The Alta-Case in Norway;
A story about how another hydroelectric
Dam-project was forced through in Norway1
3. Brief contextual introduction 5. The protests against the Alta Dam 6. One of the outcomes for the Saami people; the Saami Parliament 7. Another of the outcomes; The Saami article in the Norwegian constitution galbma garra guovllut geaðge borga máilbmi Sámiid mánaid ruoktu Liegga litna salla
With this yoik I would like to declare to you that I feel very lucky to be here. I wish to honour you all in the most ceremonial way that I can. My topic, the development of the legal situation of the Saami people in Norway, has certain things in common with this yoik. There are both topical reasons and ceremonial. I will first briefly introduce myself, and then my yoik. Then I will provide you with a general overview of the legal situation. The establishment of the Saami Parliament and the Saami article in the Norwegian constitution are important items, so I will use a bit of time on them. Yoik is different from the regular idea of singing in several ways. I will point out a few differences. You don't yoik about someone or something. You yoik someone or something. Yoik has no object. That emphasizes perhaps that talking or thinking about yoik in subject-object concepts isn't possible. Maybe the singer is a part of the song? The regular concept of a western European song is that it has a start, a middle and an ending. In that sense a song will have a linear structure. A yoik seems to start and stop suddenly. It hasn't a start and neither an ending. Yoik is definitively not a line, but it is perhaps a kind of circle. Yoik is not a circle that would have Euclidian symmetry although it has maybe a depthsymmetry. That emphasizes that if you were asking for the start or the ending of a yoik, your question would be wrong. Therefore I have to use what is perhaps the most common language in the world, broken English. There are Yoiks for persons, animals and landscapes. In our tradition it was very important for the personal identity to get a yoik. It was like getting a name if you got your own yoik. Yoiking a landscape had possibly similar ritual connotation, and the same goes for an animals yoik. It is not easy even for the trained ear to hear the differences between an animal's yoik, a landscape's yoik or a person's yoik. That perhaps emphasizes that you don't differ so much between the human-creature, the animal-creature and the landscape-creature as you regularly do in a western European context. Your behaviour will therefore maybe be more inclusive towards animals and landscapes. In some respects this also emphasizes that we can have ethical spheres not just towards fellow humans but also to our fellow earth and our fellow animals. Can you own some of your fellows? I yoik yoiks from my area, and there are many of other dialects so to speak in yoiking. They can differ from melodic epic yoiks to imitating birds. Inside a yoik dialect it would be differences between yoiking individuals. That emphasizes that yoik is not living in a society of uniformity. Yoik perhaps rather belongs to, and lives in a life of diversity. It will be difficult for a musician to work with me. The yoik will always be a little different from one time to the next. The musician will on his side always expect that I start in the same tone every time. His accords would then fit in, and he could follow his accords-symmetric system. I would have problems to hit the musician's tone. My mode or mood could have changed since the last time we rehearsed. That emphasizes that a yoik is not a fixed status, but perhaps rather a process. It also emphasizes that you can't use squares and pyramids or other symmetric principals when you understand yoik. Would you like to have a little bird that doesn't move? It would perhaps be beautiful in a square cube made of glass, but it will not remain alive. This particular yoik belongs to the thundras of the Saami-land. It is made by our very celebrated creative native Nils-Aslak Valkeapää, and it tells that it is so cold there. It is so hard there. There are many rocks. There is so much snow there. Winterstorms. There are also small foot-tracks. For some it is their warm and soft homeland. This Yoik was important for the development of the Saami rights.
Even if most of the Saami peoples live in the quiet and well-regulated northern Europe, still the history of our people is not a nice story. It contains much pain, and it hurts me to talk about it. Our people have traditionally been hunters, fishermen and reindeer-herders. We lived in the northern part of Norway, Finland, Sweden and Russia. I will not dwell in the days of Adam and Eve. We lost our paradise. There are some diversities between how it happened in Norway, Finland, Sweden and Russia. I will mainly speak about the Norwegian development. It contained a so-called norwegianizing policy. This policy has varied from time to time. Both our religion, our economy and culture were attacked. Together with the church the state considered our spiritual leaders as heathens. They were both stigmatized and some times treated as criminals. Some of them were burned. Parts of the church still want to prohibit yoiking because they consider it pagan. Our right to exploit the land wasn't recognised as legal, and our people had to move when farmers or other people came. The question was raised as how we could be bearers of ownership? We didn't stay at the same place during the year, but we went to the coast during the summer. Maybe it was even a problem that our relationship to the earth couldn't be organised by ownership. How could your mother become your property? Our children were taken away from their homes and were raised in boarding schools. Our language was prohibited in the schools until 1959. I forgot to tell you that I was born in 1958. The motives for the policy of integrating us, was for sure to make us able to be in a modern Norwegian context. From the sixties pedagogic expertise advised the school-system to teach the kids to read and write in their own language. We got some Saami lessons in the school and some time after we also realized that it was possible to survive through the educational system. The first small plants had started to grow. At the end of the seventies we had a number of Saami academicians, who became activists. We also started to get artists. We also saw that the Norwegian people had changed their attitude. There were established public funding programs for Saami literature. Somehow we could smell spring in the air.
At the same period the Norwegian government had a plan to construct a hydroelectric dam, which later became the famous Alta-case. The Alta river has a total length of 170 km from the starting point near the border between Finland and Norway to its endpoint in the Alta fjord. There are a number of minor rivers connected to the Alta river. The river passed the Saami Village Máze, and transformed to a lake called Latnatjávri. After a passage of 4 km the river again transformed to a lake, Virdnejávri. After Virdnejávri the river went into a distinct canyon. Then it passed some settlements and farming land before it ended up in the Altafjord. 40 km of the river had salmon, and was known as one of the very best salmon-rivers in Norway. The first plans to build the Alta dam emerged from the Norwegian Water Resources and Energy Directorate (NVE) in the middle of 1950's. At that time the plans were huge. Practically speaking most of the Finnmark tundra would have been under water today if those plans had been realised. That means that traditional reindeerherding would have been wiped out in the core area. Even if the Saami people did not have a very sophisticated level of their organisations- somehow the NVE understood the signals of the society, and backed out with the plans. When the Saami world heard of the plans for the second time, they were reduced. That was in the beginning of the 1970's. Then only the western part of the Finnmark tundra was in the plans. The famous point with those plans was the destiny of Máze. The plans implied that people had to be moved from the village, and that was illustrated by the metaphor that one would only see the top of the tower of the church of the village. At that time the resistance became visible and organised. One famous demonstration took place, and became the icon for the resistance. The resistance was backed up by the Saami organisations, the environmentalists and local salmon-interests. After a while NVE again went back into its think-tank with the plans. In a decision on the 6th of April 1973 the Norwegian Parliament (Stortinget) decided to preserve Máze, and also many of the small connected rivers. When the third round of the Alta case started NVE had reduced the plans even more. At that stage the plan still implied a major dam. Both the rivers Tverrelva and Iesjohka were included, and the plan was to build a reservoir in Virdnejávri connected with a system of tunnels. During the process the plans were reduced so that the dam only included Virdnejavri and the canyon. At the end of the canyon there was to be built a wall of concrete, which was 110 meter tall. There was strong resistance against that hydroelectric project. It became a kind of alliance between the Saamis and the environmentalists. The resistance was formalized both through the political - and later through the legal system. The political system didn't recognize the resistance, and the Parliament of Norway decided to build the dam. The decision was confirmed 3 times by the Norwegian Parliament and finally by the Supreme Court of Norway in a unanimous plenary decision on 26th of February 1982.
The most famous parts of the resistance became the demonstrations. Two demonstrations were famous. The zero-point demonstrations established a point of zero, which shouldn't be passed by the machines. People sat there preventing the machines from passing. That demonstration went on for approximately one and a half years. The second demonstration was the Saami hunger-strike. It was the first hunger-strike in Norwegian history. It took place in October 1979. Seven young Saamis took a lavvo (Saami tent), and raised it on a lawn outside the Parliament of Norway. They hadn't got formal permission to have this lavvo on that lawn, and they were threatened by the police. Somehow the population of Oslo took these seven Saamis under their wings. The media emphasized that the Saamis had always lost. Young Norwegians, old ladies, artists, children came and they sat there. The mass became so large that there had not been so many people assembling publicly since the freedom celebration at the end of World War II in 1945. It took time until the police carried the Saamis away. During that time this yoik became an anthem. I don't think the Saamis were aware of that during those demonstrations as they used also their stories and took metaphors from them. The Saami argumentation became much more mythological. The Saamis started to feel summerwinds to their case, and so obviously did the Norwegian politicians. The Norwegian prime minister came out with two announcements. In the first he announced that they made a preliminary stop in their construction plan of the dam. The second announcement was that the Norwegian Parliament would establish a Saami legal rights commission. Then the first Saami hunger-strike got its victory, and it could end. The preliminary stop in Alta lasted until a very cold day in February 1982. The Norwegian government sent a police force of a thousand police officers to Alta. The police force carried away all the demonstrators. That day could be declared the coldest in Saami history, and an extremely cold day in Norwegian history as well. The Saami interests tried, together with environmental interests, to bring an end to the Alta project via a legal process. The government won the case. That also made a cold day in the Saami history in 1982. There are more nosebreakers than successes when it comes to litigate Saami rights in the Norwegian court system. The Saami right commission became the good part of this story. The commission contained both legal experts, representatives for the public and representatives for interest organizations - including Saami interest organisations. It was lead by professor of law Carsten Smith, and in 1984 it came up with its first report. The question about land rights was of course the burning one. The committee decided first to give a general overview of the legal protection of the Saamis, and return to the question of land rights later. The 1984 report represented the first time in which the Norwegian government had been involved in an analysis of the Saami rights issue. The expert group made an analysis of the legal history of the Saami people. They also analysed the Saami peoples' rights based on international sources. One of these parts had a particular interest. They analysed article 27 of the UN International Covenant on Civil and Political Rights, which addresses that persons shall have the right together with other members of his group to have his culture. They made an analysis of whether cultural only referred to ideological expressions as songs, literature, theatre, storytelling traditions or if it also had implications for the material base for a culture - in other words the question of cultural protection of natural resources. The commission concluded that the international protection of the Saamis was much stronger than it had been recognized as in Norway. Concluding, the report contained two proposals. The first proposal was that we should get a Saami Parliament. The other proposal was that the Saami culture, language and society should be recognized in the Norwegian constitution. Both proposals went through. There was a little debate about the Parliament, and some political compromises had to be made. In 1987 the Saami Act became a part of the Norwegian legislation. The same year the Saami article was included in the Norwegian constitution. The Saami Parliament was declared opened in October 1989 by his majesty King Olav the 5th. One session is passed. The Parliament is building up its administration and bureaucracy.
The Saami Parliament is a body that covers all Norway. It is a national body, and would be a federal body if we should translate that to the language of your system. Every forth year - at the same time when representatives are elected to the Norwegian Parliament - there are 39 elected representatives. The Act contains regulations on the procedure of the elections. The act also regulates what kind of status - advisory or binding the Saami Parliament has. The Parliament has its administration. I shall address about the elections and about the status. Look at me. I hope I am a natural man. I have not a natural tan. I am blond. The Saami people is the people of the thousand faces, and we don't fit into the indigenous people stereotype with black hair and dark skin. That gives a lot of trouble - but also some advantages. You never know who and where we are. It also gives us exits to fly into the big societies if the world becomes too hard. That is a problem to face when you are a Saami. When it comes to recognize us as indigenous people, we don't fit into the natural-tanned-stereotype. So the participation to the elections cannot be based upon a natural tan in combination with mathematics about blood percentage. That was also the problem with the regulations about who can vote a representative to the Saami Parliament. In the Saami Act that depends on two conditions that are cumulative - both of those conditions have to be fulfilled simultaneously. The first condition is that you give a declaration or statement that you consider yourself as a Saami. That principle is emphasizing that participation in the Saami society is based upon free will. No one shall be forced to remain a Saami. That is the so-called subjective aspect. The second condition is a connection to Saami language. The norwegianizing policy has taken away the language from many Saamis. Maybe most of the Saamis don't speak their own language. The policy is not to exclude the Saamis who have lost so much of their own. Therefore this language-based criterion has three alternatives. The first is that you yourself shall have Saami language as your home language. The second alternative is that one of your parents has had Saami language as home language. The third alternative is that one of your grandparents has had Saami language as their home language. Otherwise, Norway is divided in 13 election districts. From each district three representatives are elected. The people are not a homogeneous mass, so there are some districts that cover larger geographical areas than other. There are not the same number of votes behind each representative. The concentrated population in the northern part is a little bit less represented than the southern parts. Besides that we have the fact that the Saami population is not a homogeneous mass - so it is not appropriate to talk about the Saami people. We have the Saami peoples. Therefore a terminology from the European concept of national states doesn't fit. In other senses the elections to the Saami Parliament are based upon the regular regulations concerning elections to the Norwegian Parliament. The most interesting ones would be following
To become elected to the Saami Parliament is determined basically by the same conditions as those that determine the right to vote. Although the elected officer can under certain conditions get a permission to turn down the post. The main condition would be that the election is causing a burden. One can also turn down the post if one has been a representative the last four years. Staff from the administration of the Saami Parliament can't be elected. The question of what the status of the Parliament is can be divided in three questions. Does the Parliament have advisory or binding status? Can the Parliament take up an item on its own initiative or must it wait until a Norwegian governmental body is addressing a question to the Saami Parliament? Can the Saami Parliament take up every case, or is it formally regulated which items are Saami-items. The answer to the last question is that the Saami Parliament is free to define every given case to be a Saami case. The answer to the second question would be that the Saami Parliament has both the right to make initiatives on its own on one hand and to react to governmental bodies' initiatives. The first question is of course the biggest and most important. Technically, it is interesting how legislation is formulated in the Saami Act. The act says that the Parliament has binding status in areas where that is explicitly addressed in the Norwegian legislation. The point of this addressing technique is to emphasize that giving the Parliament status will be a dynamic principal. The present political program seems to be that the Parliament should get more status over time. That means that in most of the areas the present status is an advisory Saami Parliament. On the other hand there are certain areas where the Norwegian government has formally delegated binding status to the Saami Parliament. Examples to that would be administrating governmental granting to the Saami cultural activities, the Saami school and education programs and so on. The Saami people are not a military unit, but more like a family. It means that we are not marching towards the same directions at any given time. We can have our quarrels. One discussion can illustrate how that works. It is the discussion whether the Saami Parliament should get the responsibility over the reindeer programs. The reindeer herders have two interest organisations. The most influential of the two - the Norwegian Reindeerherders Organisation (NRO) - was quite sceptical that the Saami Parliament should get the responsibility. In Norway we have a national reindeer board, which is appointed by the government. The appointment is determined by suggestions from different types of interest organizations. The hot question was whether the central government should appoint the public representatives or if that should be appointed by the Saami Parliament. The government had proposed that the Saami Parliament should do that in the future. NRO didn't support the proposal. Their main argument was that if the central government did appoint the public representatives, then it would secure that the reindeer programs would be supported by expertise. NRO went to Oslo, and the majority of the Norwegian Parliament decided that the Saami Parliament should select one of the three public representatives. NRO could be suspected for only arguing for Saami right occasionally. The story must be modified. The other organisation, Norwegian Reindeers Owners Association (BES), supported the Saami Parliament. BES has approximately the same amount of members, but hasn't got the same influence as NRO. This illustrates however that the parliamentarian form of representation is not unquestionable. I have pointed out some legal aspects that will determine the status of the Saami Parliament. The status will however also be determined by how much economic resources the Parliament can get during its childhood. Yet we don't know certain things. Will the Norwegian government give wide enough budgets and financial programs to the Parliament to build up a body, which would be able to define which items were important to the Saami society, come with its own initiatives and manage to administrate binding status? In the worse case it could be a poor body that became "papered down" by the governmental bodies. The situation is very open at the time. The picture has some clear and nice colours, but it also has grey and brown. The picture is definitively not a photography - maybe rather a video. Yet we don't know the storyline, and there are both optimists and pessimists among us.
The Saami article declares that the Norwegian state has a national obligation to make efforts that the Saami culture, language and society shall be secured and developed. The starting point for the article was that the Saamis required formal recognition. The public Norway answered by including that recognition in the constitution. This was the most solemn and obligating way of doing that, and this article should symbolize the reverse of the policy of norwegianizing the Saamis. The text of the article itself is brief, but it causes many questions. Has it secured and developed the legal protection of the Saami culture, language and society? Are the Norwegian courts among the bodies of the Norwegian state that are obliged by this article? Does the article just give a duty for the Norwegian state or does it also imply corresponding rights for the Saamis? If it gives rights, can a Saami individual claim them or is it just the Saami people by its Parliament that can claim rights? Does the article just prohibit negative discrimination of the Saamis or does it give an obligation to discriminate positively, i.e. when it comes to give Saami seats in lawschools? We can't go into these questions. I will just comment on some of them. Before we can raise these question at all, we face some methodological problem. We have the tradition in the Norwegian legal context that our constitution is rather considered as an anachronism than a legal text. Secondly we consider the constitution more as a political than a legal text. There are not many cases litigated in Norway where the constitution is present. At this stage I must also focus on a difference between our jurisprudence in Norway and the Anglo-American jurisprudence. In our system legal history for the legislator is considered as important legal sources. I understand that in the Anglo-American system court cases are much more important. Decisions made by the Supreme Court in a question of interpretation an article in an act is considered as a very important legal source in our system as well. Many of the questions above were raised in a case from 1992. It was a criminal case against a Saami, Mr. Gaski. Gaski hadn't showed up to a military repetition course, and he was convicted. He was sentenced by the local court, where I did the defence litigation. After an appeal to the Supreme Court the sentence remained. Mr Gaski's arguments were based upon both the Saami article in the constitution, article 27 in the UN International Covenant on Civil and Political Rights and an old convention between Sweden and Norway. Mr Gaski's arguments were that the Saamis in their tradition don't know of such a concept as armed defence, and including the Saamis historically was based upon the norwegianizing policy. He also argued that the Saamis live in four national states, and that it is hard to have the risk to shoot your own people. The third argument was that even nowadays the army works norwegianizing. There is no Saami cultural expressions in the army such as Saami language, Saami clothing, Saami food etc. All these things should, according to Gaski lead to that he had the right as an individual to come to the courts and claim positive discrimination of himself as a Saami. The Supreme Court based its dismission on three arguments. The court addressed that because of these three arguments, it wasn't necessary to give statements whether Gaski as an individual had rights according to the article. It wasn't necessary to give a statement whether this article established obligations for the court system as well. It was neither necessary to state whether Gaski could have claimed positive discrimination. The first of these three arguments were that the Saami article wasn't meant to include the military service for the Saamis, army service wasn't explicitly mentioned in the preparing documents. The second argument was that Saamis had been doing their service since 1897 when the duty was established. The third argument was that the Saami organisations have never protested against the military draft before. The interesting thing is that this case could be looked upon as a meeting between two mythologies. On one hand we have the mythology of reviving an indigenous peoples' culture in the most solemn and obligating way. On the other hand you have the mythology of the armed defence that requires everyone to take part of the defence of the interests of the nation. The question after such a meeting would most probably be: what is left of the most solemn and obligating declaration? The pessimist would say that the most solemn and obligating theatre is over. The Saamis got one more of the usual facecrackers from the Norwegian Supreme Court. He would focus on the fact that the Supreme Court explicitly stated that it is still an open question whether a Saami individual who wants to get positive discrimination can consider the article as legal at all. He would also focus on the fact that the Supreme Court required that draft should have been explicitly mentioned if the court could release Gaski. That requirement was formulated in spite of the fact that the discussion in the preparing documents is general. No particular area is explicitly mentioned. A case about education can pretty well be met by the same argument. The pessimist would call this a catch 22. The pessimist would also focus on that this "since-1897" argument could be generalized to refer to anything. Our land was taken away from us by these times. If you can take our youngsters by that argument, you can walk away with anything. To the third argument the pessimist would say that the position of Saami organisations has never been considered as legal source before this. The litigation was not prepared to that. The Nordic Saami youth organization has actually in 1983 given these question explicit statements. What do you do when a new legal source suddenly appears? Was that a torpedo? The optimist would say that this was a very bad case to come to the court with. The mythological connotations are too touchy to make that a good case for the Saami rights. He will say that it would have been a much better case to come with if you had some educational questions. The best case would perhaps have been a case about establishing a museum for yoik. The optimist would maybe say that father had a bad day this particular day. Father will regret, and treat you much softer next time you show up. The optimist would maybe say that father met so bad litigators, but next time when the litigating is better... A very positive case from the Norwegian administration moderates this rather pessimistic approach. The ministry for the fisheries had made up maximum quotas for harvesting codfish. The regulation was strictly formal - every fisherman that hadn't been harvesting over a level of tons missed the right to harvest. The implications of this regulation were a lot of the Saamis, who are small and not so industrialized fishermen lost their right to fish, and the legal question was whether the Saami article protected the Saami fishermen. Professor Carsten Smith was asked by the ministry to write an opinion, and based on that opinion the Saami fishermen could start to harvest again. In his opinion he answered that fishing was a Saami right. It was legal. The Saami fishermen should be positively discriminated. Another very positive thing is the legislation about the Saami language. The legislator has given an act that gives legal protection to Saami languages. It is mainly whether a Saami can claim to communicate with the administration, the police, the courts in Saami language. The legal basis to that is the Saami article in the constitution. This is also an example of how much obliged the legislator considers himself of the Saami article. My impression is that both the politicians and the bureaucrats in the administration are quit friendly and positive when it comes to exaggerate Saami rights. At the time I wouldn't invite to a Saami right party in the courts. That is of course a problematic situation. It is in that party where all the legal songs and dances are basically performed. The court-party is also the party where the ordinary man meets the justice system. I am happy for that we don't have a case system in Norway. I guess the politicians and the bureaucrats are more dependant on the goodwill of the population in Oslo than the judges. Where does the road go? Even here it seems that the road is created while you are on your walk. Where are the land rights or are there any at all, you may ask. Since 1984 the Saami right commission has almost been as the famous Godot. We had all been waiting, and we had started planning to celebrate the 10th anniversary of the 1984 report. I guess one of the reasons to that is that professor Carsten Smith went back to the university and then to be chief justice of the Supreme Court of Norway. The commission has since then had one leader and now it has its third leader Judge Tor Falck of the local court in Stjoerdal and Verdal. At the end of 1993 an internal expert group f the commission published a legal analysis of whether the Saamis in Finnmark should be considered as owners of the land. Secondly they asked whether Saamis in Finnmark had a legal protection to their traditional exploitation The conclusion in the ownership question was negative. The main argument was that so long time had passed since the declaration that this long time legalizes the ownership of the state. On the other hand some exploitations were considered as legally protected. The expert group had dissent. One expert came to an opposite conclusion. The majority of the group of experts has been criticized for they did not ask whether traditional Saami legal concept would be legally relevant. They have just stated that these wouldn't have "weight" anyhow. The second thing that they have been criticized for is that they haven't analysed what implications international law could have to the question of ownership. Particularly ILO convention 169 has been focused on in the critic. We are still waiting for the Saami right commission itself to come out with its report. You may ask what happens meanwhile. Rio Tinto Zinc Inc (RTZ), one of the largest mining companies in the world has applied to the Norwegian government for permission to mine in a very central area in Finnmark. They got their permission. The Saami Parliament wasn't asked. The president of the Norwegian Saami Parliament, Ole Henrik Magga went up to the mountains and asked the mining company to leave. The company left, and they have also stated that they will respect the Saami Parliament. What about the Alta project? That project did not become an economical success. The needs for electricity didn't turn out as expected by the government, and as confirmed by the Norwegian Supreme Court. The Norwegian prime minister admitted on TV that it was a mistake to construct that project.
A main difference between our people and the north American Indians is that they got treaties and beads when they lost the land. In Alta we lost our river, and we got the Saami Parliament and the Saami article. Are they pearls or beads? If they are, do beads have colours? For example, we are positive about the Saami Parliament in that we have a representative body. But sometimes I ask what a representative body requires from us. And I also ask is it appropriate for our people to squeeze ourselves into a mini national-state concept. I have recognized the natives in Canada argued that they are not a homogeneous group, and could therefore not be satisfied with a natives Parliament. I realize that the Parliament will have squared rooms and squared papers and less yoik, and my question is if that shall be our future path? I have been mentioning optimists and pessimists several times during this presentation. I understand that I myself could be asked whether I myself belong to category A or B. First - I don't like categorization. Therefore I don't know whether I am a Yoiker or an academician or a reindeer herder or a salmon fisher or someone else. I could even be a society of all these strange individuals. If I were put under pressure to answer the A-or-B question I would answer that I don't know whether I should restrain myself as a pessimistic optimist or as an optimistic pessimist.
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