Indigenous peoples and the environment: convergence from a Nordic perspective.

• Author: Watters, Lawrence
• Position: Norway

"The central question here, as in all issues concerning indigenous rights, is who is in a position to control resources. It is question of land rights." (1) Sami--Scandinavia

"To us Indians human rights is a matter of daily survival; it is the right to food, to firewood and to fresh water, but above all it is the right to our customs." (2) Plains Cree--Canada

"Our history, identity, and tribal sovereignity are indistinguishable from the land. From time immemorial, it has always been so." (3) Umatilla--United States

INTRODUCTION

Since the Stocholm Declaration thirty years ago and particularly in the last decade, the rights and status of indigenous peoples (4) have begun to secure a more widely recognized place in international law, (5) including international environmental law. As a result of the impact of several important conventions, the rights of indigenous peoples are increasingly defined. Parallel to these developments, commentators have contributed analysis to an emerging framework for protecting and enhancing the rights of indigenous peoples. (6)

In that same vein, the paradox is that indigenous peoples are confronted with increasing impacts from the demand for natural resources,, development, population growth and international trade. These effects are particularly important because the culture of indigenous peoples is often directly dependent on natural resources and changes are likely to create long-lasting, even permanent environmental harm. Indigenous peoples are thus especially vulnerable to these forces from a cultural standpoint. (7)

Indigenous peoples are also found in some of the most sensitive areas of the world where, as in the Arctic and the Nordic region for example, the flora and fauna are extremely susceptible to irretrievable damage. (8) In this way, culture and the environment are intertwined and for many indigenous peoples, they are indivisible. Any harm to one is almost certain to damage the other and injury to both is a substantial threat to identity and therefore, even survival.

This article considers selected aspects of these impacts from a Nordic perspective, focusing on natural resources, the environment and the Sami (formerly referred to by others as the Lapps), found in the last wilderness of Europe. In light of the vast cultural diversity of indigenous peoples across the world, where it is estimated there are some 5,000 different groups in seventy different countries, (9) it is instructive to examine these impacts in a more specific context, in light of the heritage, belief systems and world view presented. (10) Further, by examining one group like the Sami through the lens of specific conflicts and issues relating to natural resources and the environment, analysis moves beyond theoretical constructs, addressing the challenge in implementing legal principles and standards and in creating and maintaining institutions for the protection of their rights.

In that same vein, an informed understanding of the status of indigenous peoples in one context has value in providing insight into the broader framework of international and domestic law relating to indigenous peoples generally. By considering the context in a more empirical setting, scholarship has the prospect of contributing to a more pragmatic understanding of the issues related to indigenous peoples and the environment, and their rights and aspirations.

Part I of the article introduces the larger picture and the process of transition in which indigenous peoples like the Sami are found. The discussion focuses on both the convergence of legal systems generally which influence the protection of indigenous peoples in international and domestic law and the concomitant impacts related to the concentration of new forces from trade, technology and communications, or, in a word, globalization. These dynamics, in concert with the `internationalization' of the environment, have special consequences for indigenous peoples. (11)

Part II considers the Sami heritage, prior to contemporary conflicts. The evolution of their status is highlighted with developments in the law at the domestic level. Part III moves from the past, considering the topography of the protection for indigenous peoples like the Sami in international conventions, emphasizing the emerging, shared perspective of states toward the special status of indigenous peoples. This includes the process of change in traditional notions of sovereignity as states recognize new imperatives on behalf of the environment, culture and human rights. Part IV shifts from consideration of the larger framework to its contemporary implementation in Norway concerning the Sami, natural resources and the environment. Part V examines the outcome of this process in a preliminary critique, assessing the implementation of the principles and standards for the protection of the Sami as well as the next stage in the resolution of issues relating to governance within the context of sovereignity and self-determination.

As a general guide, the analysis is informed by a conception of law as both prospective and retrospective. As Nicholas Robinson aptly described it, the law is like Janus who, in Greek mythology, was represented as looking both forward from one perspective and backward in another. (12) In order to address contemporary conflicts, it is necessary to understand the past. At the same time, such conflicts are often not resolved with precedent but rather, through new forms of adaptation in a process of transformation. (13) The adaptation may come slowly, even too slowly yet, as Henry David Thoreau observed, "What everybody echoes or in silence passes by as true today may turn out to be falsehood tomorrow, mere smoke of opinion, which some had trusted for a cloud that would sprinkle fertilizing rain on their fields." (14)

1. CONVERGENCE: INTERNATIONAL AND DOMESTIC LAW

   1. Defining Convergence

      The point of departure for understanding convergence and its importance for indigenous peoples is determining a definition. In essence, convergence is the process in which the domestic law governing states tends to operate in similiar ways while, quite often, simultaneously, principles of international law also stimulate the process by promoting commonly held norms. The result is a transformation in law at the domestic level.

      This process is two-fold. On one level, domestic and international law are closely linked in specific areas and resemble one another in important ways. On another level, states with very different legal systems begin to share increasing similiarities in specific areas. Within this broad definition, the process of the transformation of law is a phenomenon encompassing actions at the international and domestic level as well as the regional level. Taken together, results in the creation and application of parallel legal standards.

      Convergence therefore encompasses harmonization occurring both between states and groups of states as well as between states and principles established in international conventions and agreements. In this way, convergence is the outcome of a shared understanding of legal standards. (15)

   2. Characteristics Of Convergence

      Convergence, first and foremost, arises between legal systems. The extent to which different legal systems function, including primarily the similiarities between them, rests largely on a variety of legal actions in a traditional sense. Treaties, instruments, declarations, constitutional provisions, statutes, regulations and court decisions all play an important role.

      Second, convergence is a dynamic process. The approval and adoption of an international convention does not necessarily create a domestic standard incorporating the treaty's provision in the law of a state. (16) Yet, even if it does, in contrast to such a mechanical formulation, convergence occurs through multiple actions of a state which trigger executive, judicial and legislative responses over many years.

      Third, convergence reflects the diversity of the international community. Since harmonization takes place at the domestic level, each state places its own stamp on the implementation of norms and principles. This means that states with a civil law tradition may use an approach that both resembles and contrasts with those of a common law heritage and so on. The Asian (17) and Islamic countries, (18) of course, build on and adapt to these principles and norms within their own traditions.

      Endangered species is a notable case in point. States that are parties to the Convention on Trade in Endangered Species ("CITES") agree to adopt legislation in conformity with the terms of the Convention. (19) Yet different states take different approaches to implementation, especially with respect to enforcement. For example, China's legislation provides for strict penalties and even the most severe criminal sanctions. (20) In contrast, criminal law is less prominent in enforcement in the United States. Implementation there is based on the Endangered Species Act and provides for the designation of habitat necessary for the survival of species. (21)

   3. Distinguishing Convergence From Globalization

      From this discussion, a threshold question arises: how is convergence distinguished from globalization? The answer probably does not lend itself to precision at this stage but is multi-faceted. At a minimum, convergence and harmonization flow from the actions of decision-makers in legal systems regarding principles, norms and standards. Globalization, while it has direct and indirect impacts on legal systems and convergence, is perhaps best understood as a much broader process sweeping along vast economic and social developments arising from trade, technology and communications.

      In distinguishing convergence from globalization, several formulations of the term `globalization' are instructive. For example, globalization is characterized as:

      * "[F]oremost an economic process" and one that has...