Local Community Fishing RightsA Coastal Sami Perspective

Energy Law Workshop, Utrecht 19-20 February 2014

Associate Professor (PhD.) Susann Funderud Skogvang

Faculty of Law

K.G.Jebsen Centre for The Law of the Sea

University of Tromsø – The Arctic University of Norway

Outline

• Presentation of the topic

• Norwegian property rights in fisheries

• International legal framework on the fishing rights of indigenous peoples

• Norwegian Implementation

But first:Who are Indigenous Peoples?Who are the Sami People?

Indigenous Peoples:• Three core elements, based on ILO Convention no. 169 article 1 and the

Cobo-definition:– Historic connection to a territory– Have retained some of their own social and/or cultural institution– They regard themselves as indigenous

Sami People:• Indigenous peoples and an ethnic and linguistic minority• Apprx 100 000 peoples all together, settled in four different countries. • The vast majority lives in Norway• Own language(s), various cultures (most famous: reindeer-herding

Sami)

Topicality

• Over-exploited marine natural resources• Need for regulations• Introduction of property rights regimes through different quota-systems

• At the same time:• Strong development in international law regarding the rights of

indigenous peoples in recent decades• Indigenous peoples around the world are dependent on marine natural

resource for their livelihood• Indigenous peoples have been fishing and hunting in coastal areas from

time immemorial

Topicality

• The Coastal Sami population of Norway constitute a large part of the Sami peoples in Norway – Dependent on marine resources – Under pressure

• Other industries (oil and gas production, mineral exploration in coastal areas, other energy production)

• Is property rights in fisheries only a question of allocation of quotas in commercial fisheries?

Property rights in coastal areas in Norway

• Basic rules:– Marine resources as such – common pool resource– Saltwater areas – not subject to property rights– Saltwater fishing – free and open for all

• Exceptions:– Property right to saltwater based on ownership to land– Property rights based on legislation – Property rights based on use from time immemorial or local customs

• Acknowledged in legislations and case law

Criteria for collective property rights”homefishing-rights”

• Extensive fishing • From time immemorial• In a smaller, defined geographic area • Localized close to the fisher’s residence

• Considerations of – Needs and dependency– Opinio juris

International legal framework for indigenous peoples’ fishing rights

• Strong development of indigenous peoples rights in international law in recent decades

• The International Covenant on Civil and Political Rights article 27 and 1 (ICCPR)

• The ILO Convention no 169 concerning Indigenous and tribal peoples in independent countries (ILO-169)

• The International Convention on the Elimination of All Forms of Racial Discrimination (CERD)

• UN Declaration on the Rights of Indigenous Peoples (UNDRIP)

International law cont.

• Substantial rights– Fishing Right as material basis for indigenous culture- ICCPR art. 27, ILO-

169 art. 23– Property fishing rights ILO-169, CERD art. 5 d) (v), UNDRIP art. 26, ECHR

P 1-1– Indigenous peoples’ right to self-determination?

• Procedural rights, ILO-169, UNDRIP, CBD– Right to participate in the decision-making, use, management and

conservation of marine resources – Right to consultations– Right to decide own priorities and development– Traditional knowledge

Norwegian implementation

• The Coastal Sami peoples in Norway enjoys a strong formal legal protection for their substantial and procedural fishing rights.

• Norway have implemented ICCPR, CERD and ratified and partially implemented ILO-169

• Norway recognizes some limited property fishing rights

• New Act on Sami fishing rights in 2012

Thank you!