As we enter the second decade of the Australian debate about constitutional recognition of Aboriginal and Torres Strait Islander peoples, one thing has become clear. The only viable way forward — as spelt out in the 2017 Uluru Statement from the Heart — is a representative body to advise parliament and government on law and policy affecting First Nations people.
Despite growing community support for the Indigenous Voice to Parliament, some members of the federal government remain reluctant, echoing prime minister Malcolm Turnbull’s immediate dismissal of the proposal as “a radical change to our Constitution’s representative institutions.” Indigenous representative bodies, they say, are “inconsistent” with democracy.
International experience suggests otherwise. Around the globe, this kind of institution is relatively common. In Sweden, Norway and Finland, for example, national representative bodies — Indigenous parliaments, no less — have been set up within the processes of government. The story of these parliaments is complex and their success is mixed, but they throw light on the key challenge that must be resolved if a First Nations Voice is to be effective in Australia.
Sweden’s Sámi parliament, or Sámediggi, was opened in August 1993 with a ceremony led by King Carl XVI Gustaf in Kiruna, Sweden’s northernmost city, far above the Arctic Circle. The Sámediggi was designed to enable Sámi people to develop their culture and community on their own terms, and national newspapers remarked on the size of the crowd that day and the colourful, festive atmosphere.
The creation of the Sámediggi both reflected and contributed to a shift in the rights of Indigenous peoples across the Nordic states. Just four years earlier, in October 1989, King Olav V of Norway had presided over the first session of his country’s Sámediggi. In neighbouring Finland, a Sámi representative body had existed since 1973, though its authority was limited to issuing statements on Sámi affairs; in March 1996, less than three years after its Swedish counterpart was established, it was reconstituted and its role enhanced.
Ingwar Åhrén, the first president of the Swedish Sámediggi, hailed these representative bodies as a “milestone” in Sámi self-determination. Twenty-five years later, laws and policies affecting the Sámi still vary across the Nordic states, but these three institutions continue to serve as the main vehicles for self-determination. According to the UN special rapporteur on the rights of Indigenous peoples, they are important models “that could inspire the development of similar institutions elsewhere in the world.” UN treaty bodies and the Expert Mechanism on the Rights of Indigenous Peoples agree.
The Sámediggi represented a new beginning for the relationship between Sweden and the Sámi. But on the very day the parliament opened, three Sámi reindeer herders completed the fifth day of a hunger strike denouncing proposed legislation to divest Sámi of their right to be consulted about the issuing of hunting permits on their traditional lands. As Josef Pittja, one of the hunger strikers, declared, “we have repeatedly asked to be given a say in the new rules but we have been ignored.” The legislation was passed against the wishes of major Sámi organisations and before the Sámediggi could consider it — “a provocation so rough,” according to one national newspaper, “that it is hard to believe it was accidental.”
The Sámediggi clearly faces constraints, and circumstances in Australia are different. So does it offer any lessons for a First Nations Voice?
The Sámediggi is composed of three institutions: an elected thirty-one-member plenary, a board and a secretariat. Elections are held every four years, with the entire country forming a single constituency. Voting is conducted under a system of proportional representation, with no minimum threshold required to secure a seat. All people on the Sámi electoral roll aged eighteen and over are entitled to cast a vote, but to be placed on the roll they must identify as Sámi and satisfy a language-based criterion — by speaking a Sámi language at home, having parents or grandparents who speak a Sámi language at home, or having a parent listed on the roll.
Elected members of the plenary choose a board of directors, which serves as the executive. The board prepares and presents motions, manages financial administration, implements the decisions of the plenary and performs assignments referred to it by the plenary. The chair of the board, also known as the president of the Sámediggi, is elected by the plenary. Although the Swedish government formally appoints a chair of the plenary — a largely symbolic role similar to a speaker of a national assembly — by convention it acts on the nomination of the plenary.
The plenary holds three sessions each year in locations across Sápmi, the traditional lands of the Sámi people. Only the president serves full-time. No budget exists to employ parliamentary staff, but representatives are compensated for loss of income during plenary sessions.
A secretariat of around fifty staff, employed through the civil service and headed by a chief secretary, assists the plenary and board. This arrangement reflects the fact that the Sámediggi is an elected government agency. Housed within Sweden’s culture ministry, the secretariat’s principal role is to monitor issues related to Sámi culture in Sweden. It also cooperates and collaborates with its Norwegian and Finnish counterparts, as well as colleagues in Russia, to protect and promote Sámi rights.
This institutional structure is a novel attempt to make Indigenous voices heard in the processes of government. But the Sámediggi’s legal status suggests some complications. It is both a popularly elected parliament representing the Sámi in Sweden and a state authority required to observe objectivity and operate under close regulation.
How does this conflicted legal position play out in practice? On one level, the Sámediggi appears well positioned to empower Sweden’s Sámi. Its legislation gives it responsibility for “providing information on Sámi conditions” to relevant decision-makers, and “ensuring that Sámi needs are considered.” But despite this structural hook and an ostensibly accommodative political culture, the Sámediggi often struggles to ensure Sámi voices are heard.
While divisions within the Sámi community can complicate the Sámediggi’s capacity to articulate a clear position to government, the more significant challenge is the Swedish state’s approach to the parliament. Without an enforceable obligation to engage with the Sámediggi, too often the government simply ignores it.
Like all substantial political communities, the Sámi are not homogeneous in their political attitudes. The Sámediggi’s proportional representation electoral system has enabled a diverse cast of candidates and parties to secure seats. In the first election held in 1993, the thirty-one seats were distributed among eleven different parties; in the most recent election, in 2017, nine political parties secured representation. But the multiplicity of views can make it difficult for the Sámediggi to speak authoritatively, weakening its impact. Although this tension is inherent in any representative institution, it is more problematic for Indigenous representative bodies designed to channel distinctive minority views to government.
But the process can work smoothly, and the parliament has successfully used its structural link with government to influence proposals. In 2009, for example, the Sámediggi heavily criticised a draft bill purportedly aimed at bringing Swedish laws into conformity with the International Labour Organization’s convention 169. The government withdrew the bill and announced its intention to substantially revise the proposal.
At other times, the Sámediggi’s lobbying has been less successful. In 2008, for instance, the government shelved a proposal to define the Sámi as an Indigenous people in the Swedish constitution, affording them a distinctive position within the state. It proposed instead to add the Sámi to the list of minorities whose rights are protected in the constitution. The Sámediggi criticised this approach, but the government dismissed its push to adopt language that stipulates the Sámi’s special status.
In other words, the Sámi might not always be successful in influencing government, but the Sámediggi means their interests are heard in decisions that affect them. Yet the gaps in the system are significant.
Under the Swedish Minerals Act 1991, for instance, no consultation with the Sámediggi or relevant Sámi communities is required before an exploration permit is issued, even if the permit area covers traditional Sámi territory. While affected communities are entitled to comment on proposed exploration work, the chief mining inspector can approve projects using a test that strongly favours exploration. Under the Forestry Act 1979, affected communities must be consulted about tree-felling permits in year-round reindeer grazing areas but not in winter grazing areas. And even on year-round grazing areas, Sámi participants report that they have “very few” opportunities to influence proposals.
Reflecting on these and other examples, many scholars and members of the Sámediggi have expressed concern about the parliament’s effectiveness. The UN Human Rights Committee has criticised the “limited extent to which the Sámi Parliament may participate in the decision-making process on issues affecting land and traditional activities of the Sámi people.” The UN special rapporteur has reported that the Sámediggi itself is concerned by a lack of “guaranteed genuine influence or decision-making power.”
Part of the problem may be an absence of structures to promote dialogue. A 2010 report by the Swedish Agency for Public Management found that informal contacts between the government and the Sámediggi are “limited” and formal discussions are scheduled only annually and not always well attended.
A general responsibility to consult the Sámediggi has been considered and rejected several times by the Swedish government. Before the parliament was created, the government considered that consultation would occur naturally, as did the commission designing the parliament. The Sámi Rights Commission assumed that political practice would lead the Sámediggi to “acquire the status of an obligatory advisory body.” In 2002, the government acknowledged that this had not occurred, but reiterated its position. In 2006 and 2009, it again rejected proposals to impose a general consultative obligation, contending it would “represent an excessive change.”
This view may be shifting. In 2017, the culture department released a ministerial report acknowledging that consultation is not carried out in a “consistent and comprehensive way” and is “not sufficient to ensure Sámi influence.” It proposed a draft consultation law that would oblige all levels of government and state administrative authorities to consult the Sámediggi and relevant Sámi communities in matters of particular relevance to them. Consultation would be undertaken in good faith, with the intention to reach an agreement, and would be documented to reveal how genuine the process was. The report also recognised that the Sámediggi and other Sámi organisations would require better funding to effectively manage an enlarged workload.
The consultative arrangement fell off the agenda following the Swedish general election in 2018 and has not been revived. The legal onus remains on the Sámediggi to initiate consultation, with little guarantee that its position will be considered. The capacity for Sámi voices to be heard would obviously be enhanced by a political agreement or legal requirement that national, regional and local decision-makers consult at an early stage on issues that affect Sámi interests and publicly identify how those interests were considered and how they influenced the decision adopted.
Can we draw direct conclusions for the design of a First Nations Voice? The Sámediggi’s experience suggests two points: meaningful consultation is key to the effectiveness of Indigenous representative bodies; and, on certain matters at least, governments will only consult Indigenous representative bodies if they are legally obliged or politically compelled to do so.
The Australian government or parliament can’t be required to engage with a First Nations Voice, and the experiences of previous national Indigenous representative bodies in Australia suggests that the new body could lack influence. It’s for this reason that the Uluru Statement called for a constitutionally entrenched First Nations Voice.
A grassroots popular campaign leading to successful constitutional reform could place considerable moral and political pressure on the federal government and parliament to listen to and engage meaningfully with the body. The government wouldn’t be legally required to consult, but the Australian people would expect it to do just that. The experience of the Swedish Sámediggi suggests that constitutional entrenchment is vital if a First Nations Voice is to succeed. •
