On January 26, 2022, the Swedish parliament voted to adopt a new law (Lag om konsultation i frågor som rör det samiska folket) (Sami consultation law), as well as an amendment to that law to enter into force later, requiring that the Swedish government, government agencies (förvaltningsmyndigheter), and municipalities consult with the Sami Parliament or other Sami representatives on issues of special significance (särskild betydelse) to the Sami people (indigenous to northern Norway, Sweden, Finland, and Russia). (2, 7 §§ Lag om konsultation i frågor som rör det samiska folket (SFS 2022:66).)
The Sami Parliament, despite its name, is a Swedish government agency, as opposed to an independent Sami legislative body, which oversees Sami cultural and reindeer-husbandry issues, and reports to the Ministry of Enterprise and Innovation. Additional Sami representatives must be consulted regarding issues pertaining to a specific Sami organization, such as a sameby (literally “sami village” but actually a legal entity and an administrative and financial body that operates similar to an association to manage reindeer husbandry in a designated area).
Issues that, according to the bill for the new law (Proposition 2021/22:19 En konsultationsordning i frågor som rör det samiska folket), may require prior consultations include “land use, enterprise issues, reindeer husbandry, fishing, hunting, predator animals, mines, wind power, forestry issues, cultural issues, place names, and biodiversity on reindeer grazing grounds, as well as issues related to Sami preschools, education and research, and elderly care specifically for the Sami.”
The consultations must be carried out in good faith. However, the law allows consultations to end without the government and the Sami reaching consensus when it is determined that consensus cannot be reached. Thus, the law does not confer a veto right on Sami representatives. The consultation, including who attended, must be documented. (11, 12 §§ Lag om konsultation i frågor som rör det samiska folket.)
The duty to consult does not apply in cases where the Sami are consulted in another stage of the process or in pressing cases when a delay is associated with “a risk of considerable inconvenience,” or when a Sami representative elects to forgo consultation. (5 §.) If a Sami representative fails to respond to a question about consultation from the agency required to hold consultations within “a reasonable time,” the Sami group is considered as having forgone its right to consultation. (6 §.) Consultations are also not necessary when “it is clear that the consultation is not needed or when the consultation is manifestly inappropriate.” (5 §.)
Moreover, as specified in section 4 of the Swedish consultation law, the requirement for consultation does not apply to the following areas:
1. public order and safety, national defense, security-sensitive activities in accordance with the Security Protection Act (SFS 2018:585) or the security of Sweden in general,
2. state funding in individual cases,
3. research in individual cases,
4. tort claims against the state
5. supervision,
6. issues covered by chapter 9 of the Instrument of Government (Swedish Constitution), or
7. stakeholder responses [to legislative proposals], or
8. Planning and Buildings Act (SFS 2010:900). The duty to consult also does not apply to issues related to compensation to an individual when the compensation is determined by the application of the Expropriation Act (SFS 1972:719) or 5 ch. 2 § the Property Development Act (SFS 1970:988).
Amendment SFS 2022:69 takes effect March 1, 2024. It will amend the legal text to also exempt tort claims against regions and municipalities under item 4. Under the amendment, the following will replace item 8 above:
8. The duty to consult on issues related to the Planning and Buildings Act (SFS 2010:900) applies only to issues related to adopting or changing a regional plan, an overview plan, a detailed plan or zoning regulations. (All translations by author.)
Inspired by Norway
The new law bears resemblance to the Norwegian Sami consultation order found in chapter 4 of Norway’s “Sami Act.” (Lov om Sametinget og andre samiske rettsforhold (sameloven), LOV-1987-06-12-56, as amended.) However, there are also some differences between the two Nordic countries’ approaches to the Sami. For example, the Norwegian law does not require that the issue be of significant importance to the Sami for a consultation to be required, but only that the issue or measure directly affect the Sami people, and that it affect the Sami differently than the rest of society. (4-1 § Norwegian Sami Act.) Unlike Norway, Sweden has not ratified the Indigenous and Tribal Peoples Convention of 1989 (ILO169), which prescribes in article 6 that indigenous people must be consulted in all matters that affect them directly.
Stakeholder Response
The Swedish consultation law received mixed reviews from stakeholders responding to the public stakeholder review (remiss). For example, the Sami Parliament stressed that, while they support the effort to promote consultations with the Sami, the Sami Parliament and other Sami representatives do not have the financial means to participate in the consultations in a fruitful way.
Several other stakeholders (including Amnesty International; Svenska Samernas Riksförbund (the Swedish Sami National Association); the Church of Sweden; and Dorotea, Härjedalens, Åre, and Älvdalen municipalities also stated that not requiring consent from Sami representatives violates customary international law pertaining to indigenous rights — meaning that, although the law specifically does not require the Sami people’s consent to a government measure, customary international law nevertheless requires Sami consent on a number of issues that the law covers.
Other stakeholders, such as Skogsstyrelesen (the Swedish Forest Agency), have requested that the law include specific language that Sami approval of the intended measures is not required.
Svensk Vindenergi (the Swedish wind energy trade association) and Vattenfall (the Swedish multinational power company owned by the Swedish state) have objected that the law will result in extended processing times for project plans involving renewable energy sources (such as windmill parks).
Also, the Council on Legislation commented on the original proposal and suggested some changes and clarifications that were incorporated.
Adoption and Entry into Force
The Swedish government originally presented its proposal to the Swedish parliament in 2020, but the government withdrew the proposal in 2021 and referred it to the Committee on the Constitution for further preparations, comments, and review. The Committee on the Constitution recommended the legislation for adoption in January 2022, and following debate, the parliament voted 139–109 to adopt it on January 26, 2022.
The government requirement to consult with Sami representatives takes effect on March 1, 2022, whereas the local government requirement to consult takes effect on March 1, 2024.