2. Contents of the consultation procedures
[Article 7 of ILO Convention No. 169] does not mean that indigenous peoples have the
right of veto in respect of plans that concern the entire country. It does require, however,
that real consultations be undertaken with representatives of the concerned indigenous
people, which has the right to express its view and to influence the outcome.
The right [of all peoples] to determine their own priorities for the process of development
does not mean that only these priorities should be considered, but this article [7.1] stipulates
that the Sami “to the extent possible shall exercise control over their own economic, social
and cultural development”. When this provision was adopted, it was assumed that the
formulation “to the extent possible” should be interpreted with the flexibility provided for
by Article 34 [of Convention No. 169] (KRD/Sámediggi, 2005: 11–12).
In its Article 2, paragraph 1, Convention No. 169 also expressly requires the Government
to develop “coordinated and systematic action” to protect the rights of indigenous peoples,
“with the participation of the peoples concerned” (ILO, 1989).
The Convention highlights the need for participation of the concerned indigenous peoples.
The working group report consequently notes that it is clear from the preparatory work for
Convention No. 169 that the provisions of Article 2, paragraph 1 are designed to establish the State’s responsibility to develop a collaborative relationship with indigenous peoples
through which such peoples have the opportunity, in an active and systematic manner, to
participate in the work of protecting their rights. This, the report concludes, cannot happen
without effective consultations (KRD/Sámediggi, 2005: 13).
The 2006 consultation guidelines provide for a dual approach to consultation and participation, for example in the context of legislative proposals on which consultations should be held
with the Sámediggi, but go on to stress the importance of ensuring that Sami representatives
can participate in legislative committees on issues of great significance for the Sami. The
guidelines point out that the participation of Sami representatives will not constitute consultations as such, but will mean that Sami interests are considered from the outset and will
hence facilitate the consultations (Norway, 2006: 12).
The link between consultation and participation is also emphasized in the report of the UN
Special Rapporteur on Indigenous Peoples, James Anaya, who notes as follows in his report
about the Sami in the Nordic countries:
Along with effective means of consultation, an essential element of indigenous peoples’
self-determination is their ability to exercise autonomy or self-government over their internal
and local affairs, as affirmed by the Declaration on the Rights of Indigenous Peoples
(art. 4). A common concern communicated to the Special Rapporteur was the limited
ability of the Sami parliaments to act independently and to make autonomous decisions
over matters that concern Sami people due to the statutory parameters of their powers
and functions. The Special Rapporteur understands that increasing the Sami parliaments’
autonomous decision-making power may require some significant legal and policy changes
at the national level. However, the Nordic States, in consultation and agreement with
Sami parliaments, should consider delimiting spheres of responsibility in which the Sami
parliaments could have increased or sole independent decision-making authority, especially
in matters of major importance to the Sami. This should be done along with strengthening
recognition of the traditional decision-making authority of local Sami institutions, like the
siidas (Anaya, 2011: 41).
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