Linguistic Human Rights Ole Henrik Magga Overcoming Linguistic Discrimination

The Sami Language Act Linguistic Human Rights Ole Henrik Magga Overcoming Linguistic Discrimination

Introduction

In October 1990 the Norwegian Parliament took a series of legislative steps to strengthen the official use of the Simi language in Norway. Together these measures are widely referred to as the Simi Language Act, a label I shall use for ease of reference. In reality the regulations in question involved changes in three laws, primarily the law on the Sami Assembly (Parliament), and also laws on education and on courts of Edited by law. 1 Tove Skutnabb-Kangas During a political crisis in 1980, the Norwegian Government was obliged to establish two investigatory commissions to examine the Sami Robert Phillipson people's cultural and legal position in Norway and to make recommen dations on future policy. The events that led to this decision were vigorous in collaboration with protests against the Alta River hydro-electric dam project 2 and more Mart Rannut general protests against Norwegian policies towards the Sami population. The Simi Rights Commission, chaired by Carsten Smith, now presiding judge of the Norwegian Supreme Court, presented its first report and recommendations in 1984. This resulted in the establishment of the Simi Parliament and the passing of a constitutional amendment with the following wording: It is incumbent on the governmental authorities to take necessary steps to enable the Simi population to safeguard and develop their languge, their culture and their social life. A draft Sami Language Act was prepared by the Culture Commission (NOV 1985:14, chapter 8), which submitted three reports. The govern ment has closely cooperated with the Simi Parliament in drafting the provisions of the Language Act, for enforcement from March 1 1992. The enactment of these laws has radically changed the principles underlying Norwegian policy towards the Simi people. In addition, Norway has adopted a broad interpretation of international standards Mouton de Gruyter for the protection of minorities. Thus article 27 of the International Berlin New York 1994 220 OIl' /1(,l1rik Moggo The S(11111 Lal1KuaKe ACI 221

Covenant on Civil and Political Rights is understood as imposing an Teachers were paid a bonus for good results in this national task. Sami~ obligation to discriminate positively in favour of the Sami minority. ThiS were not allowed to buy land unless they started to use Norwegian in means that the authorities shall not merely legislate against the discrim their homes and learned to write the language. The Sami resistance wa~ ination of S,imi language and culture. The state shall take positive slicpS strong initially, but little by little almost all doubt was swept aside: the to make it possible for the S{lmi people to survive as a people. The Norwegian language and culture should prosper in Sami land and the Ministry of Justice declared this explicitly in 1987. Sami language should die. I shall present the content of the Sami Language Act and comment Then the War came to Norway in 1940, and Norwegians had their on its practical consequences. But before doing so, a few words about own experience of foreign rule, also in the cultural field. After World the historical background of the Sami people's situation in Norway may War II Norway declared that a new course would be followed in the be not quite out of place. policies towards the Sami population. The old discriminatory laws were repealed. Little by little a new consciousness had grown among Samis. Gradually the Sami organizations in Norway, Finland and Sweden man Earlier Norwegian stale policy towards the Sami aged to influence government policies so much that the Sami gained some official recognition. The breakthrough came in Finland, where an elected When a Canadian lawyer, Professor Douglas Sanders, was asked to S~lmi Assembly was established in 1973. In Norway things went more provide the Norwegian Supreme Court with an expert opinion on (he slowly. The 1960s and 1970s produced a stream of resolutions, but nothing relationship between the Sil 111 I nation and the Norwegian state, he de decisive happened, although the Sami language was taken into use in clared (Sanders 19S1): "The relationship between the Norwegian Sl

The rationale for the legislation Area 0/ application The committee set up to investigate Sami questions as long ago as in Six local authorities in the counties of Finnmark and Troms, where the 1956 declared in its 1959 report that the maintenance and development Sami language has a strong position, are defined as the administrative of the Sami language was decisive for the future of the Sami people. The area for the Sami language. 4 It is within this area that the legal provisions same principles lay behind the Sami Culture Commission's reasons for have the most extensive application. The obligations of public bodies recommending the enactment of a Sami Language Law. The parliamen (local, county or state bodies) and regional public bodies (county or state tary committee which drafted the bill has stressed several times that bodies) depend on whether they serve an area which wholly or partly language IS such a central element 111 Sami culture that the existence of includes councils in the administrative area of the Sami language as the Sami as a people depends on the maintenance and development of defined above. the language. The Parliament has endorsed this principle. The rationale The Primary and Lower Secondary Education Act refers to "Sami for the legislation is therefore not merely practical needs, such as that areas", and these are manifestly not identical to the "administrative area" individuals must be able to make themselves understood in courts and mentioned above. public offices. Objections from various sides, and in particular from the The Courts Act mentions the two northernmost counties, Troms and legal system and the police, were considered insubstantial when compared Finnmark, particularly in connection with the language rights of inmates. to the overall goal of cultural preservation and development. When nothing is said about territorial limitations, the law is to be In addition regulations were obviously required to meet practical needs interpreted as applying to all citizens or to those defined in each particular in several areas of social life. The interests of Sami speakers have been case. 224 0/1' Hellnk Milgg{/

The language righrs oj individuals {lnd rhe ohligarions o/puh/ic /Joc/ies Any person wishing to use Sami to safeguard his or her interests vis a-vis local and regional health and wel/ure institutions in the adm1l1lstra In the S~lmi administrative area live area has the right to service in Sami. In the Sami administrative area, local bodies are obliged to answer in Any person has the right to individual ministration by the Church in Sami if a member of the public initiates contact in the Sami language. S{lmi in the parishes of the Church of Norway in the administrative area. orally or in writing, (This does not apply to oral approaches to public Employees of a local or regional public body in the administra~ive servants carrying out duties away from the premises of the body con area have a right to paid leave in order to acquire knowledge of Sam! cerned,) Regional public bodies whose authority extends across the whole when the body has a need for such knowledge. This right may be made or part of the administrative area shall likewise answer in S~lmi if they conditional upon the employee undertaking to work for the body for a receive written applications from members of the public, The King may certain time after such educational provision, extend these duties to other public bodies as well or make exceptions in special cases, In Finnmark and Trams Official announcements which are particularly directed at the popu In Prison Service Institutions in these two counties, inmates have the lation In the admmistrative area shall appear in both S~lmi and Norwe right to use Sami with each other and their famiiy. They also have the gian, Official forms to be used in communications with public bodies 111 nght to lise S:1I11i for oral notice of appeal to the prison authority, the administrative area shall be available in both Sami and Norwegian, In "S~lmi areas" In couns with jurisdictions which wholly or partly include the admin Children in "Sami areas" have the right to receive instruction in or istrative area, the following rules apply, Any person has the right to issue through the medium of Sami. From the seventh class, it is the pupils writs with annexes, written evidence or other written submissions in Sami, themselves who decide on this, Pupils receiving instruction in or through If the court is to transmit the submission to the other party, it makes the medium of S~lmi are exempted from instruction in one of the two provision for translation into Norwegian, Translation may be dispensed forms of Norwegian (bokmal and nynorsk) at the 8th and 9th class levels, with if the other party consents, Any person has the right to contact the court orally in S{imi provided the legislation on legal procedure allows I n general for oral instead of written submission, If the court is under an obligation Laws and regulations of particular interest to the whole or parts of the to take down the submission in writing, the person putting forward the S~imi population shall be translated into Sami. , submission may demand that it be taken down in Sami, Any person has The local council may decide that Sami shall have equal status WIth Norwegian in the whole or parts of local administration. , the right to speak Sami in court. If any person who does not speak S~lmi The local council may, after hearing the views of the local educatIon IS to participate in the proceedings, use is made of an interpreter appointed committee, decide that children with Sami as their mother tongue shall or approved by the court. When a party applies for this, the presiding be taught through the medium of S{lmi for all nine year~ a~d that t~ose judge may decide that the language of the proceedings shall be S~\Ini, If who have Norwegian as their mother tongue shall have Sam I as a subject. the language of the proceedings is Sami, the presiding judge may decide Instruction in or through the medium of Sami may also be given to pupils that the court record shall also be kept in Sami. The court makes provision with a Sami background outside Sami areas. If there are no fewer than for translation into Norwegian. The court makes provisions for court three pupils whose mother tongue is S,lmi at one school, th~y may de:nand records that are written in Norwegian to be translated into S~lmi when a to be taught through the medium of Sami and have Saml as a subject. party so demands, Any person has the right to be taught Sami, The King may issue more For the police and prosecuring authorities serving an area which wholly detailed rules concerning the implementation of this provision, or partly includes the administrative area, the following rules apply. Any person has the right to speak Sami during interrogation at the office of the body concerned. Any person has the right to use Sami when submit ting an oral report and a notice of appeal. 226 Ole Henrik Magga The Silmi Language Act 22

Appeal Local government If a public body does not conform to the provisions of section 3 of the The law introduces major changes in local government at the level of th Sami Act, the person who is directly affected may appeal to the body local authority and particularly the county. Some authorities have alread which IS immediately above the body the appeal concerns. The county done a good deal. using interpreters, translating documents, and takin governor is the appellate authority when the appeal concerns local or proficiency in Sami into account when employing people. Such policie county bodies. Nationwide Sami organisations and public bodies with have been decided on voluntarily on the initiative of the authority. A tasks of particular relevance for the whole or parts of the S{lI11i population county level virtually nothing of this sort has been attempted. Govern also have the right of appeal in such cases. The same applies in cases in mental bodies have used Sami occasionally at the level of the county an, which no single person is individually affected. local authority, but in a completely unsystematic way and depending 0 the will of the body in question. The clause which gives councils the right to decide that Sami shoul, Sami Language Council have parity with Norwegian as the language of administration will pu A Sami Language Council is to be established. The Sami Parliament an end to the strange situation in some councils of everything having t, appoints the members of the Council. The Council's field of operation IS be interpreted into Norwegian even though everyone present at a meetin to preserve and develop the S~lmi language, to give advice and assistance speaks S,imi. It is improbable that this right will be asserted except il to the public and the authorities on language questions, to inform people the Sami administrative area. about their language rights and to produce an annual report on the status The right to a reply in Sami will prevent such enormities as when; of the Sami language to the Sami Parliament and the Government. school class wrote to the senior legal administrator ('Iensman') in Guov dageaidnu (Kautokeino), who replied "Write in Norwegian!". Most coun cils will regard the obligation to reply in Sami as arduous at first, bu they will probably not be inundated in communications in Simi. Spokel On the significance of the laws in principle and in practice In Sami is in fact already used extensively, so little will change here. various areas The requirement that laws and regulations should be translated doe not represent anything fundamentally new in practice. It has already beel General done to some extent for a long time, but the new regulation will intensif: The legislation enlarges the area of application of the Sami language this work. So far as announcements are concerned, this will really mak, substantially, most strikingly in the courts and the police. itself felt in some councils, in particular the two counties affected, as the: Although Sami is now in principle equal with Norwegian, these reg have hitherto used Sami very little in announcements or pUblicity. ulations clearly do not ensure full equality. The limitations of territorial application are the strongest restriction. The Sami do not have the same Courts olloH', police, prisons rights everywhere in the country. There are merely a few general rules which are supposed to apply throughout the country. In most cases, the The new regulations will have a significant impact on the courts and thl rights are restricted to a few counties, to the "Sami district", and finally police, where there is virtually no experience. It was also here that then there is an administrative area where the full range of regulations apply. was most resistance to the new law. The Ministry of Justice was th( But even within this area, local authorities have wide discretion in how Ministry which had the strongest objections during hearings on the bill they should enforce the law. When one notes that in several of the SIX It has been practice hitherto for the courts to employ an interpreter if local authorities, particularly Porsanger and Tana, people have expressed individual cases if one of the parties required it. With explicit regulation~ considerable opposition to the Sami language, one can scarcely expect a it will be easier to use Sami. A request for an interpreter often used te whole-hearted effort to follow the letter of the law everywhere. be rejected by the police for the most odd reasons which had little to de 22~ Ole '-{elll'lk Muggu The S(illll LlInguugC' Au 229 with fair legal process. It has been known for an applicant's education applied earlier, is imprecise. It cannot mean the same as the administrative to be used as evidence against needing an interpreter. area (the six councils), as in this case the same expression would have For inmates to be entitled to talk Sami to their family is a human been used. It has often been necessary for parents to establish that a right which should have been accepted without question for a long time. council Ckommune") belongs to the "Sami area" before they have been What is strange is that this right is restricted by law to the Troms and able to get instruction in Sami as a subject for their children. It is a Finnmark counties. When asked whether the same right should not apply weakness in the new law as well that parents will probably still have to elsewhere. the parliamentary committee dealing with the bill failed to struggle to assert their rights through establishing what a "Sami district" reply. is. The law ought to ensure that those to whom the rights apply should not have to struggle to establish them or to have to engage in legal quibbling about what constitutes a "Sami district". Health and .I()cia/ wel/ure On the other hand the law now applies to all children in the Sami [n the health and social security sector S~\mi is on its way in, but as yet district and not only to Sami children. Earlier versions of the same law without formal regulation. An increase in the use of S;lmi used to be restricted the rights to those who spoke Sami. This enlargement is defi resisted by the Sami Mission. which until recently administered nursing nitely an advance. However the obscure term "Sami district" may prevent homes and old people's homes in many northern Sami councils. For them the law from achieving its int.ended effect, at least until the Ministry of it was more important for the staff to have the right faith than for them Education explicitly lays down what geographical area it covers. to be able to communicate with the patients. The law states that the children themselves are to decide whether they want Sami as a subject or as a medium from the seventh grade. Until that point the parents have the right to decide. The right to opt out of Church something as important in education as one's mother tongue is a dubious [n the church widespread use has been made of Sami, via interpreters. one, and shows that the legislators do not quite have faith in Sami being There will be no major changes here. The church has in fact made diligent of equal value in the educational context. We Sami have for many years use of Sami. particularly in inland Finnmark. The clergy in many parishes been working to establish that the use of Sami in education is so fun have for a century been obliged to learn S{lmi. At one time the only damental for Sami children and so necessary for all children who live in Sami areas that it should not be possible to opt out of it. It should in training in S~lmi available was at the theological college of the University other words be obligatory. There has been a case of a council deciding of Oslo. This was so because of the requirement that the clergy should that S~lmi should be obligatory in all their schools. Norwegian-speakers know S'·lI'ni. The new law will be easiest to implement in church affairs appealed against the decision, and the administrator responsible for because the clergy have a long tradition of using Sami and learning overseeing schools in the county reversed the decision on the grounds languages, In recent years the Church of Norway has also demonstrated that she could find no legal authority for insisting on Sami as an oblig its willingness, In theory and practice, to achieve progress in this area. atory subject. Under the new law the council authorities are entitled to make Sami obligatory. I assume that when such a step is taken, pupils The primarl' and /11H'a secondarv school will be deprived of their right to opt out, because the council is entitled to make decrees which apply to all nine years of compulsory education. The regulation on instruction in or through the medium of S:lmi will not alter current practice significantly. The letter of the law states that It i,~ enough that Sami is offered as a subject (instruction in Sami), but there Lunguag(! cultivation is no right to instruction through the medium oj Sami. However, in the A Sami Language Council will presumably be able to work more syste past this regulation has been interpreted as meaning that the child has matically with language cultivation than the current Sami Language an unconditional nght to teaching through the medium of Sami. This Board. It is important that Nordic collaboration, which is of vital im right holds in the "Sami districts". This territorial restriction, which also portance for the development of the Sami language as a whole, continues. 230 0/1' Hl!l1rik MaRRa Thl! Sami Lal1RuaRc Al'l 231

Other aspects oj" the S{lmi Language Law Concluding remarks The law mostly benefits North Sami This new legislation on the Sami language can be seen as implementing The law applies in effect only to North Sami districts< apart from . the new clause in the Constitution referred to earlier. It also demonstrates educational provisions. Lule Sami and South Sami have been left out of how Norway interprets the clauses on the protection of minorities in the administrative area. The justification for this was that financial provision was even more difficult. added to which the government and international law. The regulations are in line with the International Parliament probably believe that most Sami here know Norwegian well Covenant on Civil and Political Rights, article 27, and ILO convention enough to get along. 169 on indigenous and tribal peoples, which Norway has ratified, both the general clauses (article 4) and those dealing explicitly with language Study leave (articles 12 and 28). The right to study leave is absolutely essential, because rroficicncy ill In many respects Norway now appears to be a pioneer in indigenous Sami, particularly written Sami, is still seriously inadequate throughout and minority affairs. But even if the legislation represents a major step local government (Gaup 1991) This right should apply in all bodies in forward in the Norwegian Sillni context, it is far from unique. The which proficiency in Sami is needed, and not merely those in the "ad parliamentary committee also noted this and pointed out that many other ministrative area". It is by means of study leave that we have managed minorities in Europe have much better legal protection for their languages to build up the competence now present in the education system and than what the Sami in Norway now have. In Finland legislation is being local government. It is again particularly unfortunate that Lule and South prepared to ensure equivalent rights for the Sami to those in Norway. In Sami have been completely excluded. Finland a Language Act is in effect from 1 January 1992. The Finnish The regulations are maximally general legislation accords equal linguistic rights to all Sami, even those from Hitherto one has had to define onself as linguistically "helpless" in order Norway or Sweden. In Sweden the issues have been discussed in a to get interpretation 6, and for this reason it was frequently those who committee on Sami affairs, but less progress has been made as compared most needed an interpreter who regarded it as a point of honour to do with Norway and Finland. without. The regulations are now maximally general. There is no require The Sami Language Law is now obviously the primary legal bedrock ment of having to prove that one is a Sami or has difficulties in making for the Sclmi language in Norway. In addition a distinct law has recently oneself understood. Except as regards education, the regulations apply been passed on place names in official documents. Sami names are to 'everybody'. This therefore makes it Impossible, for instance, for the explicitly referred to, and there are rules for how officialdom shall deal police to refer to level of education and use this as a reason for refusing with them. The main rule is that existing names shall be used and that a request for an interpreter or for translation of a document. This is one translations or ignoring names shall not be permitted. These rules will very advantageous aspect of the law. also have great importance for Sami language and culture. It has not been proposed that there should be rules giving preference The problem today is not so much to fight for rights but how to to people who know Sami when filling Jobs. It is felt rather that profi practically implement the Sarni Language Law. The starting point is not ciency in Sami will be a qualification that may be decisive when the body auspicious. Broadly speaking, little work on language cultivation and making the appointment needs such proficiency. In this way, proficiency terminology has been done, and few people are good at written Sami. in Sami is part of overall competence, and there will hopefully not be The education system has had loo little lime and too few resources to accusations of discrimination against those who are not Sami. have been able to equip us to meet the many challenges we are confronted with. On the other hand it is undeniable that the new rules are a big step forward. They will promote the use of Sami in public administration and can be expected to have a really significant effect on the development of 132 Ole !f,,"ri/; Maggu the Sami language. The hest way of tending a language is to make real 4 fhc SIX C0111111l111lties ("k0111111u11cr") are Guovdageaidnu (Kautokeino). Karasjohka I Kar'lsJokk). [)catllu (1;I11a). lJnjarga (Nessehy). Porsangu (porsanger) and Gaivuotna LIse of it. This will also decisively improve the status of Sami. Users of I Kiil)llrd). The na111e forms in pan:11thesis arc "Norwegl

.VOles

The legal amendments or October 1990 mainly involved changes in the law on the Samr Asscmbly