Fitzmaurice notes that the 2005 Norwegian Finnmark Act grants indigenous peoples of the North far-reaching rights regarding rights to land and natural resources. (Some Saami would presumably argue that the state merely recognises rights.) The Act seeks to implement the 169 ILO Convention on Indigenous and Tribal Peoples in Independent Countries [C169], which revised the ILO 1957 Convention on Protection and Integration of Indigenous and Other Tribal and Semi-Tribal Populations in Independent Countries (aka the Indigenous & Tribal Populations Convention).
Article 6 of C169 requires governments to establish means by which peoples (a term that "conveys recognition of the existence of organized societies with an identity of their own, rather than mere groupings sharing some racial or cultural characteristics") can freely participate at all levels of decision-making in elective and administrative bodies, to at least the same extent as other sectors of the population.
It also requires governments to consult "indigenous and tribal peoples", through adequate procedures and their representative institutions, whenever consideration is given to legislative or administrative measures that may affect them directly. Those consultations must be undertaken in good faith and in an appropriate form, with the aim of achieving an agreement or consent to proposed measures.
Article 7 states that the peoples have the right to decide their own development priorities and to exercise control over their own economic, social and cultural development. Those peoples should participate in formulation, implementation and evaluation of regional and national plans and programmes that directly affect them and "plans of overall economic development for the areas inhabited by indigenous and tribal communities have to be designed with a view, among other things, to improve their living conditions, employment opportunities, and educational attainments". Governments are required, whenever appropriate, to
carry out, in cooperation with the indigenous or tribal peoples concerned, studies in order to assess the social, spiritual, cultural and environmental impact on them of planned development activities. The cooperation of indigenous and tribal peoples must be sought also in the design, execution and evaluation of health and education services, including vocational training schemes.C169 has been adopted by a handful of nations (eg Mexico, the Netherlands and Norway) and appears unlikely to gain major traction in the near future. It has been seen by some critics as too weeak and damned by others as too strong, with Lisa Strehlein for example criticising it as founded on a "liberal democratic model" antithetical to recognition of inherent rights. Strehlen's spirited 'The Price of Compromise: Should Australia Ratify ILO Convention 169' at 63-86 Majah: indigenous peoples and the law (Annandale: Federation Press 1996) edited by Greta Bird, Gary Martin & Jennifer Nielson argued that Australia should reject the Convention as "fundamentally flawed", embodying "a new language of assimilation" and unacceptable because "in deference to the claims of nation states" the C169 rejects the inherent rights of indigenous peoples to self-determination.
The Norwegian Act goes beyond the Australian High Court's very limited recognition of rights following abandonment of the terra nullius doctrine in Mabo.
The Act also grants the Saami the right to be consulted on matters which impact on their livelihood. On the basis of the legislation the Norwegian Government transferred about 95% (about 46,000 km2) of the area in the Finnmark county in Norway to the inhabitants of Finnmark.
That area is managed by the Finnmark Estate agency. The Estate is managed by a six-member board of directors: three are appointed by the Sámediggi - Sami Parliament - of Norway (a counterpart of the Sami Parliament in Sweden, which among other things has absorbed the Central Administration for the Reindeer Industry) and three by the Finnmark County Council. The Sámediggi was established in 1989 and as of 2001 had an electoral register of around 10,000 Sami. It is broadly analogous to the former ATSIC in Australia. It reflects the obligation in the revised Norwegian Constitution for the state to create conditions to ensure that the Sami people can preserve and develop their language, culture and social life. The Sámediggi's remit covers everything that, in the national legislature's opinion, affects the Sami people in particular. Observers have characterised it as having no clear constitutional position: "not under the control of the Government, but neither is it an independent body".
As part of the Finnmark Estate scheme a Special Commission and Tribunal will be set up to recognize existing rights of use and ownership in the Finnmark area.
Fitzmaurice considers the Saami right to self-determination in relation to the Act, noting that the legislation is
ethnically neutral ie the legal position of an individual is not dependent on him or her being Sami, Norwegian, Kven, or a member of another population group.She suggests that
The 2005 Saami Draft Convention constitutes the most innovative approach to indigenous peoples beyond the statist paradigm. It treats the Saami peoples in Finland, Norway and Sweden as one people and grants them very far reaching rights to land and natural resources.
