The Sámi are an Indigenous people inhabiting an area in northern Fennoscandia that spans across sections of northern Sweden, Finland, and Norway. They have faced conflicts through historical colonization, especially where the implementation of formal borders has affected their culturally significant practice of reindeer herding. Along with this colonial land demarcation the Sámi are now facing the possibility of physical land fragmentation with “The Arctic Railway”, a project proposed by the Finnish and Norwegian Ministries of Transport and Communications to run from Rovaniemi, Finland to Kirkenes, Norway. This paper will focus on the section of railway that stretches from Rovaniemi to the northern border of Finland. The construction of the railway, while providing easier transportation access to ports in the Arctic Ocean, would have a substantial impact on Sámi land and cultural values. The Arctic Railway has been widely opposed by Sámi peoples and allies with concerns of it interfering with reindeer migration patterns, causing danger to reindeer populations and thereby to the traditional livelihoods of the Sámi people. Other major concerns include risks of damaging fragile ecosystems, and an increase in industrial projects in Sámi land stemming from the railway. In this case study, we provide a full analysis of how these conflicts are being approached by all parties involved, and suggest a possible conclusion to the situation. Tenure agreements and land rights will play a key role in our analysis, as they have a direct effect on how the railway proposal is being politically discussed.
The conflict in this case study occurs where the proposed Arctic railway passes through the Sámi Homeland, impacting the unique reindeer herding practices that are crucial to maintaining Sámi culture. Although the Sámi Homeland traditionally covered a broader geographical range, for the purposes of this study the “Sámi Homeland” will be defined by its current state after the effects of colonization. In Finland, this area is legally recognized as the municipalities of Enontekio, Inari and Utsjoki as well as the district Lapin Paliskunta in the municipality of Sodankylä - see map. According to the Act of the Sámi parliament, 1990 “The Sámi, as an indigenous people, have linguistic and cultural autonomy in the Sámi homeland”.
Finnish Sámi reindeer herders utilize semi-domesticated herding methods where the animals are oftentimes free to roam in the wild for the summer months and, even while the herd is kept together during winter months, the practice involves consistent moves between grazing patches. The tendency for this practice to spread reindeer and herders across wide ranging pieces of land throughout the year is a core reason why a railway cutting directly through grazing routes could have negative cultural, physical, and economic implications in the Sami reindeer herding communities
The Arctic regions’ growing economic potential has been a focus of attention for the Finnish government over the last decade and, as Finland currently holds the chairmanship of the Arctic Council, the idea of creating an arctic corridor has been revived. The railway, proposed to run through the Inari and Sodankylä municipalities in the Sámi Homeland, although fiercely opposed by a number of local and international organizations including Finnish Sámi Youth, and Greenpeace due to its ecological and cultural impacts, has brought the potential for widespread trade and business expansions as well as long term decreased environmental impact. Compared to the current situation where goods are transported by motorized vehicles on highways, a railway connection could potentially cut CO2 emissions and thereby help mitigate climate change. The railway project has the potential of connecting Europe to the Arctic coast and thereby ease the transportation of goods to China along Russia’s Northern Sea Route. In addition, the railway would benefit the transportation of Arctic oil and gas from Russia and Norway to the rest of Europe.
However, negative ecological impacts will be substantial as the construction of the railway would have far reaching effects on the surrounding nature. Accessibility arising from the railway connection might attract additional large scale industrial activities such as mining, thus causing more harm. Wildlife biologist, Nicholas Tyler, from the Arctic University of Norway, argues that a railway running through this area would contribute to the decades-long degradation of habitat important to wildlife populations in the Arctic, such as the reindeer herds managed by the Sámi. Similar concerns were brought up by the president of the Saami Council, Åsa Larsson Blind, when she recently expressed “there is no way for a railway from Rovaniemi to Kirkenes to be built without harming Sámi culture, traditional Sámi reindeer herding and fishing,”.
An industrial project of this scale cutting through important reindeer pastures and migration patterns, calls for Sámi participation in the decision-making process, otherwise it will be a case of violation of international law regarding Indigenous peoples rights.
Paliskunta is the Finnish word for reindeer co-operative and comes from the Sámi word palkinen which means “the restless movement of a reindeer”. The reindeer cooperatives play a significant role in matters of Sámi land rights and tenure arrangements on affected land in this case. The area designated for reindeer husbandry in Finland is divided into 56 Paliskuntas, of which the 13 northernmost are Sámi homeland, which define the legally designated area for reindeer herding, and ensure that their members aren't damaging the land or crossing borders into other co-operatives.
The Railway project has the potential of making a significant negative impact on reindeer pastures as well as pasturage and one precondition of preserving Sámi culture is reindeer husbandry. The structure of reindeer management is defined in the Reindeer Husbandry act, section 6. The territory of each cooperative is defined by the state provincial office. One must be a member of the Association of Reindeer Herding Co-operatives and affiliated with only one co-operative to own reindeer and receive the protections under this Act. Referring to section 4, article 1, one must also be a citizen of a country within the European economic area and have permanent residency in the reindeer herding area to own reindeer. The responsibilities of reindeer herding cooperatives include; managing the matters concerning reindeer herding in its territory and making commitments for carrying out the tasks referred to in the Reindeer Husbandry act.
Tenure arrangements are set out in the Reindeer Husbandry Act under which the right to practice reindeer herding in a specific area of Finland, is protected. The area in which the Sámi people, as well as any other Finnish citizen that is part of a co-operative, can practice reindeer herding, is defined in chapter 1, section 2, articles 1 and 2. This area is comprised of the Province of Lapland, with the exceptions of the towns of Kemi and Tornio and the municipality of Keminmaa and some areas of Oulu (see map, area highlighted in light green). According to section 3, article 1, reindeer herders have the secure right to practice reindeer herding irrespective of land ownership or possession rights in the area referred to in section 2.
In addition, section 2, article 2 of the Act specifies that the area north of the line (see map, area highlighted in dark green) is specifically intended for reindeer herding. Meaning that state land in this area may not be used in any way that can significantly hinder reindeer herding. Considering that 90% of Sámi Homeland is currently claimed by the Finnish state and that the proposed route for the Arctic Railway cuts through the area specifically intended for reindeer herding, this project might have the potential of compromising the right to practice reindeer herding on the affected land. Additionally one exception applies to sections 2 and 3. According to section 3a of the Act, Reindeer grazing in timberline forests is subject to certain restrictions and shall be practised with special care. Additionally the ministry that deals with forest matters can restrict grazing in timberline forest areas if it is estimated that this is necessary to prevent timber from receding.
The Sámi right to develop and self-govern their unique culture and language is recognized in articles 4 and 121 of the Constitution of Finland. Building on this base recognition are a number of legal documents implemented in Finland to establish specific rights and procedures that must be followed by the government when interacting with Sámi communities. Among these documents is an Act of the Sámi Parliament, which has been pivotal in empowering Sámi people and allowing protection of their land and culture. It has allowed the Sámi people to elect a governing body that is able to represent their Indigenous values at national and international levels.
Applying this Act to the Arctic Railway process, section 9 enforces the “Obligation to Negotiate”, which requires the Finnish Government to consult with the Sámi Parliament before engaging in matters that directly affect Sámi cultural practice and ways of living. This obligation is enforced through the Act of the Sámi Parliament in Finland in place of the principles outlined in the International Labour Organization (ILO) convention 169 which Finland has not ratified. It does, however, also note that in the event that the Finnish government disregards this obligation, there is no legally binding agenda to stop them from proceeding. In terms of representation, the Sámi Parliament effectively speaks for all Sámi individuals, those who self identify as Sámi and meet the requirements outlined in Section 3, in political negotiations. Notably, the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) which is aspiration and not applicable in Finnish law articulates in article 32.2 “that states will consult and cooperate in good faith… to obtain their free and informed consent prior to the approval of any project affecting their lands or territories and other resources”. The Akwé: Kon guidelines outlined in the Convention on Biological Diversity (CBD) reinforce a need to identify and listen to affected communities in the implementation of any new project. Regardless of these recommended and accepted obligations, Tiina Sanila Aikio, chair of the Sámi Parliament, expressed that before the Sámi Parliament heard in 2017 about plans to build the railroad through the media, the Finnish government had made no effort to involve the Sámi people in the planning and assessment process of the project.
In analyzing additional administrative arrangements applicable to the Finnish government and other stakeholders in the Arctic Railway project, there are several significant documents denoting the legal course of action. Some areas affected by the proposed railway route are home to species protected through Natura 2000 as part of European Union legislation. As implemented by the Nature Conservation Act (1992) and the Act on Environmental Impact Procedure (2009) this requires several extensive environmental impact assessments and if there be irreversible damage to “the ecological value for the protection of which affected sites have been included in, or are intended for inclusion in” the project cannot be initiated. Additionally, section 4 of the Wilderness Act (1991) prohibits the construction of roads through designated wilderness areas, and one can only assume this also applies to the construction of a railroad. Project planners must also adhere to the land use objectives and regional guidelines outlined in the Land-use and Building Act (2003), which makes special mention of the protection of cultural values and heritage, and the ecological impact of any project proposed. A deeper analysis of the legal power of those in favour and in opposition to the Arctic Railway project is seen below in the power analyses. In the political discussion regarding the railway, the Finnish government is also required to consistently involve Norwegian actors, as the railway will have a direct effect on the proposed expansion of the Kirkenes port in Norway, another substantial project with the purpose of increasing arctic industry.
The recognized affected stakeholders in the Arctic Railway project includes the local residents on affected land, the reindeer herders on affected land, Sámi individuals with culturally and/or physically significant ties to the Sámi homeland, Sámi herding cooperatives, the Reindeer Herders’ Association, the Sámi Parliament, and the Sámi Council. Starting from positions of least power, Finnish Sámi individuals and Inari locals have power in their right to vote in federal elections. Individuals of Sámi heritage also have influence in Sámi Parliament elections and in elections for the Sámi Council representative from the Finnish member organization. Certified reindeer herders have additional power through their herding cooperative. Each reindeer herder has as many votes at cooperative shareholder meetings as he/she has reindeer. These meetings bring light on issues experienced within the community, which may then be brought to the Reindeer Herders’ Association board meetings. Every herding cooperative is part of the Reindeer Herders’ Association and each cooperative has voting power equal to one vote per thousand registered reindeer. Both the Ministry of Agriculture and Forestry and the Sami Parliament have representation in the Reindeer Herders Association board and the Ministry of Agriculture and Forestry will approve by-laws stemming from negotiations as it sees fit. The reindeer herders, their cooperatives and their Association all have the primary objective of protecting their animals from land fragmentation, accident hazard, and ecological impacts that would occur in the implementation of the railway.
The Sámi Parliament of Finland, representing all Finnish Sámi People, has the power to take important matters involving Sámi culture and representation to the authorities, and submits an annual report to the Finnish Government containing significant concerns and proposals. Pertaining to the Arctic Railway, the Sámi Parliament had a representative member on the Joint Working Group assigned to write a final report on the viability of the project, thus Sámi cultural values were directly analyzed in the report. The Sámi Council is a non governmental organization that brings Sámi representatives from Norway, Sweden, Russia, and Finland together to discuss current issues regarding Sámi culture and rights. Every four years the Sámi Conference is held where Council discussions are brought to the table and concluded by the creation of a declaration. The Sámi Council released a statement in 2018 expressing their concerns for Sámi culture related to the impacts of the Arctic Railway.
The legal power of the Sámi Parliament and its supporting organizations lies mainly in the argument that reindeer herding is a significant if not essential practice in maintaining Sámi culture. In reference to the United Nations Declaration on the Rights of Indigenous People (UNDRIP) Article 32.2 and the International Convention on Civil and Political Rights (ICCPR) Articles 1 and 27, in the planning process of any project affecting Sámi communities, the Finnish government is required to consult with Sámi representatives and acknowledge their right to practice traditional culture. For this reason, arguing that the proposed railways’ interference with reindeer herding is impacting the ability of Sámi individuals to practice their culture is deeply rooted in international best practice but has no legal power.
The interested stakeholders in the Arctic Railway Project with a low level of care for the Sámi Homeland include the Finnish Ministry of Transportation and Communication, Confederation of Finnish Industries, potential investors, and the Regional Council of Lapland. Interested stakeholders with a high level of care for Sámi Homeland include the Finnish Association for Nature Conservation, and the World Wild Fund for Nature. However a project of this dimension covers a wider array of interested stakeholders than it is possible to acknowledge.
Finland currently holds Arctic Council chairmanship for 2 years until May 2019. The Arctic Council is a prominent intergovernmental organization in the Arctic region and has been a principal producer of norms since its establishment in 1996. The council shares a common interest in expanding economic opportunities in the Arctic by enhancing accessibility through the Northern Sea Route. The objectives of the Finnish government are to significantly increase Finland’s transport capacity and thereby improve its logistical position and accessibility to the rest of Europe as well as Asia. Through the chairmanship of the Arctic Council, Finland has a strong political position at the moment, which explains why Anne Berner, Minister of Transport has initiated negotiations about the railway at this particular time. Ultimately the government has the political power to force the railway project through, but might face reputational liabilities by doing so.
The Confederation of Finnish Industries has expressed that it is not certain that Finnish industries would use the railway as their primary transport route and does not currently support building the railway line to Kirkenes. The Confederation of Finnish Industries has both political and economic power as the largest employers' association in Finland and therefore represents Finnish businesses on a national and international level as well as in the EU. Potential private investors include representatives from oil and mining industries but they have not been incorporated in this step of the negotiation process. However the capital of these industries has a great influence on the viability of the railway project and might affect the pace of plans moving forward. The Regional Council of Lapland is in charge of the regional land use planning and therefore has significant political power. In the process of creating the regional land use plan, the council is responsible for complying with the themes of the land use guidelines, one of them being ensuring the preservation of areas that are important for Sámi livelihoods. However, the Regional Council has an interest in bringing jobs and industry to the area thereby making their objective multifaceted.
The Finnish Association for Nature Conservation enforces their political power through cooperation with the Finnish government and has strong coherence in the public as the largest non-governmental organization for environmental protection and nature conservation in Finland. The organization also holds power through national and international forums and as member organization and one of the founders of IUCN. Their main objective is to avoid exploitation of natural resources in Northern Lapland and to protect Sámi culture and livelihoods.
Other important stakeholders are Greenpeace and World Wide Fund for Nature (WWF), the latter whose opinion has been included in the final report. WWF made a joint statement with The Finnish Association for Nature Conservation on the Arctic Railway Project and share objectives. WWF is an important stakeholder in international conservation issues, as one of the world’s leading conservation organizations. The organization has access to a wide array of international high-level meetings and forums and can therefore affect policies through lobbying. Greenpeace holds power through activism and lobbying. They have been taking part in local protests, supporting local organizations in their fight for protection of the Sámi Homeland and reindeer herding.
Finally the European Union is a key stakeholder as the Railway project is dependent on its funding. EU is looking for extensions of the Trans-European Transport Network (TEN-T) and the Finnish Ministry of Transport has publicly proposed the Arctic Railway as a potential extension to the TEN-T.
Although the Finnish government has recognized its duty to consult with the Sámi people regarding the planning of the Arctic railway, the extent of this engagement is not yet clear. This conflict depicts an issue within the legal system of Finland, which lacks a uniform understanding of the state’s obligation to consult with the Sámi people in matters that regard Sámi Homeland. Therefore, the success of this project is a matter of reconciliation between national interests and Indigenous rights. By clarifying the content of the obligation to negotiate, the Indigenous rights can be embedded in National interests instead of opposing them. However, if the Finnish government fails to consult with the Sámi people in an adequate and timely manner it will impose difficulties in the development of the project in the future. Several issues have been brought up by the Sámi Parliament regarding the negotiation process. The first being that although the group used English as their main language, there was no interpretation of the relevant documents into Sámi language in the initial phase of the work process. The successful implementation of an FPIC process requires that there be a timely provision of materials in languages accessible to the understanding of the concerned Indigenous people. For future reference it is recommended that any documents related to the planning of the railway project should be provided in the languages of Sámi people in a timely manner. Sámi representation also expressed concern towards the government's disregard of the need to examine the concrete effects of the Arctic railroad on the Sámi. This, again is an issue rooted in poor communication and lack of timely consulting with the Sámi community. The repeated requests for an assessment of the railway’s impact on Sámi traditional knowledge and livelihoods have been ignored or deflected by government actors, causing unrest in Sámi communities, but it seems very possible that the Finnish Government, at this stage of the project, is postponing all impact assessments. This becomes clear in the most recent governmental report on the railway, which ultimately deemed the project “not commercially viable”. According to local news outlets, this conclusion has temporarily halted progression in the plans for the railway, which would explain the government’s current unwillingness to dedicate resources to an indigenous impact assessment. If this is, in fact, the reality of the situation, governmental agencies must communicate clearly and accurately the current state of the railway, giving reason for their continued push-backs of the impact assessment. This communication should come in the form of direct negotiation with the Sámi Parliament as opposed to the indirect sources such as statements reported by the media previously experienced in the process of the project. Not only should a direct communication procedure be incorporated into the Arctic Railway project, but concrete guidelines applicable to all future Finnish Sámi matters should be drafted to be amended in the Act 1026 of the Sámi Parliament. The Convention on Biological Diversity offers the voluntary Akwé: kon guidelines, which, although providing no current legal obligation in Finland, could serve as a template to draft similar guidelines applicable in Finnish context. The current “Obligation to Negotiate” in section 9 of the Act on Sámi Parliament delivers nonspecific and non committal wording that has proven problematic in the case of the Arctic Railway, elucidating the need to improve procedural clarity in future diplomacy.
Finally the question of whether the economic benefits of building a railway through one of Europe’s last great wilderness areas can justify the damages this project might cause to Lapland’s delicate ecosystems and Sámi traditional livelihoods, needs to be assessed. More thorough consideration of alternative railway routes, or none at all, is essential to ensure the project will have a low impact on the Lapland culture and environment.
Proper procedure from this point onward will be to use the offset from the final report to create an action plan in cooperation with affected Sámi stakeholders to ensure that this negotiation can become a representative example for Finland in future negotiations concerning large-scale land use projects that take place on Sámi homeland.
To date, the Finnish Government has shown a poor, but ultimately improving, recognition of Sámi cultural rights and the Obligation to Negotiate. Recognition of Sámi values was present in the Final Report on the Arctic Railway to a certain extent. The joint working group assigned to the report included a representative from Sámi Parliament, and relevant text explicitly mentioned the impact on Sámi livelihoods. The Finnish Act on Sámi Parliament (insert Number of Act, date) came into effect when negotiations with the Sámi Parliament concerning the Arctic Railway took place on 18 January 2018 in Inari. In the report on these negotiations published by the Finnish Transport Agency on 28 February 2018, it was stated that further negotiations and analyses will take place to involve the Sámi Parliament in the Arctic Railway decision making process. Furthermore, the Final Report on the Arctic Railway discusses a letter addressed to the Ministry of Transport and Communications on 12 September 2018, from the Sámi Parliament. The letter expressed concern for the well being of Sámi culture and the preservation of their traditional values in the development of plans to construct the Arctic Railway and requested cultural, social, economic and environmental impact assessments before moving forward. Although the assessment has not yet been conducted, the Ministry of Transport continues to state their intentions to incorporate UNDRIP principles and indigenous question into project discussion. It seems evident through these reports that Sámi voices are valued in high-level discussion, but through an analysis of non-governmental literature, conflicting opinions are brought to light. The Final report (date) mentions Sámi involvement with reference to negotiations commencing in early 2018, but a Barent Observer news article quotes Tiina Sanila-Aikio, the chair of the Sámi Parliament, stating the Sámi Parliament found out about plans to build the railway through the media a year prior in 2017. Sanila-Aikio’s initial frustration with the government’s delayed efforts for consultation was further expressed as she went on to mention that even now, more than a year after the Sámi parliament first learned about the railway plans, the government continues to ignore Sámi questions concerning their rights as Indigenous people. The Sámi Council, in their statement on the Arctic Railway, reinforces this sentiment by articulating the lack of respect shown by the Finnish government for Sami interests in the matter. In terms of following up on the impact assessment requested by the Saami Council, Sanila-Aikio added: “when we demand, unanimously, extensive impact assessments, they ignore the request saying that the time for impact assessments comes later, at some other point”. With the representation of multiple parties in this analysis, the disconnect in communication between governmental actors and Sámi individuals becomes apparent. Sámi concerns regarding land use, resources and culture need to play a more significant role in national decision making processes and referring to the principles of FPIC, it is of utmost importance that the Sámi are given the opportunity for consultation prior to the initiation of land use projects of this scale. Given the course of actions in the process of planning the Arctic Railway it is evident that the Sámi right to prior information has been neglected.
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