compliance with the international law standards on the protection of indigenous rights
4.3. General comments and reflections on the relevant international law and national law
This section examines the provisions established in national law in accordance with the provision of international law which entail in one way or another the issue of mining activities and indigenous rights. As it is possible to see from the table above, both Mining Acts (the Finnish one and the Norwegian one) set out provisions for the protection of Sami rights.
However, both of these Acts avoid certain important issues, outlined by ILO Convention No.
169. For example, while the Convention establishes an obligation to consult the indigenous peoples regarding the decisions that can affect their rights and interests, the two Mining Acts do not introduce any specific provisions about consultations with the Sami. This lacuna in the consultation of the Sami is covered in the Finnish legislation thanks to the Finnish Sami Parliament Act, which provides in section 9(3) that:
The authorities shall negotiate with the Sámi Parliament in all far-reaching and important measures which may directly and in a specific way affect the status of the Sámi as an indigenous people and
188 The complete text of the case (KHO 2014:111) is available at:
http://www.kho.fi/fi/index/paatoksia/vuosikirjapaatokset/vuosikirjapaatos/1403502404022.html (accessed on 3/7/2014).
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which concern the following matters in the Sámi homeland: […] (3) applications for licenses to stake mineral mine claims or file mining patents.189
This is an important provision for the protection of the rights of the Sami, in particular because it provides that authorities are obliged to negotiate with the Sami Assembly in every situation that can affect the life of the Sami and their status as an indigenous group.
The fact that authorities must negotiate also in case of mining is a provision with fundamental importance, considering the fact that for the first time such a provision is written in a legal document of a state. In addition, there are obligations to inform the Sami peoples at the beginning and at the end of mining activities (sections 12 and 15 of the Finnish Mining Act and sections 10 and 13 of the Norwegian Mineral Act). Also, the issue of land rights (that is broadly regulated in the Convention) is not sufficiently regulated in national law, given the fact that there are no provisions on the right to land of the Sami in the two Acts, although the impact of mining activities in Sami lands is taken into account in both Acts.
Notably, the two Mining Acts of Norway and Finland and ILO Convention No. 169 contain provisions regarding the refusal to grant a mining permit, if indigenous interests could be compromised. In the two Acts there are also provisions about the protection of public and private interests (section 51 in the Finnish Mining Act and section 17 in the Norwegian Mineral Act). This provision finds full application in national law, given the fact that it is established in the Finnish Act and in the Norwegian Act. At the same time, ILO Convention No. 169 introduces a provision ensuring the equality of rights for everybody but keeps silent about the necessity to balance between private and public interests during the mining process.
Finally, in Article 12 of the ILO Convention, in section 165 of the Finnish Mining Act and in section 17 of the Norwegian Mineral Act, there is a provision that establishes the right of appeal. While it is quite normal that this right is established in the Convention (given the fact that the Convention is not directly applicable at national level), it is noteworthy to have this right in national law. In fact, the presence of this provision in national law gives the Sami the right of appeal in the cases established by law.
In conclusion, it is possible to say that the provisions set out in the national law of Finland and Norway ensure a good protection for the Sami, following the general obligations in ILO
189 Finnish Sami Parliament Act, section 9(3). Full text available at:
http://www.finlex.fi/en/laki/kaannokset/1995/en19950974.pdf (consulted on 4/6/2014).
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Convention No. 169. Although it is not possible to say that all indigenous rights are protected, there is a satisfactory safeguarding of their rights in the Mining Act of Finland and in the Mineral Act of Norway (obligation to consult the Sami when a decision can affect them, protection of their relationship with their land, control of the impact of mining activities on their lands, right of appeal).
Hence, although Finland has not yet ratified ILO Convention No. 169, the provisions established in the Finnish Mining Act and in the Sami Parliament Act grant a satisfactory safeguard to the Sami and this showed that it is upon the will of the state to protect indigenous peoples with or without ratification of the relevant international conventions. Furthermore, with the last steps regarding the protection of the Sami in the Finnish legislation it is highly likely that Finland will soon ratify ILO Convention No. 169.
Also Norway (the first state to ratify the Convention) is in a good position about the safeguarding of Sami rights. This is so notwithstanding the fact that the obligations in the Norwegian Mineral Act are less extensive than the provisions set out in the Finnish Act and considering the fact that there are still problems in the interpretation of the meaning of Article 14 of ILO Convention No. 169 by the Norwegian government.
Hence, in the framework of the protection of Sami rights among the Nordic states, Sweden has the weakest position. As it is possible to see from the table of comparison above, Sweden has no obligations on Sami rights in its Minerals Act, while in the Constitution and in other national laws there are only vague references to the Sami as an indigenous people. In such conditions, it is unlikely that Sweden will ratify ILO Convention No. 169 in a short time.
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