Indigenous Customary Law and Norwegian Domestic Law: Scenes of a (Complementary or Mutually Exclusive) Marriage?

Abstract

Articles 27 and 34 of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) recognise Indigenous Peoples’ laws. Art. 34 gives Indigenous Peoples the right to maintain their juridical systems or customs in accordance with international human rights standards. Although the UNDRIP is soft law, its core is arguably customary law and, therefore, a binding source of law. For States with Indigenous People, such as Norway, the UNDRIP is of paramount importance, from a legal, political, and not least moral perspective. This paper discusses norm hierarchies and tensions that are created in the meeting between the Indigenous customary law of the Sámi and statutory domestic Norwegian law. The introduction of customary, commonly unwritten, Indigenous rules into the judicial portfolio of a State creates an obvious challenge: what is their legal status? Can Indigenous law set aside domestic statutory norms? Some might argue that due to historical wrong, Indigenous law should always take precedence when domestic law conflicts with it. While Norwegian domestic law acknowledges the precedence of certain core human rights treaties over domestic laws, the same is not valid for Indigenous rights. How then should Indigenous custom be dealt with before a court of law, and how do the different legal systems relate to each other? This paper is foremost based on theoretical, to a lesser degree also on empirical material. It discusses on a general level the relationship between different legal systems within the same State and, on a specific level, the dealing of the Norwegian courts with Sámi Indigenous laws and customs.

Indigenous storytelling and admissibility in common law courts: Developing the protocols for the reception theory of evidence

“…The Sami peoples oral histories have been recognised in the Norwegian courts as a form of customary law by the understanding that 'Sámi cultural values influence decisions that concern the Sápmi (the Sámi homeland) land, water, and use of resource' (Lingaas, 2022). This is based on the assumption that the 'customary laws of Indigenous peoples are distinct, but they are also largely unknown and unappreciated by most non-Sámi people, including lawyers, judges, and legislators' (Ahrén.…”

“…There is a lack of a protocol in the rules of admissibility for oral storytelling in Native American litigation for claims to land where the tribe is without any historical written sources at their disposal. It is noticeable that the ‘courts’ inconsistent treatment of oral tradition also results in uncertainty and deprives Native American claimants of clear guidelines on what evidence they should or should not submit to prove their claims’ (Smith, 2016). The lack of documentary evidence means that they have to rely on oral testimony to establish their case.…”

Legal Consequences of Violating the Endogamy Marriage System in Indonesia: A Study of Legislation

“…On the other hand, customary law provides intriguing views on marriage. According to it, marriage can involve kinship, family, and honor while also being a personal affair (Lingaas, 2022). This conception heavily depends on the structure and social norms of the concerned society.…”

Regulation of Underground Space in Realising Community Welfare and Legal Certainty for Investment

“…The provisions in Article 33 of the 1945 Constitution above, in order to be implemented, require legislation as an implementation, therefore Law Number 5 of 1960 concerning Basic Regulations on Land Principles (UUPA) was issued (Efrianto, 2023). The provisions formulated in Article 2 of the UUPA above, when connected with the phrase: "natural resources contained therein" in Article 33 of the 1945 Constitution can be given the meaning of "natural resources contained therein" including the regulation of the land above it as well as the The written provisions of land law are sourced from the UUPA and its implementing regulations that regulate more specifically related to land as the main source, while the unwritten provisions of land law are sourced from customary law on land and jurisprudence on land as a complementary source of law (Lingaas, 2022). This explanation indicates that especially the written legal sources of UUPA and its implementing regulations have not regulated RBT.…”