All posts by Sara Fusco

About Sara Fusco

Ph.D. student in Environmental Law and Indigenous Rights at the Faculty of Law of the University of Lapland and researcher at the Northern Institute for Environmental and Minority Law. Her research focuses on the Concept of Environmental Justice in Arctic Constitutions from the Indigenous rights perspective. She currently lectures at the University of Akureyri and she collaborates as Research Assistant at Stefansson Arctic Institute and Icelandic Arctic Cooperation Network. She joins the Icelandic academic E-Journal Nordicum- Mediterraneum as Special Editor for Legal and Arctic studies.

In dubio pro natura: Environmental Constitutionalism and the Rights of Indigenous Peoples in the Arctic

Volume 18, no. 2 (2023), Article (double blind peer review), , , , ,

Introduction

Constitutional law is going through a period of transformation due to a wider approach to human rights. In particular, the strong link between a healthy environment and human rights is gaining ground internationally, especially in terms of sustainable development. New legal concepts come from increasingly multidisciplinary analyses combining jurisprudence, ethnology, politics, and psychology. Environmental constitutionalism aims to integrate principles, such as precaution, prevention, integration, and polluter pays into national legal frameworks. Due to its legal supremacy, constitutional law guarantees high protection of rights by building several kinds of dispute resolution mechanisms. Indeed, constitutional law is able to create the ground for a more inclusive decision-making process including by creating specific institutions such as ombudspersons and innovative legal interpretations. Relentless environmental concerns have underpinned a new political approach supporting the idea that the environment is a common good and that all stakeholders enjoy the right to meaningful participation, access to information and justice in environmental matters (according to the Aarhus Convention[1]). An ecological-orientated democracy offers a fairer distribution of environmental benefits and costs, avoiding the centralization of decision-making powers and recognizing the feeling of loss of Indigenous populations due to ecological degradation (e.g., ecological grief). This constitutional process has been reinforced by jurisprudence, such as the application of the principle in dubio pro natura, as a criterion of application of the principles of conservation of the ecosystem. As the English translation suggests, the in dubio pro natura approach aims to protect ecological conservation in case of events potentially harmful to the environment.  The costs of ecological conservation and the impacts of mitigative measures on environmental degradation have highlighted inequalities among the most vulnerable social groups (as the ones at risk of poverty and social exclusion, including Indigenous Peoples). Furthermore, the long delay in the implementation of ecological policies presupposes greater pressure for future generations. Since the protection of Indigenous culture is closely connected to a healthy environment, the article investigates how intergenerational equity applies to Indigenous rights and the maintenance of their traditions for future generations.

The following analysis introduces the concept of environmental constitutionalism before briefly discussing constitutional provisions pertaining to the environment in Arctic jurisdictions. It then explains the in dubio pro natura principle and connects this to the rights of Indigenous Peoples, in particular the right to culture as recognized in international instruments on human rights and on Indigenous rights. It reflects on examples from two jurisdictions: whaling, hunting and fishing in Alaska and windfarms in Sápmi (Norway) to assess the extent to which the in dubio pro natura principle is emerging in these jurisdictions. It argues that an in dubio pro natura approach can be a successful strategy to promote both environmental protection and rights of Indigenous Peoples. The methodology adopted includes legal theory, consultation of legal documents, reports, and the analysis of international instruments.

 

Environmental Constitutionalism

Environmental constitutionalism refers to a comprehensive and articulated legal framework of rights, duties and principles derived from the constitutions and international law on environmental matters. The rights included in environmental constitutionalism are divided into rights to a healthy environment, environmental rights, and procedural rights[2]. The 1992 Rio Declaration includes the precautionary principle, the prevention principle and the polluter pays principle.[3] The growing interest in environmental law has supported the human rights-oriented interpretation which argues that the protection of environmental rights guarantees sustainable social, economic and political development. It is no coincidence that some conventions, such as the European Convention on Human Rights (ECHR),[4] have been central to national debates to encourage governments to adopt more stringent measures against climate change and ecological degradation.[5] Principles such as intergenerational equity, integration and public participation are the results of the emergence of this new approach.[6]

Procedural rights are also guaranteed by the afore-mentioned Aarhus Convention, namely: the right of the public to participate in decision-making processes and the right of access to environmental justice. These rights are counterbalanced by duties of citizens and the State to protect the environment, setting specific targets, creating regulatory frameworks, and creating environmental agencies, ombudspersons, or specialized courts to enforce environmental laws.

According to Kotzé, the constitutional model appears more effective for implementing environmental principles from international sources. The first reason is that the constitutional system is more directionally actionable in domestic legal proceedings, reflecting the principles of subsidiarity typical in international systems, such as the UN, the EU and under the ECHR. Second, domestic legislation includes more of the demos, i.e., the people of a political community, in decision-making processes as constitutional amendments generally require a qualified majority and, in some cases, a popular referendum.[7] Thus, constitutional approaches are both more accountable and more enforceable than international law which depends on diplomatic negotiations between State representatives and have weak dispute settlement procedures.

Environmental constitutionalism developed in three historical phases: the 1970s/80s in which nature played an instrumental role in the survival of human beings and their needs; the 1990s in which nature was perceived as a fundamental resource for the respect of human rights; and today’s phase in which human rights are intrinsically connected to a healthy environment.[8] There are not many examples in the comparative constitutional panorama, but it is possible to investigate Arctic constitutions (from West to East: Alaska (US), Canada, Greenland (Kingdom of Denmark), Iceland, Norway, Sweden, and Russia) have implemented the principles of environmental law.

 

Environmental Provisions in Constitutions from Arctic Jurisdictions

Starting from the West, the Alaska State Constitution of 1959 recognises the importance of the conservation of natural resources and biodiversity.[9] Article 8 of the Constitution states that state natural resources such as waters, forests, wildlife, and minerals, shall be used and developed for the maximum benefit of the people, including Alaska Natives, while maintaining sustainability for future generations. Article 11 is dedicated to the conservation of natural resources declaring delegating the Parliament to provide specific provisions for their utilisation. Article 8 guarantees access to natural resources, prohibiting the deprivation of rights to use by any citizen or resident. However, the article does not recognise any exclusive rights of Alaska Natives to hunt or fish in rural or traditional areas and for cultural purposes.

The Canadian Constitution and integral Charter of Fundamental Rights and Freedoms do not provide specific articles on environmental principles, but the Constitution recognises the relationship between Indigenous Peoples and their lands by respecting the self-determination right in article 35.[10] Article 7 of the Charter on legal rights has recently been interpreted as including the right to a healthy environment (Carter v Canada[11]).[12]

The Constitution of the Kingdom of Denmark does not make direct reference to environmental principles.[13]

Like other jurisdictions, the Icelandic Constitution has no specific reference to environmental principles but delegates the legislation of these to the Parliament. However, this topic has been much discussed in the context of proposed constitutional reform.[14]

The Constitution of Norway includes article 112, addressing the right to a healthy environment. It emphasises the responsibility to ensure sustainable development for present and future generations. Article 108 [ex.110a] affirms that the Sami people have the right to preserve and develop their language, culture, and way of life.[15] The Norwegian constitution guarantees every person’s right to a healthy environment in order to maintain productivity and diversity (in the future). Differently from Alaska, the Norwegian constitution recognises the exclusive right of the Saami to practice reindeer herding in light of their cultural rights and livelihood.

Article 2, section 4 of the Swedish constitution states that the “public institutions shall promote sustainable development leading to a good environment for present and future generations.”[16]

Like Norway, Finland recognises Saami cultural and linguistic rights (article 17) and respects the right to cultural self-government (article 121). While it does not provide any mention of environmental principles per se, article 20, section 1 states that nature is the “responsibility of everyone” and “public authorities shall endeavour to guarantee for everyone the healthy environment”.[17]

Finally, the Russian Constitution does not specifically deal with environmental issues, but the art. 69 “guarantees the rights of small indigenous peoples in accordance with the generally accepted principles and standards of international law and international treaties of the Russian Federation.”[18]

Sweden, Finland, Norway and Alaska have all integrated intergenerational equity into their constitutions. These constitutions recognise the intergenerational equity in force of the public trust doctrine, whereby the state is responsible for environmental protection.[19]

 

In Dubio Pro Natura and the Rights of Indigenous Peoples

“When in doubt, in favor of nature.” With this Latin brocardo, we mean a solution method that tends to safeguard ecological well-being in the event of activities that are potentially harmful to the environment.[20] Although this concept recalls the precautionary principle, it differs significantly from it. The precautionary principle is activated in case of scientific uncertainty at the potential risk of ecological degradation and, as per the Rio Declaration, invites States to take precautionary measures to the extent these are “cost-effective.”[21] The precautionary principle does not shift the burden of proof to prove that a proposed activity is innocuous.[22] In dubio pro natura, on the other hand, applies to already existing regulatory frameworks as a tool in case of conflicts of interests in favor of nature and shift the burden of proof in environmental disputes.

The Latin American jurisdictions are the ones that implemented this principle first. In 2002, the constitutional court of Colombia established “the precautionary principle must be followed, a principle that can be rendered by the expression ‘in dubio pro ambiente’‘. In dubio pro natura can be expressed in many legal cases concerning Indigenous rights and land claims. In particular, in dubio pro natura can be applied in the case of territorial disputes, the protection of sacred sites, the conservation of biodiversity and participatory rights in decisions concerning the exploitation of natural resources. Indeed, this principle can be an important tool to demonstrate how Indigenous traditional ecological knowledge can limit environmental degradation in light of the importance of the environment for their cultural heritage. The affirmation of in dubio pro natura means recognising the Indigenous cosmovision including the strong relationships between nature and cultural, spiritual and traditional practices. As far as participation in decision-making processes involving natural resources is concerned, in dubio pro natura can be applied to ensure that the potential environmental impacts and risks are thoroughly assessed and mitigated. It can also advocate for Indigenous communities’ right to free, prior, and informed consent and meaningful consultation in resource development projects.[23] In case of Indigenous traditional knowledge, in dubio pro natura intrinsically affirms the principle of intergenerational equity, recognizing the right of future generation to get access to natural resources equally in terms of quantity, quality and accessibility.[24] Brown-Weiss identifies three elements of intergenerational equity, namely: conservation of the diversity of natural and cultural resources, conservation of environmental quality, and indiscriminate access to resources.  As regards the first element, Weiss states that environmental and cultural conservation is essential to not limit future generations to satisfying their needs and values. This is by virtue of the fact that one generation does not have the right to decide how culture should develop in the future.[25] Intergenerational equity finds its roots in the 1972 Stockholm Declaration.[26]

Constitutional law includes intergenerational equity mainly through the aforementioned public trust doctrine – which considers natural resources the responsibility of the State acting as a trustee on behalf of its citizens and beneficiaries. Intergenerational equity per se does not include a distinction between Indigenous or non-Indigenous communities, especially because environmental obligations appear universal. However, a presumption of universality fails to reflect all possible visions as Indigenous populations have different socio-ecological goals and priorities.[27] These are in part based on the right to self-determination of Indigenous peoples, including the right to choose their own political and economic structure and decide how to develop their culture.

The right of self-determination has been underlined by several international instruments and in particular for Indigenous Peoples under the UN Declaration on the Rights of Indigenous Peoples (UNDRIP).[28] General human rights instruments such as the International Covenant on Economic, Social and Cultural Rights, the International Covenant on Civil and Political Rights and the Convention on the Elimination of All Forms of Racial Discrimination also protect, inter alia and rights to culture for Indigenous Peoples.[29]

To date, however, there are few sources that define the relationship between nature and Indigenous culture at an international level, which weaken Indigenous negotiating power in licensing processes and in environmental and social assessments of environmental exploitation projects.

 

In Dubio Pro Natura: Case Studies from Alaska and Norway

The inclusion of intergenerational equity in constitutional provisions is not an indicator of a sustainable country. At a procedural level, intergenerational equity within constitutions still remains a very vague principle. Furthermore, most constitutional texts are based on public trust doctrine, rather than an obligation under the civil responsibility of the individual citizen. Therefore, without adequate operation of the judicial and legislative system regarding environmental protection, reporting an ecologically harmful action can be very complicated.[30]

Although Alaskan and Norwegian constitutions include the intergenerational equity principle, their approaches to Indigenous cultural rights present substantial differences. It is necessary to investigate their historical background to understand their effective application on Indigenous rights and weather the in dubio pro natura approach enhances the conservation of their culture for future generations.

This part of the paper compares the two different constitutional approaches to intergenerational equity in light of Indigenous right to practice one’s own culture, highlighting the main complexities regarding the recognition of Aboriginal subsistence fishing and hunting in Alaska and the protection of the exclusive right to reindeer herding of Saami people in Norway.

 

Whaling, fishing and hunting in Alaska

The population density of Alaska has periodically fluctuated as the historical phases have followed one another. The first unofficial census of all of Alaska was made by a Russian Orthodox missionary, Father Ioann Veniaminov and it took place in 1839. He calculated a population of 39,813 natives, including an estimated 17,000 people from native communities still uncontacted.[31]  With the acquisition of Alaska by the United States, there was an increase in immigration, while initially maintaining the Indigenous majority (33,426 of which 430 were white, based on the first official census made in 1880). During the gold rush and the beginning of the first mines and the arrival of the canned salmon companies, the Indigenous population of Alaska became a minority for the first time (46% of the total population).[32] Between 1867 (the year of American acquisition) and 1924, native populations had no rights to acquire land, vote or file any claims for mining concessions.[33] Some exemptions from harvesting restrictions and the right of Aboriginal communities not to be disturbed were included in the federal law.[34].

By the time of statehood in 1959, 4 out of 5 people in Alaska identified as white. On November 8, 1955, 55 elected delegates from across Alaska met to create the new document at a constitutional convention. Frank Peratrovich, the mayor of Klawock, was the only Alaska Native among the delegates.

Thus, the Constitution of Alaska, drafted in only 75 days, was drafted with minimum native participation. The constitution focuses on future economic prospects and strengthening its institutional weaknesses. The preamble still does not acknowledge the presence of Alaska Natives.[35]

In 1971, the Alaska Native Claims Settlement Act addressed native land claims but ultimately abolished all Aboriginal title to land and rights to subsistence hunting and fishing.[36] The Alaskan Constitution includes article 8, which recognises the right of every citizen and resident to get access to natural resources.[37] Article 8 then reflects the public trust doctrine as the state must promote the development of natural resources and the equitable access to all citizens without any discrimination (i.e., there are no specially reserved rights for native Alaskan in the state constitution).

The constitution of Alaska engages intergenerational equity for environmental protection. However, the case of whaling by native Alaska demonstrates the complexities of multiple and sometimes competing layers of domestic and international law affecting Indigenous Peoples. Whaling is regulated internationally by the International Whaling Commission (IWC) according to the 1946 Convention for the Regulation of Whaling.[38] The commission sets further regulations and monitors compliance by contracting states (now 88). The Preamble of the International Convention for the regulation of whaling recognizes “the interest of the nations of the world in safeguarding for future generations the great natural resources represented by the whale stocks,” i.e. a nod to intergenerational equity. The International Whaling Commission distinguishes Aboriginal Subsistence Whaling (ASW) from commercial whaling and the current moratorium applies only to the latter. Four IWC member countries lead the ASW, including United States. The IWC recognizes the cultural and nutritional importance of this activity while maintaining the objectives of sustainability. ASW is monitored by the Scientific Committee and the national governments must inform about the needs and priorities of Indigenous populations to continue whaling.[39] In Alaska, eleven small Inuit communities conduct ASW. The hunt is not commercial (the meat is not sold on an open market) but the catches are divided among the members of the communities according to traditional principles and custom (Indigenous law).

Aboriginal whaling concessions reflect the right of self-determination, which means the right of Indigenous people to decide on the development of their culture even if it involves environmentally contested activities. However, as Indigenous people are subjects of international law and their quotas must be approved at multiple levels within the IWC and these in practice reflect ecological sustainability principles, including intergenerational equity.

Despite Indigenous provisions for ASW within the IWC, the Alaska Constitution itself does not provide any exclusive rights to traditional fishing or hunting for Alaska Natives. Article 8 guarantees equitable access to natural resources, or “common good” for all Alaska citizens and residents. The article guarantees ecological conservation for the indiscriminate use of resources. For this reason, Article 8 does not provide for any exclusive right to use resources and might limit to conduct activities potentially harmful to the environment (including flora and fauna).

Whaling aside, the following jurisprudence developed a new interpretation of article 8 as source of the intergenerational equity. However, the inclusion on article 8 in Alaska State Constitution on the use of natural resources served to avoid any interferences of the federal government. The article uses the term ‘common use’ without special provisions on Alaska Native cultural rights. It was not until the 1980s and 90s that the Supreme Court started to interpret article 8 as related to subsistence hunting and fishing rights. In McDowell v. The State of Alaska,[40] the court interpreted article 8 as guaranteeing equal access to natural resources regardless of residency. This way, it did not recognize special rights to rural areas, even less the substantial rights to fish and hunt for Indigenous peoples living outside the cities. In Kanaitze Indian Tribe v. State,[41] state law interpreted article 8 as the right to substantial hunting and fishing only for who lives close to resources. However, the Alaska Supreme Court then declared the state law in violation of article 8 of the constitution as it limited the equal access to resources. In the court’s view, “residence” and “proximity” are considered a mere convenience compared to the right to access traditional territories. Recently, the Supreme Court recognized the right to subsistence fishing and hunting in the Manning case[42] holding that the subsistence statute protects “traditional culture and a way of life”. It is noteworthy to point out that this positive outcome was based on state laws instead of the Constitution.[43] Although constitutional law does not provide exclusive rights to traditional practices and does not mention subsistence fishing and hunting, there is a management framework that guarantees exemptions regarding mammal fishing quotas (Marine Mammal Protection Act[44]) and hunting of polar bears (U.S. – Russia Agreement on Conservation and Management of Alaska- Chukotka Polar Bear Population)[45] and species at risk (Endagered Species Act, ESA).[46]

 

The exclusive right of Saami to herd reindeer in Norway

There are approximately 40,000-60,000 Sami within the State frontiers of Norway. The Norwegian constitution recognizes Indigenous rights in article 108, establishing “the authorities of the state shall create conditions enabling the Sami people to preserve and develop its language, culture and their way of life”. Norway also has obligation to the Sami population pursuant to international conventions, particularly article 27 of the ICCPR and ILO Convention 169 concerning Indigenous and Tribal Peoples.[47] It is notable that Norway is the only State with a Sami Population to have ratified the ILO convention. After the 2014 reform, article 110b was introduced with the aim to provide rights and duties – not merely principles – on the concept of the right to a healthy environment. The first reason for doing so was to ensure that this provision enjoyed constitutional supremacy over other legislation. Second, constitutional implementation enables courts to enforce these principles of environmental protection. The article was then replaced by article 112 which reinforced the state duty to adopt protective measures with room for political discretion. Nowadays, article 112 can be interpreted under the legal framework of the current intergeneration equity. The Reindeer Grazing Act of 1978[48]held that Sami have exclusive right to herd in Norway on the basis of time immemorial use an as to preserve their identity.[49] This act has been later repealed by the Reindeer Herding Act of 2007.[50]The Court also held that Sami reindeer herders resident primarily in Sweden can cross border to Norway according to the Saami reindeer act of 2007.[51] The Sami Council, which represents Sami across Sápmi, has expressively declared how climate change represent a double burden to Sami as they are the most affected by the ecological degradation and also by the mitigative strategies- as wind power farm or mining to extract minerals used for electric cars.[52] This is visible in Norwegian Lapland where a joint venture wind power farm is interfering with Saami reindeer herding, making it impossible for Saami in the area to continue their herding practices since time immemorial. The energy company has constructed and continues to operate over 200 turbines as part of Norway’s ambitions for a “green transition” but also producing a significant economic profit. In fact, Stakraft, the state-owned renewable energy company responsible for the turbines, made over 1 billion the last quarter of 2022 alone, nearly 15 million dollars in profit a day. It is said to be the biggest Eolic Park, and many roads connecting the different constructing areas.[53]

The Fosen windfarm project is also the major source of energy for the nearby town of Fosen and other nearby settlements. Construction of the wind farm started in 2016, with energy production starting in 2018. However, the Fosen Vind project has received much criticism regarding the environmental and landscape impact of wind turbines on local fauna, flora and Saami communities. Moreover, the project is located in the centre of the country where the southernmost Saami population resides, which has the lowest number of members and reindeer herders. Among other concerns, environmental activists have denounced the project’s negative effects on bird migration, bat flight paths and the visual appearance of the landscape. As early as 2010, the Norwegian Water Resources and Energy Directorate (NVE) had granted licenses to some wind power plants to be built on the Saami pastures. Some Saami organizations in the area (South-Fosen sitje and North-Fosen siida) initiated several legal paths to stop the non-construction of the wind farm.[54] The various legal proceedings demonstrated the limits and difficulties of applying international human rights law with regard to the protection of cultural and minority rights. The South Fosen sitje based its requests mainly on article 27 ICCPR, article 1 Protocol 1 of the ECHR, and article 5 (d) (v) of the International Convention on the Elimination of All Forms of Racial Discrimination. Although the ICCPR had been ratified in 1972 by Norway through the Human Rights Act, at the time of the Fosen case the jurisprudence on Indigenous rights was still rather undeveloped. Before the Fosen case, in fact, the Norwegian Supreme Court had expressed itself only on three other cases from which it tried to reconstruct the tolerance threshold to establish the circumstances in which article 27 could be defined as having been violated. Article 27 of the ICCPR declares that:

In those States in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practice their own religion, or to use their own language.

The ICCPR establishes both negative obligations (not to limit the enjoyment of cultural rights to minority communities) and positive obligations on the State (to take measures to guarantee these rights).  Article 108 of the Norwegian Constitution opens the door to a new interpretation of article 27 of the ICCPR, establishing that “the authorities of the state shall create conditions enabling the Sami people to preserve and develop their language, culture and way of life. Article 105 of the Norwegian Constitution also provides that the person affected by land expropriation must receive full compensation, even in the event that the expropriation takes place “for more benefit than damage”. Despite the economic and compensatory benefits, if the expropriation violates the right of ethnic, religious, or linguistic minorities to practice their culture (e.g., Sami reindeer husbandry) it will not be legally valid.[55]

In the Fosen case, the Norwegian Court had to intervene to define when the expropriation should be considered a violation of human rights and of article 27 of the ICCPR. The threshold established by the Supreme Court of Norway is based on international jurisprudence, in particular the three Länsman v Finland Views and the Poma Poma View of the Human Rights Committee (para.119)[56].

In the three Länsman v Finland cases, the Human Rights Committee confirmed that economic activities should come within the ambit of Article 27 without the state’ party of ICCPR margin appreciation on the development of Indigenous culture. Activities should be planned with the minority’s consent.[57] In the second Länsman case, the Human Rights Committee stated that also the cumulative effects of the activities must be taken into account.[58]

The Poma Poma v Peru case concerns the construction of wells in Peru that source water from the mountains, lands inhabited by the Aymara people, and divert it to the city.[59] This diversion not only limited the Aymaras’ access to water but had drastic repercussions on the llama pastures. The Human Rights Committee decided in favor of the complainant, Ms Poma Poma, who is a member of the affected Aymara people.[60]  Indeed, the Human Rights Committee considered that the claimant and her community were deprived of their right to participate in the decision-making process regarding the wells construction and the state party did not obtain the free and prior informed consent of Poma Poma.

Following these views, that are themselves technically non-binding, the Norwegian Supreme Court establishes the right to consultation that, in the cases of Indigenous Peoples, can include a right to Free, Prior and Informed Consent (e.g., in Poma Poma). The right to meaningful consultation, and a requirement of consent if the interference crosses the threshold of severity, is not subject to a margin of appreciation, a proportionality test or balancing test. In other words, States cannot disapply the right to Free, Prior and Informed Consent because of countervailing interests of the majority population or even global goods such as the green transition.

The Supreme Court stated that the mitigation plans – i.e., fencing in and artificial feeding of reindeer was not a sufficient “mitigation” to override the interference with their cultural rights. Nowadays, the windfarms continue to operate unlawfully, the Saami cannot herd and they still do not even get compensation.[61]

 

Discussion: Indigenous Rights in Light of in dubio pro natura

The in dubio pro natura principle suggests an alternative way to solve uncertainty in environmental conservation. It recognises traditional knowledge and sustainable practices when it is applied to Indigenous rights[62]. Theoretically, in dubio pro natura guarantees Indigenous rights and knowledge by prioritising the protection on nature in case of ambiguity. However, in dubio pro natura doesn’t grant Indigenous rights to use the land since it might prompt conservation measures encouraging alternative and more sustainable practices. Commonly, national legal systems address Indigenous rights and environmental conservation on different levels.

In these situations, cooperation between authorities, environmental experts and Indigenous communities is crucial in the application of more inclusive decision-making process and culturally- sensitive environmental strategies[63].

The coexistence of environmental principles like in dubio pro natura and legal provisions for Indigenous rights involves negotiation to balance environmental conservation and cultural diversity. This approach can lead to a more inclusive constitutional revision process which guarantee the right to a healthy environment. In this sense, in dubio pro natura can lead to several inclusive instruments to include Indigenous peoples in environmental matters as: co-management of natural resources, adoption of contraindicative provisions, political polycentricity, innovative interpretation of pre-existing articles. In this way, the protection of ecological diversity could promote the conservation of traditional practices and knowledge.

For example, co-management suggests a cooperation between Indigenous communities and the authorities on natural resources in traditional land. It has been applied in Sweden in the World Heritage site of Laponia[64]. However, this approach has been criticised, raising strong ethical concerns that co-management of Indigenous cultural heritage with the state does not support the right of self-determination.[65] On the same matter, Daes denies the co-management by introducing the term “collective heritage” to cover Indigenous cultural and property rights. Daes understands “heritage” as “everything that belongs to the distinct identity of a people and which is theirs to share, if they wish, with other peoples. It includes [..] inheritances from the past and from nature, such as human remains, the natural features of the landscape, and naturally occurring species of plants and animals with which a people has long been connected.”[66]

Finally, in dubio pro natura can also promote innovative interpretation of pre-existing article (as article 8 of Alaska constitution) which suggests a stronger connection between human rights and nature.

 

Conclusions

Environmental constitutionalism represents an important process for strengthening compliance with international obligations regarding the conservation of biodiversity. In dubio pro natura jurisprudential applications support the dynamism of the law which is gradually moving from an anthropocentric approach of environmental law to an ecocentric perspective in which nature must be preserved for the future. Intergenerational equity inspires a partnership between generations through the preservation of a healthy environment for a dual purpose: ensuring the right of future generations to access natural resources and the right to practice their culture. Indigenous populations share a great attachment to nature by virtue of traditional activities (fishing, hunting, traditional knowledge). It is very difficult to determine whether intergenerational equity or the in dubio pro natura approach better supports access to cultural heritage for future generations or even how the two approaches can be integrated. This is firstly because intergenerational equality has not been sufficiently explored jurisprudentially to have an exhaustive definition. Secondly, intergenerational equity, together with the in dubio pro natura principle address predominantly environmental protection goals rather than the conservation of cultural diversity. This creates a strong disconnect between environment and culture that differs from Indigenous perspectives (for example, views of nature and humankind as part of the same “continuum”). Alaska and Norway are among the Arctic jurisdictions to have implemented the principle of intergenerational equity in their constitutions. Nonetheless, the tendency for courts to rule in dubio pro natura for the maintenance of a healthy future environment does not necessarily strengthen the rights of Indigenous peoples to practice traditional activities, which are essential to the preservation of their traditional knowledge for future generations. These conflicts can arise whether the constitution itself includes exclusive Indigenous rights to traditional practice (for example in Norway) or whether it excludes them by virtue of fair and indiscriminate access to natural resources (for example in Alaska). It is also important to analyse the etymology of the texts, especially of the individual articles, to determine whether the constitutional text contributes to a colonial narrative (as in the case of Alaska). Clearly this refers to constitutional law, as the objective of this article, without excluding the presence of a different legal framework that dispute moratoriums, exemptions, or rights to support Indigenous practices on traditional territories.

 

Endnotes

[1] Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters (adopted 25 June 1998, entered into force 30 October 2001) 2161 UNTS 447, 38 ILM 517 (1999) (Aarhus Convention).

[2] Serena Baldin, ‘Il costituzionalismo ambientale in un’ottica multilivello’ (in English: Enviromental constitutionalism from multilevel perspective”, DPCE online, Spring 2023, p.1-3 ISSN: 237-6677.

[3] Rio Declaration on Environment and Development (1992) 31 ILM 876. See also: Wirth A. D., ‘The Rio Declaration on Environmental and Development: Two steps Forward and One back, or Vice Versa,’ Georgia Law Review, 29, 1995. Pp. 165.

[4] Convention for the Protection of Human Rights and Fundamental Freedoms (adopted 4 November 1959, entered into force 3 September 1954) ETS 5 (ECHR).

[5] Council of the European Union, ‘Servirsi dei diritti umani per proteggere l’ambiente’ (English translation “Human Rights for environmental protection”), <https://www.coe.int/it/web/portal/human-rights-environment>, accessed 30 November 2023. .

[6] Ibid.

[7] Kotzé, L. (2019). A Global Environmental Constitution for the Anthropocene? Transnational Environmental Law, 8(1), 11-33. doi:10.1017/S2047102518000274.

[8] Ibid. Baldin (n 2) 12

[9] The Constitution of the State of Alaska, adopted 5 February 1956, ratified 24 April 1956, operative 3 January 1959 (Alaska State Constitution). Text available: <https://ltgov.alaska.gov/information/alaskas-constitution/>.

[10] Section 35 of the Constitution Act, 1982. Text available: <https://www.canada.ca/en/immigration-refugees-citizenship/corporate/transparency/committees/inan-jan-28-2021/inan-section-35-consitution-act-1982-background-jan-28-2021.html>.

[11] Carter v Canada (Attorney General), 2015 SCC 5, at para 63.

[12] Canadian Charter of Rights and Freedoms, Section 7. Text available: <https://www.canada.ca/en/canadian-heritage/services/how-rights-protected/guide-canadian-charter-rights-freedoms.html>.

[13] FAOLEX, Constitution of Denmark. Report available: <https://www.fao.org/faolex/results/details/en/c/LEX-FAOC127862/> (last access on 20th December 2023).

[14] E.g., Ragnheiður Elfa Þorsteinsdóttir, ‘Natural resources and the reform of the Icelandic Constitution,’ in Ágúst Þór Árnason and Cahterine Dupré (eds), Icelandic Constitutional Reform: People, Processes, Politics (Routledge, 2021).

[15] Norway Constitution, 1814, as amended. English translation available: <https://lovdata.no/dokument/NLE/lov/1814-05-17>.

[16] Constitution of Sweden, 1974, as amended, Article 2 s 4.  English translation available: <https://www.constituteproject.org/constitution/Sweden_2012>.

[17] Constitution of Finland 2000, as amended. English translation available: <https://www.finlex.fi/en/laki/kaannokset/1999/en19990731>.

[18] Constitution of the Russian Federation, 1993, Article 69. English translation available: <http://www.constitution.ru/en/10003000-01.htm>.

[19] Erin Ryan, “The Public Trust Doctrine, Property, and Society” in Nicole Graham, Margaret Davies & Lee Godden (eds), Handbook of Property, Law, and Society (Routledge, 2022).

[20] Nicholas Bryner, ‘An Ecological Theory of Statutory Interpretation’ (2018) 54(1) Idaho Law Review, 28.

[21] Rio Declaration (n 3), Principle 15.

[22] Case Concerning Pulp Mills on the River Uruguay (Argentina v Uruguay) (Merits) [2010] ICJ Rep 14, para 164.

[23] Serena Baldin and Sara De Vido, “The In Dubio Pro Natura Principle: An Attempt of A Comprehensive Legal Reconstruction” (2023) SSRN <https://ssrn.com/abstract=4313438> and <http://dx.doi.org/10.2139/ssrn.4313438> .

[24] Edith Brown-Weiss, ‘Implementing Intergenerational Equity,’, in Malgosia Fitzmaurice, David Ong, and Panos Mercouri (eds), Research Handbook on International Environmental Law (Edward Elgar, 2005), 101.

[25] Ibidem, 102-103.

[26] Stockholm Declaration on the Human Environment (1972) 11 ILM 1416, Principle 1.

[27] Malgosia Fitzmaurice, ‘Indigenous Peoples and Intergenerational Equity as an Emerging Aspect of Ethno-Cultural Diversity in International Law’ in Gaetano Pentassuglia (ed), Ethnology- Cultural Diversity and Human Rights: Challenges and Critiques, (Brill 2017), 198.

[28] Declaration on the Rights of Indigenous Peoples, UNGA Res 61/295 (13 September 2007) (UNDRIP).

[29] International Covenant on Economic, Social and Cultural Rights, 1966, 993 UNTS 3 (ICESCR) articles 1 and 15; International Covenant on Civil and Political Rights, 1966, 999 UNTS 171 (ICCPR) articles 1 and 27; Convention on the Elimination of All Forms of Racial Discrimination 1966, 660 UNTS 195 (CERD).

[30] Joerg Chet Tremmel, ‘Establishing Intergenerational Justice in National Constitutions’, in Joerg Chet Tremmel (ed), Handbook of Intergenerational Equity  (Edward Elgar, 2006), 203-5.

[31] Eric Sandberg, Eddie Hunsinger and Sara Whitney, ‘A History Of Alaska Population Settlement,’ (Alaska Department of Labor and Workforce Development, Division of Administration and Services,  April 2013) 4-13. Available online at: <https://live.laborstats.alaska.gov/pop/estimates/pub/pophistory.pdf>.

[32] Ibid.

[33]  William L. Iggiagruk Hensley and John Sky Starkey, ‘Alaska Native Perspectives on the Alaska Constitution,’ (2018) 35 Alaska Law Review 129-137.

[34] Tyson Kade and Van Ness Feldman, ‘The Protection of Alaska Native Subsistence Rights and Use: Overview of Alaska’s Subsistence Framework,’ Presentation for the Alaska Federation and Natives, 2022. Available online at <https://www.nativefederation.org/wp-content/uploads/2022/05/AFN-Subsistence-Workshop.May-2022.pdf>, accessed 1 December 2023.

[35] Ibid.

[36] Ibid.

[37] Constitution of the State of Alaska (n 9), Article 8 c.14: Free access to the navigable or public waters of the State, as defined by the legislature, shall not be denied any citizen of the United States or resident of the State, except that the legislature may by general law regulate and limit such access for other beneficial uses or public purposes.

[38] International Convention for the Regulation of Whaling 1946, 161 UNTS 72.

[39] International Whaling Commission, ‘Description of the USA Aboriginal Subsistence Hunt: Alaska,’ <https://iwc.int/management-and-conservation/whaling/aboriginal/usa/alaska> accessed 20 December 2023.

[40] McDowell v The State of Alaska, 785 P.2d 1 (1989).

[41] Kanaitze Indian Tribe v. State, 894P.2d 632 (1995).

[42] Manning v Alaska State Department of Fish and Game, 853 P.2d 1120 (2015).

[43] Ibid. Hensley and Starkey (n 32),137.

[44] Marine Mammal Protection Act (2017) 16 U.S.C 1361-1407.

[45] U.S- Russia Bilateral Agreement on Polar Bear Conservation 2007/792. ROP available: <https://polarbearagreement.org/polar-bear-management/bilateral-cooperation/united-sates-russian-federation>.

[46] Endangered Species Act, 1973, 16 U.S.C. 1531-1544. Text available: <https://www.govinfo.gov/content/pkg/USCODE-20https://www.govinfo.gov/content/pkg/USCODE-2017-title16/pdf/USCODE-2017-title16-chap35-sec1531.pdf>.

[47] ILO Convention 169, (1989) 28 ILM 1382.

[48] Act No.49, 1978 on Reindeer Farming 1978 (rev. 2003).

[49] Statnett SF et al. v. Sør-Fosen sijte, Supreme Court of Norway, HR-2021-1975-S, Judgment of 11 October 2021.

[50] Act. 40 of 2007-06-15.

[51] Norwegian Supreme Court, Case 2021, HR-2021-1429-A (ask no.20-16328SIV-HRET).

[52] Eva Marja Fjellheim and FlorianCarl, ‘Green Colonialism is Destroying Indigenous Lives in Norway’,  Al Jazeera, 1 August 2020, <https://www.aljazeera.com/opinions/2020/8/1/green-colonialism-is-ruining-indigenous-lives-in-norway>.

[53] Martine Aamodt Hess, ‘Norway’s Treatment of Sámi Indigenous People Makes a Mockery of Its Progressive Image,’ Jacobin, 13 March 2023, <https://jacobin.com/2023/03/norway-sami-indigenous-people-reindeer-herding-wind-turbines-dispossession-protest>.

[54] Øyvind Ravna, ‘The Fosen Case and the Protection of Sámi Culture in Norway Pursuant to Article 27 ICCPR,’ (2022) 30(1) International Journal on Minority and Group Rights 156.

[55] Ibid, 163-164.

[56] Appeal against Frostating Court of Appeal’s reappraisal, Supreme Court of Norway, HR-2021-1975-S, (case no. 20-143891SIV-HRET), (case no. 20-143892SIV-HRET) and (case no. 20-143893SIV-HRET), para.119. Full text available at: <https://www.domstol.no/globalassets/upload/hret/decisions-in-english-translation/hr-2021-1975-s.pdf>.

[57] Ilmari Länsman et al v Finland, Human Rights Committee, Communication No. 511/1992 (8 November 1994) CCPR/C/52/D/511/1992 (Länsman I); Jouni E. Länsman et al v Finland, Human Rights Committee, Communication No. 671/1995 (30 October 1996) CCPR/C/58/D/671/1995 (Länsman II); Jouni Länsman et al v Finland, Human Rights Committee, Communication No. 1023/2001 (17 March 2005) CCPR/C/83/D/1023/2001 (Länsman III).

[58] Länsman II.  

[59] Poma Poma v Peru, Human Rights Committee, Communication No. 1457/2006 (27 March 2009) CCPR/C/95/D/1457/2006.

[60] Ibid.

[61]  FrodeStøle and Jens Naas-Bibow, ‘Fosen: Wind Power and Reindeer Herding – Now What?,’ Advokatfirma AS <https://enkommafem.no/en/posts/supreme-court-fosen> accessed 20 December 2020.

[62] Ibid. Baldin (n 2), 26-7.

[63] I refer mainly to Nepali Constitution approach during the revision in 2015 after two years of consultation with minorities. See: IDEA, Inclusive Constitution Building: Identifying Common Ground through Political Dialogues on Contentions Constitutional Issues & Indigenous People’s Concerns in Nepal (Nepal Federation of Indigenous Nationalities, 2015).

[64] Leena Heinämäki, Thora Herrmann and Carina Green ‘Towards Sámi Self-Determination over Their Cultural Heritage: The UNESCO World Heritage Site of Laponia in Northern Sweden,’ in  Alexandra Xanthaki, Sanna Valkonen, Leena Heinämäki and Piia Kristiina Nuorgam (eds), Indigenous Peoples’ Cultural Heritage: Rights, Debates, Challenges (Brill, 2017).

[65] Sam Grey, and Rauna Kuokkanen, ‘Indigenous Governance of Cultural Heritage: Searching for Alternatives to Co-Management,’ (2019) 26(10) International Journal of Heritage Studies 919.

[66] Ibid. Heinämäki and others (n 64), 82. See also: Erica Irene Daes, ‘Discrimination Against Indigenous Peoples: Study on the Protection of the cultural and Intellectual Property of Indigenous Peoples,’ E/CN.4/Sub.2/1993/28, UNCHR, Geneva,(1993) para. 23.

Marjo Lindroth and Heidi Sinevaara-Niskanen, The Colonial Politics of Hope: Critical Junctures of Indigenous-State Relations (London: Routledge, 2022)

Volume 18, no. 1 (2023), Book review (editorial review), , , ,

The volume is edited by Routledge, the British publishing house founded in 1951 and now a safe haven for many publications on Arctic studies.

The authors are Marjo Lindroth and Heidi Sinevaara-Niskanen, both affiliates of the Arctic Centre in Rovaniemi and University of Lapland. As the title “The Colonial Politics of Hope” suggests, the volume deals with the relationship between Indigenous communities and the state, offering a comparative overview between Australia, Canada, Finland, and Greenland/Denmark.

The main theme is “hope“. The authors trace the sources of this concept to the colonial era in which the only “hope” for Indigenous peoples to survive was integration into Western society. The empirical and conceptual analysis of hope follows three thematic paths: the constitutional recognition of indigenous rights, the ratification of ILO Convention 169, and the creation of self-governments such as the one established in Greenland in 2009. The decolonization process by the Nations Unite began in 1960, when several declarations were stating that “natural heritage and political determination belong to all individuals”. These rights were not to be influenced by diplomatic relations between states and were to be respected in all member states. As the book points out, not all states adopt the new provisions easily. Since the declarations of the General Assembly are not legally binding, in the 1970s the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR) came into force. Even today, these conventions play a role of absolute importance in disputes involving cases of inequality, discrimination, and racism.

In the 2000s, the Universal Declaration of Indigenous Rights (UNDRIP) sought to establish and enshrine the principles and prerogatives that Indigenous communities demanded that states respect them. However, some countries did not immediately acknowledge the value of this instrument, which was once again not legally binding, and did not accept the declaration. Among these was Canada which in the UNDRIP article on the FPIC (free, prior and informed consent) saw the possibility of granting the right of veto to the Indigenous communities on the exploitation of natural resources. In reality, the Declaration recognizes that international relations between states is also based on economic well-being and leaves ample room and priority to national economic initiative.

The United Nations monitoring system has revealed many situations where Indigenous peoples’ rights are not respected. The authors refer to the 2019 case, when the UN Committee on the Elimination of Racial Discrimination request Canada to respect the free, prior and informed consent of Indigenous people before the construction of a pipeline.

The second chapter is dedicated to how the concept of hope has been developed in the social sciences. In recent decades, academic literature has focused on the analysis of hope, especially in times of instability and crisis. The authors have chosen 4 channels of analysis of hope: philosophical (through Bloch’ theorisation), analytical, hope as an effect and how hope has become a political conduit. In the first philosophical approach, the authors build a theoretical bibliography in which hope and being hopeful are compared. The approach to utopian thinking in times of crisis as a weapon to be “hopeful” is interesting. The analytical approach is based on the anthropological work of Hirokazu Miyazaki. Miyazaki identified hope as a method of knowing. In his studies, Miyazaki referred to hope as a means of legal recognition of the land ownership of some Indigenous communities in the Fiji Islands. Another important contribution is that of Nauja Kleinst who associated hope with mobility referring to the phenomenon of great migrations. The third category underlines how many aspects of human life are the effect of emotions arising from hope. Anderson’s theory reconstructs the economic, political and social arrangements between actual and possible reality (which is possible to do) through the strong feeling of hope. The fourth category is represented by the hope and power connection. Also in this case, the authors have reconstructed a dense philosophical literature in which hope is analyzed in different positions of power and subjection.

The third chapter is entitled “Battlefields of recognition” and concerns the inclusion of Indigenous peoples within national policies (Australia, Finland, Greenland/Denmark). The analysis in this case retraces the events and the “empty and silent” moments that led to important amendments in the various national jurisdictions. The amendments mentioned in the volume concern the inclusion of Indigenous rights through the ratification of treaties and judicial amendments (cases that have led to the reformulation of some norms). Despite legislative efforts, even today it seems that Indigenous peoples still suffer from the problems presented decades ago. This phenomenon can be explained by the cautious national political will to recognize these rights, as dubious mechanisms of democracy and decision-making. What seems to emerge is that what is legal is not said to be right. Geographical areas clearly represent different political and social arrangements. For example, the issue of inclusion and recognition of Indigenous rights in Finland is advanced through the awaited ratification of ILO Convention No. 169, while the situation in Greenland through the timeline that saw the creation of a self-government in 2009. Despite the creation of a self-determined body, the dream, or rather the hope, for complete independence has never died out. To date, a form of administrative regionalism exists between Greenland and Denmark, in which some matters are the responsibility of the island and others of the central state. Some of these areas do not rise from the possibility of overlapping creating crises of competence. The largest is between natural resource management (Greenland) and foreign affairs (Denmark). The Greenlandic social fabric is quite homogeneous with some more remote communities in North and East Greenland. The question of Greenlandic indigeneity in the event of full independence is still unresolved. Finally, Australia has demonstrated a certain constitutional dynamism through a series of referendums related to the Indigenous situation on the territory.

The authors denounce that in all three countries there is the promise of a process and greater recognition of Indigenous rights. The authors criticize how such promises have always been broken due to lack of political will. Greenland appears to be the most virtuous having placed the protection of Indigenous rights as the cornerstone of internal politics. In the face of states’ reticence, Indigenous peoples instead lead decisive campaigns of awareness and legal change. An example reported in the volume concerns the declaration of intent that the Indigenous community of Torres Strait presented to the Australian Government. The declaration referred to the Government’s intervention requesting a new referendum and greater organization in the hearing processes.

The fourth chapter ” Fickle contractuality” is the most interesting. This part is about how the Western concept of “contractuality” emerged in the relations between Indigenous communities and the state. The contractual form of relationships is a crucial and common aspect in the Western mentality. Through various contracts it is possible to negotiate and agree many aspects of human life: from work, to property, to the more private aspects. The contract that includes two or more parties inspires division. And it is precisely the division that clashes with the community of Indigenous rights who often suffer from the disproportion of power with the state (which has the last word on the decision). Although the Indigenous populations find themselves in a political, negotiating, economic system very distant from their own, the states are still very reluctant to recognize their rights for fear that this will create a decrease in their sovereignty.

The fifth chapter is entitled “Colonialism in the grammar of hope” and reconnects the common thread between colonialism and hope. According to the authors, this correlation also exists with postcolonial theories, despite the protracted violations of Indigenous rights suggesting that we are actually in a “contemporary colonialism”. Despite the emphasis that the volume has dedicated to the analysis of the politics of hope, colonialism has resisted its power. However, this does not hide the fact that hope has not also brought benefits. The current policy has shown a certain “care” and attention to the Indigenous issue, adopting more inclusive initiatives. In various countries such as Canada and Finland work has begun on the Reconciliation and Truth Commissions. These commissions have the objective of “healing” relations between the state and Indigenous peoples. The major concern is that these Commissions have only a symbolic meaning without having any practical repercussions and compensatory initiatives for past mistakes. Another concern is related to the limitations of this state “cure”, especially if the recognition of Indigenous rights is still linked to Western political and legal systems. In fact, it appears that only legal recognition is the only way for Indigenous populations to feel “included”, affected signed and recognized. Despite these critical issues, Indigenous peoples still continue to fight for their rights, demonstrating an indomitable resilience in the face of marginalization and attempts at assimilation. Resilience has been the manifesto of recent times. This attitude recalls the individual’s ability to face and overcome a traumatic event in life. The authors also underline the difference between hope and resilience: the former is the sentiment with which we look confidently to the future; while the second is fortitude with which we overcome the traumas suffered. Indeed, hope operates on the present (violence, dispossession and marginalization notwithstanding), while resilience seems to be eternally tied to the past. Indigenous political hope is not only aimed at compensation or compensation for past traumas, but at the construction of a more equitable and inclusive political and legal system.

The analysis of hope as a driving factor in relations between the state and Indigenous peoples also branches out in economic matters. The authors reconstruct a vast bibliography on liberalism and on how the state, in the inclusive claim, has advanced economic agreements with Indigenous peoples in order to actually profit from them. Such agreements have often resulted in the legalization of land dispossession and monetary compensation as the only method of compensation. Has hope become the “currency” for economic relations between the state and Indigenous communities?

I would like to dedicate the last few lines to the final considerations on the volume. I think the topic is very interesting because it is little explored at an academic level. Hope usually exudes a poetic vein in literature, so a political technical examination was wholly unexpected. Especially, if that analysis has been applied to Indigenous peoples and their struggles for rights. The content of the volume is very rich, but the structure is not very intuitive if you don’t fully know the subject. What I appreciated most is the rich refinement of the bibliography. Hope is analyzed from many points of view and the argumentation is never trivial. The analysis seems to suggest a negative and compliant note of Indigenous affairs with respect to state policy and priorities. At the same time, I don’t think the authors wanted to leave the reader with certain answers or results, but rather to invite him/her to reflect on hope from both an academic and an introspective point of view. The project lends itself to greater developments in the future, considering the growing interest in environmental issues and increasing inclusiveness of Indigenous people in climate litigations. Due to the quality and complexity of the contents, I suggest reading this text to both experts in the field and students in Philosophy, Comparative Law, Political Sciences, especially if they include a focus on the Arctic and Nordic diplomacy.

Karen N. Scott and David L. VanderZwaag (eds.) Research Handbook on Polar Law (Cheltenham/Northampton: E. Elgar, 2020)

Book review (editorial review), , , ,

The Research Handbook on Polar Law by Edward Elgar Publishing is part of the series of Research Handbooks that the British publishing house offers as a research focus in different disciplines and properly indexed in particular themes. In the case of the Research Handbook in Polar Law, the collection of 22 articles attempts to offer a comprehensive view of what constitutes the dimension of Polar Law: biodiversity, culture, politics.

The tome is edited by Karen N. Scott and David L. VanderZwaag, who try in the introduction to invite readers to reflect on the existence of a Polar Law and on the need to have this legal exceptionalism. Polar Law arises from the need to accommodate the regional demands of a part of the Planet that historically responds to various natural, economic and cultural claims. For this reason, inserting the term of Polar Law in the nomenclature alone is very difficult, considering the multidisciplinary nature of the subject.

Although the Polar law recalls a rationalistic legal structure, the two Poles, Arctic and Antarctic, require a different treatment as they are two geologically and politically distinct areas. If in the Arctic speaking of cultural diversity is possible, research in Antarctica focuses more on the protection of nature and the correct management of human activities, such as research and tourism.

For this reason, the authors opened the analysis with a historical excursus on polar geology, explaining the effects of the Anthropocene and its developments in the era of climate change. As far as the Poles may seem far and remote areas, they are in fact strongly interconnected with the rest of the Globe. The high temperatures and the sudden melting of glaciers caused an unstoppable rise in sea levels and the sinking of lands and river deltas. But not only. It is interesting to discover how the disappearance of the glaciers has made the polar future increasingly dark, without solar reflection and greater absorption of radiation.

The effects of Climate Change also unfold on traditional and non-traditional human activities in the Arctic, bringing out new priorities and new actors in the political and administrative dimension of the polar areas. After Seck and MacLeod attempt to group the polar population based on activities, Nengye Liu analyses China’s emerging role in Arctic politics, comparing the Chinese situation to the presence and competence of the European Union in both the Arctic and Antarctic. Although Chinese influence is still minimal in Polar Law, China is increasingly present in issues such as fisheries, shipping and tourism, especially in the Southern Ocean.

In fact, fisheries and tourism activities in the Southern Ocean have increased dramatically in the last decade. In his article, Haward traces the salient points of the history of fishing in the Southern Ocean up to the Convention on the Conservation of Antarctic Marine Living Resources (CCAMLR) part of the Antarctic Treaty System (ATS). Haward underlines the importance of conserving marine biodiversity, recalling when even the smallest element (krill) is indispensable for polar biodiversity. From the very beginning, CCAMLR has faced several resistances. Even today, it is hypothesized how this Convention can be integrated in the management of natural resources, especially in the policies regulating fishing.

A different approach is that explained by Hoel, who explains how fishing in the Arctic is managed, in particular by the Arctic Five, the five coastal Arctic states (Canada, United States of America (Alaska), Denmark (Greenland), Norway, Russia). Fishing in the Arctic has an additional meaning of sustenance for all the communities that live there. For this reason, the coastal Arctic countries have implemented tools to better manage this activity, such as moratoriums (US and Canada) and restrictive measures (Norway).

Natural resources are not just about flora and fauna. The Arctic is a region very rich in minerals and interest in developing these resources has grown over the years. The melting of the ice and the increasing number of fires in the Arctic has uncovered much of the covered land and has allowed further exploration.

Johnstone and Joblin talk about the limitations that Indigenous peoples still suffer in the enjoyment of territorial rights. Indigenous peoples, they points out, are not necessarily opposed to mining but would like to be able to participate more actively in decision-making processes involving the lands they have inhabited since time immemorial. Clearly, the connection sustainable development and extractive activities is not applicable in the Antarctic, as this continent is not permanently inhabited even if the growing presence of new actors (as previously argued by Liu).

Another important human activity in the Arctic and Antarctic is undoubtedly tourism. Again, global warming has opened up new avenues of communication, both by sea and by land, requiring greater controls and monitoring systems (Chapter 15; Chapter 16). Liggett and Stewart explore the regulatory framework of maritime tourism in the Arctic (Nunavut) and Antarctica, questioning whether this is sufficient to promote the diversification of the polar tourism sector. As pointed out by the authors, the non-ratification of some important international instruments (UNCLOS) and the difficult implementation of the International Code for Ships Operating in Polar Waters (Polar Code), has weakened the domestic legal system that guarantees the harmonization of international law on the matter. As everyone knows, the COVID-19 pandemic has had devastating effects on the tourism sector in general, causing a total shutdown in the polar areas. The cessation of maritime routes has considerably reduced the economic income of the local communities increasingly involved in the sector. The advent of COVID-19 has prompted governors and academics to reflect on the environment, society and the economy. Three strongly interconnected dimensions that make up the concept of sustainability, now at the centre of global policies.

During the pandemic, the media often referred to the “resurgence of Nature”, telling stories of how the fauna and flora have regained the spaces occupied by man. Nature that still struggles to be the holder of rights, but passively undergoes the rules imposed by man to manage itself in order not to be damaged by the environment that it manipulates and transforms. For these reasons, I think it is really interesting and important to read chapter 16, in which Warner traces the international principles of environmental law in both polar regimes, weaving a profound analysis on the precautionary principle and the importance of drafting Environmental Impact Assessments (EIA) now implemented in many legal systems (thanks also to international influence and European directives in support of greater monitoring of human activities in the environment).

At the 26th UNFCCC Conference of the Parties (COP26) in Glasgow, global sustainability was one of the topics that drove the climate discussions. In fact, governments have talked about the policies to be adopted to lower the levels of carbon emissions, the primary cause of climate change. There continues to be some concern that the measures adopted, especially legal ones, do not take the vulnerability levels of the Poles seriously. In fact, the legal instruments are often of a soft-law nature such as the bodies that issue, albeit important, guidelines and policies in this regard (Arctic Council and containment measures for the levels of Mercury and POPs, especially in Antarctica). In addition, there is also a substantial inconsistency among polar regimes that tend to jeopardize policies relating to climate change (Chapters 16 and 20).

The same perplexities are shared by Suzanne Lalonde, regarding the establishment of marine protected areas (MPA) and other effective area-based conservation measures in both polar regimes. Despite the legal instruments on the matter, the Arctic and Antarctica encounter the same coordination problems. If in the Arctic we find eight countries that manage MPAs according to their own legal system, in the Antarctic there is experience of logistical and regulatory overlaps (ATCM and CCAMLR). The author suggests the strengthening of inspection and monitoring systems in the Arctic (beyond the legal areas of state competence) by supporting cooperation between agencies and local communities.

Since the 1990s, the Arctic Council (AC) has referred to a further consequence of climate change: the acidification of the waters, which affects both the Arctic Ocean and the Southern Ocean. After the Arctic Council states recognized the problem of water acidification in 2015, the Arctic Council immediately adopted pro-active initiatives to combat the damage and risk factors, such as the Enhanced Black Carbon and Methane Emissions Reduction Framework for Action (EBCME Framework), with the commitment of member states to reduce black carbon and methane emissions.

The approach to the South Pole, according to Stephens, would be completely different. If in the Arctic we can speak of regionalism, the problem of acidification of Antarctic waters is treated in a more conservative way. Although the members of the Antarctic Treaty System (ATS) are more numerous than those of the Arctic Council, the regulatory framework is based only on the UNFCCC and the Paris Agreement and to date the ATS did not demonstrate the same dynamic response as the AC.

The volume ends with an examination of the position of Polar Law as a discipline, hypothesizing the factors that led to the creation of a branch of law. According to Rothwell and Hemmings, climate change, the effects of which are very evident in the polar regions, and the exploitation of resources are the main causes of the growing international interest. As mentioned previously, the polar legal framework is very complex and is the result of the first explorations and the first hypotheses of sovereignty of those lands. The fight against sovereignty and, consequently, the management of resources has resulted in conflicts and new theories that have spilled over into what we call “Polar governance” and the decision-making systems that affect the economy, society, and the polar environment. The purpose of Polar Law, as suggested by the authors, is to respond to geopolitical and environmental challenges (p.473), and for this reason it will continue to adapt in an uncertain future marked by climate change.

After this brief and general overview of the volume, I would like to conclude my review with some personal reflections. First of all, I I firmly believe editorial series of this kind are of absolute importance both for those who work in the sector and also for amateurs of Arctic themes. Sustainability and the environment were the two pillars of this book which constituted the common thread through all the articles. Also appreciated the references and postscriptum on COVID-19 which has been an undeniable unknown for the past two years. I really appreciated the variety of disciplines proposed and the themes that the authors selected. Excellent Arctic-Antarctic dichotomy in each contribution that allows the reader to compare the two polar regimes in each field. The only thing that I personally have not fully approved is the order of the articles, poorly organized by argument. I would have preferred to find the scientific and humanities articles in separate sections or in a different group. For these reasons, I invite those interested in Polar Law to read this volume, hoping not to wait too long for a new issue.

 

Participation, Sharing, and Cooperation: The rights of indigenous peoples over natural resources in the Arctic

Volume 16, no. 4b (2022), New article (double blind peer review), , ,

Introduction

The indigenous population accounts for 5% of the global one. Despite its ephemeral population, indigenous communities manage 25% of the land and help preserve 80% of biodiversity and 40% of protected reserves. In Central America, this figure reaches up to 90%[1].

The management of natural resources, living and non-living, contributes to the conservation of ecosystems and the maintenance of local customs and traditions. Inadequate application of environmental policies causes the loss of cultural diversity and Traditional Knowledge (TK). Right of access to information, participation, and justice are the three pillars of Environmental Justice[2]. Environmental Justice refers to an equal sharing of environmental responsibilities, benefits, and burdens, which translates into unsafe food, poorer health outcomes, poor resource management, and environmental damage[3].

The UNECE Convention[4] gives people the right to get informed about what happens on their territory, and indeed, it finally raises the indigenous peoples as subjects of law[5]. For this reason, environmental justice plays a functional role in social justice, as it not only supports the equitable distribution of benefits and burdens but also provides the groundwork for the guaranteed protection of interests in the legal system.

The non-inclusion of traditional ecological knowledge (TEK) in the mitigation strategies of the effects of climate change has contributed to the complete exclusion of indigenous populations in decision-making processes. Although indigenous peoples are the greatest victims of environmental transformations, many green projects have allowed the violation of rights that have harmed indigenous territoriality. Many international agencies have finally recognized some powers of resolution of disputes in the ecological field alongside indigenous peoples[6].

1. Historical Excursus: From nationalization of Indigenous Land to Indigenous People as subject to International Law

This research additionally aims to demonstrate how the development of the deliberative processes of indigenous communities promotes the sustainable development of communities that share a colonial experience. To this purpose, the discussion begins with a historical excursus on how indigenous lands have been gradually nationalized, and how colonization and decolonization have negatively affected the full self-determination of indigenous peoples.

The inclusion of indigenous lands within national borders has centralized the management of natural resources, undermining the effectiveness of the self-determination principle.

The emergence of this principle took place through international law treaties. Despite dynamic jurisprudential and doctrinal evolution, its application remains ambiguous especially based on the subject of reference. Some academics prefer to speak of the “subjectivity” of indigenous peoples rather than the “subject” under international law. This term would, in fact, underline the collective dimension of indigenous rights as had already been addressed in the choice between “people” and “peoples” during the drafting of the United Nations Declaration on the Rights of Indigenous People[7]. The International Court of Justice has recognized the erga omnes obligations of this principle, which are recognized as legally binding by all states.

The international community has thus identified the principle of self-determination as ius cojens, that is, a core of mandatory rules to protect fundamental values. Independence movements have made this principle take the form of a real “right to self-determination”, despite the already mentioned application problems. These applicative uncertainties unfold both from the subjective point of view and at the level of practice.

Regarding the first point, neither doctrine nor practice has managed to identify the target groups of the law, while it is still debated whether this right can also be recognized outside the colonial factor and can lead to the creation of new states.

In this regard, the United Nations General Assembly (UNGA) adopted two important resolutions: Resolution 1541 (XV) and Resolution 2625 (XXV). Resolution XV crystallized a generalized opinio juris, followed by a subsequent practice that immediately recognizes the right to self-determination and leaves the people to decide on future relations with the administering state (association or integration). Resolution 2625 (XXV) concerns the principles of international law in friendly relations between states. In this resolution, the right to self-determination also extends to those scenarios of political and economic subjection from another dominant state.

This concept was also incorporated in Chapter II of the Helsinki Conference and in the Consultative Declaration of the Conference on Human Rights[8]. In 1962, the UNGA adopted Resolution 1803 which introduced the concept of the permanent sovereignty of peoples over natural resources[9]. The Resolution declared that people could enjoy their wealth without being influenced by the states’ obligations due to international cooperation.

Considering the non-binding legal nature of the Resolution, the concept was transferred to the first article of the two International Covenants on Human Rights, adopted by the UNGA on 16 December 1966 but entered into force in 1976. The Covenants reaffirm the right of peoples to self-determination and to autonomously manage their natural resources[10]. Applying a cosmopolitan perspective, nature, understood as environmental healthiness becomes a constitutive element of human rights. Environmental protection is linked to numerous human rights, including the right to life, the right to health, the right to water, the right to food, the right to family life, the right to information, the right to housing, and the right to an adequate standard of living[11]. Since the 1960s and 1970s, environmental movements have begun to include human rights within environmental law.

The first official international instrument was the United Nations Conference on the Human Environment in Stockholm in 1972, which adopted a human rights approach to environmental protection. The right to information and expression began to enter the paradigm of environmental justice with the Universal Declaration of Human Rights (art.19), the Aarhus Convention, the International Pact on Civil and Political Rights (art.19) the European Convention for the Protection of Human Rights and Fundamental Freedoms (art.10 on freedom of expression, art.2 on the right to life and art.8 on the right to respect for one’s private and family life)). Finally, the African Charter also recognizes the right of the parties involved to have access to environmental information.

At the European level, the Treaty on the Functioning of the European Union (Article 15) establishes the citizen’s right to access the documents of the EU institutions. Directive 90/313 of 1990 strengthens the methods of accessing public environmental information. Art. 7 of Directive 2003/4 outlines the obligation of the member state to provide information on the general state of the environment. Furthermore, Directive 2008/1 grants access to information on installations and programs to mitigate the negative effects of pollution.

2. Environmental Justice as a boost for Indigenous Rights protection

In the evolution of the Environmental Justice principle, it became clear that social groups did not have the same procedural means and the same rights regarding access to natural resources. Indigenous voices, for example, still struggle to play a determining role in political decisions and often do not have the right of veto during the licensing process of activities that concern the exploitation of the natural resources of their territories.

This situation is more complicated if a government fails to ratify important conventions, invalidating most of the effectiveness of other international instruments on the protection of indigenous land rights. The jeopardized implementation of international legal norms among the Nordic countries causes partial and inequitable protection of indigenous rights in the Arctic, even among similar ethnic groups (Sami community).

The multitude of parties involved, and the multidisciplinary nature of the matter has promoted the adoption of different approaches to define the concept of environmental justice. Holifield, Chakrabotyr and Walker envisaged four different approaches[12]:

Distributive environmental justice: This approach concerns the allocation scheme of natural resources between the parties.
Procedural environmental justice: Concerns the degree of fairness in the decision-making processes. An interesting analysis by Cesur and Altunel, analyzed the concept through the principle of public interest (benefit principle). There are cases in which the court has assessed the right to access information regarding the problem of pollution as a human right (Oneryildiz v. Turkey) (Mladenov; Avramovic).
Environmental justice of recognition: As an inclusion of the cultures and values ​​of the stakeholders.
Capability Environmental Justice: Analysis of the actual tools and opportunities that the parties involved enjoy accessing justice systems.

In particular, the Capability Environmental Justice approach is well suited to the needs of indigenous peoples. Above all, this definition analyzes the concrete means of these communities to defend their territory and the rights related to it, namely participation, information and ownership rights.

Considering the various dimensions of environmental justice, it is unsurprising that this concept can be a promoter of indigenous rights by outlining the standards of social justice, and hence non-discrimination, in the face of natural law.

Defining indigenous environmental rights, it is necessary to build a legal framework that includes the major international sources, which are divided into soft law instruments (such as the United Nations Declaration on the Rights of Indigenous Peoples) and legally binding sources (such as ILO n. 169). Among the most cited, environmental conventions such as the Convention on Biological Diversity stand out, but also the conventions on fundamental freedoms such as The African Charter on Human and Peoples’ Rights, certainly play an essential role in the balance and inclusion of human rights and environmental health.

The analysis of these sources provides us with a primitive framework for reading on the definition of indigenous rights, in which consent is the basis of cooperation between the government and the indigenous community, and represents the principle of self-determination, definitively overcoming the colonial approach between the state and cultural minorities.

3. Consultation and Participation interplay

Defining consent is, therefore, important to allow adequate discernment between true participation and tokenistic mere consultation. Consensus is important in decision-making processes because indigenous peoples must be able to consciously accept the risks due to mega-projects, such as mines and forestry developments, which concern the exploitation of natural resources for reasons of public utility. By consenting, interested parties can agree on benefits and opportunities but also compensations, possible relocations, and land transfers in case of damage[13].

Consent is only possible with the fair participation of the interested parties. According to Pretty’s analysis, deliberative democracy has different forms. It goes from passive and merely informative participation to more interactive or self-mobilization through political representative bodies or UN institutions[14]. ILO Convention No. 169 also defines the elements of consent, specifying the importance that consent must be free, prior, and informed, but above all, it must be obtained through appropriate means.

Active participation can be done in various ways. Can be conducted: polls, hearings, publications, rules negotiation, and citizens’ committees[15]. In citizens’ committees, people who do not hold leadership positions are also given the opportunity to participate and ask for further information.

4. Legal aspects and best practices

Establishing a single legal system in the Arctic is a difficult undertaking and the mere thought that there could be an approved legal practice for natural resources borders on pure utopia. Natural resources represent a decisive vector for the self-determination of the indigenous peoples of the Arctic, as they represent a good engine for sustainable development. Sustainable development poses various challenges to states which are called to adapt to the evolution of international law, especially in the field of indigenous participatory rights.

The 2007 UNDRIP offered a new vision of indigenous participatory rights. If previously they were subject to the domestic legal fabric, UNDRIP has embarked on a difficult path for its legal recognition. With the emergence of new international instruments, UNDRIP has been qualified as international customary law and as a general principle of international law[16].

The inhomogeneity in the matter is given by a multitude of variables concerning the recognition of the different needs of the region, different legal systems, different relationships of interconnection and communication with indigenous peoples. The latter point must be analyzed under the lens of the economic and social advantages that are distinguished between the different Arctic communities. Many communities welcome the economic development resulting from energy exploitation, while others hardly support the impact that mining activities have on traditional activities. These variables determine the diversity of the most appropriate forms for consultation processes and influence the choice of best practices for promoting sustainability.

Below, the national legal instruments for each Arctic state are reported together with the consultative forms provided for by domestic legislation.

Table 1: Arctic states’ strategies on Consultative rights (click on the table to enlarge it)

As Table 1 shows, each Arctic state has adopted a different strategy with respect to its own legal order.

Alaska, part of the United States of America, provides for both the Alaska Native Claims Settlement Act, signed by President Nixon, and specific environmental statutes closer to local needs.

The Alaska National Interest Lands Conservation Act (ANILCA) was signed into law in 1980(Public Law 96-487, 94 Stat. 2371) and designates wilderness areas and activities such as subsistence management, transportation in and through parks, the use of cabins, mines, archaeological sites, scientific research studies. It still does not provide for legally binding consultation obligations[17]. The Outer Continental Shelf Lands Act (OCSLA) created on August 7, 1953, defines the OCS as all submerged lands that lie off state coastal waters (3 miles offshore) that are under the jurisdiction of the United States. Under the OCSLA, the Secretary grants leases and provides guidelines for the implementation of an OCS oil and gas exploration and development program[18]. Over the years, the Government of Alaska has promoted the development of districts with administrative powers capable of supporting regionalized consultation policies. These solutions are periodically evaluated by the EPA (Environmental Protection Agency), which assesses the degree of need for public hearings.

On the contrary, Canada alongside modern land claims agreements provides also constitutional provisions (Sec. 35/1982). The Canadian Arctic is divided into three territories: Nunavut, Northwest Territories (NWT) and Yukon. Each territory boasts one or more agreements with the government. In 1990, the Umbrella Final Agreement was signed, a non-legal document that groups together the various previous agreements and created a system for monitoring and receiving disputes that include land claims, compensation in money, and self-government[19].

Further east, Greenland gained full jurisdiction after the constitutional revision of 2009, which made self-government on the island possible. The first division of competencies between Denmark and Greenland had already been hypothesized in 1979, in which the Home Rule Act raised the right to natural resources for residents to a fundamental right (Section 8).

In practice, supremacy over the management of natural resources is severely limited by the residual competencies that the Danish government still holds. Indeed, Denmark retains the reins on foreign policy and the power to extend or limit the effects of international treaties to the two detached regions, unless these directly affect Greenlandic interests. The main source of Greenlandic legislation is the Mineral Resource Act of 2009 which designates the licensing structure and civil liability of mining companies[20]. The major diatribes are still directed at the uranium mine in southern Greenland, but the newly elected government seems to support the definitive ban on mining in that particular region of the country.

A more pragmatic situation exists in mainland Scandinavia, where the Sami population still feels excluded from major decision-making centers. Norway, Sweden, and Finland present a partially similar legal framework, but they offer a different picture in the area of Sami rights.

The region of Lapland, where the Sami population resides, stretches from the Kola Peninsula to Norway, crossing the northern coast of the three Nordic states. While in Russia the Sami Parliament is not legally recognized, in Norway the rights of the Sami are well established. In 2005, Norway adopted the Finmark Act which established the following:

  • There is an obligation to involve all interested parties in the licensing process.
  • The power of the Sami Parliament to issue opinions and recommendations with respect to the development of a project in the Lapland Region is recognized.

In 2005, it was proposed to collect all the statements in a single instrument, namely the Nordic Saami Convention which is divided into seven parts: general rights, governance, language and culture, livelihood, the Convention’s implementation, development, and final provisions[21].

Sweden has decided not to ratify ILO 169, the only legally binding instrument in the scenario of indigenous rights. Sweden explained that ILO 169 would go against Article 14 of their constitution, and parliament prefers to work on national law before ratification creates formal conflicts. In fact, the government established a commission in 1997 to point out the reasons why Sweden should have ratified it. In the conclusion of the so-called Heurgren Report of this commission, it is established that Sweden could ratify the Convention if it was able to solve some controversial issues about the right to land of the Sami.

According to the Report, Sweden should recognize Sami Rights and corollary priorities to sustain Sami people in exercising own traditional activities as reindeer husbandry[23]. Subsequently, two acts were issued: The Reindeer Husbandry Act and The Reindeer Grazing Act. In both acts, the land defined for use by Sami is discussed only in regards to maintaining reindeer grazing.

In 1991, the Swedish Parliament issued the Swedish Minerals Act (4 5/91), accompanied by the corollary law (285/92). Notwithstanding the subsequent amendments, the act does not present a reference to the law for grazing reindeer and Sami rights.

In 1998, the Swedish Environmental Code (808/1998) obliged extraction companies to draft Environmental Impact Assessments (EIAs) as a requirement for licensing.

In 2009, Sweden adopted the law on Ethnic Minority (2009/724) which assured the Sami the right to maintain and develop their own culture and the right to participate on issues that concern them. In 2018, Sweden implemented the European directives concerning water policies. The UN system, particularly the CERD, expressly criticized Sweden’s belief that the state’s not respecting the obligations accepted by the ratification or signature of the Conventions.

As regards the Finnish situation, Finland does not yet have any legally binding instruments with regard to the rights of the Saami. There is no provision for the obligation of the FPIC in decision-making processes. Worthy of note, the Climate Act Reform, scheduled for September 2021, with which the Finnish Parliament is supposed to have a provision to encourage greater participation of Sami people in climate change-related decision-making. Like Sweden, but unlike Norway, Finland has not ratified ILO 169, despite the Saami Council presenting a shadow report (2020) to the United Nations Human Rights Committee asking for the strengthening of the national legislative circuit in defense of Saami rights through the ratification of ILO Convention 169[24].

Still, the Sami way of life has been recognized since time immemorial. In 1751, the Lapp Codicil considered that the Government had to implement all the necessary measures so that the customs and the concept of Sami territoriality were protected[25]. At the constitutional level, the fundamental text includes respect for cultural and linguistic rights without specifying participatory rights. Furthermore, these rights also encounter application limits of a geographical nature. This legislative lacuna has been resolved with reference to the Sami Act of Finland, Article 1 of which specifies the rights to consultations and negotiations[26].

To complete the picture, Russia offers a new panorama on the indigenous rights front. The system of protection of indigenous rights is still unclear, also overlaid by the complex legislative system which includes federal laws and various regions with special status with minimum powers of an autonomous administrative nature. The federal government and all federal sub-structures have exclusive jurisdiction over the rights of indigenous peoples. Federal laws include the right to continue subsistence activities, valuation of environmental, social, and economic impacts of economic activities on the territory, but weak policies in support of sustainable development for IP[27].

5. Consultations and public hearings

Stakeholders can be involved in decision-making processes by taking different paths (Table 2). In many countries (such as Canada, Greenland, Norway, and Sweden), mandatory consultations are arranged with the indigenous communities of the territory at certain stages of issuing the license. In other regions (for example, in Alaska), public hearings are held in order to allow the dissemination of information to all parties involved in the process.

Table 2: Different ways of consultative processes (click on the table to enlarge it)

Although public hearings and consultations perform different tasks, they both pursue the same objectives:

  1. To obtain grants and further information on the draft regarding the project and license.
  2. Provide business agents, locals, and other interested parties with parties.
  3. Identify a wide range of public hearings.
  4. Give publicity, transparency, and legitimacy to the EIA and Strategic Impact Assessment (SIA), and the authorization process[28].

Consultative measures are also influenced by the political representation structure of the indigenous community under consideration. For example, the centers of Sami policymaking are Sami parliaments which carry out political leadership activities and communicate with national parliaments.

In this context, Sami parliaments may have the power to issue opinions, recommendations, or even guidelines on how to conduct consultations. Although the Sami parliaments are structured similarly, and the Sami priorities are rather homogeneous, the relations between local and national governments are very different. These discrepancies create a lot of inequality between the Sami themselves in the field of protection of their rights and in the degree of representation.

Finally, sometimes it is the national government that makes important choices for the good of indigenous communities, imposing bans on exploitation in certain areas inhabited by indigenous communities without, however, establishing legally binding consultation obligations, for example; Russia[29].

6. Bureaucratic complexity – The case of Sweden

On the occasion of a workshop in Troms[30], the author addressed the issue of deliberative democracy in the Lapland region, Sapmi, in relation to the management of natural resources in Sweden. The analysis began with a shortlist of the most important steps in the evolution of the mining law and the reasons for the failure to ratify ILO 169 in Sweden. In relation to this circumstance, the special commission elected by the Swedish Parliament in 1997, declared the possibility of ratification of the Convention only after overcoming some issues concerning the recognition of Sami rights and land rights. The discussion on the recognition of Sami rights is still relevant today, above all because national legislation still has gaps and lends itself to ambiguous interpretation. This legislative vaguery affects the current licensing system which, despite including the consultation of indigenous communities, does not set any guideline on the methods of acquiring consent by them. Furthermore, the failure to ratify ILO 169 affects the effectiveness of international instruments already adopted by Sweden, such as UNDRIP and ICCPR[31].

The analysis presented a focus on the situation in Kiruna, where the population is about to be progressively moved to a new area away from the iron mine. The author conducted on-the-spot questionnaires and interviews with members of the Swedish Saami community and Saami Parliament to establish the degree of active participation of the parties involved in the relocation of housing due to the environmental damage associated with the extraction activity.

Given that Sweden implemented the Aarhus Convention through European law, the author wanted to establish the degree of access to information, public participation, and access to environmental justice by the Saami people in Sweden[32].

As regards the right of access to information, Sweden has an effective digital case advertising system on official networks, accessible online. The right to participation of indigenous communities is included in UNDRIP and the Swedish Mineral Act (by drafting SIA), but the lack of specific rules on how to conduct the public hearing negatively impacts the monitoring of inclusion of populations and the effectiveness of these consultative activities. According to the Mineral Act, preliminary consultations are provided at the beginning of the licensing process. The company must go to the Mining Inspectorate to obtain the mining concession and the institution consults the local representations (Sameby) about the project[33]. The same local representations will be advised about the first EIA by the company[34]. However, considering that ILO 169 isn’t applied, the role of the SIA is not clear. The law doesn’t clarify if the SIA aims to achieve a high degree of active participation, to obtain the consent of the local community, or to negotiate an agreement between the Saami, companies, and government.

Concerning access to environmental justice, Sweden has a specific procedure for disputes concerning environmental hazards and land cases[35]. In addition, the administrative system provides for alternative conflict resolution solutions, such as mediation. NGOs and indigenous communities can be included in the process through the appeal phase[36]. The major limitation to the access to environmental justice is represented by the reservation of Sweden to the Aarhus Convention, which limits the review procedures by environmental organizations in specific circumstances[37]. However, it is important to specify that the Aarhus Convention does not include any indigenous or minority rights regarding consultation during licensing. To date, Swedish legislation does not provide for any right of veto by the Sami people to stop a mine opening.

Access to information Aarhus (reservation) UNDRIP
Right to Participation UNDRIP / Swedish mineral act (SIA)
Access to environmental justice Aarhus (reservation) Swedish Environmental Code

As previously mentioned, the author conducted interviews with Swedish Saami, and the data that emerged presented a moderate dissent from the Sami communities on the work of the Kiruna Parliament.

Even today, in fact, many members of the communities, especially those who live near the mines, complain about the lack of political inclusion in public consultation systems, in the final phase of the granting of the license, and in case of environmental damage. In fact, the Saami do not have a defined legal position as it is not clear whether they are interested parties or stakeholders in the negotiation phase of the extraction plans.

It is possible to paint the political position of the Swedish Saami, listing some points to solve:

  • Weak Saami political representation.
  • Insufficient inclusion of the community knows to me along the licensing path.
  • The ambiguity between right to consultation and right to consent (FPIC).

The solutions to these problems are to be found between politics and national legislation. As the Kiruna Parliament has expressed in its political standpoint[38], a first step would be the ratification of ILO 169 which would have the double effect of raising the community Saami as stakeholders and defining the goals of domestic mining legislation to reach a free, prior and informed consensus, thus going beyond the limit of mere consultation. Obviously, the need to obtain a consensus would strengthen the political position of the Saami which could still be resolved in an alternative way to ILO 169, by simply changing internal legislation and providing more opportunities for inclusion of the Saami in the natural resources sector. Offering training, working on tenders and consultancy planning are some potential routes. Current domestic legislation is not yet able to guarantee the complete protection of indigenous rights, limiting itself to allowing the use of land for grazing reindeer[39]. Agreeing that the right to self-determination does not necessarily imply a property right on land, the interpretation of the law on ethnic minorities is not yet clear, in so far as it establishes the right of indigenous peoples to maintain and develop their culture if, to the Saami culture closely linked to Nature, no right to enjoy the land is recognized but only a “right to specific use”. Finally, a further solution to the Saami’s political weakness could also be a strengthening of the collaboration between the Kiruna Parliament and the national one, still very compromised by political systems and parliamentary representation which are not yet fully inclusive.

Conclusions

First of all, the major issues related to indigenous participation in the sector must be addressed.

According to Sam Morley, many problems that hinder the full inclusion of indigenous peoples in decision-making procedures are to be found in the capacity for representation and coordination between central and decentralized political bodies[40]. In fact, in small communities with many needs particularly, there is insufficient coordination in the issuance of services and programs.

Often, indigenous communities and their representatives do not have sufficient power to propose effective action or policy plans that reflect the true priorities that affect the communities. This concerns the allocation of benefits from the exploitation of natural resources as other issues of social interest, such as gender equality or education.

Over the years, many diatribes have arisen around the possibility of strengthening the protection of human rights by ratifying treaties such as ILO 169 or designating international guidelines for companies to have guidance to enable greater dialogue with indigenous communities. This dialogue would not be limited only to consultations, but also to outline a training and development framework that is traced and would like to have more opportunities for study and work.

Another problem is the lack of transparency of the procedures that accompany the various stages of licensing, especially to determine how crucial the consultations were.

Obviously, all these proposals need an internal legislative change with the hope of greater developments that consider the indigenous communities in the area.

Bibliography

[1] RAYGORODETSKY B. “Indigenous peoples defend Earth’s biodiversity—but they’re in danger”,for National Geographic, 2018 (https://www.nationalgeographic.com/environment/article/can-indigenous-land-stewardship-protect-biodiversity- )

[2] Convention on Access to Information, Public Participation in Decision Making and Access to Justice in Environmental Matters (Aarhus, Denmark, 25 June 1998)

[3] MINISTERO PER LA TRANSIZIONE ECOLOGICA, “l’accesso alla giustizia in materia ambientale nella normativa italiana” (CF: https://www.minambiente.it/pagina/laccesso-alla-giustizia-materia-ambientale-nella-normativa-italiana), 2016 (Accessed by 17th May 2021)

[4] Known also as Aarhus Convention*

[5] LOUKACHEVA N., “The Arctic Promise: Legal and Political Autonomy of Greenland and Nunavut”,University of Toronto, Advanced Knowledge, 2017 (Available on  https://books.google.is/books?hl=it&lr=&id=HzPzwrUYdgkC&oi=fnd&pg=PP1&dq=greenland+and+international+relations&ots=J-zEBj-l1&sig=G47TfV0C7yb079f5Ay7f4BRzlVE&redir_esc=y#v=onepage&q= greenland%20and%20international%20relations&f=false )

[6] Some dispute mechanisms able to received claims from IP: Independent Redress Mechanism (IRM; https://irm.greenclimate.fund/ ), Social and Environmental Compliance Unit (SECU; https://www.undp.org/accountability/audit/secu-srm/social-and-environmental-compliance-review ), Compliance Advisor Ombudsman (CAO; http://www.cao-ombudsman.org/ )

[7] MARTONE F.,” Cambiamenti climatici ed impatto sui diritti umani. Le analisi e le proposte della comunità internazionale e dei movimenti indigeni”  in I diritti dei popoli indigeni, ed. Fabio Marcelli, Aracne Editrice, 2009

[8] MILANO E., “ Autodeterminazione dei popoli”, in  Diritto on line, 2014 (available on https://www.treccani.it/enciclopedia/autodeterminazione-dei-popoli-dir-int_%28Diritto-on-line%29/  . Accessed in 15th July 2021)

[9] MILANO E., Ibid.

[10] CAMBOU, D. AND SMIS, S. “Permanent Sovereignty over Natural Resources from a Human Rights Perspective: Natural Resources Exploitation and Indigenous Peoples’ Rights in the Arctic”; Michigan State International Law Review 22 (1) 347-376 2328-3068, 2013

[11] OSSERVATORIO DEI DIRITTI, “Diritti umani e ambiente: cosa prevede il diritto internazionale”(CF:https://www.osservatoriodiritti.it/2018/03/24/diritti-umani-ambiente-diritto-internazionale-onu/)/ (Last accessed on 16th May 2021)

[12] SIMILÄ J, JOKINEN M., Governing Conflicts between Mining and Tourism in the Arctic, Arctic Review on Law and Politics Vol. 9, 2018, pp. 148–173

[13] GOVERNMENTAL OFFICE OF SWEDEN “Sweden’s Minerals Strategy For sustainable use of Sweden’s mineral resources that creates growth throughout the country “, Article no N2013.06 (CF: https://www.government.se/contentassets/78bb6c6324bf43158d7c153ebf2a4611/swedens-minerals-strategy.-for-sustainable-use-of-swedens-mineral-resources-that-creates-growth-throughout-the-country-complete-version ) (accessed by 17th May 2021)

[14] KILROY, WALT, “From Conflict to Ownership: Participatory Approaches to the Re-integration of Ex-Combatants in Sierra Leone. Irish Studies in International Affairs”, 22. 10.2307/41413197., 2011

[15] ITALIAN GOVERNMENT, “Le consultazioni dei cittadini e dei portatori di interesse”, 2017 http://www.senato.it/application/xmanager/projects/leg18/file/repository/UVI/27._CONSULTAZIONI_PUBBLICHE.pdf ()/(LAst accessed on 17th May 2021)

[16] MILANO, ibid

[17] The Alaska National Interest Lands Conservation Act (ANILCA) https://www.nps.gov/locations/alaska/anilca.htm

[18] The Outer Continental Shelf Lands Act (OCSLA) https://www.boem.gov/oil-gas-energy/leasing/ocs-lands-act-history

[19] Council of Yukon First Nations, Final Umbrella Agreement, 1990 (https://cyfn.ca/agreements/umbrella-final-agreement/ )

[20] FUSCO S. “The legal position of Inuit in the exploitation of natural resources in Greenland”, University of Akureyri, 2019,25-27 (http://hdl.handle.net/1946/33941 )

[21] KOIVUROVA T., “ The Draft Nordic Saami Convention: Nations Working Together”,  International Community Law Review 10 (2008) 279–293 (Available on https://www.arcticcentre.org/loader.aspx?id=1796863c-4dc1-4118-8c8b-2bfdf3eccdf8 , accessed on 28th July 2021)

[22] AIKIO A., ÅHRÉN M., “A reply to calls for an extension of the definition of Sámi in Finland” Arctic Review on Law and Politics, vol. 5, 1/2014 pp. 123–143. ISSN 1891-6252 (https://site.uit.no/arcticreview/files/2014/10/A-reply-to-calls-for-an-extension-of-the.pdf ). I suggest reading “ILO Convention No. 169 – A Solution for Land Disputes in the Nordic Countries?”by Tanja Joona (https://www.rha.is/static/files/NRF/OpenAssemblies/Oulu2006/project-legal_joona.pdf ) and MA thesis by G. Amatulli “The Legal Position of the Sami in the Exploitation of Mineral Resources in Finland, Norway and Sweden”, Abo University, 2015 (available on https://www.abo.fi/wp-content/uploads/2018/03/2015-Amatulli-The-legal-position-of-the-Sami-in-the-exploitation-of-mineral-resources.pdf )

[23] JOONA T., “ ILO Convention No. 169 – A Solution for Land Disputes in the Nordic Countries?”(https://www.rha.is/static/files/NRF/OpenAssemblies/Oulu2006/project-legal_joona.pdf ), 179-182

[24] HAETTA K., “Saami Council: Finland must repair the human rights violations and ratify ILO 169 Convention”, on official Website of Saami Council, April 2021 (https://www.saamicouncil.net/news-archive/finland-must-repair-the-human-rights-violations-and-ratify-ilo-169-convention ). I highly recommend also: ALLARD C., “The Rationale for the Duty to Consult Indigenous Peoples: Comparative Reflections from Nordic and Canadian Legal Contexts”, 2018 in Arctic Review on Law and Politics DOI: 10.23865/arctic.v8.723, in particular paragraph 3.2-3.3.1

[25] For further information about Lapp Codicil, I suggest the review of this article: SUONINEN I. E,”Court case between Swedish reindeer herders and the State of Norway: Trying the validity of “Lapp Codicil”, for Yle Sampi, 2018 (https://thebarentsobserver.com/en/arctic/2018/11/court-case-between-swedish-reindeer-herders-and-state-norway-trying-validity-lapp )

[26] Section 1 — Objective of the Act (1279/2002) (1) The Sámi, as an indigenous people, have linguistic and cultural autonomy in the Sámi homeland as provided in this Act and in other legislation. For the tasks relating to cultural autonomy the Sámi shall elect from among themselves a Sámi Parliament

[27] NEWMAN D., BIDDULPH M., BINNION l.,, Ibid. 124-128

[28] ANP, “Public Consultation and Public Hearing 9/2017 – Summary and decisions concerning the contributions received”, 2018(http://rodadas.anp.gov.br/en/14th-bidding-round/public-consultation-andpublic-hearing  last accessed on 25th March 2019)

[29] NEWMAN D., BIDDULPH M., BINNION l., “Arctic Energy Development And Best Practices On Consultation With Indigenous Peoples”, Newman Arctic Energy Development.Docx ,2014

[30] LARSEN R. K., “Implementing the State Duty to Consult in Land and Resource Decisions: Perspectives from Sami Communities and Swedish State Officials”Arctic Review on Law and Politics Vol. 10, 2019, pp. 4–23 (available onhttps://arcticreview.no/index.php/arctic/article/view/1323/3025 , accessed on 14th October 2020)

[31] UN General Assembly, United Nations Declaration on the Rights of Indigenous Peoples : resolution / adopted by the General Assembly, 2 October 2007, A/RES/61/295, available at: https://www.refworld.org/docid/471355a82.html (accessed 14 February 2020); UN General Assembly, International Covenant on Civil and Political Rights, 16 December 1966, United Nations, Treaty Series, vol. 999, p. 171, available at: https://www.refworld.org/docid/3ae6b3aa0.html (accessed 14 February 2020)

[32] EUROPEAN JUSTICE, “Access to justice in environmental matters – Sweden”, Last update: 31/05/2018 (accessed on 14th February 2020)

[33] The Swedish Environmental Code was adopted in 1998 and entered into force 1 January 1999.

[34] LAWRENCE R.; LARSEN R.K, “Fighting to be herd, Impacts of the proposed Boliden copper mine in Laver, Älvsbyn, Sweden for the Semisjaur Njarg Sami reindeer herding community” Sydney Environment Institute, University of Sydney, Stockholm Environment Institute, April 2019, pp.19-24 (https://www.sei.org/wp-content/uploads/2019/04/sei-report-fighting-to-be-herd-300419.pdf, last accessed 14th February 2020)

[35] Environmentally hazardous activities are condemned in Chapter 9 of the Swedish Environmental Code.

[36] HOJEM P. ,“Mining in the Nordic Countries :A comparative review of legislation and taxation”,Norden, Denmark, 2015 (https://norden.diva-portal.org/smash/get/diva2:842595/FULLTEXT01.pdf, accessed on 14th February 2020)

[37] UNECE, CONVENTION ON ACCESS TO INFORMATION, PUBLIC PARTICIPATION IN DECISION-MAKING AND ACCESS TO JUSTICE IN ENVIRONMENTAL MATTERS , Aarhus, Denmark, 25 June 1998

[38] SAMEDIGGI, “Minerals and Mines in Sàmpi”, 2015 (https://www.sametinget.se/mining, last accessed on 14th February 2020)

[39] The Reindeer Husbandry Act and the Reindeer Grazing Act mention the “land use” only for reindeer grazing. In 1991, the Swedish Parliament issued the Swedish Minerals Act (4 5/91), accompanied by the corollary law (2 85/92). Notwithstanding the subsequent amendments, the act does not present a reference to the law for grazing reindeer and Sami rights. In 1998, the Swedish Environmental Code (808/1998) obliged the extraction companies to draft the EIAs as a requirement for licensing.In 2009, Sweden adopted the law on Ethnic Minority (2009/724) which assured the Sami the right to maintain and develop their own culture and the right to participate on issues that concern them.

[40] Morley S., “What works in effective Indigenous community-managed programs and organisations”, CFCA Paper No. 32 , May 2015 (https://aifs.gov.au/cfca/publications/what-works-effective-indigenous-community-managed-programs-and-organisations )