Abstract
The topic of this book concerns protection of sacred sites in the Arctic. To recognise indigenous customary law means to support indigenous customary protection of such sacred sites. It also implies safeguarding cultural heritage in the Arctic. Both legal pluralism and cultural ecology help us understand indigenous customary laws in the Arctic and why we should recognise them. The aim of this chapter is to explain the relations between cultural ecology and legal pluralism in making a case for the recognition of indigenous customary law in the Arctic. It is not about human rights or international public law. It does not deal with any substantial law. However, the implications of the ideas presented here concern constitutional law, cultural autonomy, political autonomy, international law, and the concept of sovereignty. The ideas refer also to the problem of ethos as the basis of every law and society.
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Notes
- 1.
We use Sámi throughout the text except when we cite original documents of the United Nations, the Finnish Government, some indigenous declarations and some scholars where, variously, Sámi and Sámi are used.
- 2.
The term cultural ecology is attributed to anthropologist Julian Steward, see Steward 1955.
- 3.
Relational, derived from: (i) ‘relation’ meaning belonging to or characterised by; and (ii) ‘relative’ meaning compared to.
- 4.
Co-constitutional, derived from ‘constitute’ meaning the whole made from its contributing parts where all of the parts are actively involved in the process. In its cultural ecological use the word works well enough in English, but in some languages it has no equivalent meaning. In the arguments used in this paper, care must be taken not to confuse the cultural ecological use of [co-]constitutional with the word ‘constitutional’ as it is commonly used in law, i.e. as a decree, ordinance, or regulation usually emanating from a higher authority. In cultural ecological terms, a regulation emanating from a higher authority would be ‘relational’; a co-constitutional regulation would be one originating from the people as a whole.
- 5.
Compare: Malinowski 1959: 10 (and n.). Bronislaw Malinowski, anthropologist/ethnographer, came to the idea that every society, irrespective of its stage of development in terms of achievements in science and technology, has its own rules of conduct that are developed in historical and real processes of relations between members of the group concerned. This is a customary law, and the legitimacy of such law is very strong because behind it is a long-standing custom, tradition, religion, way of life, each of which is sacred. Every society respects values like marriage and family, but in different ways. According to Malinowski, law as a tool is universal, but its forms are peculiar in many cultures. For Malinowski: (1) it is not true that indigenous societies have no law at all; and (2) it is not possible to describe their legal systems by using Western concepts and methodologies. For him, law as a phenomenon is also about mutual relationships between persons with duties and obligations based on the principle do ut des. This idea sheds light also on Western concepts of law. Afterwards, the notion of legal pluralism moved from anthropology to the science of law. Ideas about indigenous customary laws were also developed by other scholars such as the anthropologist Claude Lévi-Strauss (especially, in Lévi-Strauss 1948a,b).
- 6.
See the previous footnote. In Latin: I give that you may give; I give [you] that you may give [me].
- 7.
In building the model, we have taken into consideration different experiences of co-existence of state law and customary laws in many regions of the world such as from Latin or North America, Africa, Asia, Pacific, the Caribbean region. We have analysed many particular systems, and been inspired by many authors: Guillet 1998; Besson 1999; de Sousa Santos 2006; Ray and van Rouveroy van Nieuwaal 1996; E. Soon-Tay 1984; Dundes Renteln and Dundes 1994; Minattur 1994: 539–567; Westermarck 1994: 572–573; Care and Zorn 2001; Ardito 1997; van Cott 2000; Ahrén 2004; Svensson 2002; Osherenko 2001: 695; Fourneret 2006; Shadid and van Koningsveld 2005; Jok Madut Jok 2007; Johnson 2003; Meredith 2005; de Waal 2005. We also analysed ideas of legal pluralism in international law, for which the following are important: MacCormick 1993; Kennedy 2007; Sur 1997; Perez 2003; Schaefer 2006; Falk Moore 1973.
- 8.
The problem of jurisdiction (criminal and civil) over e.g. non-indigenous people, was also well put by Jacob Levi (Levi 2008, especially pp342–360). See also chapter 11, paragraph 19 of the Final Agreement: “Nisga’a Government will consult with individuals who are ordinarily resident within Nisga’a Lands and who are not Nisga’a citizens about Nisga’a Government decisions that directly and significantly affect them”.
- 9.
Compare: Ahrén 2004:111: “Non-Sámi societies should review all their legislation and eliminate unnecessary clashes with Sámi customary law. The proposed revision of the Norwegian Reindeer Herding Act, recognizing that the reindeer herding district and unit system conflicts with the Sámi customary siida system, can be viewed as a positive example in this regard. Similarly, present national borders disrupt Sámi customary land distribution law. The relevant countries should be able to open up their borders because it should be irrelevant to the non-Sámi peoples which reindeer graze certain part of Sápmi”.
- 10.
See also: Ahrén 2004: 83–92, where there is an analysis of the implementation of such theories on cultural hierarchy in the practice of law and legislation since the beginning of the 19th century to the 20th century in Fennoscandia (or Fennoscandinavia).
- 11.
See also: Ahrén 2004: 107, and especially in his ‘recommendations’, Ahrén 2004: 107–112. He highlights also: “Regardless of all the obstacles raised by the non-Sámi societies, the Sámi people continue to aspire to live in accordance with their own customary laws, to the greatest extent possible. However, in addition to all the impediments outlined above, it is onerous for the Sámi people to live in legal pluralism, torn between obeying non-Sámi laws and their own perception of right and wrong. The present order puts the existence of the Sámi people’s culture – including their customary law – in danger. There is an urgent need for remedies.”, and then: “In order to adequately address the conflict between the Sámi and non-Sámi legal systems, the non-Sámi societies must: (1) recognize the Sámi people as a people, equal in dignity and rights to their neighboring peoples, which in turn implies that the Sámi legal system is equal in value to the non-Sámi legal systems; (2) fully acknowledge that the Sámi people’s way of life might indeed give rise to legal rights to their traditional land, waters, and natural resources; (3) recognize the particularities of the Sámi traditional livelihoods in conflicts between the Sámi and non-Sámi societies as to use of land; and (4) harmonize their legislation with the corresponding Sámi customary laws in instances when there is no real need for conflict.” (Ahrén 2004: 107).
- 12.
First Codicil and Supplement to the Frontier Treaty between the Kingdoms of Norway and Sweden concerning the Lapps (done on 21st September/2nd October 1751). See: this short analysis of the historic act: Bunikowski 2014b: 24, footnote 49, where one reads that: “In fact, the treaty was passed to regulate “the customary transfrontier movements of the Lapps” as well as jurisdiction “over the foreign Lapps” during the movement period and tax problems related to that (the preamble). Thus, it was about state taxation (art. 1–7), Sami mixed marriages (art. 8), free movement and crossing borders by the Lapps in Scandinavia. (art. 9–21), limited indigenous jurisdiction (art. 22–30; art. 22: “disputes occurring between Lapps from the same side” in the transfrontier movement to be resolved the Lapp lensman). However, it recognized also customary laws on nomadic style”.
- 13.
Briefly, this is the freedom to roam. Literally, it means ‘everyman’s right’. It comes from Medieval customary laws in the Nordic countries. The right was the case also in Finland. According to this right, everyone may walk, ski, and cycle in the countryside, as well as swim, row, sail, fish in the inland waters and the sea (or walk on the frozen lakes etc). It is forbidden to harm the natural environment and the landowner. Thus, the right concerns both the use of public and private lands. One may camp but not in the garden of the landowner and only a reasonable distance from his home. Also picking mushrooms, berries, and mineral samples is allowed. Disturbing breeding birds or reindeer is illegal. The freedom became the constitutional right to some extent (but section 20 of the Constitution of 1999 concerns “the right to a healthy environment”). Some lawyers say that it is the general public’s right to access certain public or privately owned land for recreation and exercise (however, there are some reasonable limits of the use of this right, like private nuisance) or just the right of public access to the wilderness or the right to roam. However, some restrictions of the right are obvious: for instance, prohibitions of cutting down trees, crossing plantations in the summer, or, in some seasons in Lapland, picking species like cloudberries. Only the government has the right to restrict the freedom to roam. Strict natural reserves in Finnish Lapland are good examples of the restrictions, too.
- 14.
See: Concluding observations on the sixth periodic report of Finland, Human Rights Committee, 22 August 2013 (on International Covenant on Civil and Political Rights).
- 15.
See: Concluding observations on the 20th to 22nd periodic reports of Finland adopted by the Committee on the Elimination of Racial Discrimination at its 81st session in 2012. Information provided by the Government of Finland on its follow-up to the recommendations contained in paragraphs 12, 13 and 16, 30 August 2013. Point 5 in Chapter “The right of the Sámi to their traditional lands”.
- 16.
See: Statement by Finnish Sámi Parliament on the Realization of Sámi People’s Right to Self-determination in Finland Presented by the President of the Sámi Parliament of Finland Juvvá Lemet, Mr. Klemetti Näkkäläjärvi, where it is said in the context of Sámi cultural autonomy that “While the statutory status of the Sámi is satisfactory in Finland, the law is not adequately enforced”. In reality this means a lack of cultural autonomy.
- 17.
See Bunikowski’s critique of the open texture character of the terms used in the Convention draft and of many possibilities of interpretations of this eventually binding legal act.
- 18.
Also called the “Taxed Mountains case”. In 1981, the Swedish Supreme Court confirmed Sámi usufructuary right to land for reindeer husbandry. In this case, the clue was the claim to Sámi traditional territory but the indigenous party had no basis that would be proper and evidential for the claim for ownership. However, the usufructuary right was afforded as well and the Sámi could acquire title to land by a long-standing practice of using the land for traditional indigenous economic and cultural activities. In spite of this case, Sweden did not pass any law on Sámi rights to land. This precedent taken straight from the court has been a dead letter.
- 19.
See Bunikowski (2014a: 77–78) about the importance of the problem of recognition and protection of customary rules concerning sieidi.
- 20.
This is the impression of one of us (DB) from his meetings with Canadian scholars and indigenous groups at anthropological congresses in Rovaniemi in 2013, Manchester in 2013, and Tallinn in 2014.
- 21.
See: Multiculturalism Policy in Contemporary Democracies. Queen’s University, Kingston. Canada. Compare the legislation and jurisprudence in Scandinavia: sections 17 and 121 of Finland’s Constitution of 1999; article 2 of The Instrument of Government of 1974 in Sweden; art. 110a of Norway’s Constitution of 1814 (amended in 1987); and in Russia: art. 69 of the Russian Constitution of 1993, and art. 21 of Code of the Murmansk Oblast of 1997. The basic act in Finland is Act on the Sámi Parliament (974/1995), especially sections 1, 4, 5, 9, supported by Sámi Language Act (1086/2003), especially section 2. Also lower acts are important: the Reindeer Husbandry Act (848/1990), and the Reindeer Husbandry Decree (883/1990). Also see, The Mining Act (621/2011), sec. 50 (Section 50 – Obstacles to granting of a permit in the Sámi Homeland, the Skolt area, or a special reindeer herding area); The Water Act of 1961. See also: The First Codicil of 1751 (Treaty between Sweden and Norway on the Lapps). Here are also important cases: “The Taxed Mountains case” of 1981 (Sweden), and The Könkämä and 38 other Sámi villages against Sweden case of 1996 (EHCR). Look at the Latin American experience as well: The Constitution of Peru of 1993 (art. 149, recognition of indigenous self-determination and customary laws) and The Peruvian Criminal Code (art. 15, excuses in criminal responsibility for Indians, except conflicts with human rights), or at the Islamic experience: The Constitution of the Islamic Republic of Afghanistan, (Ratified), 26 January, 2004 (unofficial English translation) and The Interim National Constitution of the Republic of the Sudan 2005 (art. 20.2 – personal law – zakat).
- 22.
Like in the jurisprudence of The Supreme Court of Canada: Calder v. British Columbia (1973, recognition of land rights), Delgamuukw v. British Columbia (1997, recognition of land rights), R. v. Sparrow (1990, upholding historic treaties), R. v. McPherson (1994, non-application of provincial laws to Aboriginal persons if they are in conflict with the historic rights treaties), R. v. Van der Peet (1996, recognition of cultural rights), R. v. Sioui (1990, recognition of cultural rights but it was limited by e.g. a British Columbia court ruled in Thomas v. Norris (1992): limits to the 1860 treaty rights; religious practices not to be used as defence against assault), Haida Nation v. British Columbia (Minister of Forests) of 2004 (a duty to consult; guarantees of representation and consultation). In Casimel v. Insurance Corp. of British Columbia (1994), a British Columbia Court of Appeal recognized customary laws in an insurance law case. An Alberta Court of Queen’s Bench in the case of Manychief v. Poffenroth (1995) recognized customary marriages. In Cheechoo v. R. (1981) the Ontario District Court recognized a right to trapping.
- 23.
The recognition or many of the indigenous rights was visible in such legal acts as The Royal Proclamation of 1763, section 91.24 of the Constitution Act, 1867, the Manitoba Act, 1870, subsection 35 (1) of the Constitution Act, 1982 (Recognition of existing aboriginal and treaty rights; Land claims agreements; Aboriginal and treaty rights are guaranteed equally to both sexes; Commitment to participation in constitutional conference), the Indian Act (of 1876), the Metis Settlements Act of Alberta (1990), the British Columbia Adoption Act of 1996, s.s. 46 (1) and 46 (2), the Northwest Territories Aboriginal Custom Adoption Recognition Act of 1994, the Employment Equity Act in 1985 (subsequently amended in 1995), and land claims agreements with the government such as: the James Bay and Northern Quebec Agreement (1975), the Inuvialiut Final Agreement (The Western Arctic Claim Settlement) (1984), the Labrador Inuit Land Claims Agreement-In-Principle (2005), and the Nunavut Land Claims Agreement Act (1993), and self-government agreements with the government: Sechelt Indian Band Self-Government Act (1986), the Westbank First Nation Self-Government Agreement (2004); the James Bay and Northern Quebec Agreement (1975), one of the last ones is the Nisga’a Final Agreement Act (1999). By 2010, the federal government settled 24 self-government and comprehensive land claim areas with Aboriginal/indigenous people of Canada. Two of the deals were stand-alone self-government. See also: Multiculturalism Policy in Contemporary Democracies. Queen’s University, Kingston. Canada.
- 24.
The 1998 Government of Canada Agenda for Action with First Nations (self-government rights); the Government of Canada Aboriginal Consultation and Accommodation: Interim Guidelines for Federal Officials to Fulfill the Legal Duty to Consult; but also other documents made by the Government of Canada: the Aboriginal Skills and Employment Partnership as well as the Aboriginal Skills and Employment Training Strategy. See also: Multiculturalism Policy in Contemporary Democracies. Queen’s University, Kingston. Canada.
- 25.
However, for some pragmatic and ideological reasons, both Canada and Finland did not ratify the ILO Convention no. 169 (i.e. named Indigenous and Tribal Peoples Convention, 1989) that concerns recognition of rights of tribes and indigenous peoples. The role of this Convention is however a little exaggerated, as it is possible to recognize the right to self-determination (or narrowly, self-government) in other ways also.
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Historical International Treaty
First Codicil and Supplement to the Frontier Treaty between the Kingdoms of Norway and Sweden concerning the Lapps (done on 21st September/2nd October 1751).
International Law
Indigenous and Tribal Peoples Convention, 1989 (No. 169). Convention concerning Indigenous and Tribal Peoples in Independent Countries (Entry into force: 5 Sep 1991).
The Nordic Sámi Convention (draft). Available in English at the Sámi Council website: http://www.saamicouncil.net/. Cited 4 Nov 2014.
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Concluding observations on the 20th to 22nd periodic reports of Finland adopted by the Committee on the Elimination of Racial Discrimination at its 81st session in 2012. Information provided by the Government of Finland on its follow-up to the recommendations contained in paragraphs 12, 13 and 16, 30 August 2013. http://formin.finland.fi/public/download.aspx?ID=119107&GUID=%7B9984DD16-2154-4FEB-9BB6-281AB982EDA8%7D. Cited 4 Nov 2014.
International Statement by the Sámi People
Statement by Finnish Sámi Parliament on the Realization of Sámi People’s Right to Self-determination in Finland Presented by the President of the Sámi Parliament of Finland Juvvá Lemet, Mr. Klemetti Näkkäläjärvi. http://www.galdu.org/govat/doc/self_determination_samiparliament_finland.pdf. Cited 4 Nov 2014.
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Comparative Constitutional Legal Acts
Northern Europe
Sections 17 and 121 of Finland’s Constitution of 1999.
Article 2 of The Instrument of Government of 1974 (Sweden).
Art. 110a of Norway’s Constitution of 1814 (amended in 1987).
Art. 69 of the Russian Constitution of 1993.
Art. 21 of Code of the Murmansk Oblast of 1997.
Other Regions
The Constitution of Peru of 1993 (art. 149).
The Peruvian Criminal Code (art. 15).
The Constitution of the Islamic Republic of Afghanistan. Ratified. 26 January, 2004 (unofficial English translation).
The Interim National Constitution of the Republic of the Sudan 2005 (art. 20.2).
Finnish Law
Act on the Sámi Parliament (974/1995), especially sections 1, 4, 5, 9.
Sámi Language Act (1086/2003), especially section 2.
The Reindeer Husbandry Act (848/1990). http://www.finlex.fi/en/laki/kaannokset/1990/en19900848.pdf. Cited 11 May 2016.
The Reindeer Husbandry Decree (883/1990). http://www.finlex.fi/fi/laki/kaannokset/1990/en19900883.pdf. Cited 11 May 2016.
The Mining Act (621/2011). http://www.finlex.fi/en/laki/kaannokset/2011/en20110621.pdf. (Section 50 – Obstacles to granting of a permit in the Sámi Homeland, the Skolt area, or a special reindeer herding area). Cited 11 May 2016.
The Water Act of 1961. http://www.finlex.fi/en/laki/kaannokset/1961/en19610264.pdf. Cited 11 May 2016.
Nordic Case Law
“The Taxed Mountains case” of 1981 (Sweden). Nytt JuridisktArkiv (NJA) Avd. 1, Rattsfall fran Hogsta Domsto/en 1981, p. 1.
The Könkämä and 38 other Sámi villages against Sweden case of 1996 (EHCR, Application No. 27033/95).
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The Royal Proclamation of 1763.
Section 91.24 of the Constitution Act of 1867.
The Manitoba Act of 1870.
Subsection 35 (1) of the Constitution Act of 1982.
The Indian Act of 1876.
The Metis Settlements Act of Alberta of 1990.
The British Columbia Adoption Act of 1996, s.s. 46 (1) and 46 (2).
The Northwest Territories Aboriginal Custom Adoption Recognition Act of 1994.
The Employment Equity Act of 1985 (subsequently amended in 1995).
Canadian Case Law
Calder v. British Columbia (AG) [1973] S.C.R. 313, [1973] 4 W.W.R.
Delgamuukw v. British Columbia [1997] 3 S.C.R. 1010.
R. v. Sparrow [1990] 1 S.C.R.
R. v. McPherson [1994] 2 C.N.L.R. 137 (Man Q.B.).
R. v. Van der Peet [1996] 2 S.C.R. 507.
R. v. Sioui [1990] 1 S.C.R. 1025.
Thomas v. Norris [1992] 2 C.N.L.R. 139 (B.C.S.C.).
Haida Nation v. British Columbia (Minister of Forests), [2004] 3 S.C.R. 511.
Casimel v. Insurance Corp. of British Columbia [1994] 2 C.N.L.R. 22 (B.C.C.A.).
Manychief v. Poffenroth [1994], [1995] 3 W.W.R. 210, [1995] 2 C.N.L.R. 67 (Alta. Q.B.).
Cheechoo v. R. [1981] 3 C.N.L.R. 45 (Ont. District Ct.).
Canadian Land Claims Agreements
The James Bay and Northern Quebec Agreement of 1975. http://www.gcc.ca/pdf/LEG000000006.pdf. Cited 11 May 2016.
The Inuvialiut Final Agreement (The Western Arctic Claim Settlement) of 1984. http://www.inuvialuitland.com/resources/Inuvialuit_Final_Agreement.pdf. Cited 11 May 2016.
The Labrador Inuit Land Claims Agreement-In-Principle of 2005. http://www.aadnc-aandc.gc.ca/eng/1331657507074/1331657630719. Cited 11 May 2016.
The Nunavut Land Claims Agreement Act (S.C. 1993, c. 29).
Canadian Self-Government Agreements
Sechelt Indian Band Self-Government Act (S.C. 1986, c. 27).
The Westbank First Nation Self-Government Agreement (S.C. 2004, c. 17).
The James Bay and Northern Quebec Agreement of 1975. http://www.gcc.ca/pdf/LEG000000006.pdf. Cited 11 May 2016.
The Nisga’a Final Agreement of 1999. http://www.nnkn.ca/files/u28/nis-eng.pdf. Cited 8 Nov 2014.
Documents Made by the Government of Canada
Aboriginal Consultation and Accommodation: Interim Guidelines for Federal Officials to Fulfill the Legal Duty to Consult of 2008. http://caid.ca/CanConPol021508.pdf. Cited 11 May 2016.
The Government of Canada Agenda for Action with First Nations of 1998. http://publications.gc.ca/site/eng/74609/publication.html. Cited 11 May 2016.
The Aboriginal Skills and Employment Partnership. https://www.tbs-sct.gc.ca/hidb-bdih/initiative-eng.aspx?Hi=37. Cited 11 May 2016.
The Aboriginal Skills and Employment Training Strategy. http://www.esdc.gc.ca/en/aboriginal/asets/index.page. Cited 11 May 2016.
Research Project
Multiculturalism Policy in Contemporary Democracies. Queen’s University, Kingston. Canada (available as “Multiculturalism Policy Index”). http://www.queensu.ca/mcp/, Cited 4 Nov 2014. Go to the link: Indigenous peoples-Canada.
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Bunikowski, D., Dillon, P. (2017). Arguments from Cultural Ecology and Legal Pluralism for Recognising Indigenous Customary Law in the Arctic. In: Heinämäki, L., Herrmann, T. (eds) Experiencing and Protecting Sacred Natural Sites of Sámi and other Indigenous Peoples. Springer Polar Sciences. Springer, Cham. https://doi.org/10.1007/978-3-319-48069-5_4
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