Avtal mellan samebyar och exploatörer

Abstract

In Sweden, there is a growing trend for Sámi reindeer herding districts and developers to enter into negotiated agreements on projects that aim to exploit land and natural resources. These agreements can be viewed as a way for the involved parties to fill a gap in state regulation of environmental licensing and land use planning; specifically the inability of regulation to address the property rights of reindeer herding districts (known as reindeer herding rights). Research conducted in other countries has demonstrated that such private agreements can potentially play a role in integrating Indigenous rights and perspectives into resource governance. The research also demonstrates that they carry considerable risks. Little is known, however, about the consequences of negotiated agreements in the Sámi homeland. This report offers, for the first time, an evaluation of the content of a selection of agreements between Sámi reindeer herding districts and developers in Sweden. The evaluation was conducted from a Sámi perspective, applying a scale and a set of criteria focused on how the agreements affect the ability of herding districts to safeguard reindeer wellbeing. The scale consisted of five levels (+1 to -4) and the criteria were ranked according to views gathered from 12 people, who were either experts on negotiations or holders of traditional knowledge. The study collected 15 agreements from five reindeer herding districts. These agreements concern the following activities: wind power, tourism, car testing, hydropower, quarry mining, and outdoor sporting. To protect the integrity of the reindeer herding districts and respect the confidentiality of the agreements all results are anonymised, which means none of the information disclosed in this report can be traced to specific herding districts, companies, or projects. The results demonstrate that few of the agreements contain clauses that, from the perspective of herding districts, are preferrable for the wellbeing of the reindeer (levels +1, 0 or -1). Instead, agreements are dominated by clauses that are the worst for reindeer wellbeing (levels -3 and -4). The overall conclusion is that the agreements provide limited benefits to reindeer herding, and instead contribute considerable risks. This was especially clear in the agreements on wind power, which contained a high-risk combination of clauses on open consent (allowing undefined projects), gag clauses (wherein the herding districts give up their right to appeal to government or courts), and confidentiality clauses (preventing herding districts from publicly communicating about their experiences). These results support a view that the agreements cement unequal power relations, largely to the benefit of companies. They also indicate that agreements most often, if not always, reflect a “manufactured consent” – that is, herding districts enter agreements because they do not see other alternatives. A challenge that commonly confronts Indigenous groups, globally, is that they do not know what they can legitimately claim in negotiations of agreements. It is therefore critical to highlight positive examples, even if these so far are few. In this study, there are examples where herding districts negotiated the right to potentially pause activities if there is a need to protect reindeer wellbeing, as well as a simple type of revenue sharing. About half of the agreements also contained clauses that required the developers to implement significant measures to minimize harm to reindeer herding, and all five herding districts avoided harmful formulations in the agreements that give the pretence of relinquishing reindeer herding rights. Yet none of the agreements contained clauses meaningfully compensated for the loss of pastures. Clauses about cooperation between the parties focused on information sharing, without requirements placed on the companies to consider the views of the reindeer herders. Moreover, clauses exist that give the companies a unilateral right to renegotiate or terminate the agreement. Clauses also commonly place demands on the herding districts to contribute their time and knowledge without financial compensation. This means, in effect, that reindeer herders are expected to help promote the economic interest of the companies for free. A central conclusion of this report is that reindeer herding districts must widen their perspective on what can be included in agreements. There is no reason why agreements must be limited to issues of economic compensation, as is the case today. There are cases around the world, for instance in Australia and Canada, where agreements include extensive forms of revenue sharing, rights for Indigenous groups to veto potential changes in a project, and rights for communities to bring about the closure of a project if conditions in the agreement are not fulfilled. It is typically in the interests of companies to delimit the ambition of agreements, with arguments such as, “this cannot be included in an agreement”. However, Sámi reindeer herding districts that opt to enter negotiations on private agreements ought to challenge such claims, based on their rights to self-determination, and broaden the scope of what should legitimately be included in agreements.