Index

Background Paper 15 1997-98
Indigenous Affairs in Australia, New Zealand, Canada, United States of America, Norway and Sweden

Coral Dow & Dr John Gardiner-Garden
Social Policy Group
6 April 1998

Contents

Introduction
Overview
Australia
New Zealand
Canada
United States of America
Norway
Sweden
Endnotes
Bibliography
Internet Sites

Introduction

In the discussion and debate surrounding the Native Title Amendment Bill 1997 reference is often made to the state of indigenous rights outside Australia and how the situation in Australia compares with that in other nations. This background paper aims to provide a concise summary of indigenous affairs in six countries, including Australia, where indigenous agendas and government responses fall within similar parameters. It hopes to answer questions such as:

• How do countries define and enumerate their indigenous population?
• How much is spent on indigenous affairs and how are the programs delivered?
• What rights are entrenched in Constitutions and what mechanisms are there for political representation?
• To what extent are land and resources rights recognised?
• Which Governments have apologised for past injustices?

The following information aims to be as current as possible, consequently data has been taken from electronic sources, in particular appropriate government Internet sites. These sites and their addresses have been listed and every effort has been made to check the data against other sources, but in some cases it has not been possible to do so.*

International comparisons in the area of indigenous affairs are difficult to make. The nature of the data available and the history of indigenous-non-indigenous relations varies greatly from country to country. Nevertheless, as Australia is not the only country currently grappling with issues to do with indigenous affairs, it is possible that Australia has much it could learn from overseas experiences. The country profiles which follow have been kept brief to assist the reader in easily comparing these experiences. The following overview should further assist the reader.

Overview

Definition and demography

By including self-identification in its administrative formula for defining an indigenous person, Australia is closer to Norway or Sweden than to countries such as Canada and the United States where definitions and access to programs centre on registered descent. The emphasis on registration in Canada and the United States reflects a longer history of federal government involvement in indigenous affairs but has resulted in problems of exclusivity. It is noteworthy that in Australia, New Zealand, United States and Canada the indigenous population is younger and increasing at a greater rate than the general population.

Socio-economic indicators

Indigenous people in Australia, New Zealand, Canada and the United States of America are worse off by almost any socio-economic indicator than their non-indigenous compatriots. However, the slow rate of improvement in health and the increase in mortality for older adults in Australia is in marked contrast to the trends in New Zealand, Canada and the United States of America where life expectancy gaps have been reduced to three to seven years.

National expenditure and compensation

The national government expenditure on indigenous affairs which has been identified in this paper (1) is, as a percentage of GDP, higher in Australia than in all the other countries except Canada. This may, however, only reflect the greater accessibility of Australian data to the authors and the differences between countries in methods of identifying such expenditure. For example, New Zealand's identifiable expenditure does not include programs run by mainstream agencies. Similarly, in the Scandinavian countries expenditure on social and physical infrastructure in predominantly Sami regions is not necessarily identified as indigenous-specific expenditure.

Constitutional recognition and political representation

In Australia, as in Sweden, indigenous people do not enjoy any constitutional or treaty recognition, unlike in New Zealand, Canada and the United States where treaties have been signed, or in Norway where an outline of the state's responsibilities with respect to the Sami has recently been inserted into the constitution. Australia also has a poor history of indigenous representation in Federal Parliament, unlike New Zealand where seats are reserved for indigenous people, or Canada where the geography has been used (as it could in Australia) to create some low population electorates which virtually guarantee the election of an indigenous representative. Australia, like Sweden and Norway, has however, put in place mechanisms for electing representatives to a national indigenous body. The Australian body, in addition to the political role played by its counterparts in Scandinavia, also performs the administrative functions of a department. This model can be contrasted with the Canadian model of highly influential informal bodies and increasingly decentralised administration.

Land and resource rights

The New Zealand, Canada and United States national governments recognised indigenous land and resource rights at an early date (even if recognition of did not always translate into respect for) and have courts or tribunals accustomed to adjudicating on rights-related matters. In Australia the Federal Government only started to address the issue in the 1970s, the courts only found a common law basis for these rights in the 1990s and the appropriate roles of courts, tribunals, governments and land councils is still being worked out. In Norway and Sweden indigenous land issues have been treated as land use rather than land ownership issues.

Apologies for past injustices

The Australian Federal Government has not joined the State Governments in making the apology for past injustices as recommended by a Human Rights Commission report. In contrast, the New Zealand Government has made specific apologies on two different occasions, the Canadian Government has apologised for its role in the administration of special residential schools, the United States Government has apologised for its overthrow of the Kingdom of Hawaii, and the Norwegian King apologised for his state's past policies with respect to the Sami.

Australia

Definition and demography

In 1978 Cabinet adopted an administrative definition of an Aboriginal or Torres Strait Islander as a 'person of Aboriginal or Torres Strait Islander descent who identifies as an Aboriginal or Torres Strait Islander and is accepted as such by the community in which he lives.'(2) In the 1996 Census 352 052 individuals, 2 per cent of the total population, identified as Aboriginal or Torres Strait Islander.(3)

Socio-economic indicators

Aboriginal and Torres Strait Islander people have a lower life expectancy than any other first world country indigenous population. Life expectancy for indigenous people in South Australia, Western Australia and the Northern Territory is 60 years for males and 61 years for females, fifteen to twenty years less than that of other Australians. The adult mortality rate has not improved and is now 6-8 times that of the total population.(4) Infant mortality has improved since the 1970s but is still over three times that of the total Australian population.(5) In 1994 school participation rates were lower than for all Australians, especially in senior high school and the unemployment rate was 38 per cent compared with 9 per cent for all Australians. Family incomes are on average $10 000 per year below the rest of the community.(6)

National expenditure and compensation

The Commonwealth Government allocates approximately $1.6 billion (or 0.3 per cent of GDP) per year to the Aboriginal and Torres Strait Islander Commission (ATSIC) and identified programs within other departments. It has been estimated that nearly one-third of this expenditure substitutes for expenditure which would otherwise occur in mainstream assistance programs, and that a further 10 per cent substitutes for expenditure on services which are arguably the responsibility of other levels of government.(7) Over the ten years 1994-95 to 2003-4 $1.3 billion will have been allocated to a Land Fund, which will provide $45m annually to an Indigenous Land Corporation for the acquisition and management of land according to the priorities set down in a National Indigenous Land Strategy. The majority of the Fund's allocated money will be invested so that the Fund becomes self-sustaining after ten years.(8)

Constitutional recognition and political representation

Aboriginal people were mentioned in the original Australian Constitution, but only to ensure that they be excluded from the ambit of certain provisions. The 1967 referendum led to the removal of these references and to greater Commonwealth Government involvement in Aboriginal affairs, but it left indigenous Australians with no constitutional recognition. There are no dedicated seats in Parliament or any special measures to promote the election of Aboriginal and Torres Strait Islander candidates to Commonwealth, State or Territory Parliaments.(9) They do, however, elect representatives to the Aboriginal and Torres Strait Islander Commission (ATSIC), a body with both administrative and advisory functions.

Land and resource rights

It is possible to discern at least five distinct ways Australian Governments have attempted to address issues arising from Aboriginal attachment to land and Aboriginal land need. Land acquisition legislation (e.g. the Aboriginal Land Fund Commission established in 1975, the Regional Land Fund administered by ATSIC since 1989 and the Indigenous Land Corporation established in 1995) has been an 'administrative' attempt to ameliorate the problems arising from dispossession. Land rights legislation has been an attempt to recognise ownership which the judicial system has not recognised until recently. The Commonwealth's Aboriginal Land Rights Act (Northern Territory) 1976 provided for an adjudicated claims mechanism and for Aboriginal land owners to have a veto over new mining proposals, except in the national interest. The South Australian Government passed legislation in 1981 which recognised the Pitjantjatjara and Maralinga peoples' inalienable freehold title to their lands, entitled them to arbitration in disputes over mining and provided for the payment to Aboriginal people of royalty equivalents for mining on Aboriginal land. The NSW Aboriginal Land Rights Act 1983 provided for the ownership of reserve lands to be transferred to Aboriginal people and for the equivalent of 7.5 per cent of all NSW land tax to be paid to a Land Council account, from which a system of councils and an investment program is funded. In Queensland reserve land was transferred to indigenous ownership in 1984 and since 1991 land claims can be made under the strict criteria of the Aboriginal Land Act (Qld) 1991. Aboriginal heritage legislation helps protect culturally significant land from unwanted development and has been used to delay the Hindmarsh Island development in South Australia. Native title legislation followed the High Court's 1992 Mabo decision. The Native Title Act 1993 set up a nation-wide system for the adjudication of native title claims and provides for a right to negotiate over future acts on land where native title has been claimed or found to exist - but does not provide for a right of veto. Joint management legislation attempts to reconcile nature conservation with Aboriginal community development and land ownership. The Deed of Grant to Uluru National Park in 1986 made under the Commonwealth's Aboriginal Land Rights Act (Northern Territory) 1976 set the example for other joint management agreements.(10) Legislation in all these categories has led to 117m ha. or 15 per cent of Australia being recognised as Aboriginal land.(11)

Apologies for past injustices.

In 1997 the National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from their Families, recommended in its report Bringing them home that the Australian Government's response include an apology.(12) The State and Territory Governments, with the exception of the Northern Territory Government where the motion lapsed due to an election, and many local governments have issued such an apology. The Federal Government responded to the report, accepting some of the recommendations and allocating $63m for remedial action, but did not apologise.(13)

New Zealand

Definition and demography

Although Census definitions of Maori have differed over time, The Maori Affairs Restructuring Act 1989, The Rununga Iwi Act 1990 and The Maori Land Act 1993 define a Maori as a person of the Maori race of New Zealand or a descendant of any such person. In the 1996 census 579 714 individuals, 16 per cent of the resident population said they were of Maori descent.(14)

Socio-economic indicators

Between 1970 and 1988, mortality rates for Maori males and females declined by 42 per cent and 49 per cent respectively, whereas the comparable rates for non-Maoris declined by 21 per cent and 22 per cent. The gap in life expectancy between Maori and non Maori has now been reduced to 5-6 years.(15) Secondary school retention rates have increased from 4 per cent in 1985 to 25 per cent in 1995, but the disparity gap in retention rates for Maori and non-Maori has widened.(16) The Maori unemployment rate is three times higher than the non-Maori.(17)

National expenditure and compensation

In the late 1980s the Labour Government introduced a policy of devolving power to the Iwi (Tribes) through the Department of Justice, a new Ministry of Maori Affairs and other agencies sensitive to taha Maori (the Maori way of doing things). This devolution of program delivery was replaced in the 1990s by mainstreaming, which is widely questioned because small programs are no longer identifiable as being for Maori. In 1992 the Ministry of Maori Affairs and the Iwi Transition Agency were replaced by Te Puni Kokiri (the Ministry of Maori Development) which is the Government's principal source of advice on key Government policies as they affect Maori. The Ministry is responsible for monitoring the delivery of policies and programs of mainstream agencies aimed at achieving equitable outcomes for Maori in health, education, training and economic development. In 1996-97 the Maori Affairs Vote received a total of NZ$44.7m (0.05 per cent of GDP) and appropriations sought for 1997-98 total NZ$54m. This is a significant drop from the 1992-93 figure of NZ$171.1m which included funding for programs now transferred to mainstream agencies.(18)

Constitutional recognition and political representation

The Maori are not mentioned in the New Zealand constitution, and the section of the New Zealand Bill of Rights Act 1990 which was to incorporate the 1840 Treaty of Waitangi into New Zealand law as a constitutional fact, was dropped from the final legislation. Although the Treaty of Waitangi is recognised as the founding document of New Zealand and is part of the constitutional basis of the New Zealand system of government Maori and the Crown have had different conceptions of the meaning and legal status of the Treaty.(19) The Maori Representation Act 1867, introduced to overcome the lack of property ownership of Maoris which was the basis for voting rights, created four parliamentary seats for Maori representatives. In 1995, with the introduction of the Mixed-Member Proportional (MMP) electoral system the number of dedicated seats was increased to five. Furthermore the proportional representation system has assisted the success of minor parties. After the 1996 election Maori representation increased to fifteen in the 120 member Parliament.(20)

Land and resource rights

The 1840 Treaty of Waitangi ensured that native title survived colonisation and today all executive proposals for legislation have to report on consistency with the Treaty principles. Maori land has, however, been greatly reduced through confiscation and land sales. Maori retain only 1.5m ha of freehold land, 5.6 per cent of New Zealand's total.(21) The Treaty of Waitangi Act 1975 set up the Waitangi Tribunal to investigate treaty breaches since 1975 and the Treaty of Waitangi (Amendment) Act 1985 empowered the Waitangi Tribunal to hear claims of treaty breaches by the Crown since 1840. The Tribunal can make recommendations relating to land (other than private land) which are binding on the Crown. In 1990 the National Government made a commitment to resolve all the major claims under the Treaty of Waitangi by the year 2000 and in December 1994 released the Crown proposals for the Settlement of Treaty of Waitangi Claims for public debate and set aside NZ$1 billion for the settlement of historical treaty claims. This 'fiscal envelope' was met with much anger from Maori who overwhelmingly rejected the proposal.(22) In 1995 the Office of Treaty Settlements was established to implement recommendations by the Waitangi Tribunal and handle direct negotiations between the Crown and Maori claimants.(23) The Sealord commercial fisheries settlement of 1992 provided for the transfer to the Treaty of Waitangi Fisheries Commission of NZ$175m worth of fishing quota and cash. This gave Maori control of approximately a third of the New Zealand fishing quota. The value of Maori fishing assets managed by the Commission has increased to NZ$700m in 1996.(24) The 1995 settlement of the Waikato-Tainui claim on the North Island included payment of NZ$170m and the return of 15 790 ha (158 sq km) of land. The 1996 Ngai Tahu settlement included compensation of NZ$170m and return of land on the South Island.(25)

Apologies for past injustices

In November 1995 Queen Elizabeth, New Zealand's head of state, personally (i.e. not through the Governor-General) signed the Waikato Raupatu Bill, which contains an apology by the Crown (i.e. the Government) to the Tainui people for the military invasion of their lands in 1863:

On 1 October 1996 the Whakatohea people and the Crown signed a Deed of Settlement which included an apology from the government for misdeeds in 1865 when British colonisers confiscated 71 000 ha (708 sq kms) in the eastern Bay of Plenty. The Deed allows for the payment of redress to the value of NZ$40m.(27)

Canada

Definition and demography

In the Constitution Act 1982 Aboriginal peoples of Canada include the Indian, Inuit (once called 'Eskimos') and Metis peoples (people of mixed descent). Indians registered under the Indian Act are termed Registered Indians (once called Status Indians) and are entitled to benefits which may not be available to other Indians. The latter are often the descendants of Indians who were never registered, did not register as a matter of choice or lost their status under the original Act (an Indian woman and her children lost status rights if she married a non-status man, while a non-status woman gained status rights if she married a status man). In 1985 the Indian Act was amended to reinstate 'any Indian person who lost or was denied status because of the discriminatory sections of the previous Act'.(28) It is estimated that 1.3 million (3.8 per cent) of Canadians have Aboriginal ancestry, half of whom are Registered Indians.(29)

Socio-economic indicators

The gap in life expectancy between Indigenous Canadians and other Canadians is now seven years. Infant mortality rates have been halved since 1981 but are still higher than those of other Canadians.(30) The unemployment rate of Registered Indians on reserves is three times the Canadian average. Between 1984 and 1994 the percentage of Indian children remaining in school until year 12 doubled to 75 per cent and post secondary enrolments tripled.(31)

National expenditure and compensation

In 1997-98 federal expenditure on indigenous matters is estimated at C$6 billion (0.7 per cent of GDP).(32) The majority of the expenditure appears in the Dept of Indian Affairs and Northern Development's budget which devolves the administration of 82 per cent to indigenous organisations. Eleven other federal departments offer programs for Aboriginal people.(33) The James Bay and Northern Quebec Agreement and the Northeastern Quebec Agreement in 1975 and 1978 respectively provided for more than C$230m in compensation. The Inuvialuit Final Agreement in 1984 provided for C$152m over 13 years, a C$10m Economic Enhancement Fund and a C$7.5m Social Development Fund. The Nunavut Agreement in 1993 provided for compensation of C$1.17b over 14 years.(34)

Constitutional recognition and political representation

The Constitution Act 1867 assigned exclusive legislative authority to the Federal Parliament over 'Indians and lands reserved for Indians'. The Constitution Act 1982 entrenches Aboriginal rights in the constitution and requires the federal and provincial governments to consult with Aboriginal people prior to making any legislation that relate directly to them.(35) A series of Constitutional Conferences in the 1980s involving governments and indigenous representatives was unable to define indigenous rights but the process of determining these rights has been furthered by many Court judgments and by deliberations sponsored by the Assembly of First Nations. A 1991 working group of the Royal Commission on Aboriginal Peoples recommended a guaranteed process for Aboriginal representation in the House of Commons, but the Royal Commission's 1993 final report recommended an Aboriginal Parliament or 'House of First Peoples' with power to review or veto legislation affecting Aboriginal people. In the meantime, the creation of electorates (or 'ridings') with small, predominantly indigenous populations, has increased indigenous people's chances of becoming MPs. For example, the creation of Nunatsiaq in the former Northwest Territories virtually guarantees the election of an Inuit representative.(36) In 1998 the government's Gathering strength: Canada's Aboriginal action plan, a response to the Royal Commission's report, included a Statement of Reconciliation.(37)

Land and resource rights

The Royal Proclamation of 1763 and the many treaties which it subsequently underpinned have ensured that 'Aboriginal title' is recognised. This is also seen to be consistent with the common law (see Calder v Attorney General of British Columbia, 1971, R. v Sparrow 1990, Delgamuukw v the Queen in right of British Columbia 1997) and the Constitution Act, 1982. There have been a range of treaties and since the 1970s a specific claims process has assisted treaty groups which seek fulfilment of lawful treaty obligations. There is also a comprehensive claims system for claims in parts of the country where native title has not previously been dealt with by treaty or other means.(38) Agreements have been reached with the Cree and Inuit in Northern Quebec in 1974 (0.14m ha), the Inuit of the Western Arctic in 1984 (9.1m ha), the Tungavik Federation of the Eastern Arctic in 1991 (35m ha - finalised as the Nunavut Agreement in 1993) and the Yukon First Nations in 1993. The Cree and Inuit were found to have hunting and fishing rights to 15.5m ha as part of the James Bay Agreement. Indigenous people have an interest in 62.5m ha, including 2.7m ha of reserves. This represents 6.3 per cent of Canada's land area. Indigenous people control access to minerals in most of this area and receive royalties or compensation for mining.(39)

Apologies for past injustices

The Canadian Government's 1998 'Statement of Reconciliation' included a declaration that:

The Statement included an apology for the Government of Canada's role in the development and administration of special residential schools:

United States of America

Definition and demography

The census counts anyone an Indian who declares him or herself to be an Indian. In 1997 the American Indian, Eskimo and Aleut population was 2.3 million, or 0.9 percent of the total population.(41) However to be eligible for Bureau of Indian Affairs services, an Indian must (1) be a member of a Tribe recognised by the Federal Government, (2) have one-half or more Indian blood of tribes indigenous to the United States or (3) must, for some purposes, be of one-fourth or more Indian ancestry. Becoming a member of a federally recognised tribe requires meeting tribal membership rules and the degree of requisite Indian ancestry varies among the tribes. In 1993 the Bureau of Indian Affairs estimated that 1.2 million of the Indian population lived on or adjacent to Federal Indian reservations and were eligible for Bureau of Indian Affairs services. By legislative and administrative decision, all indigenous people of Alaska are eligible for Bureau of Indian Affairs services and programs. (42)

Socio-economic indicators

The gap in life expectancy between Native Americans and whites narrowed from 11 years in men and 15 years in women in 1940 to four years and three years respectively in 1980.(43) The educational attainment levels of American Indians improved significantly during the 1980s, but remained considerably below the levels of the total population. In 1990, 9 per cent of the Indian population were tertiary graduates compared to 20 per cent of the total population.(44) Labour force participation rates are lower and median family incomes are on average US$14 000 per year below other American families.(45) In 1989, 31 per cent of American Indians lived below the poverty line.(46)

National expenditure and compensation

In the 1995 fiscal year US$6 billion (0.08 per cent of GDP) was allocated to 140 programs administered by 40 federal agencies. The Dept of Human Services and Health which administers the Indian Health Service received 40 per cent of the total and the Bureau of Indian Affairs 29 per cent. (47)The 1998 Fiscal Year budget of the Bureau of Indian Affairs was US$1.73 billion. Approximately 50 per cent of the operating budget is administered by tribes and is used for tribal courts, law enforcement, housing, social services and education. In 1971 the United States set aside US$960m as part of a land settlement in Alaska.

Constitutional recognition and political representation

In 1924 the United States Congress extended American citizenship to all Indians born in the territorial limits of the United States. Indians are also members of their respective Tribes and these are legally regarded as 'sovereign domestic nations'. Indians thus have dual citizenship. Indians have the same right to vote as other United States citizens.(48) In Hawaii, where native Hawaiians comprise approximately 20 per cent of the state's population, the Hawaiian Sovereignty Elections Council is investigating the possibility of restoring Hawaiian Sovereignty. There is no system of Indigenous seats in Congress or separate Indigenous parliament however the Self Determination Act 1975 and the Self-Governance Act 1994 provide a degree of decision-making power at the tribal level.

Land and resource rights

A form of native title has long been recognised in the United States (see Johnson v McIntosh, 1823). Between 1778, when the first treaty was made with the Delawares, and 1871, when Congress ended the treaty-making period, the United States Senate ratified 370 Indian treaties. Since 1871 relations with Indian groups are by Congressional acts, Executive Orders, and Executive Agreements. There are 287 Indian reservations, the largest is the Navajo Reservation of 16m acres (65 000 sq km) in Arizona, New Mexico, and Utah. Many of the smaller reservations are less than 1000 acres (400 ha) with the smallest less than 100 acres (40 ha). On each reservation, the local governing authority is the tribal government, but its power in law enforcement, education, taxation and water rights varies from tribe to tribe. Approximately 22.6m ha of land are held in trust by the United States for various Indian Tribes and individuals. Much of this is reservation land, but not all reservation land is trust land. The States have limited powers over reservations, and only as provided by Federal law. 140 reservations have entirely tribally-owned land. There is no general law that permits a tribe to sell its land. Individual Indians also own trust land, which they can sell, but only upon the approval of the Secretary of the Interior or his/her representative.(49) The process of creating reservations is continuing with, for example, a major transfer of land under the Maine Indian Claims Act, 1980, to Indian groups who had alleged that their native title to lands in Maine was still valid. In Alaska, native title was never extinguished by treaty, nor were indigenous people ever confined to reservations. In 1971 The Alaska Native Claims Settlement Act formally extinguished native title in Alaska and provided for native fee simple (freehold) land title, compensation and recognition of customary rights for traditional subsistence activities. A tier of regional and village corporations manage the lands and the settlement money. Both the Indian tribes in the lower 48 States and the regional corporations in Alaska hold the rights to subsurface minerals and have a veto over mining on their land.

Apologies for past injustices

In 1993 the United States Congress, in a joint Senate and House resolution to mark the centenary of the overthrow of the Kingdom of Hawaii resolved:

Norway

Definition and demography

According to the 1987 Sami Act relating to the Sami Parliament and other Sami legal issues, a Sami is a person who considers himself or herself a Sami, lives in accordance with rules of the Sami society, and is recognised by the representative Sami body as Sami, or who has Sami as his/her first language, or whose father, mother or one of whose grandparents has Sami as their first language, or has a father or mother who satisfies the above-mentioned conditions for being a Sami. There is no official census of the Sami population which is estimated to be between 40 000 and 45 000 or approximately 1 per cent of the Norwegian population.(51)

Socio-economic indicators

There is little Sami-specific socio-economic data, but since World War II the Norwegian Government has had much success in its effort to bring the living conditions of all in the north, including even the most remote Sami, up to the levels enjoyed in the south. Subsequently political representation and cultural rights are the main items on the Norwegian indigenous agenda.

National expenditure and compensation

The 1998 budget allocated KrN86.6m (0.008 per cent of GDP) for Sami causes most of which is dedicated to the operation of the Sami Parliament.(52) In February 1998 the Government announced it would devolve more authority to the Sami Assembly. The 1999 national budget will allow the Sami Assembly to administer its own budget.(53)

Constitutional recognition and political representation

The Sami Culture Committee published reports in 1985 and 1987, providing a comprehensive study of Sami school and cultural issues. These reports and Norwegian Official Report No. 18 of 1984, concerning the legal rights of the Sami, resulted in the Sami Act of 1987 which set up a Sami Parliament. In 1988 the Norwegian Parliament passed an amendment to the Constitution recognising Sami constitutional rights. Article 110a in the Constitution states: 'it is the responsibility of the authorities of the State to create conditions enabling the Sami people to preserve and develop its language, culture and way of life.' This is a pre-eminent rule of law which both gives rights to the Sami population and duties and obligations to the Norwegian state. The Sami Parliament was opened in 1989 and regulations for the use of the Sami language were put to the Norwegian Parliament in 1990 and incorporated into the Sami Act.(54) The powers of the Sami Assembly were not described in the Sami Act, but the Norwegian Government is gradually giving the Sami Parliament more authority and Sami issues are receiving greater recognition. In 1997 the position of state secretary for Sami issues was created.

Land and resource rights

The Sami, in Norway, Sweden and Finland, have contested state 'ownership' and administration of traditional land on the basis that they never conceded land ownership through treaties similar to those in Canada and the United States.(55) The Lapp Codicil of 1751 is the historic foundation for Sami rights to reindeer herding which occurs on about 40 per cent of Norway's land mass. The right to maintain reindeer herds is based on traditional use. It is a right of usage, independent of who owns the land. The economic value of this industry is minor on a national scale, but it is important financially and culturally on the local level. The Reindeer Herding Act of 1978, which replaced an older law from 1933, emphasises both the business and cultural aspects of the reindeer trade and Sami have an exclusive right to the trade.(56) The trade has its own management system, in which the Sami Parliament now has increased influence. In 1990 Norway's Chief Justice maintained that Sami people may also have rights to other traditional resources, in particular fishing rights for those Sami living on the coast and fiord areas.(57) In 1997 the Sami Rights Committee began an investigation of this issue and other matters arising from Sami legal tradition. Norway's Cultural Heritage Act, passed in 1978, protects Sami historic sites and monuments which are more than 100 years old.

Apologies for past injustices

King Harald apologised for Norwegian injustices committed against the Sami when he opened the Norwegian Sami Parliament in October 1997:

Sweden

Definition and demography

To register for the right to vote in elections to the Swedish Sami Assembly a person must define himself or herself as Sami and either speak the Sami language as a home language or have a parent or grandparent who spoke the language as a home language. To cater for those whose families had lost their language under assimilation pressures but who still thought of themselves as Sami, if the applicant's parents or grandparents did not speak Sami but were registered to vote for the Sami Assembly, the applicant can be registered.(59) There is no official census of the Sami population which is estimated at 17 000 people or 0.2 per cent of the Swedish Population. 3808 Sami were registered to vote for the Sami Parliament in 1993.(60) Sweden recognises the Sami as a minority, not an indigenous group.

Socio-economic indicators

In Sweden, like Norway, the identification of Sami-specific socio-economic indicators is difficult, but efforts to raise the living conditions of Sami in the remote areas appear to have succeeded and living conditions do not feature prominently on the Swedish indigenous agenda.

National expenditure and compensation

The Sami Parliament's budget for the 18 month period July 1995 to December 1996 was approximately KrS15m (0.0009 per cent of GDP). Since 1996, the Sami parliament administers compensation to Sami villagers for predator damage by bear, wolf and eagles. In 1996 this amounted to KrS24m. The Sami Parliament also supports Sami culture and organisations through annual grants totalling KrS10m which comes from the Swedish Dept of Culture's budget.(61)

Constitutional recognition and political representation

In 1983 a commission of inquiry on Sami affairs was appointed which reported in 1989. It recommended that the Sami be recognised in the Constitution as an indigenous ethnic minority, proposed laws to promote Sami culture, amendments to the Reindeer Husbandry Law to strengthen Sami rights, and the establishment of a popularly elected Sami Parliament. The latter was the only recommendation adopted and unlike Norway 'came about not as part of a deliberate policy shift in the area of Saami rights, but rather as a limited concession...[and]...included very little else in response to Saami demands.'(62) The first elections for the Sami Parliament were held in 1993. The Parliament's main duty is to promote Sami culture and to a lesser extent Sami economic development. It is responsible for allocating resources from the Sami Fund to support Sami culture and organisations.

Land and resource rights

From a Sami perspective, after ten years of joint research by Sami and government representatives, the Government's response to the above-mentioned 1989 report represented a backward step in political and legal terms. The position of the Sami was weakened legally, especially with reference to ownership and administration of hunting and fishing rights.(63) Mining, forestry and the construction of hydro-electric power plants have encroached on traditional lands and resource use. In 1993 and 1994 Sami hunting, fishing and water rights were restricted and in 1996 the Sami lost a case involving the rights to grazing lands in Härjedalen.

Apologies for past injustices

No official apology has been made for any past injustice borne by the Sami of Sweden.

Endnotes

1. Figures have been given in national currencies, current exchange rates are: NZ$1 = A$0.90; US$1 = A$1.54; C$1 = A$1.08; KrN1 = A$0.21; KrS1 = A$0.19.
2. Australia. Dept of Aboriginal Affairs. Constitutional Section. Report on a review of the administration of the working definition of Aboriginal and Torres Strait Islander. Canberra: Dept of Aboriginal Affairs, 1981.
3. Australian Bureau of Statistics. Population distribution, Indigenous Australians. Cat. No. 4705.0. Canberra: Australian Bureau of Statistics, 1997 p. 6.
4. Australian Bureau of Statistics and the Australian Institute of Health and Welfare. The health and welfare of Australia's Aboriginal and Torres Strait Islander peoples. Cat. No. 4704.0. Canberra: Australian Bureau of Statistics, 1997. pp. 1-2.
5. Woollard, Keith et al. Aboriginal and Torres Strait Islander health: a submission by Dr Keith Woollard, Prof. Fiona Staley, Prof Stephen Leeder and Dr Ian Ring. Australian Medical Association and Public Health Association of Australia, April 1997, pp. 4-5.
6. Australian Bureau of Statistics and Centre for Aboriginal Economic Policy Research. National Aboriginal and Torres Strait Islander Survey 1994: employment outcomes for Indigenous Australians. Cat. No. 4199.0. Canberra: Australian Bureau of Statistics, 1996.
7. Gardiner-Garden, John. Commonwealth expenditure on Aboriginal and Torres Strait Islander Affairs. Parliamentary Research Service Current Issues Brief 15, 1995-96. Canberra: Dept. of the Parliamentary Library, 1996.
8. Land Fund and Indigenous Land Corporation (ATSIC Amendment) Bill 1995. Second reading speech by the Hon. Paul Keating MP, Prime Minister, House of Representatives Hansard, 28 February 1995; see also: Australia. Indigenous Land Corporation. Annual report 1996-97. Adelaide: Indigenous Land Corporation, 1997, pp. 10-12.
9. During 1998 the Social Issues Committee of the New South Wales Parliament is conducting an inquiry into whether dedicated seats for Aboriginal people should be introduced in the NSW Parliament. See: New South Wales. Parliament. Legislative Council. Standing Committee on Social Issues. Aboriginal representation in Parliament. Issues paper No. 3, April 1997, for a discussion of this issue in Australia and examples of models from other countries.
10. A chronology of state and federal legislation relating to land and resource rights can be found in: Australia. Human Rights and Equal Opportunity Commission. Office of the Aboriginal and Torres Strait Islander Social Justice Commissioner. Fifth report. Sydney: Human Rights and Equal Opportunity Commission, 1997, pp. 21-75.
11. Commonwealth Government Submission to Parliamentary Joint Committee on Native Title and the Aboriginal and Torres Strait Islander Land Fund, October 1997. Attachment E.
12. National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from their Families (Australia). Bringing them home: report of the National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from their Families. Sydney: Human Rights and Equal Opportunity Commission, 1997, Recommendation 5a, p. 287.
13. 'Bringing them home': government initiatives. Statement by Senator the Hon. John Herron, Minister for Aboriginal and Torres Strait Islander Affairs. Tabled in Parliament out of session, 16 December 1997.
14. New Zealand official yearbook. Wellington: Statistics New Zealand, 1997, p. 122. For a discussion of census definitions of Maori see: New Zealand now: Maori. Wellington: Statistics New Zealand, 1994.
15. Woollard, Keith et al. op.cit., pp. 5-6; New Zealand. Te Puni Kokiri/Ministry of Maori Development. He Kakano: A handbook of Maori health data. Wellington: The Dept., July 1993; See also: New Zealand. Te Puni Kokiri/Ministry of Maori Development. Post-election briefing 1996, Social Policy Branch, pp. 17-23. http://www.tpk.govt.nz (March 1998).
16. New Zealand. Te Puni Kokiri /Ministry of Maori Development. Post-election briefing 1996, Social Policy Branch, pp. 11-14. http://www.tpk.govt.nz (March 1998).
17. Household labour force survey in: New Zealand. Te Puni Kokiri/Ministry of Maori Development. Post-election briefing 1996, Social Policy Branch, pp. 24-28. http://www.tpk.govt.nz (March 1998).
18. New Zealand. Treasury. Estimates of approproations for the Government of New Zealand for the year ending 30 June 1998. Wellington: Treasury Dept, 1997, vol. 2, pp. 255-282.
19. New Zealand. Te Puni Kokiri /Ministry of Maori Development. Post-election briefing 1996, Compliance Branch. pp. 2-6. http://www.tpk.govt.nz (March 1998). See also Palmer, Geoffrey and Matthew Palmer. Bridled power: New Zealand government under MMP. Auckland: Oxford University Press, 1997, p. 281.
20. New Zealand official yearbook. Wellington: Statistics New Zealand, 1997, pp. 59-61.
21. New Zealand. Te Puni Kokiri /Ministry of Maori Development. Information on Maori Land. Published on: http://www.maoriland.govt.nz (March 1998).
22. Mulgan, Richard. 'A race relations lesson from across the Tasman.' Australian quarterly, v.68 (2), Winter 1996, pp. 77-87.
23. Palmer, Geoffrey and Matthew Palmer. Bridled power: New Zealand government under MMP. Auckland: Oxford University Press, 1997, pp. 285-287.
24. New Zealand official yearbook., op.cit., pp. 464-467.
25. The Australian, 5 October 1996; Financial Review, 21 January 1998.
26. The settlement was signed by the Prime Minister in May 1995 see: Sydney Morning Herald, 23 May 1995. The Bill was signed by Queen Elizabeth in November 1995.
27. New Zealand official yearbook, op.cit., p. 154.
28. Changes to the Indian Act, QS-5214-000-BB-A2, 1985.
29. 1995 Statistics on Registered Indians in Facts from Stats Issue no.11 March-April 1996; Published on: http://www.inac.gc.ca (March 1998) also: Canada. Dept of Indian Affairs and Northern Development. Basic departmental data, 1996. Indian and Northern Affairs Canada, 1997, pp. 1-21.
30. Canada. Dept of Indian Affairs and Northern Development. Basic departmental data, 1996. Indian and Northern Affairs Canada, 1997, pp. 24-26.
31. ibid., pp. .34-38.
32. Canada. Dept of Indian Affairs and Northern Development. Federal programs directed to Aboriginal people: 1997-98 fiscal year. Published on: http://www.inac.gc.ca (March 1998)
33. Canada. Dept. of Indian Affairs and Northern Development. Basic departmental data, op.cit., pp. 66-67. See also: Canada. Dept. of Indian Affairs and Northern Development. The Department Of Indian Affairs and Northern Development and the 1998-1999 Report On Plans And Priorities. Published on: http://www.inac.gc.ca (March 1998)
34. Notes for an address by Prime Minister Brian Mulroney for Nunavut Land Claim Agreement signing ceremony. 25 May 1993; Press release 25 May 1993 and Backgrounder Tungavik Federation of Nunavut (TFN) Claim. See also: Inuit in Canada. October 1996. Published on: http://www.inac.gc.ca (March 1998)
35. Ivanitz, Michele. The emperor has no clothes: Canadian comprehensive claims and their relevance to Australia. Regional agreements paper no. 4. Australian Institute of Aboriginal and Torres Strait Islander Studies. Native Titles Research Unit. August 1997; Allain, Jane May. Aboriginal rights. Current issues review 89-11E. Revised October 1996. Canada. Library of Parliament. Research Branch. 1996; Graham, Katherine, Carolyn Dittburner and Frances Abele. Soliloquy and dialogue: overview of major trends in public policy relating to Aboriginal peoples. Ottawa: Royal Commission on Aboriginal Peoples, 1996.
36. Jull, Peter. 'First world' indigenous internationalism after twenty-five years. Indigenous law bulletin, vol. 4(9), Feb. 1998, pp. 8-11.
37. In November 1996 the Royal Commission on Aboriginal Peoples tabled its 6 volume report: for seven generations. The report including background papers and other reports available on CD ROM. The Commission can also be found through the Indian and Northern Affairs Canada homepage at: http://www.inac.gc.ca (March 1998). A summary of the main recommendations can be found in Aboriginal law bulletin, vol. 3 (88) 1997, pp. 19.
38. Allain, Jane May. op.cit.; Ivanitz, Michele. op.cit.
39. The Comprehensive claims policy and status of claims as at November 1997 is available on: Indian and Northern Affairs Canada homepage at: http://www.inac.gc.ca (March 1998).
40. Statement of Reconciliation included in: Notes for an address by The Hon. Jane Stewart, Minister of Indian Affairs and Northern Development, on the occasion of the unveiling of Gathering strength: Canada's Aboriginal action plan. 7 January 1998. Published on: http://www.inac.gc.ca (March 1998).
41. United States Census Bureau. Census facts for Native American Month. October 1997. Available on US Census Bureau's homepage at: http://www.census.gov (March 1998).
42. Who is an Indian? Answers to Frequently asked questions on: http://www.doi.gov/bia (March 1998).
43. Woollard, Keith et al. op.cit., pp. 5-6.
44. United States. Bureau of the Census. We the first Americans. Washington: Dept of Commerce, 1993, p. 4
45. ibid.
46. United States. Bureau of the Census. Statistical abstract of the United States 1996. Washington: Dept of Commerce, 1996, Table 52.
47. Indians in Canada and the United States. Information Sheet published by Dept of Indian Affairs and Northern Development and available on: http://www.inac.gc.ca (March 1998).
48. Are Indians U.S. Citizens? Answers to Frequently asked questions on: http://www.doi.gov/bia (March 1998).
49. What is a reservation? and Do Indians have the right to own land? Answers to Frequently asked questions on: http://www.doi.gov/bia (March 1998).
50. S.J.Resolution 19, 103rd Congress United States of America, 5 January 1993.
51. Norway. Ministry of Foreign Affairs. The Sami of Norway, December 1997.
52. Figures obtained from Norway's Government Documentation and Information homepage at http://www.stortinget.no/budved
53. Aftenposten. 26 February 1998. Available on: Sami Association of North America (SANA) homepage at http://www.quest-dynamics.com/sana (March 1998).
54. Norway. Ministry of Foreign Affairs. op.cit.
55. Sillanpaa, Lennard. A comparative analysis of indigenous rights in Fennoscandia. Scandinavian Political Studies, 20 (3) 1997: 197-217.
56. Norway. Ministry of Foreign Affairs. op.cit.
57. Smith, Carsten. 'The development of Sami rights since 1980.' In Becoming visible: indigenous politics and self-government. Edited by Terje Brantenberg, Janne Hansen and Henry Minde. Tromso: University of Tromso, Centre for Sami Studies, 1995.
58. Aftenposten, 7 October 1997. Available on: Sami Association of North America (SANA) homepage at http://www.quest-dynamics.com/sana (March 1998).
59. Korsmo, Fae. 'Claiming territory: the Saami Assemblies as ethno-political institutions'. Polar Geography. 20 (3) 1996, p. 173.
60. ibid., p. 170. See also: 'The Sami people in Sweden' Fact sheets on Sweden. Stockholm: Swedish Institute, April 1997 also available on Swedish Institute's homepage at http://www.si.se (March 1998).
61. Figures obtained from the Saami Parliament's homepage at: http://www.sametinget.se (March 1998).
62. Korsmo, Fae. op.cit., p. 168.
63. 'The Sami people in Sweden' Fact sheets on Sweden. op.cit.

Bibliography

Aboriginal and Torres Strait Islander Commission. Native title: international responses. Canberra: ATSIC, October 1994. (Part of the ATSIC information kit on Native Title)

Allain, Jane May. Aboriginal rights. Current issues review 89-11E. Revised October 1996. Canada. Library of Parliament. Research Branch, 1996.

Australia. Parliament. House of Representatives Standing Committee on Aboriginal and Torres Strait Islander Affairs. Torres Strait Islanders: a new deal: a report on greater autonomy for Torres Strait Islanders. Canberra: The Committee, 1997.

Australia. Parliament. Joint Committee on Native Title and the Aboriginal and Torres Strait Islander Land Fund. Committee exchange with New Zealand - August 1995. Canberra: The Committee, November 1995.

Australian Bureau of Statistics. 1994 National Aboriginal and Torres Strait Islander Survey: social atlas. Canberra: Australian Bureau of Statistics, 1997.

Australian Bureau of Statistics and the Australian Institute of Health and Welfare. The health and welfare of Australia's Aboriginal and Torres Strait Islander peoples. Canberra: Australian Bureau of Statistics, 1997.

Boldt, Menno. Surviving as Indians: the challenge of self-government. Toronto: Toronto University Press, 1993.

Canada. Gathering strength: Canada's Aboriginal action plan. Ottawa: 1997.

Canada. Royal Commission on Aboriginal Peoples. Treaty making in the spirit of co-existence: an alternative to extinguishment. Ottawa: Royal Commission on Aboriginal Peoples, 1995.

Fleras, Augie and Jean Leonard Elliott. The 'nations within': Aboriginal-state relations in Canada, the United States and New Zealand. Toronto: Oxford University Press, 1992.

Gardiner-Garden, John. The origin of Commonwealth involvement in Indigenous affairs and the 1967 referendum. Parliamentary Research Service Background Paper 11, 1996-97. Canberra: Dept. of the Parliamentary Library, 1997.

Gardiner-Garden, John. Commonwealth expenditure on Aboriginal and Torres Strait Islander Affairs. Parliamentary Research Service Current Issues Brief 15, 1995-96. Canberra: Dept of the Parliamentary Library, 1996.

Graham, Katherine, Carolyn Dittburner and Frances Abele. Soliloquy and dialogue: overview of major trends in public policy relating to Aboriginal peoples. Ottawa: Royal Commission on Aboriginal Peoples, 1996.

Havemann, Paul. 'What's in the Treaty?: Consitutionalizing Maori rights in Aotearoa/New Zealand 1975-1993' in Hazlehurst, Kathleen M. Legal pluralism and the colonial legacy: indigenous experiences of justice in Canada, Australia and New Zealand. Aldershot: Avebury, 1995.

Ivanitz, Michele. The emperor has no clothes: Canadian comprehensive claims and their relevance to Australia. Regional agreements paper no. 4. Australian Institute of Aboriginal and Torres Strait Islander Studies. Native Titles Research Unit, August 1997.

Jull, Peter. 'First world' indigenous internationalism after twenty-five years. Indigenous law bulletin, vol. 4(9), Feb. 1998, pp. 8-11.

Jull, Peter. 'The political future of Torres Strait'. Indigenous law bulletin, vol. 4(7) Nov.1997, pp. 4-9.

Jull, Peter and Donna Craig. 'Reflections on regional agreements: yesterday, today and tomorrow'. Australian indigenous law reporter, vol.2(4) 1997, pp. 475-493.

Korsmo, Fae. 'Claiming territory: the Saami Assemblies as ethno-political institutions'. Polar Geography, 20(3) 1996, pp. 163-179.

New South Wales. Parliament. Legislative Council. Standing Committee on Social Issues. Aboriginal representation in Parliament. Issues paper No. 3, April 1997.

Palmer, Geoffrey and Matthew Palmer. Bridled power: New Zealand government under MMP. Auckland: Oxford University Press, 1997.

Reeves, Simon. To honour the treaty: the argument for equal seats. Auckland, Earth Restoration Ltd, 1996.

Sillanpaa, Lennard. A comparative analysis of indigenous rights in Fennoscandia. Scandinavian Political Studies, 20(3) 1997, pp. 197-217.

Smith, Carsten. 'The development of Sami rights since 1980.' In Becoming visible: indigenous politics and self- government. Edited by Terje Brantenberg, Janne Hansen and Henry Minde. Tromso: University of Tromso, Centre for Sami Studies, 1995.

Sutherland, Johanna and Wynne Russell. Reserved seats for Indigenous Australians? Indigenous Law Bulletin, vol. 4(8) Dec 1997-Jan 1998; pp. 13-14.

Woollard, Keith et al. Aboriginal and Torres Strait Islander health: a submission by Dr Keith Woollard, Prof. Fiona Staley, Prof Stephen Leeder and Dr Ian Ring. Australian Medical Association and Public Health Association of Australia, April 1997.

Internet Sites

Australia

Aboriginal and Torres Strait Islander Commission. http://www.atsic.gov.au (March 1998)

National Native Title Tribunal. http://www.nntt.gov.au (March 1998)

New Zealand

Te Puni Kokiri (Ministry of Maori Development) http://www.tpk.govt.nz (March 1998)

Ara Nui Aotearoa/New Zealand Maori Information http://www.lincoln.ac.nz/libr/nz/maori.htm (March 1998)

Maori Organisations of New Zealand. http://www.maori.org.nz (March 1998)

Canada

Indian and Northern Affairs Canada. http://www.inac.gc.ca(March 1998)

Ministry of Aboriginal Affairs. British Columbia. http://www.aaf.gov.bc.ca/aaf/homepage.html (March 1998)

United States of America

Bureau of Indian Affairs. http://www.doi.gov/bia (March 1998)

Indian Health Services. Native American Resources on the Internet. http://www.tucson.his.gov (March 1998)

Norway and Sweden (Sami people)

Wolfgang Grellers Sami Link-page http://www.trinity-cm.ac.uk/additional/dictionary/samilink.htm (March 1998)

The Sami homeland http://www.itv.se/boreale/laante.htm(March 1998)

Sami links http://www.yle.fi/samiradio/enlink.htm (March 1998)

Sami Association of North America http://www.quest-dynamics.com/sana (March 1998)

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