Girjas Reindeer Herding Community v. Sweden: Analysing the Merits of the Girjas Case

• Author: Christina Allard, Malin Brännström
• Position: Division of Social Sciences / Law
• Pages: 56-79

© 2021 Christina Allard and Malin Brännström. This is an Open Access article distributed under the terms of the

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Citation: Christina Allard and Malin Brännström. “Girjas Reindeer Herding Community v. Sweden: Analysing the Merits of

the Girjas Case” Arctic Review on Law and Politics, Vol. 12, 2021, pp. 56–79. http://dx.doi.org/10.23865/arctic.v12.2678

Arctic Review on Law and Politics

Vol. 12, 2021, pp. 56–79

56

*Correspondence to: Christina Allard, email: christina.allard@ltu.se

Peer-reviewed article

Girjas Reindeer Herding Community v.

Sweden: Analysing the Merits of the

Girjas Case

Christina Allard

Luleå University of Technology, Sweden

Malin Brännström

Silvermuseet/The Institute for Arctic Landscape Research (INSARC) and Umeå University,

Department of Law, Sweden

Abstract

For the rst time in the Swedish Supreme Court, a small Sami reindeer herding community

has won an important victory afrming the community’s small game hunting and shing rights.

Because of protracted use and the concept of immemorial prescription, the Court recognised the

community’s exclusive hunting and shing rights, including the right to lease these rights to oth-

ers. Such leases have long been prohibited by legislation and the State has retained its powers to

administer such leases. This case signies a considerable development in the area of Sami law. In

its decision, the Supreme Court made some adjustments to the age-old doctrine of immemorial

prescription, and provided insights into how historic evidence should be evaluated when the claim-

ant is an Indigenous people. A common motivator for these adjustments is an enhanced awareness

of international standards protecting Indigenous peoples and minorities. Even ILO Convention

No.169 – the only legally binding convention concerning Indigenous rights, but which Sweden

has not yet ratied – is relevant when it comes to evaluating Sami customary uses. The Court

addressed the problem of gaps in the historical material and used evidence from other parts of

Swedish Lapland and adjacent time-periods, making reasonable assumptions to ll in these gaps.

The Court imposes on the State the burden of proof regarding the extinguishment of already

established Sami rights, as well as proof that extinguishment by legislation or expropriation, is

“clear and denitive”. These conditions were not met in this case.

Keywords: Sami land rights, Indigenous peoples, Indigenous rights, hunting, shing,

immemorial prescription, Indigenous customary law, Indigenous custom, Supreme Court

Responsible Editor: Nigel Bankes, Faculty of Law, University of Calgary, Canada

Received: October 2020; Accepted: January 2021; Published: March 2021

Girjas Reindeer Herding Community v. Sweden

57

1 Introduction

The Swedish Supreme Court delivered its verdict on the historic Girjas case1 in

January 2020. This article aims to analyse and unwrap this landmark case. The Girjas

case could well be described as a “David and Goliath” narrative: a small Indigenous

community in a remote corner of the Swedish Far North up against the Swedish

State. The battle for the Sami reindeer herding community (RHC) has been hard

won; The State, represented by the Ofce of the Chancellor of Justice, and in partic-

ular externally engaged attorneys, explored all available arguments and persisted in

using the offensive old term “Laps” instead of the preferred “Sami”.

In a nutshell, this case concerns the exclusive rights of the Girjas reindeer herding

community (RHC) to small game hunting and shing and the authority of the RHC

over these rights. The Supreme Court held unanimously that the Girjas RHC has

both an exclusive right vis-a-vis the State and the authority to lease hunting and sh-

ing rights to others, something that the reindeer herding legislation clearly prohibits.

The full consequences of the decision for both Girjas and other Sami RHCs remain

to be seen. In July 2020, the Government declared its intention to establish a public

investigation to oversee the need for amendments to the current Reindeer Herding

Act of 1971 because of the Girjas case. Pre-hearings occurred during the autumn of

2020 with Sami representatives and others regarding the scope of such an investiga-

tion.2 One effect of the Girjas case was, unfortunately, increased racism and conict

between groups of Sami as well as between Sami and Swedish locals.3 These conicts

stem from centuries old Sami politics and the early division between reindeer herd-

ing Sami and non-reindeer herding Sami who have no recognised territorial rights.4

The Girjas case did not resolve the tangled matter between those Sami who are

RHC members and those who are not. Nevertheless, the case has claried the con-

ditions for assessing the customary uses of the Sami and their rights to land and

natural resources. The case established that in applying national (property) law it

is necessary to take into account the protection afforded Indigenous peoples and

minorities by binding public international law. Even ILO Convention 169,5 which

Sweden has not yet ratied, should, according to the Supreme Court, be considered.

We will return to this issue in Section 4.

The 92-page verdict, which is long by Swedish standards, reveals the complex-

ity of the case. In its verdict, the Supreme Court addresses two principal issues:

rst, whether hunting and shing rights were based on legislation, and secondly,

whether such rights were based on older property law, particularly the doctrine of

immemorial prescription. The Court split (3/2) on the rst question and the two

dissenting judges delivered their own reasoning on this issue.6 The Cour t was unan-

imous on the issue of immemorial prescription.7 In this sense it is a strong verdict

and establishes an important precedent with respect to the grounds for recognising

Sami rights under the doctrine of immemorial prescription, an old Swedish property

law concept. While Swedish legal culture and the Constitution require the judge to