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How to streamline Sámi rights into Policy-Making in the European Union?

By and | Article
September 19, 2023
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People in a conference room

EU-Sámi Week in Brussels in June 2022. Photo: Saami Council

The Arctic Institute EU-Arctic Series 2023

What do wind power in Fovsen (Norwegian side of Sápmi) and mining in Giron (Swedish side of Sápmi) have to do with the European Green Deal? Norway as a member of the European Economic Area and Sweden as an European Union (EU) Member State are impacted by EU policy-making. Due to the climate crisis, reducing greenhouse gas emissions is more urgent than ever, and Russia’s war against Ukraine is putting even more pressure on the energy market. The green transition is on everyone’s lips and often framed as the solution for tackling planetary crises. The EU’s Green Deal as a growth and decarbonisation strategy aims to make Europe the first climate-neutral continent. However, the shift to renewable energies and green technology depends on access to land and resources. Where are these resources coming from, and where are the land areas needed for these developments? To push for domestic production, these resources partly come from Sápmi, spanning across parts of Finland, Norway, Sweden and Russia. The recent developments illustrated by the cases of Fovsen and Giron show how an EU agenda shapes local conditions and challenges the rights of the Sámi people. Currently, there is no EU internal Indigenous Peoples Policy that addresses the rightsholder perspective in EU policy-making.

The motivation for this paper lies in empirical observations. Recent court cases suggest a tendency that ‘green’ industrial projects aimed at meeting climate targets are ruled illegal and violate Sámi rights.1) Healthy natural environments and land are essential for Sámi livelihoods. Industries such as wind turbines and mining sites are anticipated to solve Europe’s current challenges. However, the so-called green industry is controversial in Sápmi, as it often leads to Sámi losing access to land and water as these land-intensive industries encroach the land, piece by piece. The illegal permit of wind power plants on the Fovsen Peninsula,2) the planned Storlandet wind power plant in Jiellevárri and Suttes municipalities3) or mining in Giron and its impacts on local reindeer herding communities,4) show that current policies, regulations, procedures and practices fail to secure Indigenous People’s rights. The Fovsen-case illustrates that there is no legal certainty on land use in Sápmi, which is becoming an EU concern owing to EU’s demand for energy and minerals. Legal uncertainties affect all actors involved and also the success of the European Green Deal as such. Land and resources in Sápmi play a key role for implementing the Deal’s goals. Still, current EU policies do not sufficiently reflect this dependency nor acknowledge Indigenous Peoples’ challenges. A rights-based EU internal Indigenous Peoples Policy can bridge the gap between the European Green Deal, the Arctic Policy, and the existing external Indigenous Peoples Policy. Although the EU is neither designing the processes nor permitting licences for development projects on Sápmi, it still has an agenda-setting power through developing policy frameworks. We argue that applying a rightsholder concept in EU policy-making can ideally strengthen Indigenous Peoples’ rights throughout all governance levels, reducing legal uncertainties and not least living up to EU’s moral claims.

With this article, we aim to contribute to discussions at the EU level on how to include the Sámi People as the only Indigenous People within the EU into policy-making. Building on our previous work,5) we are relating to different research perspectives, such as the “uncritical embrace of green-energy enthusiasm”6) and the gap on how consultations are actually carried out concerning Indigenous Peoples’ rights.7) Most research on Indigenous Peoples’ rights and participation is conducted in a national/regional context and on local impacts of development projects. Only a few authors and Sámi institutions have linked the green transition and its impacts on Sápmi through an EU perspective.8) Particularly due to the influence of the Green Deal and its policies, we see an increased need to investigate in more detail how Indigenous Peoples’ rights can be better ensured in an EU internal setting to prevent unjust and, thus, unsustainable policies.

Rightsholders in contrast to stakeholders

The stakeholder concept appears to be dominant in the literature and practice of participation of different actor groups in policy-making. Stakeholders are societal actors “who have an interest (a stake) in a specific policy issue [….] companies, NGOs, and individual citizens”.9) Their involvement “is expected to deliver a useful contribution to the policy-making process” through providing specific expertise, improving awareness and support for policies, enhancing legitimacy and building new networks.10) Concerning the Indigenous Peoples’ right to self-determination, however, the stakeholder approach has three characteristics that “risk continued marginalization of indigenous people”.11) Firstly, the stakeholder concept follows an “all-inclusivity” approach treating all actors involved in a participatory process equally. The concept strongly focuses on the economic dimension of development projects. Secondly, through applying an economic focus, “interests can, without great difficulty, be quantified, compensated and weighed against each other”.12) Thirdly, the stakeholder concept implies an ahistorical view on rights, which cannot address Indigenous Peoples’ governance traditions and land uses predating nation-states.13) Stakeholders’ “stakes are typically economic”,14) while the rightsholder concept stresses a socio-cultural and value-driven dimension “associated with the land and land use”.15) By applying a social equity perspective to the case of Indigenous Peoples, the rightsholder concept seeks to address these shortcomings of the stakeholder concept. On that note, several authors16) indicate that the stakeholder concept cannot do justice to the case of Indigenous Peoples’ participation. Indigenous Peoples experience “powerless[ness] in decision-making”17) and dialogues often rather conceal “the vast asymmetry in power and resources”18) between the (stake)holders.

Indigenous Peoples do not have a mere “stake” or only economic interests in a decision, but hold rights codified in international legal standards and national constitutions. Thus, decisions cannot aim at balancing interests between stakeholders. Instead, the specific role of Indigenous Peoples as rightsholders needs to be recognised and implemented through policies, which is emphasised by the International Labor Organization’s Convention No. 169 on Indigenous and Tribal Peoples (ILO No. 169) and the United Nations Declaration on Indigenous Peoples’ Rights (UNDRIP). The stakeholder approach with its all-inclusivity concept, however, features a balancing narrative to find compromises between interest-groups.19) Reindeer herding is often only considered an industry, ignoring the fact that it is a Sámi livelihood carrying culture and language protected under international law.20) Another concept in this regard is “co-existence”,21) which is often used to legitimise “energy or mining projects despite the impacts these have on rightsholders”.22)

With these pitfalls of the stakeholder concept to Indigenous Peoples’ rights in mind, we now analyse the EU Arctic policy and European Green Deal to argue for a rightsholder concept at the core of an EU internal Indigenous Peoples policy.

Alignment of EU Arctic Policy and European Green Deal through an EU internal Indigenous Peoples Policy

In recent years, the EU has become more active in recognising Indigenous Peoples’ rights, which is reflected in, inter alia, the EU Arctic Policy. The EU initially acknowledged the strategic significance of the Arctic region for energy security, shipping routes, and scientific research. Subsequently, in 2008, the European Parliament called for an integrated EU Arctic strategy. This was followed by the European Commission Communication on the Arctic in 2008,23) which outlined the EU’s Arctic priorities. The EU’s Arctic policy update of 201224) emphasised climate change, sustainable development, and Indigenous Peoples’ rights. The policy also stressed multilateral cooperation and the involvement of Arctic states and Indigenous Peoples in decision-making. In 2016, the EU adopted a Joint Communication on the Arctic, building on the 2012 policy and underlined the need to address Arctic environmental and societal challenges.25) The Joint Communication also underlined the importance of promoting sustainable development, supporting scientific research, and respecting the rights of Indigenous Peoples.

The 2021’s update of the EU Arctic Policy26) reaffirmed the EU’s commitment to addressing climate change, protecting the Arctic environment, promoting sustainable development, and respecting the rights of Indigenous Peoples. It also stressed the importance of multilateral cooperation and the involvement of Arctic states and Indigenous Peoples in decision-making processes. The EU Arctic policy from 2021 states for instance that:

The UN Declaration on the Rights of Indigenous Peoples is integral to the EU’s human rights policy. The EU will promote Indigenous Peoples’ rights and freedoms in line with the International Labour Organisation (ILO) Convention No 169, and encourage full consultation and cooperation with Indigenous Peoples, bearing in mind the principle of free, prior and informed consent, before adopting and implementing measures that may affect them directly.27)

Most of the EU’s policy and engagement with Indigenous Peoples globally has occurred via development cooperation, but the EU’s Arctic engagement has given internal Indigenous Peoples’ issues greater attention. Five EU Member States, Denmark, Germany, Luxembourg, Netherlands and Spain, have ratified the ILO Convention No 169, and the EU supported the adoption of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) in 2007 and the Outcome Document of the World Conference on Indigenous Peoples in 2014. In a resolution passed by the European Parliament in 2021,28) the MEPs emphasised “the need to obtain indigenous peoples’ free, prior and informed consent before adopting and implementing legislative or administrative measures or launching development projects that may affect them”.29) Furthermore, the European Parliament calls on EU delegations in the Arctic states to engage in a genuine and inclusive dialogue with indigenous peoples at national and regional level’. The EP supports the EU’s growing acknowledgment of Indigenous peoples’ rights in external policies, but calls, at the same time, for greater coherence between its internal and external Arctic policy with respect to Indigenous Peoples. This call was picked up by the 2016 Arctic Communication.30)

What is missing is a more explicit and structured internal perspective, as much of the EU’s Indigenous Peoples Policy under the European Instrument for Democracy and Human Rights simply does not apply to the Indigenous Peoples within the EU. Given that much of the framework and language for external Indigenous Peoples is already in place, the development of an EU internal Indigenous Peoples Policy and a rightsholder concept could streamline Indigenous Peoples’ rights into EU policies and policy-making. In addition, given the realities and challenges of implementing the European Green Deal, an EU internal Indigenous Peoples Policy based on a rightsholder concept could ensure that Indigenous Peoples within the EU are not left behind in the implementation of the European Green Deal. Although the European Green Deal does not have the Arctic as its primary focus, the policy and its legislative package have regional implications that compete with Arctic-focused initiatives.(Chuffart R, Raspotnik A & Stępień A (2021) Our common arctic? A more sustainable EU-arctic nexus in light of the European green deal. The Polar Journal 11(2): 284-302. doi: https://doi.org/10.1080/2154896X.2021.1978757)) EU’s decisions impact the circumpolar Arctic rather than just the European Arctic. The 2021 EU Arctic policy also calls the Green Deal’s legislative proposals the ‘heart of the EU’s Arctic engagement’.31) The European Green Deal32) includes several initiatives to achieve climate neutrality by 2050 and transform the economy to a more sustainable one. Further, the European Green Deal requires substantial investments in green technologies and infrastructure. However, it demands considerable energy production and consumption modifications, which have social and economic impacts. To meet the goals defined by the Green Deal, Member States must reduce their reliance on fossil fuels and increase their use of renewable energy sources like wind, solar, and hydropower, which increases reliance on mineral and metal raw materials.

As part of the European Green Deal, the European Commission proposed the European Critical Raw Materials Act as a set of actions to ensure the EU’s access to critical raw materials. The proposal states “Projects should also ensure engagement in good faith as well as comprehensive and meaningful consultations with local communities, including with indigenous peoples”.33) An EU internal Indigenous Peoples policy could comprehensively address these challenges with extractive industries on Indigenous Peoples’ land and how engagement in good faith and meaningful consultations should (and should not) look in practice regarding the Sámi People as rightsholders in the EU, which we will discuss further in the following section.

Potential of an EU internal Indigenous Peoples Policy

Coloniality in an EU context is often only understood as a legacy of the EU Member States while the EU itself is framed as a post-colonial project. Following Hansen and Jonsson34) though, the EU needs to address its own colonial legacy and present more critically. Although the authors focus on entanglements between the history and present of EU integration and the African continent, they still hold an interesting angle for the case of the Sámi People. An EU internal Indigenous Peoples Policy could support in addressing colonial legacies internally through strengthening Indigenous Peoples’ right to participate in EU policy-making. Early in the policy cycle process, an EU internal perspective featuring a rightsholder concept in consultation and participation fora could help to counter current dynamics of “judge-made law and only applying law”35) that often only in a last step decide on the compliance of development projects with national and international law. Furthermore, setting a rights-based standard and policy framework at the EU level could also assist in addressing the issue of capacity on the side of Sámi organisations. By including Indigenous Peoples’ representatives, in our case Sámi representatives, early in policy-making processes36) and by facilitating meaningful and rights-based participation, policy outcomes run less the risk of being perceived as unjust and can reduce the probability of cases being brought to court. A relevant angle could be setting rights-based standards in an EU internal Indigenous Peoples Policy on permitting processes that could be implemented at the national level to better ensure Sámi rights to self-determination already at a higher governance level. For instance, the EU could develop targeted guidelines on the implementation of policies in the field of renewable energy and mining, stronger safeguards for EU funding and decision-making in the European Investment Bank and guidelines for Environmental Impact Assessments and Strategic Environmental Assessments addressing Sámi rights. Moreover, the Commission could establish dialogues with the Member States to raise awareness on Sámi rights to land and resources.

Against the backdrop of insights and experiences from the local, regional and national level regarding ‘dialogues’,37) these dialogues need to acknowledge Indigenous Peoples as rightsholders different from other actors to better protect Indigenous Peoples’ rights to self-determination. Although the EU neither designs the processes in the national context nor permits licences, it still has an agenda-setting power using “moral discourses of climate change mitigation”38) through developing overarching policy frameworks. Thus, applying a rightsholder concept in EU policy-making could also strengthen Indigenous Peoples’ rights throughout the governance levels, underlining the relevance of an EU internal Indigenous Peoples Policy as a framework.

However, currently the EU policies concerning the Arctic and Indigenous Peoples cannot achieve their full potential on both the goal of decarbonisation and on respecting the rights of Indigenous Peoples. Through an EU internal policy, rights cannot only be protected but can thrive. Such a policy cannot only support rightsholders but also stakeholders, Member States and the EU in fulfilling the legal commitments and in actually acting on Indigenous Peoples’ rights and knowledge systems. This also includes acknowledging that consultations can lead to a decision not to proceed with development projects, securing space for both Indigenous livelihoods and other developments. EU decisions, even if applied nationally, regionally, or locally, strongly impact the Sámi People. Due to the Sámi’s rights, including the right to self-determination, which need to be ensured by all actors at different governance levels following inter alia ILO No. 169 and UNDRIP, not only the nation-states but also the EU needs to consult with the Sámi People on issues that affect their right to self-determination. Current examples from Sápmi demonstrate the significant impact of EU policies on Sámi livelihoods and the need to properly protect Sámi rights to self-determination under the green transition. Sámi rightsholders all over Sápmi, whether in Fovsen, Giron or elsewhere, could be better protected by streamlining Indigenous Peoples’ rights into EU policy-making. However, such an internal perspective should not be considered a panacea. We understand it as a first but relevant step because it could link existing policies while stressing a rightsholder concept. An EU internal Indigenous Peoples policy could also contribute to addressing the EU’s colonial legacies and design more meaningful dialogues with Indigenous Peoples beyond the case of the Sámi people.

Conclusion and Outlook

In this article, we presented the rightsholder concept as a potential tool to streamline Indigenous Peoples’ rights into EU policy-making. Court cases and insights from research with Sámi representatives who participated in consultation processes at lower governance level show that the stakeholder concept applied to participation does not, in practice, protect the rights of Indigenous Peoples. Sámi representatives do not assess “dialogue” processes as meaningful, which in many examples leads to so-called judge-made law when rightsholders go to court. Dialogues remain superficial, one-sided and often do not take into account Sámi Indigenous knowledge.

For nation-states and the EU as a whole, these legal uncertainties can hamper the implementation of the European Green Deal. For the Sámi People, these legal means are linked to long processes that decide if and how Sámi rightsholders can continue with their traditional livelihoods. We identify an EU internal Indigenous Peoples Policy as relevant for applying a rightsholder concept in consultations and other forms of participation at the EU level. It would help the EU to address its colonial legacies and could even influence through its framework setting power other governance levels by establishing rights-based standards at the EU level. Ultimately, it is in all actors’ interests to ensure such legal certainty and follow laws protecting Indigenous Peoples’ rights to self-determination. An EU internal Indigenous Peoples Policy could facilitate more just and sustainable policy outcomes.

Anja Márjá Nystø Keskitalo (she/her) is an Advisor at the Saami Council’s EU unit, and holds an MSc in Geography from the Norwegian University of Science and Technology. Jacqueline Götze (she/her) is a Political Scientist and Researcher in the Research Programme „Inter- und transnational Cooperation“ at the German Institute of Development and Sustainability (IDOS).

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