The legal basis of Sami reindeer herding rights in Sweden

• Author: Eivind Torp
• Pages: 43-61

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The legal basis of Sami reindeer

herding rights in Sweden

Eivind Torp

Eivind Torp, Dr. Juris, Associate Profes sor, Mid Sweden University, Östersund, Sweden.

E-mail: eivind.torp@miun.se

Recieved November 2012, accepted January 2013

Abstract: is article discusses the basis of the Sami right to pursue reindeer

herding, and how that right has been regu lated in law. Two aspects of this right

are particularly signicant: establishing which land areas are covered by the

reindeer herding right and clarifying what the right entails. e legal institu-

tion of ‘immemorial prescription’ has long been considered highly signicant

in judicial tria ls concerning the reindeer herding rights. In the wake of a ru ling

by the Swedish Supreme Court, that picture has now changed.

Key words: Sami reindeer herding, customary law, immemorial prescription, oc-

cupation, Swedish Supreme Court.

Introduction1

e right to pursue reindeer herding in Sweden is exclusive to the Sami people.2

Even though only a fraction of the Sami pursue reindeer herding, reindeer hus-

bandry is considered a prerequisite for the continued existence of Sami culture.3

Accordingly, the Swedish parliament has established that in the future a reason-

able number of Sami must be permitted to earn their livelihood from reindeer

1. e article i s based on material pre viously published in Sve nsk JuristTidni ng 2012 pp. 708–722.

2. See Reindeer Husbandr y Act (RHA) s1.

3. e Sami population i n Sweden is estimated at approx imately 17,000. Fewe r than 2,500 i ndi-

viduals pu rsue reindeer herding. Swed ish government report SOU 1999: 25 p. 14.

Arctic Revie w on Law and Politics, vol. 4 , 1/2013 pp. 43–61. ISSN 1891-6252

eivind torp

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husbandry.

4

Reindeer herding requires access to large land areas: as a point of

departure, more than 50 percent of Sweden’s total land area constitutes reindeer

pastureland.5 In principle, the Sami right to pursue reindeer herding is severed

from the issue of who owns the land upon which reindeer are herded. Reindeer

herding is pursued on both state-owned land and privately-owned land. A large

proportion of reindeer pasture is thus made up of forested areas held by private

property owners. e right to reindeer herding exists independently of contracts

with the property owner. One consequence of this situation – that two holders of

rights, regardless of contracts, have rights vis-à-vis the same natural resource – is

that conicts easi ly arise between the rights-holders. In recent years, severa l com-

plex legal actions have been brought in which the central matter at issue was the

Sami right to pursue reindeer herding on private land.

In spring 2011, the Swedish Supreme Court issued its ruling in t he Nordmaling

case (Nytt Juridiskt Arkiv, NJA 2011 p. 109), in which a group of property owners

in the municipality of Nordmaling sued two Samebys6 for having used their land

for reindeer herding without prior agreement. Even though the Supreme Court

armed the ruling of the Court of Appeal, the ruling has nevertheless been de-

scribed as «a new course of direction for the legal basis of the Samebys’ right to

winter pasture,» in part because the Supreme Court claries how the Reindeer

Husbandry Act (RH A) should be applied in questions regarding t he Sami right to

winter pasture.7 ere is no doubt the ruling will be highly signicant in relation

to future legal disputes concerning the Sami right to winter pasture.8

e Supreme Court ruling has been reviewed by Bertil Bengtsson (Svensk

JuristTidning 2011 p.527) and Christina Allard (in Karnov Nyheter, 2 June 2011

and Juridisk Tidskri 2011–12 p. 117). Both authors interpret the Supreme Court

ruling to mean that the legal basis of reindeer herding diers in various parts of

reindeer herding territory.9 Bengtsson writes:

4. Swedish Government Bill 1976/77:80 [prop. 1976/77:80], Committee on Cultural Aairs

Report 43 [KrU 43], Rik sdag Communication 2 89 [rskr.289].

5. Swedish government report SOU 20 06: 14.

6. e term «Sameby» refers to an ass embly of Sami, organized as an association, who pursue

reindeer herding within a dened territor y, as well as to the geographical territory within

which the members of t he Sameby are entitled to pur sue reindeer herding.

7. Allard, Chri stina, «Nordmalin gsmålet: Urminnes hävd översp elad för renskötselrätten?» in

Juridisk Tidskri 2011–12 p. 117.

8. See for example the Cour t of Appeal for Southern Norrland , case no. T 879–05 and Dist rict

Court of Öste rsund, case no. T 1919–11.

9. See RHA s3 (1971: 437) for the legal denit ion of the term «reindeer herding t erritory.»