Sápmi

Report on the current situation of the Sámi People in Finland

Annex to the Statement of the Finnish Sámi Parliament to the UN Permanent Forum of Indigenous Issues, UNPFII. Board of the Sámi Parliament decided upon the report on May 9th 2016.

Introduction

The Sámi Parliament in Finland would like to communicate to the national and international com-munity the following:

The Sámi are the only indigenous people in Finland and the European Union. The status of the Sámi was written into the Constitution of Finland  in 1995 and the Sámi have constitutional self-government in the Sámi Homeland in the spheres of language and culture since 1996. This self-government is managed by the Sámi Parliament. There are about 10 000 Sámi in Finland, more than 60 per cent of them living today outside the Sámi Homeland. The total Sámi population is estimated to be over 75,000 living across four countries: Norway, Finland, Sweden and Russia, with the ma-jority living in Norway. Traditional Sámi livelihoods are reindeer herding, fishing, handicrafts, hunting and gathering. The Sámis see themselves as a distinct people with its own culture, language and traditions.

The Sámi Parliament  (Sámediggi) is the self-government body of the Sámi and the functions of the Parliament are regulated through the Act on the Sámi Parliament. Its main purpose is to plan and implement the cultural self-government guaranteed to the Sámi as an indigenous people by the Con-stitution.  The Sámi Parliament is the supreme political body of the Sámi in Finland. It is an inde-pendent legal entity of public law and it is neither a state authority nor part of the public administra-tion due to its self-governmental nature. The Sámi Parliament functions under the administrative sector of the Ministry of Justice. The Sámi Parliament represents the Sámi in national and interna-tional connections and deals with the issues concerning Sámi language, culture, and matters relating to their status as an indigenous people. The Sámi Parliament can make initiatives, proposals and statements to the authorities. The 21 members, and 4 deputies, are elected among the Sámi every four years. Due to its representative nature, the Sámi Parliament expresses an official view of the Sámi in Finland on the issues concerning them.

The Sámi Parliament of Finland expresses its deepest concern at the land rights situation of Sámi People in Finland and lack of the right to self-determination. For Sámi People, securing these rights over their land is fundamental to their self-determination and extremely important to them to be able to continue to exist as an indigenous and distinct people. Land rights and collective self-determination are umbrella terms and that covers central concerns of indigenous peoples, from the Indigenous peoples right to determine their own identity or membership to control over natural re-sources. Even though Finland has received a notable amount of recommendations from the United Nations human rights mechanisms and regional human rights institutions to resolve the land right issues and to strengthen the Sámi People’s right to self-determination, these questions remain unre-solved. It is also notable that Finland has pledged to ratify the ILO Convention No. 169 several times, but has not yet done so. Furthermore, the current budget of the Parliament is not enough to cover the expenses, thus the Sámi Parliament struggles to find the resources needed to deal with the issues concerning Sámi language, culture, and other matters relating to their status as an indigenous people.

Recent legislation projects concerning the Sámi

The Sámi Parliament in Finland would like to point out that its greatest concern and effort during the recent years have been the following significant legislation projects: the new Act on the Sámi Parliament , the ratification of the ILO Convention No. 169  and the new act on Metsähallitus  (the Forest and Park Enterprise). These three legislation projects would have advanced the most essential legislation concerning the rights of the Sámi People in Finland if they would have been approved with the free, prior and informed consent of The Sámi Parliament in Finland.

Under section 17(3) of the Finnish Constitution (731/1999), the Sámi, as an indigenous people, have the right to maintain and develop their own language and culture. Under section 121(4) of the Constitution, in their native region, the Sámi have linguistic and cultural self-government, as pro-vided by the Act. The provisions of the Constitution form the basis for the Sámi cultural autonomy. More specifically, the cultural autonomy is regulated through the Act on the Sámi Parliament (974/1995) , which came into force in 1996. The Act on the Sámi Parliament contains provisions on the Sámi Parliament elections as well as the Parliament's composition and functions. The Act also contains the obligation of the authorities to negotiate with the Sámi Parliament on the matters con-cerning them. Although some provisions have been revised after the Act has come into force, it needs to be reformed, for instance the regulations concerning the obligation of negotiation and the elections.

In addition, regardless the traditional livelihoods of the Sámi are considered to constitute an essen-tial part of Sámi culture, which is protected by the Constitution, there is no legislative provision enshrining the rights of the Sámi to land, waters and natural resources; in particular, there is no spe-cial provision for exercising these rights. Furthermore, as mentioned before, Finland has received a number of recommendation from international and regional human rights treaties’ monitoring bodies and to ratify the ILO Convention No. 169, as well as to solve the Sámi homeland land rights issues. The State manages currently 90 percent of the land in the Sámi homeland and regulates the land use through The Act on Metsähallitus (the Forest and Park Enterprise); therefore, these Acts together form the most fundamental law in relationship to the Sámi culture and livelihoods.

In the fall 2014, the Government of Finland submitted to the Parliament the government bill for the amendment of the Act on the Sámi Parliament (government bill 167/2014) and the government bill for the ratification of the ILO convention no. 169 (government bill 264/2014). The Sámi Parliament had done a lot of work with preparation and negotiations with the state of Finland in order to draft the content for the new Act on the Sámi parliament and with the measures to be taken in national legislation in order to fulfill the requirements of the ILO 169 –Convention. The final draft of the act on the Sámi Parliament also contained some elements which would have brought the national legis-lation closer to some of the main principles expressed in the international law on recent years con-cerning the rights of indigenous peoples. For example, the “duty to co-operate” with the indigenous people in matters which may have some affections to indigenous peoples lands and rights was im-plemented in the draft of the new act on the Sámi Parliament, and it would have brought Finnish legislation closer to commonly acknowledged principle of FPIC (free prior informed consent).

Unfortunately, neither the bill for the amendment of the Act on the Sámi Parliament nor the bill for the ratification of the ILO Convention No. 169 became approved by the Parliament of Finland.  The Parliament didn’t have the political will and courage to promote the rights of the Sámi. Currently, the ratification process of the ILO 169 is pending and the government has stated that the process is active the year of 2016 and a comparative research to clarify the situation is conducted. Further-more, the amendment of the Act on the Sámi Parliament will be restarted in 2016.

In addition, the Act on Metsähallitus, at the final stage of the consultation in 2014, included valua-ble safeguards to the Sámi People, which had been negotiated with the Sámi Parliament respecting the Free, Prior and Informed Consent. These Safeguards included so called prohibition of cause deterioration and erosion of the Sámi culture, and would had stood as an important step towards recognizing the Sámi land rights and the rights of Indigenous people as determined by international law. It would had been binding to Finland and honored the requests of the Sámi.

However, when the Act was unveiled in draft form in December 2015, it no longer contained these essential safeguards for the Sámi People. The whole part concerning these safeguards had been omitted. Furthermore, according to this new, proposed Forestry Act and its provisions the manage-ment in the Sámi Homeland will change significantly, increasing the pressure of various, harmful industrial land uses in the Sámi homeland. This would happen without the consent of the Sámi peo-ple or the Sámi Parliament. The Act was finally approved by the Parliament of Finland in March 2016 and does not include the safeguards.

The Sámi Parliament, the Constitutional Law Committee and many other civil society stakeholders, including all of the Sámi Reindeer Herding cooperatives, had demanded to include these important safeguards for the Sámi People to the draft since it was presented, but their proposals and opinions have not been considered at all and have been dismissed during the drafting of the new bill. This has constituted a breach of the Sámi People’s rights of self-determination as guaranteed both in do-mestic law, including the Constitution of Finland and in the international law. In addition, both The United Nations Special Rapporteur on the rights of indigenous peoples and the High Commissioner for Human Rights instructed Finland to further consult with the Sámi and to include these safe-guards to the bill. Nevertheless, their recommendations were not taken into account and the Gov-ernment introduced the bill without further consultations with the Sámi.

Anyhow, it is worth mentioning that some of these safeguards are in use. The Sámi Parliament has succeeded to find a common solution in negotiations with the state of Finland to include important paragraphs into specific legal acts in order to prevent the area of the Sámi homeland to be used for purposes that would have crucial negative impacts on the Sámi culture. The prohibition of cause deterioration and erosion of the Sámi culture is laid down in three different Acts: The Mining Act (2011), the Water Act (2011) and the Environmental Protection Act (2014). However, it is also no-table that up to the present the state of Finland has not created an appropriate mechanism for the impact assessment, thus a system to be able to define the actual situations when the form of land use or use of natural resources in a single case will cause erosion of the Sámi culture and should be pro-hibited according to the law. Therefore, regardless of the paragraph which prohibits an activity which may have crucial negative impacts to the Sámi culture, there is no appropriate way to imple-ment the provisions thus the state of Finland should create it immediately.

Elections of 2015

In addition, the legislation projects had an important role for the survival of the Sámi people as a distinct people through the right to self-determination and not to be assimilated. The elections of the Sámi Parliament are held every four years, and to be able to vote the person needs to be registered as a Sámi in the Sámi Parliament’s list of voters. Recently, a large group of individuals have been trying to be registered as a voter, but in many cases the Electoral Board of the Sámi Parliament, chosen by the Sámi Parliament Plenum among the Sámis themselves, came to the conclusion that they did not meet the criteria and did not consider these individuals eligible. There have been sever-al organized campaigns by non-Sámi inhabitants of the northern parts of Finland to register them-selves as voters, with an objective to influence the composition and positions of the Sámi Parliament and for the hypothetical benefits to be recognized as indigenous and Sámi if Finland would ratify the ILO Convention No. 169.

One of the provisions of the Act on the Sámi Parliament includes a so-called definition on who is to be regarded as a Sámi for the purposes of being allowed to vote in the elections of the Sámi Parlia-ment. The provision reads as follows:

Section 3 — Definition of a Sámi

For the purpose of this Act, a Sámi means a person who considers himself a Sámi, provided:

(1) That he himself or at least one of his parents or grandparents has learnt Sámi as his first language;

(2) That he is a descendent of a person who has been entered in a land, taxation or population regis-ter as a mountain, forest or fishing Lapp; or

(3) That at least one of his parents has or could have been registered as an elector for an election to the Sámi Delegation or the Sámi Parliament.

This provision has remained a subject of constant controversy between the state of Finland and the indigenous Sámi people, in particular the subsection 2. According to the Sámi Parliament, the cur-rent criteria is not adequate and as mentioned before there is an urgent need to revise the Sámi Par-liament Act so that the uncertainty created through the judicial interpretation of the so-called Sámi definition could be removed. In 2011, the Supreme Administrative Court decided to grant voting rights to 4 persons not regarded as Sámi by the Sámi themselves. In the elections of 2015, the Court granted voting rights to 93 individuals that had not been considered eligible by the self-governing competent organs of the Sámi Parliament. This had an effect upon the outcome of the elections.

In 2011, the Supreme Administrative Court adopted a number of controversial decisions that gave priority to an individual’s wish to be registered as a voter in Sámi Parliament elections, over objec-tive criteria related to actual active membership in the group or the group’s recognition of the person as a member of the Sámi people. The Court referred to the 2009 Concluding Observations by the Committee for the Elimination of Racial Discrimination (CERD) to justify taking into its own hands the “overall consideration” of a person’s membership in the Sámi people, rather than exercis-ing deference by defining the role of a judicial institution as being related merely to affording pro-tection against eventual cases of discrimination or arbitrariness. These rulings were widely criticised, and in 2012 the CERD Committee clarified its own position by siding with that critique. The CERD Committee pronounced in its Concluding Observations (CERD/C/FIN/CO/20-22) as follows:

12. While noting that the Supreme Administrative Court relied on the Committee’s prior concluding observations in its decision of 26 September 2011 defining who is a “Sámi” entitled to vote for Members of the Sámi Parliament, the Committee is concerned that the definition adopted by the Court gives insufficient weight to the Sámi people’s rights, recognized in the United Nations Decla-ration on the Rights of Indigenous Peoples, to self-determination (art. 3), in particular their right to determine their own identity or membership in accordance with their customs and traditions (art. 33), as well as their right not to be subjected to forced assimilation or destruction of their culture (art. 8) (art. 5 of the Convention).

The Committee recommends that, in defining who is eligible to vote for Members of the Sámi Par-liament, the State party accord due weight to the rights of the Sámi people to self-determination concerning their status within Finland, to determine their own membership, and not to be subjected to forced assimilation.

Anyhow, the Sámi Parliament Act provides for a right of judicial appeal, so that the highest court in administrative matters, the Supreme Administrative Court, becomes the ultimate arbiter. The Su-preme Administrative Court is a judicial organ of the Finnish state with no Sámi judge. Therefore, a completely Finnish institution decides in the end the membership of the Sámi people. The rulings in the 2011 and 2015 of the Supreme Administrative Court are in contradiction with the Sámi Parlia-ment Act (974/1995), with the 1999 Constitution of Finland, and with the core human rights treaties Finland has ratified and the United Nations Declaration on the Rights of Indigenous Peoples. In a majority of those decisions the person did not meet any of the objective criteria spelled out in the provision. Resorting to an operation the Court called as “overall consideration” and by stating that a person’s own opinion about considering oneself a Sámi was “strong”, the Court ignored the explicit requirement of meeting at least one of the objective criteria and compelled the Electoral Board to allow 93 individuals to vote, even in the absence of a single objective criterion.

Moreover, the inclusion of 93 persons in the voters’ register has affected the composition of the new Sámi Parliament by moving its political center of gravity away from policies that emphasize the indigenous distinctiveness of the Sámi people and of their culture and a quest for Sámi self-determination in respect of the Finnish state and across national borders. The composition of the new Sámi Parliament is being affected by the votes of the court-approved voters. It is apparent that the Act, the existing regulations in order to register in the electoral roll of the Sámi Parliament and stand as a candidate in the elections and the conduction of the election are not sufficient, and need to be revised.

Even within the Sámi Homeland the Sámi already constitute a minority, despite of being the only recognized indigenous people in Finland. In the next elections in four years’ time, hundreds of the relative of these 93 persons are likely to seek registration as voters, this constituting a new step in the forced assimilation of the Sámi into the mainstream population through the gradual takeover of the Sámi Parliament by members of the dominant (Finnish) population resident in the northernmost municipalities of Finland. According a research  conducted in 2013, if the persons are considered eligible only by the Section 3 (2) there could be up to 512 000 individuals seeking registration as new voters.

the Nordic Sámi Convention

Finally, the Sámi Parliament in Finland would like to remind that the negotiations in order to finish the preparation of the Nordic Sámi Convention have been continuing but the progress has been ex-tremely slow. The Sámi People are regarded as one people divided between four countries thus the Sámi people regard themselves as Sámi, despite their country of origin. The three Nordic countries, Finland, Norway and Sweden, are currently negotiating to reach an agreement of the content for the Nordic Sámi Convention, and the Sámi Parliaments are a crucial part of the negotiation process. The Sámi Parliament in Finland expresses its willingness to reach a content that satisfy the negotiating parties and hopes that full agreement can be reached, particularly on the right to self-determination and the rights to lands, territories and natural resources, and for identifying harmonized rules in order to register in the electoral roll of the Sámi Parliaments.

Inari, May 11th 2016

Tiina Sanila-Aikio, President

Inka Saara Arttijeff, Adviser to the president

Board of the Sámi Parliament decided upon the report on May 9th 2016.

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