Local Community Fishing Rights A Coastal Sami Perspective

1. 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

2. Outline • Presentation of the topic • Norwegian property rights in fisheries • International legal framework on the fishing rights of indigenous peoples • Norwegian Implementation

3. But first:Who areIndigenous Peoples?Who arethe Sami People? Indigenous Peoples: • Three core elements, basedon ILO Convention no. 169 article 1 and theCobo-definition: • Historicconnection to a territory • Have retainedsomeoftheirownsocialand/or culturalinstitution • Theyregardthemselves as indigenous Sami People: • Indigenouspeoples and an ethnic and linguisticminority • Apprx 100 000 peoples all together, settled in four different countries. • The vast majority lives in Norway • Ownlanguage(s), variouscultures (most famous: reindeer-herding Sami)

4. 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

5. 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?

6. Property rights in coastal areas in Norway • Basic rules: • Marine resources as such – common pool resource • Saltwater areas – not subject to propertyrights • Saltwater fishing – free and open for all • Exceptions: • Property right to saltwater basedonownership to land • Property rightsbasedonlegislation • Property rightsbasedonuse from time immemorial or localcustoms • Acknowledged in legislations and case law

7. Criteria for collectivepropertyrights”homefishing-rights” • Extensivefishing • From time immemorial • In a smaller, definedgeographic area • Localizedclose to thefisher’sresidence • Considerationsof • Needs and dependency • Opinio juris

8. International legal framework for indigenouspeoples’fishingrights • Strong development of indigenous peoples rights in international law in recent decades • The International CovenantonCivil and Political Rights article 27 and 1 (ICCPR) • The ILO Convention no 169 concerningIndigenous and tribalpeoples in independentcountries (ILO-169) • The International Convention on the Elimination of All Forms of Racial Discrimination (CERD) • UN Declaration on the Rights of Indigenous Peoples (UNDRIP)

9. 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

10. 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

11. Thankyou!