing Sámi self-determination to consultation. It completely fails to recognize the interdependence of land rights and self-determination of Indigenous peoples. To quote long-term Indigenous rights advocate Kenneth Deer (Mohawk): “Our rights to lands, territories, natural resources and all other rights flow from or are interdependent with self-determination.” (6)
Article 4 on Sámi self-determination deceptively first repeats Article 3 of the UN Declaration on the Rights of Indigenous Peoples and in the sentence that follows, negates and invalidates it by stating that Sámi self-determination is exercised through autonomy in internal affairs, and through consultation on matters which may be of particular importance for the Sámi.
It should be clear to everyone, including legal experts drafting the text of Sámi Convention, that consultation does not constitute self-determination, self-government or political autonomy. Consultation is a discussion with someone before undertaking a course of action. Self-government is a process and structure of collective decision-making and jurisdiction over a group’s own affairs. It is a mystery how an official document that is ultimately to become law can suggest that a discussion with someone before taking action can possibly constitute an exercise of the collective right of self-determination. It does not. The provisions on Sámi self-determination in the draft Convention are another prime example of deception and double-crossing that will effectively eliminate the right of the Sámi to their self-determination and incorporate them into the state and the mainstream society through consultation agreements.
A related problem is the way in which the draft Sámi convention entrenches the Sámi Parliaments as the highest representative bodies in charge of exercising (the non-existent) Sámi self-government. Although elected assemblies, the Sámi Parliaments are not traditional social structures of the Sámi. They are direct copies of the Nordic parliamentary system and centralized organizations largely removed from people’s daily lives. If the Sámi have a right to self-determination (even if only in the form of a minority right to cultural autonomy), it follows that the Sámi themselves have the right to determine and conceive their own institutions and decision-making processes.
An essential part of that right, as stipulated in the UNDRIP, is that Indigenous peoples can freely determine their relationship with states. Forcing Sámi self-determination into a straightjacket of consultation goes fundamentally against the spirit and intent of self-determination. Together with a preambular provision according to which the state has the final say who counts as a Sámi, the provision of entrenching the Sámi Parliaments demonstrate the extent the states seek to remain in full control of the Sámi rights and the exercise of Sámi self-determination.
Don’t be fooled by the Sámi Convention. It’s nothing more than well-established smoke and mirrors of Nordic empty rhetoric regarding Sámi rights. Like the Sámi Parliaments before, the Sámi Convention creates an illusion of progressive Nordic countries at the leading edge of protecting, upholding and implementing Indigenous rights. But don’t be fooled by the trickery and gesture politics the Nordic countries are so good at.
With the current form of the Sámi Convention, I am deeply concerned for the future Sápmi. The Convention is not a human rights instrument to protect, recognize and upheld the rights of the Sámi as an Indigenous people. It is a deeply flawed, misleading symbolic recognition politics that reduces Sámi and their rights to a minority status. Instead of an instrument of decolonization, the Sámi Convention, if adopted in its current form, will serve as the tool of finalizing the colonization project of the Sámi.
(1) Deer, Kenneth. “Reflections on the Development, Adoption, and Implementation of the UN Declaration on the Rights of Indigenous Peoples.” Realizing the UN Declaration on the Rights of Indigenous Peoples: Triumph, Hope, and Action. Eds. Joffe, Paul, Jackie Hartley and Jennifer Preston. Saskatoon: Purich, 2010, p.28.
(2) According to a UN study, a minority is a group numerically inferior to the rest of the population of a State, in a non-dominant position, whose members – being nationals of the State – possess ethnic, religious or linguistic characteristics differing from those of the rest of the population and show, if only implicitly, a sense of solidarity, directed towards preserving their culture, traditions, religion or language. (United Nations Sub-Commission on Prevention of Discrimination and Protection of Minorities. Study on the Rights of Persons belonging to Ethnic, Religious and Linguistic Minorities. UN Doc. No. E/CN.4/Sub.2/384/Rev.1. 1979: 568.
(3) Asbjørn Eide and Erica-Irene A. Daes, “Working Paper on the Relationship and Distinction between the Rights of Persons Belonging to Minorities and Those of Indigenous Peoples,” in E/CN.4/Sub.2/2000/10 (Geneva: UN Commission on Human Rights, 2000): para. 44.
(4) Ibid: para. 11.
(5) Ibid: para. 43.
(6) Deer, p. 19.