Background
Girjas Sami District conducts reindeer husbandry, including in a very large area above the cultivation line in Norrbotten County, northern Sweden.
Pursuant to the Swedish Reindeer Husbandry Act (SFS 1971:437), members of the Sami district have the right to hunt and fish in the district. The Act also contains provisions stating that neither the Sami district nor its members are permitted to grant hunting and fishing rights to others; rather, as a rule it is the county administrative board that grants such rights. This regulation has remained largely unchanged since the first Reindeer Grazing Act of 1886.
The purpose of the case
The issue that the Supreme Court has now decided is whether, despite this statutory regulation, Girjas Sami District has the sole right to administer small-game and fishing rights in the district. According to the Sami district, this is the case both pursuant to the Reindeer Husbandry Act and by custom or immemorial possession. For its part, the Swedish State has claimed that, as the property owner, it is State alone that retains hunting and fishing rights in the district, including the right to grant hunting and fishing rights to others.
The Supreme Court has not examined the issue of ownership rights to the district.
Conclusions contained in the ruling
In its ruling, the Supreme Court concludes that:
- the Reindeer Husbandry Act does not give Sami districts the right to grant hunting and fishing rights for the area in which the Sami district conducts reindeer husbandry; and
- the Sami district retains the sole right to grant hunting and fishing rights as a result of historical circumstances applying to the area in question (possession since time immemorial).
The verdict therefore establishes that:
- Girjas Sami District may grant small-game and fishing rights in the area without the consent of the State; and
- the State is not permitted to grant such rights.
The Court is unanimous in this verdict. All members of the court concur that the ruling’s upholding of immemorial possession means that the claim must be sustained. Two members of the court are of the opinion that the claim of the Sami district is already sustained through the application of the provisions of the Reindeer Husbandry Act.
The first conclusion – that the Reindeer Husbandry Act does not give a Sami district the right to decide on granting hunting and fishing rights
In its ruling, the Supreme Court first addresses the issue of whether Girjas Sami District has grounds for retaining the sole right to grant hunting and fishing rights pursuant to the Reindeer Husbandry Act. The Court confirms that the text of the law does not give Sami districts any such rights. Some older preparatory work could however be construed to mean that the legislature has considered the Sami and Sami districts to actually be the holders of hunting and fishing rights. Given this view, the fact that the legislature has not chosen to allow the Sami to grant hunting and fishing rights could be due to the Sami having been judged to be incapable of doing so. If this is the case, the Act’s provisions on granting rights could be discriminatory pursuant to the Swedish Constitution or the European Convention on Human Rights, which in turn could cause them to be set aside.
Having among other things reviewed preparatory work for the Reindeer Husbandry Act and earlier reindeer grazing acts, the court did however come to the conclusion that the regulations in the Reindeer Husbandry Act are based on the conception that hunting and fishing rights fundamentally belong to the State. The Act’s provisions on granting rights are therefore not discriminatory in the meaning of either the Swedish Constitution or the European Convention.
The second conclusion – that a Sami district has the right to decide on granting hunting and fishing rights on the grounds of possession since time immemorial
Questions of fact
With regard to whether Girjas Sami District can grant small-game and fishing rights on the grounds of immemorial possession, the Supreme Court’s judgement is based on the conditions in the area in question in times past. The Sami district must prove that a right has arisen based on immemorial possession; that said, a certain relaxation of the burden of proof is necessary if the Sami district is to have a reasonable chance of protecting those rights that may be associated with the areas that the Sami have traditionally used. In this context, the Court has referred to international law on the rights of indigenous peoples. Certain deficiencies in the investigation into conditions in the area have therefore been supplemented by reasonable assumptions, primarily based on what is known about conditions in other parts of Lapland.
Conditions up until the mid-eighteenth century
Based on the conditions that can be assumed to have prevailed in the area since the sixteenth century, in the opinion of the Court, a right of individual Sami to decide on hunting and fishing in the area had in any case developed by the eighteenth century. The Court also concludes that up until this time the State had not expressed any claims to such a right. This implies that, in the mid-eighteenth century, hunting and fishing rights, including the right to grant them to others, belonged solely to the Sami in the area in question.
Conditions from the mid-eighteenth century until 1886
The Court concludes that, although in a number of ways the subsequent actions of the State dispute the Sami’s right to decide, the State’s actions do not constitute such a clear and definitive confiscation of the Sami’s hunting or fishing rights as would be required for the Sami’s already established rights to cease to apply. At the time the first Reindeer Grazing Act was passed in 1886, it was therefore still only the Sami using the land of those areas who had the sole right to decide who could hunt and fish there.
The earlier right of Sami to decide on granting hunting and fishing rights has been transferred to Sami districts
The Court also rules that, through the 1886 Reindeer Grazing Act and subsequent legislation, the Sami’s sole right to decide over hunting and fishing in the area has transferred to the members of Sami district. This right to decide includes the right to grant hunting and fishing rights. This right can now be exercised solely by Sami districts, which are the bodies tasked with representing their members’ joint interests.
The rights of the State
As a consequence of this, the State does not retain the hunting and fishing rights in these areas that normally pertain to ownership of land and watercourses. The State has stated that, under such circumstances, it does not assert that the provisions of the Reindeer Husbandry Act prevent Girjas Sami District’s claim being upheld. In this case, the State has therefore refrained from invoking the Act’s prohibition on granting rights.’
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Case No.: T 853-18
Contact: The Supreme Court of Sweden, +46 (0)8 561 666 00, hogsta.domstolen@dom.se