Concluding Words

The ratification of ILO Convention No. 169 has been under discussion in Finland for almost two decades. This dissertation has sought solutions for the most difficult questions related to the problems of the ratification. Two main themes have arisen within this context: the ownership question in regard to the land rights and subjects of these rights. As is the case in many other countries, the primary obstacles for Finland’s ratification have been the Convention’s land right articles, as well as the recognition of ownership and possession of the peoples concerned with their traditionally occupied lands. So far, it has been impossible to find a legislative solution with an adequate political endorsement. The question regarding Saami land rights has, until recently, been approached from two different and separate directions. On the one hand, there has been a demand for discussions on historical land rights, determined in national legislation according to property law, and their promulgation. On the other hand, relief has been sought from international treaties, which would improve Saami land rights and rights related to traditional livelihoods. In this respect, land rights provisions of the ILO Convention are essential. Although links between rights determined in national legislation and rights in IL are not required as, the ILO Convention maintains a special status. The Convention manages rights, as well as their historical dimension, concerning indigenous peoples. A concrete requirement regarding this historical dimension is already expressed in the Convention’s first article. Article 1 states that, the Convention applies to indigenous peoples who are regarded as indigenous on account of their descent from populations that inhabited the country at the time of the establishment of the present state boundaries. In the area of present-day Finland, this would refer to the 17^th and 18^th centuries.

In this respect, Article 34 of the Convention is crucial as it states that, in regard to the characteristics of each country, the nature and scope of the measures that are to be taken in order to give effect to this Convention shall be determined in a flexible manner. Thus far, in the models presented on land rights issues in Finland the starting points have not been the special characteristics of Northern Finland, but are rather an administrative model in which the Saami Parliament would have a stronger and more decisive role on questions regarding land use, as well as stronger usufructuary rights. However, actual ownership remains with the state. The northern lands would be administrated by a council with both local and Saami members. Norway has established a Commission to investigate issues of ownership. It has also developed a special Tribunal for resolving land claims. This has, however, not yet been discussed in Finland. It may be argued that the illustrated administrative model does not, in any way, account for the area’s legal-historical characteristics. This relates to the Convention’s planned area of application, the persons to be affected, as well as the existing information from the area’s property law history.

To date, the presented administrative models have taken a starting point where the Convention would only be applicable to Lapland County’s three northernmost municipalities and one reindeer herding district. However, the area occupied by in-digenous peoples in the 17^th and 18^th centuries is a lot larger and also consists of the middle and eastern parts of today’s Lapland County.

In this respect, the best comparison can be made to Sweden, with whom Finland shares a joint property law history. In the context of Sweden’s ratification of ILO Convention No. 169, the Convention would apply to the area where all Lapp villages were situated in the 17^th and 18^th centuries. In its entirety, this area is, in fact, larger as it consists of the current reindeer herding area, which, at some points, extends south of Lapland’s borders. Sweden has attempted to clarify the ratification of ILO Conven-tion No. 169 for as long as Finland. Under no circumstances has it been claimed in Sweden that the Convention would only apply to a specific small and limited area north of Lapland’s border.

An additional question relates to the subjects of the Convention. To date, the state has suggested the establishment of an administrative body to govern the Northern lands, where the ownership would still remain in a states’ possession.⁵³⁵ In the con-text of the presented administrative models, the Convention would apply to persons registered in the Saami Parliament’s electoral register, as well as to other local peoples regardless of whether they are descendants of an area’s original inhabitants or practice traditional Saami livelihoods. In this respect, it is notable that the Convention focuses on indigenous peoples and explicitly applies to them. An essential approach of the Convention is the safeguarding of the possibility of practicing traditional livelihoods.

In this respect, a comparison to Sweden, where the Convention applies to Saami reindeer herders, may be made. According to Swedish reindeer herding legislation, the right to practice reindeer herding belongs to all persons of Saami descent, but may only be practiced via a Saami village. Consequently, membership in a particular village is mandatory.⁵³⁶Therefore, thoughts presented in the Swedish situation are in line with what is normally understood to be a Saami (an indigenous person). In the Finnish context, the subjects would not necessarily only be reindeer herders, as the Forest Lapps who live in the Northern parts of Finland maintain their subsistence through reindeer herding, fishing, and hunting. In light of this information, it would be reasonable to defend an arrangement where the Convention would apply to peo-ples descending from the area’s original inhabitants and who maintain a considerable amount of their subsistence via traditional livelihoods.

535 See more detailed on the issue in an article of this study, Joona, Tanja, The Political Recognition and Ratification of ILO Convention No. 169 in Finland, with some comparison to Sweden and Norway Nordic Journal of Human Rights Vol.

23 Nr. 3:2005.

536 Reindeer Husbandry Act, 1 and 11.

In clarifying the question of right holders of ILO Convention No. 169 in Finland, a possible solution may be found in a census that is to be carried out in, at least, the areas of historical land rights. The census is a recommended expedient of the Com-mittee of Experts of the ILO (CEACR) when states have difficulties determining the right holders of ILO Convention No. 169. For example, in the case of Ecuador, the Committee notes that the peoples covered by the Convention are, in accordance with Article 83 of the Constitution, the indigenous peoples with nationalities of ancestral origin – black and Afro-Ecuadorian peoples. The Committee would be grateful if the government indicated Ecuador’s total number, as well as the number of each region’s, indigenous persons based on the latest census. The Committee also requests an indi-cation of whether a person’s self-identifiindi-cation as indigenous was taken into account in determining their ethnic origin.On several other occasions, the Committee has requested that the census be undertaken in order todetermine the Convention’s right holders. The 2003 case of Argentina serves as an example.⁵³⁷

It appears as though censuses have already been conducted in Bolivia, with the as-sistance of the United Nations Development Programme⁵³⁸,and Colombia.⁵³⁹In the case of Norway⁵⁴⁰, the Committee notes that there are no plans for further censuses targeting a specific indigenous criterion.The Norwegian Government uses the figures of the Saami Parliament’s electoral lists to determine the Saami population, although higher numbers are sometimes presented. In regard to Article 1 of ILO Convention No. 169, the Committee highlights four different aspects: 1) A census is an official way for a state to determine the number of its indigenous people(s), 2) a census should include a specific “indigenous component” 3) a census should be based on the self-identification of a person; and 4) the indigenous persons concerned should be consulted in the formulation of questions, which would provide guidance for the indigenous census.⁵⁴¹However, it is clear that, according to the views expressed by the Committee, the identification of indigenous peoples is a crucial aspect in regard to these persons’ human rights situation. The implementation of Article 1 may be regarded as a challenging task for states, while also serving as the origin for the reali-zation of other rights.

537 CEACR: Individual Direct Request for Argentina, Submitted 2003.

538 CEACR: Individual Direct Request for Bolivia, Submitted 1995.

539 CEACR: Individual Direct Request for Colombia, Submitted in 1996.

540 CEACR: Individual Direct Request for Norway, Submitted in 1995.

541 These views are expressed repeatedly in the cases of Argentina, Ecuador, Bolivia and Colombia. Almost all of the ratified countries face problems with the implementation of Article 1. This is especially difficult in countries with a large indigenous population and in countries with many different peoples. For example, in Peru, there are 24 million inhabitants, of which 9 million are indigenous, and there are 42 different ethno-linguistic groups. The Committee has often referred to the difficulties that have arisen from the various definitions and terms used to identify the populations covered by the provisions of the Convention. CEACR: Individual Direct Request for Peru, Submitted 2006.

Finally, in reference to Article 14.1 of the Convention, which implies that indigenous peoples’ rights of ownership and possession are to be recognized. As stated above, until the mid-18^th century, the area’s indigenous peoples, the Lapps⁵⁴², were considered to be the landowners. It would be possible to fulfil the obligations of the Convention’s land rights provisions by considering this information despite the fact that, later on, national law did not consider the Lapps as the area’s landowners. If this perspective is taken, ratification could be justified on the basis of repairing the injustice confronting the Saami, at that time. Additionally, one may assume that, politically, it would be easier to enforce an arrangement in which Saami people’s possessions would be returned in areas where they have previously held ownership. This may be tested through land claims procedures, based on national property law, or the establishing procedures of a Commission that is similar to the Finnmark Act, which investigates and reports on existing ownership, as well as other rights.

As a last comment, the extremely challenging situation related to indigenous peoples’

land rights, and the ratification of ILO Convention No. 169, not only in Finland but also in other countries, must be highlighted. Often in times, questions are related to important resources that are located within these territories and are an important source of state revenue. State sovereignty may be challenged by the ratification of the Convention when the territories are returned to their traditional owners. One may argue that the ratification of ILO Convention No. 169 is easy, but that its implementa-tion is difficult. The internalizaimplementa-tion of the Convenimplementa-tion into a state’s political and legal practices is a process guided by the ILO Committee of Experts. Comparative aspects of the study show that it is relatively difficult to estimate the substantial effects of the ratification of the Convention. However, certain guidelines may be found. In the Finnish context, the question of ownership should be evaluated based on historical conditions, while considering the context of the potential ratification – a context that may change in the future.

When this research began, approximately ten years ago, only 14 countries had rati-fied ILO Convention No. 169. Now, 22 ratifications have taken place. The increase number certainly conveys the relevance of this Convention as the only legally binding treaty dedicated to the protection of the rights of indigenous peoples. In Finland, its ratification should, thus, fundamentally be regarded as important for as long as the conditions for the fulfilment of its provisions are met in accordance with national conditions and equity.

542 The Saami were previously called Lapps. Lapp is used as an exonym, a name given by the others. However, the distinc-tion is not so clear, some people still use also the word Lapp.

2.3.4 Recommendations for Future Development – de lege ferenda