(2002) JLP 47: 1-35
INDIGENOUS RIGHTS AND CUSTOMARY LAW DISCOURSE:
COMPARING THE NISGA'A AND THE SÁMI
Tom G. Svensson
In Canada and Norway we are witnessing commensurable processes of social-structural change largely directed towards improving the conditions for indigenous peoples within these nation states. There are parallels in time, scope and objective between the processes affecting the Sámi in Norway and the Nisga´a in northern British Columbia, Canada. In each case Aboriginal customary law, or customary rights, is a significant element both in legal and cultural terms when it comes to attaining and establishing legitimacy for stated claims.
The primary thesis for this inquiry is that customary law is part of culture, not just a matter of jurisprudence. It is suggested that customary law discourse, a topical feature in the continuous process regarding indigenous rights in Canada and Norway, achieves two ends. It offers legitimate strength in the attempt to establish a state of legal pluralism, where state law and indigenous customary law can both play a role in reaching court decisions, and it maintains and develops a significant body of knowledge.
For the Sámi in Norway the period 1979-80 was a phase of confrontation between them and the state government over a hydro-power development, the Alta case. The legal case ended in the Norwegian Supreme Court with the conclusion that the Sámi were unable to prevent construction of the dam, but the court recognized that preconditions of international law could be relevant, and could even overrule state law. The protest actions eventually led to negotiations with the state authorities. These resulted in the second stage, a Sámi Rights Commission appointed by the Ministry of Justice, to investigate all relevant aspects of the issue of Sámi rights. Thirdly, a new research project on Sámi customs and Sámi legal perceptions has been carried out independently of the commission since 1996.
The Nisga´a Final Agreement was completed in 1998, following a long political struggle for recognition of their aboriginal title and of their right to self-determination. Phase I of this involved confrontation through a law suit asserting the Nisga´a Nation’s tribal ownership over the entire watershed of the Nass/Lisims. The Supreme Court verdict in this case in 1973 is considered to be a moral victory, mainly for the Nisga´a but also for First Nations in Canada at large. It triggered a change in federal policy vis-à-vis aboriginal people in Canada, the former assimilationist policy being replaced by a new policy emphasizing land claims settlement regarding all non-treaty Indians. In Phase II, to make the complicated body of traditional knowledge comprehensible for the other negotiation parties, the Nisga´a conducted a Land Use and Occupancy Study. The Nisga´a Final Agreement, the main feature of Phase III, is a formal treaty emanating from the negotiation process. In future Nisga´a self-determination will be governed and influenced by their own Constitution. Through their newly acquired autonomy the Nisga´a are able to give effect to their own characteristic justice to a fairly large extent whenever appropriate.
There are marked similarities in the current customary law discourse of the Nisga´a and the Sámi, although they also differ on some issues. Both are establishing or likely to establish courts of their own, and common to the two nations is customary law as a foundation on which such a justice system is built.