 Okay, so this morning for those of you who weren't here or those of you who just wanted back for much, this morning of course we heard about the international experience comparing contrasting Australia with what happens in other parts of the world, how other countries have grappled with the idea of integrating indigenous political governance within their own political structures, with some specific reference then as well to Canada and New Zealand. We heard about the impact of treaties in North America, in New Zealand, the role of the of reserved seats in New Zealand and some of the the ongoing challenges too of maintaining those treaties and maintaining the the efficacy of those treaties. Now we're going to turn to the question of how First Nations people in the USA and Scandinavia fit into these legal structures and governance of their countries. The first speaker is Dali Sambodoro, the professor, Department of Political Science University of Alaska. Thank you. First of all as I said earlier I'd like to acknowledge the traditional owners of this unceded territory as well as those of all other Australian Aboriginal and Torres Strait Islanders across this this whole nation as well as indigenous peoples elsewhere. I thought that I had 20 minutes it's been trimmed down or I was in error and I have 15 minutes so I'm gonna fly through and probably cut out bits and pieces here but I think what's important to say at the outset is that what I have to say is really not important. What I think Aboriginal and Torres Strait Islanders have to say about this entire question is what is important. They are the self in self determination. Indigenous peoples have understood the concepts of sovereignty and self-determination and though we didn't have words to express them we understood what it meant to live by our various different values and customs and practices and institutions and by our own cultural protocol. We had highly sophisticated forms of social control. There's no question you can speak to any any Indigenous person and they know their place in their society and they know quite a lot about this sophisticated form of social control. Much of this is embedded in our languages and our again protocols, customs and practices. We have also understood forever that all of these things are interrelated, interdependent, indivisible and interconnected. I kind of chuckle to myself when we hear the United Nations and representatives there talk about sustainable development goals. Look at Indigenous peoples and the concept of sustainable. We are the living evidence of sustainable development yet at the same time they have tried to push us out of this discussion by not directly and specifically acknowledging Indigenous peoples but the attempts to lump us into vulnerable groups. Certainly we're vulnerable but here it's disrespectful not to refer to us specifically as Indigenous peoples. I'm going to jump across huge chunks of history to try to make the points that I have here as far as the situation in the United States. I'll try to focus more specifically on the situation in Alaska but then across the the circumpolar Arctic. I am a nook woman. My people are Inuit from the Russian Far East, Alaska, Canada and Greenland so I'd like to give you a bit of a glimpse as to our experience in the Arctic region. In the United States Article 1 Section 8 of the Constitution reads the Congress shall have the power to regulate commerce with foreign nations and among the several states and with the Indian tribes. We heard reference to Section 35 of the Canadian Constitution earlier. Well this is language within the United States Constitution that allows a pathway toward engagement with Indian people but we know all of us in the room acutely aware of the colonial history of the United States. The Indian Wars as was mentioned earlier and also the fabrication of legal doctrines to legitimize the taking of land and to entrench superiority in all of the subsequent policies that have been handed down through the decades within the United States. The era or the subsequent policies of the era of treaties, the martial trilogy of cases which did have their pros in terms of recognition and an affirmation of sovereignty of Indian tribes, the validity of treaties, the land boundaries that were legally legitimate, the reference to domestic dependent nations which again sets apart indigenous peoples. There were a number of other things that emerged from this martial trilogy of cases all of which I can't go into right now but again this was this was a part and parcel of the development of the various different legal doctrines that would subsequently begin to further regulate Indian people, indigenous peoples in the United States. We also had the Indian Reorganization Act of 1934 which was amended in 1936 to apply to Alaska Native people meaning the opportunity for some tribes to organize themselves as traditional councils or as tribal governments. I'll say a little bit more about that later. Later we also had Public Law 280 which is shorthand for a law that essentially prompted rapid assimilation that was put in place in 1953 and has had various different consequences for Indian people. In Alaska it essentially handed over civil and criminal jurisdiction over all Alaska Native people. There are elements of Public Law 280 that are actually much more constructive and useful but in my view because of the lack of recognition of and respect for the rights of Alaska Native tribes the state of Alaska has chosen not to trigger any of those useful provisions that would allow for full faith and credit for example between the state courts and the tribal courts that have emerged since that time. In addition we've had the policy of termination and relocation. We've also had the policy surprisingly under President Nixon of the Indian Self-Determination and Education Act but essentially all of these various different policies have been imposed upon Indian people throughout the United States including Alaska Natives and certainly not done in a way that was in partnership especially in the way that we're talking about the opportunity for reorienting and reconceptualizing the relationship between the Australian government and Aboriginal and Torres Strait Islanders here. Essentially I think it has resulted in just a series of policies that allow for the prescriptive regulation of Indian tribes nations and peoples throughout the United States including Alaska and these impacts of the policies but colonialism overall has resulted in massive loss of lands territories and resources. If one were simply just to look up on Google the Indian territory prior to contact in contrast to the small checkerboard bits and bobs of land across the United States one can see that we are talking about massive land loss. It's also contributed to poverty to devastating socioeconomic conditions issues related to water, sanitation, energy, environment, resource development, a whole range of things. You should know that in the United States there are 567 federally recognized tribes. Well if anyone were to study the right to self-determination and understand that the right to self-identification is an essential element you could see that there would be a problem with federally recognized Indian tribes. I don't have the time to go into just a lecture alone on that particular issue but of those so-called federally recognized Indian tribes 229 of them are in Alaska so quite a large number of them and they range from size to a hundred or less to you know four, five, six thousand individuals. The Assistant Secretary for Indian Affairs in the United States and stunningly and inupiat woman from Barrow, Alaska or now referred to as Uttayavak, Alaska just last week was confirmed as the Assistant Secretary for Indian Affairs in the Trump administration Tara Sweeney. The Assistant Secretary for Indian Affairs publishes a list of the so-called federally recognized Indian tribes. I'll just offer the personal note that my husband is enrolled to a tribe that is recognized by the state of North Carolina but not recognized by the federal government so I have access to health care but he does not. Just one small footnote that gives you a little bit of a glimpses to the impacts of federally recognized Indian tribes but the Assistant Secretary in the preambular language of this listing of federally recognized Indian tribes states the listed Indian entities are acknowledged to have the immunities and privileges available to federal recognized Indian tribes by virtue of their government to government relationship with the United States as well as the responsibilities powers limitations and obligations of such tribes and that language may seem pretty broad but it takes close inspection as to what powers they actually have the extent of their jurisdiction certainly in the case of Alaska that we'll hear from Terry about how it's operationalized for Indian tribes and other parts of the United States so they have the power to determine their own governance structures they power to pass laws to enforce laws through tribal police and tribal courts they can engage in direct contracting to provide health care and social programs education workforce development energy and land management building and maintenance of infrastructure including roads bridges public buildings housing etc so the present capacity of tribal governments in the United States is fairly extensive in terms of looking after some of the basic day-to-day needs of their membership whether it is on reservation land or off reservation land they opportunity to have constructive relations with states is also afforded I mentioned full faith and credit between for example tribal courts and the state court likewise for tribal policing having a collaborative relationship with adjacent state lands some tribes enjoy this the Navajo Nation is probably one of the most developed in this regard as far as full faith and credit and cross deputization of police forces and so forth in Alaska though we've had a very very different history and in large part I mean it goes all the way back to the Treaty of Session of 1867 but as I mentioned earlier the amendment of the Indian Reorganization Act in 1936 to apply to Alaska Native tribes and my mention of this is to underscore the fact that traditional councils and tribal governments were in place as in the same way as I mentioned social control and our various different customs and practices and institutions that predated the Treaty of Session that actually predate the Indian Reorganization Act but nevertheless it was afforded under federal law for tribes in Alaska to organize themselves under the IRA Act. Statehood threw a big monkey wrench into things as far as our relations and really crystallizing the government to government relationship that is enjoyed by many other tribes in that what we refer to as the as the lower 48 so the Statehood Act was problematic for us as Alaska Native people but even more problematic was the 1968 discovery of oil on the North Slope of Alaska and where there's oil there's darkness in terms of the dark side of development and this triggered a debate as to well there was a prior debate excuse me a prior debate about land ownership and title to land the Inupia of the North Slope screamed trespass that the oil industry was trespassing on their land all of this the short story is all of this led to well if we had threatened litigation we had a strong legal leg to stand on we hadn't ceded territory we hadn't signed a treaty we hadn't entered into armed conflict with the settlers we had a pretty strong legal case industry the state government and the federal government in my view recognized that they had no legal leg to stand on in terms of the Aboriginal right and title especially of the Inupia of the North Slope where that oil happened to be and it is not a coincidence that discovery of a resource or need for an extractive industry prompts laying claims agreements we have seen that across the north and elsewhere so what ended up happening was a unilateral act of Congress the Alaska Native Claim Settlement Act of 1971 was signed into law by President Nixon and it was thought that reservations were something for the lower 48 that we all the negative connotations of a reservation were not wanted in Alaska but I think it was a little more devious and nefarious than that meaning that others at hand always wanted to ensure that they could access the resources of Alaska the corporate structure that was created by this land claims settlement and I say settlement not agreement a land claim settlement as though it's done period over it's been settled put into place the corporate structure corporate framework it had a lot of very complex even though it was a short piece of legislation probably only 18 pages or so it had a complex series of provisions related to it am I really out of time oh my gosh okay all right well I didn't even get a chance to talk about the comprehensive land claims agreements in Canada as a comparative analysis to the situation in Alaska hopefully in the round of possible questions I can illuminate the important elements of of those comprehensive land claims agreements because they are dramatically different and may be instructive and useful for the conditions here in terms of an agreement in principle a negotiated a negotiated agreement as well as elements like a referendum so the substantive and the procedural aspects are dramatically different and I'm sorry I ate into your time fellow panelists member of the United Nations Permanent Forum on Indigenous issues good afternoon everyone everybody doing okay yeah good good I want to acknowledge I hope that I pronounced this correctly Nambri the Nambri and the Nunawal yes thank you and our host the ANU for the invitation to participate in this important conference I will be speaking to you today from my experience as governance I've served my nation as a secretary of state and I was elected to serve on our tribal council and was honored to be selected by my council as the first woman to chair the tribal council that was in our whole history so and then I just wanted to just kind of to reiterate what daily had said it is impossible to talk about the legal structure and the governance of American Indians Alaska Natives in the course of 15 minutes typically that takes at least a semester and some extra classes so anyway daily I think had set up really well the the foundational pieces which is the commerce clause that the let me just start in the US the first nations and their governments predate the United States constitutions the first nations are the first sovereigns of the land the United States Constitution added itself as the second sovereign and the states the third sovereign after the Revolutionary War the new nation we know as the United States of America was settling into its governing structure that is framed in the US Constitution American Indians were written into the document in three places the apportionment clause which was using population as the basis of apportioning the seats of the house of representatives and the tax liability among the states excluding Indians not taxed and maybe there's a legal scholar here who can tell me when they decided to tax Indians because I pay income tax and that that hasn't been excluded from the Constitution just saying the Indian commerce clause that daily had mentioned Congress shall have the power to regulate commerce with foreign nations and among the several states and with the Indian tribes and the treaty making powers of the president which is of course subject to the advice and consent of the Senate over the 242 years the United of United States existence the body of law that provides the legal framework for Indians and Indian nation is called federal Indian law the context within first nations people and their governments exist as the federal law the US government recognizes that first nations are pre-existing sovereigns in these three provisions of the US Constitution the federal government retains its authority in dealing with with Indians however in more recent years some federal laws require that tribes and states negotiate over certain issues like gaming alcohol things like that so the US continued the British policy of treaty making until 1873 when congress ended the treaty making period the nature of the relationship of Indian nations and the US government is a political relationship nation to nation it's not a relationship that is based on race and I just want to say to you all that one of the things that I was reacting to in the pre-conference documents was the issue of the talk about race and as I've sat here in the the precession we had yesterday and the today last night today I now understand why the race why why this conversation is kind of starting in the race with the race issue but my hope is that that the that the that you all will come to some agreement about moving that shifting that over to a political based relationship because I think that that is the proper way to begin this conversation there are many federal statutes and case law that forge our federal law system and I want to highlight a couple of the statutes that point to indigenous governments within the legal structure of the US one was the Indian civil citizenship act that was passed in 1924 which granted full US citizenship to indigenous peoples of the United States we didn't ask for that they just did it and they didn't ask us they just did it I have a little anecdotal story that I want to share with you I do a lot of work in addressing violence against women and was involved in the passage of the violence against women act in the United States since 2000 one of the one of the stories that was shared with me was that when the when the citizenship bill was being presented the suffragettes really opposed Indian citizenship and I was rather appalled by that but once I found out why it made perfect sense the women in the state of New York primarily which is where the suffragettes were at understood because they had relations with the indigenous women of the air court the six nations and they understood that once Indians became citizens within the United States construct those women would not have the political power that they had prior to being citizens of the United States and so it really causes me to think you know you have to look twice at history sometime to kind of see what's really being done there and especially since I didn't live that experience that was something that was really important for me to know and then of course so moving on there the Indian Citizenship Act was really enacted partially to as recognition of the thousands of Indians who served in the armed forces during World War one one of the seminal federal laws passed to address first nations governments was the Indian Reorganization Act which Daley had mentioned and it's federal legislation that deals with the status of Native Americans the intent was to reverse the assimilation as policies that had resulted in considerable damage to Native American cultures and to provide a means for American Indians to re-establish sovereignty and self-government to reduce the losses of reservation lands and to build economic self-sufficiency the act also restored to Indians the management of their assets land and mineral rights and included provisions intended to create a sound economic foundation for the inhabitants of Indian reservations the law did not apply however to hawaii alaska and oklahoma and oklahoma were added under another law in 1936 okay talking about modern tribal governance because there's just the weight of that of all of the law is just daunting the governance structure of indigenous nations in the united states is primarily based on a constitutional model that may include aspects of their traditional governing structures some indigenous government governments organizations are rooted in their treaties others are organized under the indian reorganization act or by specific executive orders or specific federal statutes still other tribes govern themselves by traditional councils that are organized under their self-determination not a treaty not a IRA the federal or the state authorities the federal government recognizes 567 tribal governments my tribe the eastern band of Cherokee Indians is a federally recognized tribe pursuant to the IRA the Indian Organization Act as the U.S. military rounded up the population of the Cherokee Nation for removal in the 1800s to the indian territory in oklahoma my ancestors hid out in the mountains and after many years began organizing themselves and forming our government in the meantime our ancestors were able to obtain and cobble together their deeds the deeds to the land that they had and submit them to the federal government thus creating federal trust lands of 56,000 acres i don't know how to translate that to hectares or whatever the unit of measurement is but from an estimated beginning of about a thousand people in 1889 my tribe has a current population of over 16,000 members were considered kind of a medium tribe because the big tribes are really big and the small tribes are really small so our organizing document authorizes a legislative branch or tribal council an executive branch or principal chief and vice chief we are elected they are all elected positions of the tribe our initial economic resources were based in tourism we are located at the southern corridor of the great smoky mountains national park which estimates over 10 million visitors a year and i'd love for you to come visit us anytime in 1997 the tribe created a casino enterprise that has become our primary economic engine our tribal government is the actual government of our towns and communities we provide the basic needs of our people and then some housing water and sewer and roads infrastructure health education police fire emergency medical services tribal court prosecutor jail human and family services recreation and other economic enterprises the ebci or eastern bancherki indians is a founding member of the united south and eastern tribes and of the national congress of american indians which is the oldest and largest indian organization in the united states this is the piece that i really wanted to talk about which is national organizing and legislative strategy tribal leaders organize themselves nationally and regionally also on uh also on circumstances they hold in common for an instance there's a group called the council of large land-based tribes so that those tribes that have large land bases get together and talk about the issues of concern to them there's the council on energy resource tribes people the tribes that have resources minerals and things that they are oil that they are managing the national ending gaming association which i think is self-explanatory and then the intertribal timber council which essentially is a group of the foresters and the people who are concerned with natural resources um i wanted to just kind of say that when i when we were organizing to get the violence against women act passed um one of the things that we wanted was jurisdiction the issue that we had was that um non-indians would we didn't have jurisdiction over non-indians tribes did not have jurisdiction over non-indians and when non-indians would come on to our indian lands and marry or live with some of our women sometimes they would beat them up or sexually assault them and we did not have the ability because of the way the federal laws written to redress those perpetrators and so it took us about 10 years but we were able to organize ourselves from the grassroots to be able to push not only to push this legislation through and how we did that was by organizing ourselves and our allied organizations our sister organizations and brother organizations who shared that same thing that thing in common the violence against women act they knew what we wanted they each each organization has a different piece of something that something special that they want and so we organized with them the other organizing that we did because it's grassroots was we organized the tribal governments as well so we created uh we asked the national congress of american indians we asked for a resolution to be passed they passed it they supported our work and what they did was they created a task force within that organization so that we could report back to the membership of the tribal leaders okay then what happens is over the over the years we just kept doing our work kept being involved in national legislation whether it was the violence against women act or the family violence prevention services act these are all federal laws that protect and give services and resources to victims to crime victims and then what we came we wanted jurisdiction to be able to address the perpetrators of domestic violence on our tribal lands and so we had to change several federal laws that dealt with crime in indian country and essentially dealt with the tribal law and order act that made those structural changes within the united states code and then we were able to push for the limited jurisdiction that we were able to get under the valla now that was not all that we wanted but it was what we could get and let me tell you we had one heck of a fight over that so we lobbied like crazy to get that done and one of the things that we wound up bumping up against was the racism that was within the congress and its staffers we had to essentially just stand our ground there's a really long story that i'd love to share with you but i have less than a minute and but i just want to say that in the end we were successful only because well before the end congress was getting ready to go out a session they they didn't pass the bill and they came the congressional members came to the national organizing that we had our group and said we'll pass this law if you get rid of the indians the immigrants and the gays and they asked them what do you want to do and so of course they turned to us and we said look we don't want to stop you guys from getting the resources that you need for your communities but if you if it's any way possible and if you can please stand with us and they did because we had a long-standing relationship with these organizations we stood with them on a previous issue and so we asked them to stand with us they did congress it was a stalemate they went out of session and then the first bill that was passed in 2013 was the violence against women act and it had all the provisions in it and we got our limited jurisdiction thank you thank you terry next is elsa greta Broderstadt the professor at center for sami studies at the university of norway thank you good afternoon first of all i will pay my respect to the non-naval and numbery people and to first peoples across australia also thanks to the australian national university for being invited to attend i'm honored and grateful for being here my task is briefly to introduce you to the political strategies in indigenous sami norwegian state interactions i know i should have have the picture of the sami parliament but those of you who have the app can follow the powerpoint the sami parliament is the core of the sami political system and has created a room or maneuver for operationalizing sami self-determination what emphasizing is that we in general talk about a non-territorial model of indigenous self-determination without the system of reservation reserves or defined territories but on the other hand a strong emphasis on the traditional sami settlement area which constitute 40 percent of mainland norway is at the core of the sami political project the sami have as indigenous peoples all over faced a long period of official assimilation where the sami culture and languages were regarded as backwards and worthless the policy starting in the mid-19th century lasted for more than 100 years and was inseparable from the emergence of the modern nation state such ideas do not necessarily disappear even thought public policy changes but today the nation states recognize some basic principles related to the sami as an indigenous people and this change starting with severe conflicts followed by new political and legal arrangements new mechanisms of sami state interaction and enhanced institutionalization is my topic here and the time does not allow me to compare the legal basis status authority and mandate of the three sami parliaments but it's fair to say that the actual influence of the norwegian sami parliament in relation to national political institution is more comprehensive compared to the two nordic siblings so i will focus on the norwegian side of sami the samis is the indigenous people of the northern part of fenoskandia and kula peninsula we estimate that we are all together between 80 and 100 000 and approximately half of us live in norway we compose joint culture and linguistic communities across state borders and these connections are rooted in ancient customs and historic rights today more or less and knowledge by the nation states despite state borders dividing the sami traditional lands sami organizational cooperation has a long history the more modern history accelerates with the work of the nordic sami council today the sami council from the mid 50s and onwards and i also had a nice picture of a young sami activists it was a picture from 1974 taken in port albany in canada where the sami were part of establishing the world council of indigenous peoples among others ulehandic maga attended and he later became the first president of the sami parliament and this early engagement became crucial for the building of a sami political agency needed for what was was was to come and that was the aster conflict during the 1970s and the beginning of the 80s a conflict culminated over the building of a hydro-elective power station on the aster river in the county of finmark in the northern most in norway demonstrations civil disobedience and a hunger strike resulted in a national and international spotlight on norway's dealing with the sami due to protests spearheaded by the sami political movement in alliance with the environmental movement it became impossible to ignore the sami presence and what happened paved the way for a new era and the turn of the tide the power station was built but it's generally held that the sami lost the battle but won the case in 1980 in the shadows of the actions the government appointed a sami rights committee mandated to detail questions regarding rights of land as well as issues of more political character the most prominent outcomes resulted in the sami act 87 a constitutional amendment 88 and the establishment of the sami parliament in 1989 adopting the sami act in 87 the national parliament recognized that the sami is a people on their own with a continuous historical connection to the area they live in and shall exist as a people also in the future and this recognition and commitment was reinforced by king haral in 1997 when he opened the third sami parliament and acknowledging that the state is founded on the territory of two peoples the novigens and the samis and these principles of state policy conditioned an understanding of the limits of majority rule as applying to state policy towards indigenous peoples as permanent minorities and this is the point that was addressed earlier today in the first session and also in the hearing while this was a domestic and legal and political development it's important to emphasize how international law has framed the policies towards the samis article 27 of the ccpr played a significant role during the sami institutionalization process in the late 80s in maintaining the state's duty to actively contribute to develop the material basis for this culture the implication of the novigen ratification of ilo 169 in 90 discussed during the 90s resulted in an emphasis in the 2000 on evolving constitutional practices and currently the right to be consulted is becoming statutory with article three of andrip as a core aspect and foundation of interpretation and that's the point i will return to but one additional comment on the constitutional recognition which was raised as a public claim by sami organizations in the late 70s in the in the 1980s arguments such as being conscious about the past as a condition for the future the authorities most solemnly commitment and a barrier towards policies impairing sami culture were brought to the table by the sami rights committee when the national parliament in 88 adopted the constitutional amendment on the state's responsibility to ensure that the conditions prevail to enable the sami people to maintain and develop its language culture and way of life the century-long official assimilation policy with its impacts played a significant role as a moral motivation for those MPs members of parliament and also i had a quote here from a conservative from the conservative party referring to the earlier treatments and injustices and the need to restore this and it should be said that all the political parties from the left to the right had heard to these main principles except from the progress party on the far right side and of course there are political disagreements between the parties on concrete sami political issues and also conflicts arise between the sami parliament and Norwegian authorities especially with regard to land rights and natural resource extractions as emphasized by the 2016 report of the special rapporteur on the rights of indigenous peoples but there is also a cross-party agreement on overall basic principles in Norway the sami parliament has gradually assumed a stronger and more independent position as a political body the legitimacy is derived from the sami people through elections so every fourth year the sami who have registered in an in the electoral role based on criteria related to self-identification and sami language elect the sami parliament an important premise for sami politics is the framework of the unitary state however unitary states also fashion territorial responses and several services of the sami parliament are significant territorial in their expression and exercise like for instance matters related to language policies business subsidy schemes and land use planning a side comment here is that the side comment here is that the sami parliament has the authority to object to municipal plans in traditional sami settlement areas where issues of high relevance for sami culture are at stake and the municipalities are also responsible to secure an active sami involvement in planning processes as pointed out in scholarly work the sami parliament in norway has from the start prioritized its relationship with the state not with the aim of separating from the state but to make the state accountable for the consequences of its policy regarding the sami and the former president of the sami parliament svendor ol-nusda said in 2002 the following when the sami digi wants to negotiate with the government authorities our future measures for the sami we won't negotiate ourselves out of norway but on the contrary into norway into the country's governance so that we can take more responsibility for our own future and future sami generation this statement addresses the complex interdependence between sami and non-sami policies and interests also applicable to the development of consultations which has become a main mechanism of interactions between the sami parliament and the authorities in 2005 two years after two years of consultations based on the sami parliament's claim for consultation in accordance to ilo 169 a clear parliamentary majority adopted the fin mark act on the right to and disposition on land and waters in fin mark with support from the sami parliament and the fin mark county council paralleling this the sami parliament and the government entered into a consultation agreement consultations should be conducted in good faith on both part or on the part of both parties and with an objective of achieving an agreement but this does not mean that the sami parliament and the government always agree even if the majority of consultations lead to consensus where they increasingly fail to reach agreement are over issues of resource extractions energy projects in reindeer husbandry areas in 2007 the sami rights committee proposed a consultation act and a few weeks ago the plenary of the sami parliament discussed the draft legislation which is a result of consultations and achieved consensus in debating the new draft legislation undripped is a central to the interpretation on how the right to consultation should be understood and practiced the sami parliament amplifies that the sami have a right to self-determination according to undripped and the article one of the human rights convention the right to self-determination is more than the right to be consulted simultaneously the right to be consulted is a central element in implementing self-determination on areas affecting both sami and other it remain to be seen if the bill turns into law but if it does not only state agencies but also municipalities and county municipalities will be obliged to consult indigenous lands and waters is a venue for clash between traditional use and large-scale economic development this is also the case in sapmi the conflicts are the same as 30 40 years ago and the sami parliament faced several obstacles in their efforts of safeguarding land rights and self-determination there are many setbacks but the dynamics have changed due to changed political and legal frameworks in a sami norwegian context the sami parliament has created a room of maneuver for new decision making by dealing with the state partly as an opponent and partly as a co-player the consultation agreement presumably turning into law the sami language management area the fin mark act the right to object in land area planning all these have been accomplished in dialogue with the with the norwegian authorities a strategy that the sami parliament has applied since the very beginning so the interactions are about coping with conflicts as well as managing cooperation and a necessary premise for this development that i have outlined here is the autonomous role of the sami parliament that they have that they are an independent voice able to shape and make their own policies and integrate this into the political system as a whole and this is not achieved overnight as our president of the sami parliament ai-li keski talo has said sami issues evolve in a generational perspective it can be hard not to see the result of one's own work finally let me once more return to the severe conflicts during the alta era at that time ulehandic maga was the leader of the central sami organization the norwegian sami association he was in a difficult position pushed by his own many who wanted a more confrontational approach and on the other hand he had to keep the door open to the government and couldn't lose sight of the political solutions ahead of him he has said the following about this situation it is easy to take a shortcut and to get stuck as i explained the impatient ones yes those of you working with reindeer's cattle or sheep if we shall manage to cross that mountain the easiest way across try that but you are not guaranteed to succeed but if we take that longer detour around the whole herd will safely pass the mountain and we will reach our destination it doesn't help to get two or three reindeer's or sheep across if the rest stays behind so with those words from ulehandic maga about the critical time in our history i conclude my presentation or logito and our final speaker is matias rn professor of law at the arctic university of norway thank you very much and be reading from the screen i will be preparing this a little bit on the fly and also so for those that were here this lunch session with the with the briefing of the gio and committee you get as i attended if you get some repetitions here but before getting into this presentation then i would as others like to start with express my gratitude through the traditional custodians and owners of this land and thank them for accepting me as their guest here and i also would like to pay just my respect to the elders past present and emerging and me too i like to thank the a and u for inviting me to share some views and experiences at this very important event as mentioned i'm a professor of law at the arctic university of norway in tromsø i also comes from or uracke so i'm a reindeer herding community in northern sweden and what allows me to be here now is that my my brother is there now taking care of my few poor reindeer i have also in addition to law worked relatively extensively in addition to some illegal issues also with some political and policy issues and i guess it's in rather in these two capacities rather than as a lawyer that i speak here today which is not so common and nonetheless i think probably to your benefit uh in the outset uh of this presentation with some experiences which i hope then will assist the our brilliant peoples and other australians in moving forward uh to establishing the right place for the first nations in australia's legal system uh i do um note and have noted got that entrenched in the two days i spent here that an underlying factor for the root causes that give rise to this conference is that the australian constitution was drafted more than a century ago and at time then was held that aboriginal peoples were destined to perish and therefore really needed to be no concern of a constitution and i when i've heard this i know that there's a clear parallel here immediately to the sami experiences because we too the sami were expected to die out uh about a century ago and we were only allowed to pursue our traditional livelihood such as reindeer herding in the belief that those will soon be extinct and for example in a reindeer herding community not that far from my own uh when they were pursuing reindeer herding first uh there was to be farming uh to be established in that area and the the sami people were told that farming is the future and you are the past reindeer herding is dying out you're past the past you might as well quit now and but they stayed on and then come came forestry and the forestry corporation said well you are the past you better move forestry is the future in this area uh there is no forest there now the sami reindeer herders are still pursuing the reindeer herding there finally came my mind and the mining company said the same thing that you are a part of the past you might as well move pack up on your own conditions the mining is the future here now there are no more minerals in the area the mine is museum and a UNESCO historic site and the sami reindeer herding community is still pursuing reindeer there there are still some farmers there but reindeer herding is actually still dominating livelihood in the area so they have sustained or despite all these uh thoughts and predictions that they will perish and so have sami in general and I think there are similar stories from uh more or less any other corner of the world where there are indigenous people and that includes Australia clearly the Aboriginal peoples are here still as well and very vocal as I can see so this fact that the the Nordic countries had to realize that they were wrong that the summer were not going away and this so-called sami situation would not solve itself on its own behalf uh led them to the conclusion that okay if they're gonna be here we better deal with this situation and that has kind of been the starting point on uh laws developing on how the relationship is gonna be between the Nordic countries and the indigenous sami people the realization that the so-called sami situation is not going away we better deal with it and I think that is perhaps the initial and one of the perhaps most important observation if comparing the situation between the sami and the aboriginal I think this very principle fact in the outset that I would hope that Australia would also take lessons from that this issue is not disappearing it's not an issue of whether how or if you're gonna deal with how you find a place for the aboriginal peoples in Australia in the legal system of the country it is when and since people are clearly suffering this with this situation being unresolved uh I my suggestion would be that sooner is probably better than later and that Australia get down to this job now the first lesson learned so to say from from the Nordic context and the sami experience and if or when one now embarks on this road um I have uh gathered uh that a principle issue and a principal option on how to to to start address this issue now is to uh go for some kind of constitutional recognition of aboriginal peoples here and here also we have experience from the Nordic countries and and the sami because I should get addressed also very very soon but let me just say on the whole idea of a recognition in the constitution from a legal perspective I think that makes a lot of sense provided that such a recognition is formulated in a legally relevant manner since by far a constitution by definition is a legal document here here from a legal perspective uh if formal recognition is indeed the aim there is a clear distinction between language that merrily presents a fact and language that presents a fact with a legal consequence for instance a constitutional reaffirmation of the self-evidented fact that indigenous people such as for example the aboriginal peoples were the first inhabitants of Australia uh does not necessarily carry any legal consequences not necessarily it's first and foremost a statement of fact by comparison in norway it's often said although not in the constitution as I will get back to immediately also by public officials that norway is a country founded upon the territory of two peoples the norwegian and the sami so I think a constitutional provision for you consider if you want to go down this path would be uh as the term people has a clear connotation under international law and mainly with regard to the right to self-determination that you wanted to say something that Australia is a country founded upon the territory of two peoples the Australian and the aboriginal and that would in that case have an immediate legal implication uh in in the Nordic countries uh we have not as indicated this exact formulation but the Finnish constitutions says that the sami as an indigenous people and then referred to as an opposite as well as other groups had the right to maintain and develop the language and their own culture so I would uh recognition there of the sami as an indigenous people in the swedish constitution it says the sami people and again distinguishing the sami from other groups and ethnically linguistic and religious minorities shall have the possibility to maintain and develop the cultural societal life and so on and these two references to peoples and indigenous people respectively would imply mean that we're talking of people in with a right to self-determination with all that in place. Another matter is of course whether the uh so I have to wrap up, we'll do that exactly with the what I wanted to finalize with the how question because these are the um uh the constitutional recognition that we have in the sami areas today but these came last the rights that the sami had achieved and that we are to the extent we have them have today came through court cases through protest as Elsie Greta mentioned and and then through legacy matters and these have then subsequently relatively recently uh been uh confirmed in the constitution rather than the other way around it was not so that the constitution came first and then uh legislation was adopted to uh to to to implement the constitutional provision the constitutional provision have been um uh confirmation uh to some extent of what is already there and I think it might be and you that that's of course for you to go to consider might be a challenge to move without having uh taken with some certain steps prior to uh moving for this this constitutional recognition immediately and it was mentioned before if that uh was to be defeated an alternative might be to to start uh with uh legacy to match that what I think would be um a lesson from the the Nordic experience thank you is it yours yeah it's all right thank you Matias um we've moved now to some questions just briefly to pull the couple of of the issues I think that we heard uh raised there together we heard from Dali and Terry talking about the North American experience the United States experience and speaking there about the challenges of sovereignty that pre-exists colonization and how though how that sovereignty can be represented within a nation-state and the limitations as well in that we heard from Dali talking about the problems inherent in federally recognized Indian tribes and how that can lead to its own exclusion uh Terry also talked about the the limitations of the imposition of American citizenship combined with policies of assimilation they also also talked about the long periods of assimilation uh in the Scandinavian countries and the struggle amongst the Sami people there who are rooted in their own customs and language and operate indeed across state borders and how that has led to the establishment of the Sami parliament that uh that sits alongside the sovereignty of those states within which it operates and Matias talking there about that idea of nations being founded on two peoples and the opportunities that may present indeed here in Australia um time is a little bit limited for questions what I might seek to do is if I could have a show of hands and maybe take questions in a bit of a batch but I can take three and then we can we can hear from uh from our panelists anyone yeah Liz first I'll just take your question and then we'll we'll pick up a couple of others and then get a response um thank you very much for the speakers and in fact I think my question might be for any one of the speakers or others um it's consistently being about the history and the issue of the sovereignty of the state and how indigenous peoples have been trying to establish the legitimacy of their own sovereignty um but one of the issues that keeps coming at me when I'm dealing with um indigenous peoples in the pacific region and so on is about decolonization and to me that suggests really that the state itself has to yield rather than create something um additional with the indigenous peoples and that um in Australia I would expect that part of the problem that we have has got to do not just with the parliament but with the judiciary um and I think most people agree that you know in stereotype the judiciary is made up of old white men but um in the high court at least but um I just wonder if um if there's any thought in relation to how states themselves must reexamine themselves and adjust in order for um the sovereignties to uh reach a compatible arrangement I hope that's not too abstract thank you thanks Liz uh any other questions we can take before I put them to the panel yep one over here thanks a bit and thank you very much for your time and um I'm just an observer here today but everyone has mentioned UNDRIP article 500 states that indigenous peoples have the right to participate in the state if they so choose have you chosen to participate in the state and what would be the outcome if you chose not to participate in the state of Norway in the state of the United States are they not then bound to support your road to self-determination with the foundation of the grund norm your ability to create your own laws under your sovereign authority um that's my question thank you and is there one more before we begin an answer yeah I too want to thank the speakers for those presentations I'd like to ask daily Sambodero though if she could just say something of what she sees as the complexities of using the corporate model that emerged under ANKSA as a vehicle for governance and whether or not you feel that's accomplished any of the actual indigenous goals in Alaska as opposed to the goals of the U.S. Congress thank you um we'll start with that that last question actually Dali if you could answer that the the idea the complexities of the corporate model well I think there are a couple of issues related to it first how it was all formulated it's obviously different uh when for example in the Inuvialui final agreement of 1984 which was a negotiated agreement that um they the parties the crown and the Inuit had an opportunity to to flesh out the parameters of the agreement including a corporate structure that the the Inuvialui Regional Corporation essentially but along with the the corporate structure that was created there in addition was a significant affirmation of land rights a significant affirmation of the management and co-management rights of the Inuvialui over their resources also entrenching their traditional economies in terms of their hunting and fishing rights in contrast the Alaska Native Claim Settlement Act purportedly extinguished Aboriginal hunting and fishing rights and as far as the corporate structure is concerned tribal governments across the United States as self-determining sovereign entities can charter a corporation can charter an economic development arm so in the case of ANCSA it was the creation of corporations and the transfer of a title of lands 44 million acres of our whole territory to the corporations if it had been handled in a completely different way rather than a unilateral act of congress I think that it would have been far more acceptable across the board for many Alaska Native people including the the tribal governments in regard to the actual outcomes and and the prosperity of the corporations so the 12 13 technically regional corporations that have surface and subsurface rights to lands it has been hit and miss they they are all afloat but some have gone through chapter 11 reorganization and bankruptcy the probably the most successful is Arctic Slope Regional Corporation and the North Slope of Alaska which that region originally resisted ANCSA and actually right out said no way but they are now the the most profitable they have budgets in the billions of dollars not in the millions of dollars they have over 10 thousand employees across the globe that's at one end of the spectrum on the other end of the spectrum there are small village corporations of which there are approximately 227 the small village corporations that don't have oil and gas minerals timber gravel resources exploitable resources or who choose not to exploit the resources because it's in conflict with their traditional economies that are doing very poorly some have by virtue of all kinds of shenanigans actually have led to wiping actual traditional villages off the face of the earth so that's at the other end of the spectrum so it's it's hard to generalize as to its outcome but for many and I think that the northwest alaska native association or nana that region has enjoyed a very good and constructive arrangement between the regional corporation the village corporations the borough government and the tribal governments and would probably look at that as as an opportunity for for further study in terms of the outcome or the so-called success of economic self-determination that was really within the framework of anxa yeah i could say a lot more about it but i'll leave it at that thanks deli uh terry i'll just go to you on that that first question um that went to the establishment of the legitimacy of sovereignty this idea of decolonization and just how much the state has to yield or is prepared to yield if you could reflect on that with the the uh the united states experience now you mentioned that the first nations people have seen as the first sovereigns of the land and there were treaties at contact uh that still today shape a lot of that political architecture but that question of just how much how much room there is for negotiation that it is not just indigenous people presenting a compromise from their position but just how much room there is or preparedness there is for the nation state itself to yield some of that space well i was going to say that uh lest that question was very abstract um but i think that um with respect to the united states um how that uh might happen um would be i think of um the the country i think would have to look at itself i don't know that uh there would be political leverage i don't know how what kind of political leverage it would take for the indigenous people of the united states to push that question um deli you may have a response to that that is that if you wanted to offer that but at this time i was that's that's where i was that's where i'm at i was focused on this gentleman's question yeah yeah i'm i'm i'm going to come to that yeah to what extent do treaties themselves daily create the opportunity for that leverage that may ask something of the nation state itself to to yield what otherwise would be an unlimited sovereignty well i think that um if we if we look at the origin and i forget now who who stated it at the outset earlier earlier today and maybe it was patrick that that date as far as being a treaty a treaty nation um and and the source of of international law and the the treatment and treating with uh indigenous peoples i think that that has extraordinary leverage we also heard from our Maori relation about how significant that the treaty actually is so i think going back to its its origins but also the the legitimacy of them in the modern context and that's what i find so fascinating about the examples in canada and section 35 which was raised by um brian in his presentation the the constitutional protection of the rights affirmed within the treaty and then you compound that with the recognition of the legitimacy and the vitality of treaties affirmed in the un declaration of the rights of indigenous peoples in not only preambular language but also in the operative paragraphs the explicit provisions about the relevance of of modern-day treaties and lending themselves to you know the a pathway toward this discussion about decolonization of which i would have to think on that one a little bit more as well because that that entire enterprise will import many many different things uh as far as especially as far as the international arena is concerned and maybe even um potentially a a hot buzzword um in in particular political arenas and no nation of course enjoys an unfitted unlimited sovereignty because there are international checks and balances and negotiations on that as china is no doubt finding out right now in the south china sea for instance whether or not it acknowledges or not that that second question on the united nations declaration of the rights of indigenous peoples matias i'll get an answer from you on this and then i'll come back to you terry on this because i know you had an interest in this question but this idea of not participating in the state and would governments then support self-determination i don't tell you there was a reference to the period of of activism and agitation which led ultimately to the states in scandinavia having to acknowledge that they need to deal with these issues that the sami people were simply not going to die out but in the absence of participation in the state what would have happened and was that ever really an option for sami people anyway well maybe it was at some point but but not recently and the way at this point as the gentleman making the question referred to the the provisions in the declaration it it basically reiterates the position of international law being that indigenous peoples can choose to exercise the right to self-determination through the state democratic system basically meaning that indigenous individuals participate in that system on equal basis as other citizens through voting and standing for election but the declaration underlines that is not the primarily way that indigenous peoples exercise the right to self-determination that is only if as quoted if they so choose otherwise they do that through their own political bodies and those then need of course to be established and exist and that has been the the the strategy of the sami for for some time as else great referred to the sami parliaments and this is a right that indigenous peoples have and if such a body does not exist as it presently doesn't do here unless you get give former recognition to this congress then Australia has an obligation to make sure that such a body is created because otherwise and that goes to the question of sovereignty to recognize the the the right to self-determination of indigenous peoples necessarily implies a transfer of sovereignty or at least the exercises or anything from state institutional body to the indigenous institutional body and again it it is clearly established by international law that Australia has to support the Aboriginal peoples should they choose not to choose to exercise the right to self-determination in the state institution but through their own body Australia is under obligation under international law to support this process and here one can remind you that the Nordic states are not the only ones that have accepted that indigenous peoples have this right and have then assisted in the formulation in that case in the sami parliaments these bodies exist in various formations in more or less every country in the western world and in the latin american world with indigenous populations Australia is really an exception which has not which is yet to support the Aboriginal peoples here to have a body through which the Aboriginal peoples of Australia can exercise the right to self-determination through an autonomous way and which is not simply as australian citizens Terry did you have any thoughts on that at all in the the u.s context and this idea and again i suppose is it different when you have even at the point of colonization you have an acknowledgement of the pre-existing sovereignty of those first peoples what what i was thinking was that the the way that the federal recognition process works in the united states we have situation as daily had mentioned where we have state recognized tribes and there are also tribal organizations that are actually not state recognized tribes but that are seeking federal recognition and so there's there's several different kinds of of those types of entities i would think that the i would agree with i think with matias on the fact that the once the state has the obligation to take a look at that and acknowledge if there was an organization tribal organization that was i'm saying tribal in my own reference but if there was an organization that was choosing to not participate in the state that that they would be that they would organize themselves based on their own sovereignty done yeah i just wanted to say something in in concurrence with what matias has referenced here and hillary charlesworth started a bit of the discussion in her presentation this morning about the the extent to which the government of australia actively influence the content of the un declaration of the rights of indigenous peoples they had in excess of 25 years consistently largely and only because you as aboriginal and tori straight islanders exist in australia they actively participated they brought lawyers from various different departments to quarterback the diplomats so they they heavily influence the the wording of the un declaration and so matias's comment about about the solemn obligation of the government of australia the these this can't be taken lightly and i think that not not only as a matter of customary international law and the right to self-determination as understood in international law but as a general or conventional principle of international law that the government of australia cannot skirt around this particular issue that they do have a solemn obligation they may have offered their public pronouncement of support with the un declaration with some caveats with some reservations or understandings or declarations and as hillary mentioned this morning the process by which it becomes effective domestically or at the national level also has to be short up with the fact that human rights are universal and that the idea that okay well it's not going to have any operational effect here domestically and nationally we have to think about not only their solemn obligations publicly and internationally after influencing it i mean it this may trigger in addition provisions of the vienna convention on on treaties as well not to undermine the content and the spirit of this important international human rights instrument and i think that this is a a significant message that not only Aboriginal and Torres Strait Islanders here need to hear but indigenous peoples generally that these are solemn obligations otherwise you know that what is the human rights regime about so i think that what Matias has hit on is is really an important element to be understood as far as the the un declaration is concerned also just a quick comment we have to move on to the next yeah i just want to go back to the the question about the choice to participate with the state and and clearly yes the Sami parliament has done that done that choice and and that has happened to different stages and i mean they have focused on how to influence the state system how to educate the system and how to make sure that you have the municipalities and the county municipalities on board so they have become important in implementing the policy of the Sami parliament be it language policy health policy whatever that's it's a two-way street could you thank our panel we will do our next session