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| Questions & answers |
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In discussions regarding Sami rights, it is often stressed that the Sami are an indigenous people and not a minority. What actually is the difference between an indigenous people and a minority?
In recent years there has been more and more talk about self-determination for the Sami people. What is meant by Sami self-determination?
So do the Sami have the right of self-determination?
Does the right of self-determination entail a right for the Sami to leave Sweden and form their own state of Sápmi?
We often hear about `the Sami areas'. Which areas are these actually?
Why hasn't Sweden ratified ILO Convention 169 regarding the rights of indigenous peoples?
If Sweden were to sign up to ILO Convention 169, would this mean that the Sami would also own natural resources that the Sami have traditionally not used, such as minerals?
Do hydroelectric power, tourism, forestry and the mining industry have an obligation to respect reindeer husbandry and other culturally based Sami trades?
Is it possible that the Sami are not only entitled to use, but actually may own their traditional areas?
Is Sweden's attitude to Sami rights consistent with international law?
Why should the Sami have greater rights to hunting and fishing in the Sami's traditional areas than the rest of the population who also live there today?
Do the Sami, in particular Sami children, have the right to preserve and learn the Sami language, as well as the right to an education that is adapted to their cultural background?
In respect of giving consideration to Sami rights in Sweden, does it matter that the Sami are one people that are now divided up into four countries?
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In discussions regarding Sami rights, it is often stressed that the Sami are an indigenous people and not a minority. What actually is the difference between an indigenous people and a minority?
The Sami are naturally a minority group in Sweden in the sense that there are relatively few Sami compared with the Swedish majority population. When talking about the rights of the Sami, however, it is important to remember that, from a legal perspective, the Sami are an indigenous people and not a minority. International law draws a considerable distinction between minorities on the one hand and indigenous peoples on the other.
So what is the difference between indigenous peoples and minorities? In simple terms, the biggest difference is that indigenous peoples, unlike minorities, have a close connection to their traditional land areas. This is also true for the Sami, whose traditional livelihoods, such as reindeer herding, hunting and fishing, as well as the old Sami nature religion, are directly linked to the land and the water areas that the Sami have inhabited and used since time immemorial.
So why is it so important to draw a distinction between minorities and indigenous peoples? Well, members of minority groups have certain rights as individuals, such as the right to preserve their language, religion, etc. However, the minority group itself does not have any rights. Indigenous people, such as Sami, also have individual rights, for example the right to preserve and use their language. In addition to the rights as individuals - and this is the major difference compared to minorities - indigenous peoples such as the Sami also have certain collective rights in their capacity as a people. For example, the Sami people are entitled to preserve and develop their identity as a distinct people, are entitled to preserve their own social institutions and to take decisions regarding their own affairs. |
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In recent years there has been more and more talk about self-determination for the Sami people. What is meant by Sami self-determination?
In simple terms, a Sami right of self-determination means that the Sami people themselves get to shape their own society. Decisions that affect the lives, businesses and activities of Sami are not then taken over the heads of the Sami by the Swedish authorities, but by the Sami themselves. For example, a Sami right of self-determination means that the Sami are entitled to take their own decisions in matters concerning the Sami language, education of Sami children, care of elderly Sami, reindeer husbandry, hunting and fishing, as well as land management in the Sami areas.
The right of self-determination is considered important as the Sami are better aware of their own situation and own problems than the Swedish decision-makers in the Parliament, Government and public authorities. For example, the Sami feel that they know best how to organise a school for Sami children in the Sami language that reflects the Sami's cultural background. It is therefore also reasonable for the Sami themselves to be able to take decisions on such matters. In the same way, the Sami have managed the land and water areas, as well as the natural resources in the Sami regions, for hundreds of years. The Sami therefore know better than the decision-makers in the county administrative boards, for instance, when it comes to taking decisions about reindeer herding, hunting and fishing. |
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So do the Sami have the right of self-determination?
International law states that all peoples are entitled to self-determination. However, opinions have long been divided as regards who can be considered ``peoples'' from the perspective of self-determination. Many used to think that an ethnic group could not be understood as a people, but that `people' meant all the citizens of a country, irrespective of their ethnic background. In recent years, however, several UN bodies and a number of national courts have made it clear that more than one people can live in a country, that a people can also extend across national borders, and that all such peoples have the right of self-determination. In this context, it has also been confirmed that indigenous peoples have the right of self-determination.
This is also one of the reasons, in fact probably the most important reason, why it is important to call the Sami an indigenous people and not a minority. (See question 1 above.) As an indigenous people, the Sami have the right of self-determination, which minorities do not have. The Swedish Government has also confirmed that the Sami - in their capacity as an indigenous people - are entitled to self-determination. The matter that Sami representatives and the Government are now discussing above all, is what this entitlement entails. As usual, this discussion applies primarily to the right of determination over land and water. The Sami feel that the right of self-determination must include an entitlement to take decisions regarding land, water and natural resources in the Sami areas. Sweden's Government probably also admits that the Sami are entitled to exercise some influence over the land in the Sami areas, but to date has been afraid to release control over these areas to the Sami. |
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Does the right of self-determination entail a right for the Sami to leave Sweden and form their own state of Sápmi?
No, international law does not currently entitle the Sami people to break away and form their own state. International law is very clear that the right of self-determination has to be exercised within the framework of two principles, namely a country's sovereignty and its right to territorial integrity. In simple terms, this means that the Sami's right of self-determination has to be exercised without redrawing the existing national borders.
The Sami would only be entitled to form their own state if Sweden were to commit a very serious breach of international law against the Sami. It is true that Sami representatives feel that Sweden infringes many of the Sami's rights, above all as regards their rights to land and water, but nobody is claiming that these infringements are anywhere near being so serious that the Sami would be entitled to leave Sweden and form their own state. On the whole, Sami leaders have not said that they want to break away and form an independent state. Time and again, the Sami have stressed that they see their rights and identity as a people being looked after within existing borders. In order for this to be possible, however, it is naturally necessary for Sweden and other countries with a Sami population to respect the Sami's rights. |
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We often hear about `the Sami areas'. Which areas are these actually?
It is clear, for example from the ruling in the Skattefjäll case, that ``the Sami areas'' in purely theoretical terms refer to the land and water areas that the Sami have traditionally inhabited and used for reindeer herding, hunting, fishing and other activities. From a legal perspective, it is also necessary for this use to have lasted for an extended period of time and with a certain level of intensity. Nobody now knows for exactly how long and to what extent the Sami must have used an area in order for it to be called ``Sami''. There have been many conflicts in which Sami and Swedes are in disagreement about what actually constitutes traditional Sami areas. Some of these have gone to court, such as the `Reindeer grazing cases' in Härjedalen. The Government has now set up an inquiry, charged with investigating where the boundary of the Sami areas runs. This inquiry should have been finished by the end of 2004, but it has recently been granted another year to complete its assignment.
Regardless of which areas are Sami, they can currently be divided up into two different categories: areas that the Sami still use more or less alone, primarily large parts of Sweden's mountainous areas; and areas that, following the colonisation of Sápmi, the Sami now share with non-Sami people and consequently use alongside others, primarily large parts of the forested areas in northern Sweden. |
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Why hasn't Sweden ratified ILO Convention 169 regarding the rights of indigenous peoples?
The ILO's Convention 169 is the only legally binding document that the UN has adopted that deals solely with the rights of indigenous peoples. As Sweden has signed up to almost all relevant conventions on human rights that the UN has adopted, it makes you wonder why Sweden has elected not to sign up to ILO Convention 169, which is the only UN convention that would specifically guarantee the rights of the Sami. This is particularly curious, as Sweden is a country that is generally renowned for respecting human rights. So why is Sweden choosing to ignore the rights of the Sami?
It is probably not because Sweden feels that the Sami do not have the rights set out in ILO Convention 169. Sweden's decision not to sign the ILO Convention is due rather to practical and political reasons. The central part of ILO Convention 169 sets out the provisions maintaining that indigenous peoples (e.g. the Sami) are entitled to own and use their traditional land and water areas, as well as the natural resources in and occasionally under these areas. If Sweden were to recognise the Sami's right to their land and water areas, this would in turn mean that people who are not Sami, but who currently use the Sami areas, would be forced to move a little. For example, non-Sami people would not be able to fish and hunt as much as before in Sápmi. Furthermore, the forestry industry would similarly not be able to fell forest in the Sami areas without the permission of the Sami. If Sweden were to sign up to ILO Convention 169, the state would also be forced to give up certain land areas and natural resources that Sweden currently believes belong to the state, which would naturally cost money. In summary, it can be said that Sweden has not signed up to ILO Convention 169 because it feels it would be too expensive. |
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If Sweden were to sign up to ILO Convention 169, would this mean that the Sami would also own natural resources that the Sami have traditionally not used, such as minerals?
It is probable that international law does not currently support an indigenous people being able to claim ownership rights to minerals or oil in their traditional areas, for instance. There are no such provisions in Swedish legislation either.
A more difficult question is whether indigenous peoples (including the Sami) are entitled to a share of the profits from e.g. mines in Sami areas. ILO Convention 169 entitles indigenous peoples to share in such profits where possible, and it would probably be feasible for Sweden to give the Sami a share of the profits from a mining operation, for example. There are also several examples of countries that give indigenous peoples the right to a share of the profits from operations that previously belonged to the state, such as Canada and New Zealand. In Canada, for example, certain Indian tribes have even been granted the entire profit from mines in their areas, as Canada's government feels that this is fair. Such discussions have also started to be held in the countries with a Sami population. This is particularly true in Norway, where the Sami have long claimed a share of the profits from oil extraction in Sami waters. However, it is not certain whether international law - apart from ILO Convention 169 - will support such claims. Nevertheless, there is good reason to argue that an indigenous people's right to self-determination, which reasonably includes an entitlement to some form of control over the indigenous people's traditional areas, places the indigenous people in a position at least to negotiate for a share of the profit from activities conducted in these areas. Developments in international law are probably also moving towards strengthening the indigenous peoples' right to a share of the profits from the extraction of natural resources in and under their areas. This does not only apply to minerals and oil, but also to profits from e.g. the felling of forest. |
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Do hydroelectric power, tourism, forestry and the mining industry have an obligation to respect reindeer husbandry and other culturally based Sami trades?
According to Swedish law, operations that are in competition with reindeer herding for land areas, such as forestry and mining, must give consideration to the interests of reindeer husbandry in all of their activities. However, most Sami believe that these provisions work poorly in practice, and that when there are conflicts for land it is almost always the reindeer herders who have to move. One of the Government's own inquiries from 2001 also confirms that this is the case, at least as regards the felling of forest.
International law does not permit activities that prevent Sami people from exercising their culture, alone or together with other Sami. This means, for example, that Sami who traditionally carry out reindeer herding, hunting or fishing are entitled to continue doing so. In other words, it is not permitted to fell an area of forest, establish a mine, etc., if this means that reindeer herding Sami are no longer able to herd their reindeer, hunt or fish, and this applies regardless of whether or not such an industrial venture would generate a large amount of money. |
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Is it possible that the Sami are not only entitled to use, but actually may own their traditional areas?
The Sami's possible right of ownership to their traditional areas was examined in the `Skattefjäll case', which related to who owns particular mountain areas in Jämtland county. The Sami lost this case, at least in respect of the ownership rights. However, the Supreme Court pronounced that it is possible, or even probable, that as a result of having used the areas further to the north, the Sami may have acquired ownership rights to these areas. Following this (the Skattefjäll case was settled in 1981), research and other inquiries have produced further evidence that the Sami may have come to own large areas in northern Sweden by using these for an extended period. The fact that the Sami have come to own land in this way is actually no different to the fact that most agricultural properties, forest areas, etc., came into being in the past as a result of somebody taking these areas into their possession and starting to use them. However, the courts have never examined whether the Sami actually own the areas in northern Sweden, largely due to the fact that such legal proceedings would take a very long time (the Skattefjäll case lasted for more than 15 years) and cost a huge amount of money - money that the Sami do not have. The Sami are greatly irritated by the fact that, in their Sami policies, the Swedish Government and Parliament take it for granted that the Swedish state owns the traditional Sami areas, despite this never having been examined in the courts and despite a considerable amount of evidence to indicate that these areas are actually owned by the Sami.
It should also be remembered that it is not that long since Sweden recognised that the Sami owned their traditional areas. Up until the 19th century, the Swedish Crown treated the Sami as the owners of their land and water areas. Two things happened at the end of the 19th and the beginning of the 20th centuries, however. Firstly, Sweden began to look more longingly at the natural assets in the Sami areas. In addition, Sweden's Sami policies were influenced by racist theories that viewed the nomadic Sami as an inferior and less valued race than the Swedish, Germanic tribe. These theories considered that, as an inferior race, the Sami could not have any rights to land, water and natural resources. As a result, Sweden had reason to seize the natural resources in the Sami areas without compensation. The most intensive colonisation of the Sami areas took place during this period, and the Sami lost the majority of their rights.
Now, of course, Sweden's Parliament and Government do not hold racist views towards the Sami as a people, but the fact remains that many of the problems that arose for the Sami during this period remain to this day, and are now the subject of attempted resolutions. |
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Is Sweden's attitude to Sami rights consistent with international law?
No, Sweden has been strongly criticised on a number of occasions by various UN bodies, such as the UN Race Discrimination Committee and the UN Human Rights Committee, as a result of Sweden failing to respect the Sami's human rights. The UN has been particularly critical of the fact that the Sami's rights to their land and water areas, as well as the natural resources, are not recognised. The Council of Europe and the OECD (Organisation for Economic Co-operation and Development) have also criticised Sweden for its treatment of the Sami. Sweden has not yet done anything to rectify the faults and shortcomings pointed out by these various bodies, but always refers them to various inquiries. |
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Why should the Sami have greater rights to hunting and fishing in the Sami's traditional areas than the rest of the population who also live there today?
First and foremost, it is necessary to realise that, if the Sami have used their traditional areas for a sufficiently long time and with sufficient intensity, the Sami must be entitled to have their ownership rights to the land and/or their hunting and fishing rights recognised in the same way that people outside the Sami areas originally derive their rights from somebody who began to use those land areas. Anything else would be racial discrimination.
Even if no rights have arisen in accordance with Swedish law, there may be reason to draw a distinction between the rights of Sami and those of Swedes to hunting and fishing in the Sami areas. According to international law, all peoples - including indigenous peoples - are entitled to preserve their distinctive character and culture. Different people's cultures have different components. For indigenous peoples, for example, their cultures are intimately connected to the land and water areas they have traditionally used, as well as to their traditional livelihoods and trades. This connection is naturally financial, but also goes deeper than that. Indigenous people are primitive people, and their world view and outlook on life is closely related to nature, to animals and to places.
The Sami are no exception in this respect. The Sami culture is also intimately linked to the Sami's traditional land and water areas, as well as to natural resources. The Sami are dependent for their survival on the reindeer as well as the animals they hunt and fish, and as the Sami are originally a primitive people, the Sami culture traditionally also has a spiritual link to the surrounding countryside, including the animals that live there. The Sami culture is therefore entirely dependent for its survival on continued access to the traditional Sami livelihoods, such as reindeer herding, hunting and fishing, in a way that the Swedish culture is not. As hunting and fishing constitute such central elements of the Sami culture, the Sami are considered to have a greater right to hunting and fishing in the Sami areas than other people who live in those areas today. As it is generally only the Sami who have been involved in reindeer herding, the Sami alone are considered to be entitled to conduct herding in the Sami areas.
It is important to understand that the entitlement of all peoples to preserve and develop their culture can lead to some people having a greater right to certain components in the culture - such as hunting and fishing in the case of the Sami - than other people in the same area. It is often maintained that the Sami receive positive discrimination in Sweden, for example because they have specific hunting and fishing rights. This is not correct, however. As mentioned above, the Sami's right to hunting and fishing is derived from all peoples' equal entitlement to preserve and develop their culture, and is consequently not positive discrimination, but simply a correct understanding of the ban on discrimination. This can be compared to an entitlement to enter a mosque, for example. It is not positive discrimination if a Muslim has a greater entitlement to have access to a mosque than a person of another religion, rather it is a correct application of the ban against discrimination. It goes without saying that it is more important for a Muslim to be able to go to a mosque to pray than it is for a Christian to have access, for example. |
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Do the Sami, in particular Sami children, have the right to preserve and learn the Sami language, as well as the right to an education that is adapted to their cultural background?
International law places particular emphasis on the right of indigenous children and young people to preserve and develop their culture. The UN Children's Convention, for example, decrees that Sami children and young people have a particular right to continue to work in reindeer husbandry, to hunt and to fish in the areas where their forefathers worked.
The Sami language is naturally a very central component of the Sami culture and identity, and both national and international law emphasise the right of the Sami to preserve and develop their language. For example, they are entitled to use Sami in dealings with the courts and public authorities, and all Sami schoolchildren are entitled to mother-tongue education in Sami. The language rights have certain limitations, however. The right to use the Sami language in dealings with public authorities and the courts applies only in the four most northerly municipalities (Gällivare, Happaranda, Kiruna and Jokkmokk). In addition, it has proven difficult in large parts of Sweden to have Sami-speaking teachers for mother-tongue education, and even when there are teachers, there are examples of municipalities that do not provide Sami in school as they feel it costs too much. |
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In respect of giving consideration to Sami rights in Sweden, does it matter that the Sami are one people that are now divided up into four countries?
Yes. The Sami originally lived as one people in one geographic area, with no national borders dividing this area into different countries. However, Sápmi came to be split up as a result of the colonisation of the Sami areas, and the Sami now live in an area divided between four countries: Finland, Norway, Sweden and the Kola Peninsula in Russia. The national borders are now a fact, and cannot be changed without the will of these countries. It is still the ambition of most Sami to be able to live as one people, however, where the national borders do not affect the Sami's feeling of being one common people. Sami representatives also claim that the various countries have an obligation to minimise the problems experienced by the Sami as a result of Sápmi now being criss-crossed by national borders.
Sweden's responsibility towards the Sami as an indigenous people is not limited to the Sami living in what now constitutes Sweden either. International law demands that Sweden also respects the rights of Sami who do not live in Sweden. If nothing else, Sweden and the other countries with a Sami population should have a moral obligation to make it easier for the Sami to retain their sense of community across national borders. |
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