(Feb. 14, 2020) On January 23, 2020, the Swedish Supreme Court held that the Sami group “Girjas Sameby” (literally “Girjas Sami Village”) had an exclusive right to fishing and hunting in Girjas reindeer-herding areas on the basis of urminnes hävd (their presence there from time immemorial). Not only can the Sami village confer hunting and fishing rights on others without the Swedish state’s permission, but the state does not have a right to confer these rights. (Högsta Domstolen [Swedish Supreme Court] (Jan. 23, 2020) Case No. T 853-18 (Decision).)
Background
In 2009, 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. 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. (1 § 2 and 3 st. Rennäringslagen (SFS 1971:437).) 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 urminneshävd. 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.
The Supreme Court heard the case on appeal to determine the right to hunt and fish in the area of Gällivare kronoöverloppsmark 2:1 in Girjas and whether the Sami village had the right to transfer these rights to others. The Court did not determine the legal ownership of the land where hunting was conducted. (Decision para. 38.) Moreover, the Court determined Girjas rights only in relation to the Swedish state, not to other actors or other Sami. (Para. 39.) The Court found 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. (Rennäringslagen (SFS 1971:437).) (Para. 124.) 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). (Para. 227.)
Urminnes hävd
Urminnes hävd is a retired legal concept under Swedish law whereby rights can be attained and retained from historical use of land. Typically, the land must have been used continuously for at least 90 years or longer. (15 kap. 1 § Äldre Jordabalken [ÄJB] [Older Code on Land and Cadestral] (1734 års lag).) (The concept is known as alders tid in neighboring Norway.)
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. (Decision para. 135.) 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. (6 § Lagen (1970:995) om införande av nya jordabalken punkt 4 övergångsregler.)
The Case
The Supreme Court 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. (Para. 141.)
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 (lagfart) for the area, meaning the state is the registered owner of the land. (Decision para. 1.) 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. (Para. 189.) 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 (Paras. 215 & 218) and the Sami right to hunting and fishing in this specific area had instead transferred to Girjas Sameby. (Para. 219.)
In its analysis, the Supreme Court also considered the applicability of article 8.1 of the International Convention on Indigenous Rights (ILO 169), 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. (Para. 130.) The Court went on to note that, in accordance with the article 26 of the United Nations Declaration of Indigenous Rights, “indigenous peoples have a right to the land, territories, and resources that they have traditionally owned, occupied, or otherwise used or acquired.” (Para. 131.) 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. (Paras. 133–134.)
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 (the Rennäringslag). (Decision, Addendum, Concurring Dissent, para. 160.)
County Administrative Actions
As a result of the verdict, the state can no longer continue to distribute fishing and hunting permits via Länsstyrelserna (local county administrative boards). On January 23, 2020, Länsstyrelsen för Norrbotten area published a notification that all sale of fishing and hunting rights for 2020 would be cancelled. Reportedly, the Sami village is now working with Länsstyrelsen för Norrbotten to ensure that persons who have bought “municipality cards” (cards allowing for hunting throughout the municipality) will be able to continue to use them until June 30, 2020, and the Länsstyrelsen för Norrbotten County Administrative Board has restored the hunting-right activation function for hunting-day permissions for these holders.
County administrative boards in other 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, and the judgment 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 samebyar areas—that is, areas where designated Sami groups herd their reindeer.
Reactions to the Decision
The decision has received much attraction in the Swedish media from hunters, fishers, and Sami groups alike, and has frustrated local hunters and fishers who have previously received fishing and hunting permits from the state. Among the Sami, the reactions have been more mixed. Sami villages, including the Swedish Sami Parliament representatives, have welcomed the decision and called it a win for indigenous rights. But the decision has also been criticized by other Sami groups because the legal entity (sameby) has the urminnes hävd to use the land, not the Sami people. Thus, as a consequence of the 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 and that 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.
According to reports, the Girjas decision has also caused an increase in the number of hate crimes against Sami individuals, specifically threats of physical violence and calls for harming Sami reindeer.
Future Outlook
The case is also likely to influence how urminnes hävd is evaluated with regard to the current Sami conflict in Vapsten, the decision on which was originally scheduled for January 31, 2020, but has now been postponed until February 28, 2020.