What Defines an Indigenous People?

No general, internationally accepted definition of indigenous peoples exists. It is typical of indigenous populations that they do not represent the dominant population in the larger society of which they are part, although they may be the population group that inhabited the area first. As a rule, indigenous populations possess a distinctive culture that revolves around natural resources, and their way of life differs socially, culturally and/or linguistically from the dominant population. Although indigenous people often comprise a minority within their countries, this is not always the case. In several of the countries of Latin America, for example, the indigenous population constitutes a substantial majority of the population.

Article 1b of the ILO Convention concerning Indigenous and Tribal Peoples in Independent Countries (C169, 1989), ratified by Norway in 1990, defines indigenous peoples in the following manner:

“peoples in independent countries who are regarded as indigenous on account of their descent from the populations which inhabited the country, or a geographical region to which the country belongs, at the time of conquest or colonisation or the establishment of present state boundaries and who, irrespective of their legal status, retain some or all of their own social, economic, cultural and political institutions.”

In Norway, it is clear that the Sámi population satisfies the criteria stipulated in this definition. In its judgment in the Selbu case of 21 June 2001, the Norwegian Supreme Court ruled that the Sámi population of Norway, including the Southern Sámi areas, is qualified beyond doubt for status as an indigenous people under Article 1b of ILO Convention 169 /89.

One misunderstanding that occasionally emerges in the debate regarding Sámi rights to land and natural resources in Norway arises from the fact that, under international law, the term “indigenous people” implies that the population involved must have been the first inhabitants of an area, and that this archaeological or cultural-historical factor is crucial in determining who has the rights to what in the present. This view is not correct. In accordance with ILO Convention 169/89, the central issue is whether any current population group has an affiliation with a specific region dating back to the time when the present state boundaries were established in that region. Thus, it is what has taken place from today and dating back to the 16 and 1700s that is relevant in legal terms, and not whether any ties exist between populations from the Stone Age and current ethnic groups.

Under Norwegian property law, rights are determined in relation to conditions dating back the last one hundred years. Property law principles may play just as great a role as rules under international law in determining the rights of the Sámi people to land and natural resources. Both of the key 2001 Supreme Court judgments on Sámi rights – which involved reindeer grazing rights (Selbu case) and rights to uncultivated land areas in Manndalen in Kåfjord municipality (Svartskogen case), respectively – based their findings on immemorial usage.

Another feature common to a great many indigenous populations is that the central authorities have previously attempted to suppress their cultures, and the people have been subject to long-term assimilation policies. This has also been the case as regards the Norwegian Sámi population. During the 1800s, the Sámi people were defined as a foreign race, and were often characterised as an uncivilised, wild, nomadic people. Racist attitudes and notions of racial hierarchies played a role in shaping the policies introduced by the government authorities. Even though a policy marked by discrimination and assimilation has been discontinued, its effects may linger on for quite some time in the form of disparaging attitudes and a lack of acknowledgment of linguistic and cultural identity. It may therefore be necessary to take active steps to repair the damage inflicted on indigenous cultures and languages, and to lay the foundation for linguistic and cultural revitalisation. In many cases, the introduction of formal equal status will not be sufficient to ensure that individuals from minority populations achieve the same rights, the same framework and the same conditions as the majority or dominant population in a state. If genuine equality is to be achieved, then specially-designed positive measures must be implemented. These may encompass specific language training or cultural measures.

In recent years, the rights of indigenous peoples have been the focus of increasing attention both internationally and in Norway. A number of statutory provisions and international conventions that carry important implications for Sámi rights have been adopted.

The principle of equal status between ethnic Norwegians and the Sámi people has been firmly established in Article 108 of the Norwegian Constitution, which states that: “It is the responsibility of the authorities of the State to create conditions enabling the Sámi people to preserve and develop its language, culture and way of life.” Provisions safeguarding Sámi language, culture and community life are also found in Norwegian legislation such as the Samí Act, the Human Rights Act, the Education Act and the Reindeer Husbandry Act.

The ILO Convention No. 169 is one of the central international conventions which Norway is party to. This is the only convention that deals solely with the rights of indigenous peoples. The Sami, however, are also an ethnic, cultural and linguistic minority. Conventions concerning the rights of minorities may therefore also have significance for the Sami. The main provisions applicable to minorities are the United Nations Covenant on Civil and Political Rights, Article 27, the Council of Europe's Charter for Regional or Minority Languages and the Council of Europe's Framework Convention for the Protection of National Minorities. In addition, the International Convention on the Elimination of All Forms of Racial Discrimination and provisions against discrimination in other conventions provide protection against unfair differential treatment, partly on the basis of ethnicity. Common to all the aforementioned conventions is that they can also commit states to take positive action to achieve real equality.

The element that primarily distinguishes indigenous peoples from national minorities, as well as the Indigenous and Tribal Peoples’ Convention from other conventions that protect the rights of minorities, is the link between the indigenous peoples and their traditional land areas. It is essential to sustaining Sámi culture that the Sami people be able to retain their form of affiliation with the relevant land areas.

The purpose of the national and international statutory rights outlined here is to help to guarantee that unique aspects of the Sámi culture, such as language and way of life, are protected and developed in keeping with the terms established by the Sámi population itself. Norway actively seeks to fulfil all its national and international legal obligations in relation to the Sámi population. These legal obligations thus comprise the most fundamental component of the Government’s policy relating to the Sámi people.