Procedures for consultations with indigenous peoples - Experiences from Norway
These procedures pursue a “partnership approach” with a focus on both process and outcome, which could eventually minimize disagreements while retaining the State’s final decision-making powers. Thus, they will increasingly facilitate a partnership approach between
State authorities and the Sámediggi. It is still the State, however, that has the legal competence and responsibility for making the final decisions (Norway, 2006: 5).
The 2006 guidelines provide further orientation on the procedural requirements by stipulating
that, in order to comply with the duty to consult, the parties must be informed of each other’s
opinions and assessments. For its part, the State shall ensure that its interests and views
are communicated and understood, and that it has understood the views of the Sámediggi.
The Sámediggi has a corresponding responsibility to convey its views. Where the parties do
not agree, it is further required that they assess which partial solutions can be adopted and
changes made to the original proposal, in order to bring the parties closer together.
The guidelines further indicate that, if needed, more consultation meetings should be conducted and the cases should not be concluded as long as the Sami Council and the State
assume that it will be possible to reach agreement. If the State and the Sámediggi do not
succeed in reaching agreement, a clear justification of the parties’ diverging assessments
and views must be given.
In this context, the guidelines emphasize the need for the State authorities and the Sámediggi
to discuss their preliminary positions. This also means that consultations can be conducted
before matters are finally cleared with other concerned State authorities (Norway, 2006: 11).
2.4. Procedural issues
Convention No. 169 underlines that consultations should take place prior to decision-making,
for example when considering legislative or administrative measures (Article 6, paragraph 1
(a)); prior to the exploration and exploitation of sub-surface resources (Article 15, paragraph
2); when considering land alienation or transmission (Article 17); and prior to relocation
(Article 16).
The 2005 working group establishes that the duty to consult applies to all stages of the
proceedings of a given case (KRD/Sámediggi, 2005: 10). Consequently, the guidelines
establish a regular dialogue mechanism for consultation, alongside procedures for specific
consultations.
The 2005 consultation procedures provide the following general provisions for the consultation processes to be undertaken:
After the Sámediggi has been informed on relevant matters, it shall inform the relevant
State authority as soon as possible whether further consultations are required.
The Sámediggi can also independently identify matters which in its view should be subject
to consultations.
If State authorities and the Sámediggi agree that further consultations shall be held on a
specific matter, they shall then seek to agree on a plan for such consultations, including
the dates and venues for further contact (e.g. meetings, video-conferences, telephone
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