A/HRC/33/42/Add.3 22. The Finnmark Act formally recognizes that Sami communities and individuals and others, through long use of land and water, have acquired rights to land and natural resources in Finnmark and sets in motion a process for identifying and recognizing existing rights of use and ownership.9 The identification process is carried out by the Finnmark Commission, while the Land Tribunal for Finnmark has been established to settle any disputes arising after the Commission has concluded its investigations into specified areas. Notably, if no local ownership rights are found in specified areas, the Finnmark Estate remains the proprietor of those areas. As such, a common criticism of the current model has been that it does not afford the local people of Finnmark a real right to manage their resources on their traditional lands and territories. 23. In 2011, the former Special Rapporteur noted that the extent to which the Finnmark Act would genuinely advance Sami self-determination and resource rights would be determined by its implementation over time (see A/HRC/18/35/Add.2, para. 44). While the process for identifying rights in the entire County of Finnmark has yet to conclude, the Special Rapporteur notes that in the investigations concluded to date,10 the Commission has almost exclusively found no grounds for recognizing Sami individual or collective ownership or usage rights beyond usage rights already granted to all inhabitants in Finnmark. Such conclusions seem to have been motivated by the State’s active and extensive disposition of land and resources in the investigated fields which is seen to have precluded property or usage rights for the local population. 24. The Special Rapporteur is of the view that the State’s earlier dispositions as the claimant of property rights in Finnmark cannot be considered to create law in order to support its continued ownership of land. The importance of that point can be further underscored by the fact that in many cases, the Sami communities’ severed connection to their lands and resources is a result of earlier government policies and assimilation efforts towards the Sami. A starting point for any measures to identify and recognize indigenous peoples’ land and resource rights should be their own customary use and tenure systems. That is also clear in the United Nations Declaration on the Rights of Indigenous Peoples, article 26 (3) of which indicates that States are obligated to provide legal recognition and protection to those lands, territories and resources that indigenous peoples have traditionally owned, occupied or otherwise used or acquired “with due respect to the customs, traditions and land tenure systems of the indigenous peoples concerned”. Likewise, article 8 (1) of the ILO Indigenous and Tribal Peoples Convention, 1989 (No. 169) provides that due regard must be paid to customs and customary law of the indigenous peoples concerned in applying national laws and regulations. 25. The dual role of the Finnmark Estate as both a resource management agency and commercial entity has also been cause for concern. According to information received, the Estate is currently processing applications for land encroachments in Finnmark County that may have long-standing adverse impacts on the possibilities of Sami communities to pursue their traditional livelihoods. In the Special Rapporteur’s view, the ability of the Estate to handle the dual role will be essential for its legitimacy and for the Finnmark Act to genuinely advance Sami land and resource rights. 26. Another outstanding concern is the lack of specialized mechanisms in place to identify Sami land and resource rights outside Finnmark outside the ordinary court system, despite the previous Special Rapporteur’s recommendation in 2011 that Norway finalize the process of clarifying and securing Sami land and resource rights both within and outside 9 10 8 See the Finnmark Act, sect. 5. Findings of the Finnmark Commission in Stjernøya/Seiland (2012), Nesseby (2013), Sørøya (2013), the Varanger Peninsula East (2014) and Varanger Peninsula West (2015).