Gastbeitrag von Dr. Margret Carstens*
Indigenous reindeer herders around the chairman Matti Blind-Berg have won a 30-year battle to take back exclusive rights to hunting and fishing in a traditional Sami area of Arctic Sweden. This is an important milestone for the Sami people’s struggle to control their ancestral land. Sweden’s Supreme Court held in January 2020 that hunting rights lost in 1993 should be restored to Girjas Sameby, a Sami village, whose herders graze reindeer over a 19-mile (30 km) strip of land stretching from the Norwegian border towards the Baltic Sea. Although the decision has caused various reactions, indigenous pride and criticism as well as hate among some non-indigenous people in Sweden, the Girjas ruling is likely to influence other decisions in Sweden, perhaps even indigenous rights in Northern Europe and worldwide.
On January 23, 2020, indigenous Sami in Sweden won a major victory by overturning an almost three decades long policy that restricted their rights to hunt and fish. The Swedish Supreme Court found that the Sami group „Girjas Sameby“ („Girjas Sami Village„, a Sami cooperation) had an exclusive right to fishing and hunting in Girjas reindeer-herding areas on the basis of their presence there from time immemorial (urminnes hävd). Now the Sami village can confer hunting and fishing rights on others without the permission of the Swedish state. The Swedish state does not have a right to confer these rights any more.[i]
About 36,000 Sami, more than one third of the entire Sami community of the Scandinavian Peninsula, live in Sweden. In 1993, their rights to hunt and fish on the land that they lived on for so long in Girjas Sameby were abolished by the Swedish government’s decision to grant hunting and fishing access to non-Sami individuals. The decision impacted the 19-mile stretch of land reaching from Norway to the Baltic Sea on which Sami herders graze their reindeer. [ii]
Legal background of the dispute
In 2009 the Girjas Sameby, a village located in Gällivare, northern Sweden, and a national group representing Sami associations challenged a 1993 reform of hunting regulations that transferred responsibility for granting permits to the state. The Girjas Sameby sued the Swedish government to obtain a declaratory judgment that it has the sole fishing and hunting rights in the area in which it also holds reindeer-herding rights.[iii]
Under Swedish law, a sameby is a legal entity and administrative and financial association that holds the right to herd reindeer in a certain area.[iv]
The Girjas sameby argued that exclusive rights to decide whether others are to be permitted to hunt and fish in the village’s areas were inherent in the Reindeer Herding Act, or that it would be based on traditional custom or based on inherent rights. The Swedish State opposed this.
The District Court decided in favor of the Sami village and declared that Girjas has the sole hunting and fishing rights in the area on the basis of „urminnes hävd„ – a retired legal concept under Swedish law whereby rights can be attained and retained from historical use of land („ancient memory“). Typically, the land must have been used continuously for at least 90 years or longer.[v] The Appeals Court, in part, overturned the decision and found that although Girjas Sameby has a „better right“ to the fishing and hunting rights than the state, the state still has the right to issue hunting and fishing permits in the area.[vi]
Even though Swedish law does not recognize new procurement of these rights, rights attained through urminnes hävd prior to 1970 are still in force today.[vii] When the old Land Code („Äldre Jordabalken„) was replaced in 1970, the transitional rules provided that rights already acquired would not be automatically lost, but can be lost only in accordance with the principles of urminnes hävd.[viii]
The Swedish Supreme Court heard the case on appeal to determine the right to hunt and fish in the area of „Gällivare kronoöverloppsmark 2:1″ [ix] in Girjas and whether the Sami village had the right to transfer these rights to others.
The Girjas Case: A historic court ruling
On January 23, 2020, the people of the Girjas Sami district succeeded in getting Sweden to overturn its policy of 27 years, winning back their exclusive hunting and fishing rights as Indigenous Peoples in Sweden’s Arctic. All five judges of Sweden’s Supreme Court unanimously made the decision based on the Sami’s long history on the land. The Sami have occupied this region for at least 1500 years, and their exclusive hunting and fishing rights have existed since the 1700s. The court’s decision proclaimed,
„Our investigation shows that the Swedish crown, when it began to encourage the colonisation of Lapland, was careful to safeguard the Samis’ opportunities for hunting and fishing (…) the hunting and fishing rights that the Sami in the area had at the time of the 1886 law and the following reindeer grazing laws have been transferred to members of the Sami district today.“ [x]
The Court determined Girjas rights only in relation to the Swedish state, not to other actors or other Sami.[xi] The Supreme Court made it clear that the right to hunt and fish in the area where the Sami group herds its reindeer cannot be based on the Reindeer Herding Act.[xii] Instead it went on to determine that Girjas Sameby held these rights on the basis of the historical use of the land since time immemorial (urminnes hävd).[xiii]
The Court did not determine the legal ownership of the land where hunting was conducted.[xiv]
In detail, the Supreme Court in the Girjas case found that to qualify as a right on the basis of urminnes hävd, the use of the land (here hunting and fishing) must have been
- carried out continuously,
- with a degree of intensity,
- for a longer time,
- in a defined area, and
- without objection from other right holders.[xv]
In this case, the area was long an uninhabited area of the northern parts of Sweden, even though the Swedish state in 1956 received a title deed for the area, meaning the state is the registered owner of the land.[xvi] The Court found that the Sami alone had a right to hunt and fish in the area and that the Swedish state had not questioned this right.[xvii] The Court also found that because the Sameby and its ancestors had used the area without the interference or objection from the Swedish state, it had preserved these rights and also had the right to transfer these rights to others. Thus, the acquired right had not been extinguished by the state[xviii] and the Sami right to hunting and fishing in this specific area had instead transferred to Girjas Sameby.[xix]
A central question of the trial had been the meaning of „time immemorial“ and whether the term could be used to uphold land claims; the Supreme Court found they could. The Sami’s rights in the specific area date back to at least the mid-eighteenth century.[xx]
The state had argued throughout that its own authority stemmed from its ownership of the land, which it traces back to the nineteenth century. This was clearly documented, but the court found that the documentation showed that the crown had accepted the Sami’s exclusive right to hunt and fish there, and that with that exclusivity also came the right to authorize hunting and fishing by others. That right, the Supreme Court had found, had been taken away by the 1993 reform.[xxi]
In its analysis, the Supreme Court also considered the applicability of article 8.1 of the International Convention on Indigenous and Tribal Peoples Rights (No. 169)[xxii], declaring that even though Sweden has not ratified the convention, this article – which requires that the customs of indigenous people be considered when applying national rules – constitutes a general principle of international law.[xxiii] The Court went on to note that, in accordance with article 26 of the United Nations Declaration of Indigenous Rights[xxiv], „indigenous peoples have a right to the land, territories, and resources that they have traditionally owned, occupied, or otherwise used or acquired.“[xxv] Because the Swedish principle of urminnes hävd granted these rights to the Sami, the question of customary use by an indigenous group would need to be evaluated only if the right could not be established using urminnes hävd.[xxvi]
Two justices issued a concurring opinion which agreed that the Sami village had a right based on urminnes hävd but argued that it also had a right based in statute.[xxvii]
Consequences in administration
As a result of the verdict, the state can no longer continue to distribute fishing and hunting permits via local county administrative boards. On January 23, 2020, the board of the Norrbotten area published a notification that all sale of fishing and hunting rights for 2020 would be cancelled. The Sami village is working with the board in Norrbotten to ensure that persons who have bought cards allowing for hunting throughout the municipality will be able to continue to use them until the end of June 2020. The Norrbotten County Administrative Board has restored the hunting-right activation function for hunting-day permissions for these holders.
Meanwhile, county administrative boards in other Swedish areas continue to provide fishing and hunting permits on state land. Sami groups living in these areas may also have a better right to these rights, but an individual determination must be made by the Swedish courts on a case-by-case basis. The SC-decision that the Sami village has exclusive fishing and hunting rights within its own area is therefore not automatically applicable to the 50 other Sami villages in Sweden. Roughly half of Sweden’s area is made up of parts of areas where designated Sami groups herd their reindeer.
It comes as little surprise, that the Girjas decision has frustrated local hunters and fishers to a certain degree who have previously received fishing and hunting permits from the state.
Unfortunately, this decision has caused an increase in the number of hate crimes against Sami individuals, threats of physical violence and calls for harming Sami reindeer: Sami members of the Girjas community have reported receiving several threats of violence both online and in person after the court ruling was announced and have faced backlash.[xxviii]
In addition, among the Sami, the responses in relation to the Girjas judgment have been mixed. Sami villages, including the Swedish Sami Parliament representatives, have welcomed the decision. They called it a success for indigenous rights. But the decision has also been criticized by other Sami groups because only the legal entity (sameby) has the urminnes hävd to use the land, not the Sami people. As a consequence of this decision, some Sami, who are not part of Sami villages, fear that they may not have a right to fish and hunt in areas where they or their forefathers previously fished and hunted. The ruling may lead to similar legal challenges, such as when the right to herd reindeer was vested in legal entities, which required membership in that group.
This became apparent in mixed reactions concerning the current Sami conflict in Vapsten, where on November 8, 2019, two indigenous Sami groups met in Lycksele District Court over who had the „better right“ to herd reindeer in the Vapsten reindeer herding area, which includes parts of the so called Storuman municipality in northern Sweden.[xxix] The Vapsten Lappby (not part of the Sameby), who had asked the court to rule that they have a „better right“ to herd reindeer in the area than the Vapsten Sameby because their ancestors have been there for centuries[xxx] were relying on the same legal construct of urminnes hävd as the Girjas Sameby did when arguing for a better right to fishing and hunting rights than the Swedish state in the Girjas Supreme Court case.[xxxi]
As decided by the Lycksele District Court on February 28, 2020, the Vapsten´s Lappby and Vapsten´s Sami village shall have joint reindeer husbandry rights in the Vapsten area.[xxxii]
Appreciation and outlook
Sami groups hope the Girjas decision can be used as a precedent in other indigenous land rights cases challenging state authority over traditional lands, both in Sweden and internationally.[xxxiii]
In accordance with Girjas Sameby chairman Matti Blind-Berg, the Supreme Court ruling of January 23, 2020, is a historic victory that strengthens Sami rights over traditional Sami lands. The decision shows how effective indigenous resistance to rights violations can be.[xxxiv] Åsa Larsson Blind, President of the Sami Council, is of the opinion, that this verdict represents a new legal status and the Swedish state has to analyze what kind of consequences this verdict will, and should, have for other Sami people.[xxxv] The Girjas decision definitely clarifies the legal foundations in Sweden concerning Sami hunting and fishing rights.
The above mentioned „Vapsten District Court decision“ will be a further challenge for it relies on the same legal construct of urminnes hävd as the Girjas Sameby did, although the Court determined Girjas rights not to other Sami. Nevertheless, Vapsten is a unique judgment: Never before has a District Court tried the rights to reindeer husbandry between two groups within the same Sami village. Understandably, the chair of the Swedish Sami Land Party is dissatisfied with the verdict. She believes this unclear judgment will be appealed, as it makes no difference to the situation it used to be.[xxxvi] The future will show how the Girjas Supreme Court decision will influence urminnes hävd – presence in the area from time immemorial – with regard to the current Sami conflict in Vapsten and perhaps a higher court ruling in this matter.
It has to be observed whether and in how far the groundbreaking Girja ruling strengthens indigenous hunting and fishing rights / land rights in other countries with indigenous (Sami) peoples. What significance the Swedish Supreme Court ruling on inherent rights may have in other parts of „Sápmi“ [xxxvii], although it is a national ruling and there are various recognitions of the rights in the various parts of national borders in the Sámpi region, has to be further analysed in detail. Surely there are elements in the Girjas decision that could make this verdict important beyond Sweden. According to Øyvind Ravna, Professor of Law at the University of Tromsø, this historic verdict may have repercussions, e.g., for Norwegian court decisions, for inherent rights may matter in a neighboring country (like Norway), as the Sami are a people residing in four countries while sharing inherent customs and legal traditions.[xxxviii]
In compliance with Áslat Holmberg, vice president of the Sami Council, the Girjas ruling has a great impact for Sami rights in general. As he stresses,
„the more immediate impacts will be seen on the Swedish side of Sápmi, but it is very relevant also for Sámi in Finland. Finland was part of Sweden in the times when the legal foundations between the Sámi and the state were made. Finland adopted those foundations when it became independent. The autonomy of Sámi siida (villages) (…) was recognized by the state for a long time. Siida as a governance structure has much longer history than the current municipalities, their autonomy was much greater. This autonomy has never been ceded. The Girjas court ruling is a major step in recognizing the unceded rights of Sámi communities to their respective resources and restoring them.“ [xxxix]
Finally, the Girjas judgment, in addition to setting precedent for Sami victory regarding land use rights in Sweden, has definitely brought more support for ratification of the International Labor Organization’s (ILO) Convention 169 on Indigenous and Tribal Peoples by Sweden. The ruling reflects the Swedish commitment to the United Nations Declaration of Indigenous Rights. Moreover, the Nordic Saami Convention agreement that has been reached in 2016 after decades of negotiations between governments and Sami Parliaments in Sweden, Norway and Finland – a unified Nordic agreement on Sami rights and culture in accordance with the ILO Convention 169 – indirectly gets new support by the Girjas ruling, that refers to ILO 169.[xl] The „Nordic Saami Convention“ in turn supports the outcome of the Girjas decision in its Articles 34 – 36 on traditional use, protection and utilisation of land and waters.
* About the author: Margret Carstens, Dr iur, iur assessor; independant researcher and author: public international law (indigenous, resource and environmental rights), Berlin, Germany. Expert opinions, e.g., on Sami rights for University of Leipzig, Germany, and the Canadian Government. Selected publications: JEMIE (1/2016): Sami Convention; Word Comparative Law/VRÜ (2020/19/10/09/04): Indig. land rights, climate change, Mercosur trade agreement, & Brasil (2/2020); Our Land decision, IACourtHR (2020); 25 years of native title – Mabo and beyond (2/2019); Native Title (2010); Awas Tingni/ Latin America (2009, 2004); doctorate on indigenous land and self-determination rights in Australia, Canada & international law (2000). PhD studies: UNSW, Australia (AEAP), Canada. Legal fellow at CIEL, Washington DC & University of Erfurt, Germany. E-Mail: Margret.Carstens@gmx.de. All translations in this article (Swedish to English) by Margret Carstens and Jenny and Agneta Stalschus.
[i] Högsta Domstolen [Swedish Supreme Court] (Jan. 23, 2020) Case No. T 853-18 (Decision); cf. Hofverberg, Elin 2020. For indigenous rights in Northern Europe in general see e.g. Carstens 2016, pp. 75-116, with further references.
[ii] Cf. Maher 2020.
[iii] Cf. McGwin 2020.
[iv] 1 § 2 and 3 st. Rennäringslagen (st. Reindeer Husbandry Act, SFS 1971:437): „1 § Den som är av samisk härkomst (same) får enligt bestämmelserna i denna lag använda mark och vatten till underhåll för sig och sina renar (Anyone of Sami descent (same) may use land and water for maintenance for himself and his reindeer in accordance with the provisions of this Act). Rätten enligt första stycket (renskötselrätten) tillkommer den samiska befolkningen och grundas på urminnes hävd (The right according to the first paragraph (reindeer husbandry) belongs to the Sami population and is based on the claim of ancient memory). Renskötselrätten får utövas av den som är medlem i sameby (Reindeer husbandry may be exercised by a member of a Sami village). Lag (1993:36). 2 § har upphävts genom lag (has been repealed by law) (1993:36). Renskötselområdet m. m. (Reindeer husbandry area m. M.) 3 § Renskötsel får bedrivas inom följande områden (renskötselområdet) (Reindeer husbandry may be conducted in the following areas) (reindeer husbandry area) 1. hela året (året-runt-markerna) (all year (year-round fields)) (…).“ See: https://www.riksdagen.se/sv/dokument-lagar/dokument/svensk-forfattningssamling/rennaringslag-1971437_sfs-1971-437 (last access May 22, 2020)
[v] 15 kap. 1 § Äldre Jordabalken [ÄJB] [Older Code on Land and Cadestral] (1734 års lag), a concept known as „alders tid“ (older times) in neighboring Norway.
[vi] Cf. Maher 2020, l.c., also hereinafter.
[vii] Decision para. 135.
[viii] 6 § Lagen (1970:995) om införande av nya jordabalken punkt 4 övergångsregler. 6 §: „Genom nya balken inskränkes ej den rätt som före balkens ikraftträdande tillkommit någon på grund av urminnes hävd.“ (The Act (1970: 995) on the introduction of the new land code Point 4 transitional rules. § 6: „The new beam does not restrict the right that was granted to anyone prior to the entry into force of the beam due to the claim of ancient memory“) See https://www.riksdagen.se/sv/dokument-lagar/dokument/svensk-forfattningssamling/lag-1970995-om-inforande-av-nya-jordabalken_sfs-1970-995 (last access May 23, 2020). Altogether cf. Maher 2020, l.c.
[ix] Land in the area of Gällivare, not distributed to privat owners, but in state ownership. Gällivare crossover mark 2:1/ successive overflow land.
[x] Cf. Maher 2020, l.c.
[xi] Decision para. 39.
[xii] Rennäringslagen (SFS 1971:437). Decision para. 124.
[xiii] Decision para. 227.
[xiv] Decision para. 38.
[xv] Decision para. 141.
[xvi] Decision para. 1.
[xvii] Para. 189.
[xviii] Paras. 215 and 218.
[xix] Para. 219.
[xx] Cf. McGwin 2020, citing Justice Andersson.
[xxi] Cf. Mc Gwin 2020, l.c.
[xxii] „Convention No. 169 on Indigenous and Tribal Peoples in Independant Countries“ of the International Labour Organisation (ILO), June 27th, 1989, in force since Sept. 5th, 1991 (ILO 169, ILM 28, 1383), in short: ILO 169.
[xxiii] Para. 130.
[xxiv] „United Nations Declaration on the Rights of Indigenous Peoples“ (A/RES/61/295), passed by the UN in 2007 (in short UNDRIP), in favour 143 countries, one of them Sweden. So called „soft law“ (non-legally binding declaration as an aspiration for how indigenous individuals and peoples should be treated).
[xxv] Para. 131.
[xxvi] Paras. 133–134.
[xxvii] The Rennäringslag (Reindeer Husbandry Act). See Decision, Addendum, Concurring Dissent, para. 160.
[xxviii] Maher 2020, l.c.
[xxix] Case no. T329-17, Aktbilaga 133 Sammanställning (Case Addendum, Summary).
[xxx] Case at 2, 4-5.
[xxxi] In contrast, the respondents, the Vapsten Samebyn, argue that they did have a right to enter and remain in Vapsten (Case at 19-23). The South Sami Vapsten Lappby group would have lost their herding rights by voluntarily ceasing to herd reindeer in the area. (Case at 23-25) Moreover, they prove that there is not enough herding space to include the South Sami in the Vapsten Sameby, as the area cannot sustain a greater number of reindeer than are already herded within the Sameby. Cf. Hofverberg 2019.
[xxxii] Cf. https://www.tellerreport.com/news/2020-02-28—they-are-entitled-to-the-reindeer-husbandry-in-the-vapsten-area-.rkn8cw84I.html (last access May 27, 2020).
[xxxiii] E.g. in a Vapsten High Court decision in future. Of the same opinion: McGwin 2020, l.c.
[xxxiv] C.f. Maher 2020, l.c.; cf. Schertow 2011.
[xxxv] Cited in: Bye 2020.
[xxxvi] Cf. https://www.tellerreport.com/news/2020-02-28—they-are-entitled-to-the-reindeer-husbandry-in-the-vapsten-area-.rkn8cw84I.html (last access June 2, 2020).
[xxxvii] The traditional word for the Sami nation, which stretches across northern parts of Norway, Sweden, Finland and Russia. There are major differences across the borders, the Sami live under varying conditions.
[xxxviii] Cf. Bye, l.c.
[xxxix] Of this opinion also Maher l.c.
[xl] In detail, e.g., Carstens 2016, l.c., pp. 92-93. A Sami Convention (SC) of the Nordic states – a treaty between states unter public international law (but see Art. 51 SC: entry into force and amendments of the instrument will require appropriate parliamentary proceedings and approval by the Sami Parliaments) – could be a model for other countries with indigenous peoples living across borders (cf. Article 36 of the UNDRIP on the right of indigenous peoples divided by national borders). For the text of the „Nordic Saami Convention“, see https://www.sametinget.se/105173 (last access June 8, 2020), esp. Chapter IV, „Saami right to land and water“, Art. 34-40 SC; concerning hunting and fishing see Art. 34-36 SC. Unfortunately, whether this Convention stays unchanged is unclear. In Sweden, less than in Finland, there still exists disagreement regarding the regulations on ownership, self-determination and land use. Furthermore, next to issues like the recognition of Sami land and resource rights and the understanding of indigenous peoples’ property rights, practical challenges have to be solved before adoption (ratification and acceptance), such as the change of reindeer husbandry areas because of climate change, to secure the Sami an equivalent position against non-Sami people and state authorities (Carstens, ibit, pp. 93-94, 103-105 with further references). Cf. Staalesen 2017.
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