2. Contents of the consultation procedures
decisions will only arise in exceptional circumstances. In land-use cases [arealsaker], this
may arise in the context of major interventions, such as the development of wind or water
power plants, of the construction of roads or holiday houses. Consultations will not be necessary, however, about individual administrative decisions concerning such matters as logging
licences, etc., made by the rovviltnemndene, or “predatory animal boards”. In cases other
than those concerning land use, it can generally be assumed that there is no duty to consult.
The threshold for consultations in individual administrative decisions may be lower in cases
concerning reindeer husbandry (Norway, 2006: 8).
The duty to consult indigenous peoples in the context of the exploration and exploitation of
natural resources is highlighted in particular in Article 15, paragraph 2, of ILO Convention
No. 169. This is also emphasized in the 2006 consultation guidelines, which observe that, in
many cases which may directly affect the Sami, there may be different interests that are in
strong contrast with one another, relating for example to the exploitation of natural resources
where huge economic interests are involved. It is nevertheless a requirement under the ILO
Convention that consultations are undertaken (Norway, 2006: 7).
The 2006 working group report notes that there may also be a duty to consult when entering
into international agreements and ratifying international instruments which may affect the
Sami directly (Norway, 2006: 7).
2.3. The objective of achieving agreement or consent
ILO Convention No. 169 states that “the consultations carried out in application of this Convention
shall be undertaken, in good faith and in a form appropriate to the circumstances, with the
objective of achieving agreement or consent to the proposed measures” (Article 6, paragraph 2).
In this regard, the 2005 consultation procedures establish that:
The consultations carried out with the Sámediggi, in application of the agreement on
consultation procedures, shall be undertaken in good faith, with the objective of achieving
agreement to the proposed measures (Norway, 2005: 6).
The 2006 guidelines reaffirm the need for consultations to be undertaken in good faith and
with the objective of achieving agreement to the proposed measure. This means that consultations are more than just hearings and that the parties must endeavour, in sincerity and with
fairness, to achieve agreement. It also means that there is a duty to undertake consultations
and to seek agreement even if a State authority deems this unlikely. Under the guidelines it is
not, however, a requirement that agreement or consent is always achieved. The extent of the
consultations to be undertaken in specific cases in fulfilment of the duty to consult may vary.
What is important, however, is that procedures are set in place that provide the Sámediggi
with an opportunity to exert real influence on the process and the result. A simple information meeting will thus not normally meet the consultation requirement (Norway, 2006: 10).
The 2005 consultation procedures further note that:
When necessary, provisions shall be made for further consultations. Consultations shall not
be discontinued as long as the Sámediggi and State authorities consider that it is possible
to achieve an agreement (Norway, 2005: 6).
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