The Nordic countries' law on Sa?mi territorial rights

• Author: Christina Allard
• Pages: 25-49

159

[start kap]

The Nordic countries’ law on Sámi

territorial rights1

Christina Allard

Christina Allard, Doctor of Law, is Post doctor at the Faculty of Law, University of

Tromsø and Associate Professor at the Depar tment of Social Science, Luleå University

of Technology (on leave). E-mail: christina.allard @uit.no.

Abstract: Territorial rights are importa nt for the Sámi people, as they are for

all indigenous peoples. Land is t he asset which supports the Sámi culture and

responsible for its long-standing survival.  is article compares property laws

in Norway, Sweden and Finland as to how Sámi rights to land and natura l re-

sources are articu lated and recognized. ese rights are bas ed on old doctrines:

“immemorial usage” in Norway and “immemoria l prescription” in Sweden and

Finland. Although t he doctrines are general ly regarded as equivalent, the ar-

ticle discusses a few signicant dierences. Subsequently the basic principles

underpinning the two doctrines are analysed, contrasted and discussed, with

particular foc us on reindeer herding rights.

Keywords : Sámi rights, territorial rights, immemorial usage, immemorial pre-

scription, Norwegian law, Swedish law, Finnish law, reindeer herding

1. Warm thanks t o LL.Lic. Juha Joona , of the Northern Inst itute for Environmenta l and Minority

Law (NIEM) and Hei kki Hyvä rinen, former lawyer at t he Finnish Sám i Parliament, for excel -

lent help and valuable com ments on Finnish law. Any remaining e rrors are the sole respon-

sibility of the author.

All tra nslations in the art icle are by the author.

Author’s note 30–04–11: Aer th is article was completed and had pas sed through t he

usual peer rev iew process, the Swedish Supreme Cour t released its verdic t concerning th e

Nordmaling ca se on April 27, 2011: Case No. T 4028–07. Although prev ious Swedish cases on

Sámi territor ial rights have been a rticulated t hrough immemoria l prescription, the Supreme

Court here base d their reasoni ng on customary law (sedvanerätt) with regard to reindeer

Arctic Review o n Law and Politics, vol. 3, 2/2011 p. 159–183. ISSN 1891-6252

christina allard

160

1 Introduction

Sámi2 rights to land – rights to own or to use land and natural resources – are

crucial. Land represents the material and spiritua l foundation of Sámi cultural

identity, and provides the basic necessities for traditional activities like reindeer

husbandry. Such rights are oen referred to as territoria l rights.3 Seen as a whole,

the three Nordic States – Norway, Sweden and Finland – have until very recently

recognized such Sám i territorial rights only as usufruct r ights.4 Developments in

Norwegian law, through case law and legislation, have meant a breakthrough in

this respect. Nevert heless, to various degrees and manners, the three countries

still struggle with the recognition of limited Sámi rights, chiey the recognition

(and protection) of the reindeer herding right.

As to ownership, the States implicitly or explicitly cla im ownership of Sápmi,5

the vast cross-border territory that constitutes the customary Sámi home area.6

For Norway this picture must be somewhat modied g iven a shi in attitude re-

lated to certain areas, particularly in the very north of the country.7 Concerni ng

an area called Svartskogen in northern Norway, the Norwegian Supreme Court

found in 2001 that the local populat ion (of Sámi majority), not the State, were the

right ful owners. 8 Additionally, a new statute has transferred a majority of “state-

owned” lands in t he very north in Finnmark, regarded as the core Sám i area, to a

new body (the Finnmark Estate) to manage these lands.9 Impor tantly this statute

husbandry on so c alled winter-pastu re areas. (Compare with my ca se review in this issue of

the Arctic Revi ew on Law and Politics.) is art icle should therefore be read with t he verdict

of the Nordmali ng case in mind, i.e. t he analysis of Swedish law concer ning the recognition

of reindeer herding ri ghts for winter-pasture s is no longer relevant. In Swedish rei ndeer hus-

bandry leg islation there is a dis tinction made bet ween year-around-are as and winter-past ure

areas. For year-a round-areas immemoria l prescription still appl ies.

2. Also spelled Saami or S ami. e Sámi were formerly k nown as Laps.

3. See e.g. J. Anaya, Indigenous peoples in international law (Oxford University Pre ss, Oxford,

2004) p. 143.

4. See also the re port of the UN Spe cial Rapporteur James Anaya , e situation of the Sami

peoples in the Sápm i region of Norway, Sweden and Finland, A/H RC/18/XX/Add.Y, 2011 at

46–52 .

5. See e.g. N. Ban kes, Legal Systems in Arctic Huma n Development Re port (Stefanson Arctic

Institute, A kureyri, 2004) pp. 112–113. e issue of State ownership is in genera l contested

among the Sám i.

6. For a map, see www.eng.samer.se/servlet/GetDoc?meta_id=1002 (accessed March 1, 2011).

7. is shi  must be understood broadly. For instance , the Norwegian State has nowadays i n

various public doc uments recognized that the cou ntry is founded on the territory of t wo

peoples: the Norweg ian and the Sámi, t hereby recognizing the c ountry’s colonial histor y.

8. Rt. 20 01 s.1229.

9. Finn mark Act, June 17, 2005 No. 85.