On June 30, 2021, the Norwegian Supreme Court issued a precedent on cross-border reindeer herding rights, recognizing that the right of Swedish reindeer herders to herd reindeer in Norway is based on the principle of time-immemorial use (alders tids bruk) and not the Norwegian Cross-Border Reindeer Herding Act. (Norwegian Supreme Court Case, June 30, 2021, HR-2021-1429-A, (sak nr. 20-164328SIV-HRET).)
Background to the Case
The Sami people are an ethnic group indigenous to the northern parts of Norway, Sweden, Finland, and Russia—a region known to the Sami as “Sápmi.” Their right to herd reindeer is collectively held by groups of Sami individuals organized according to the area they use (samebyar in Sweden and reinbeitesdistrikt in Norway). These groups thus hold a right to herd reindeer only in designated reindeer herding areas where the group may collectively move their reindeer during winter and/or summer months.
The herding of reindeer across the Swedish-Norwegian border has long been a source of controversy both between different Sami groups and between Sami and non-Sami populations using the same land. Cross-border reindeer herding was first regulated in 1751 in the addendum to the 1751 Strömstad Border Treaty (Strömstadstraktaten in Swedish, Grensetraktaten in Norwegian). The addendum to the 1751 Border Treaty (Lappkodicillen in Swedish, Lappekodisillen in Norwegian) specified that the right to cross-border reindeer herding by Sami persons was based on time-immemorial use and must be recognized by the national states, irrespective of the nationality of the reindeer herder. (§ 10 Lappkodicillen.) Since then, both the Norwegian and Swedish governments have altered and limited the reindeer-herding rights of individual Sami groups, specifically by reducing or altering the area on which their reindeer may graze, most recently in the Reindeer Grazing Treaty of 1972. However, that treaty expired in 2005 and has not yet been replaced. Because there is currently no cross-border treaty that is recognized by both Norway and Sweden, Norway now regulates reindeer husbandry in its Reindeer Husbandry Act (Reindriftsloven (LOV-2007-06-15-40)) and cross-border reindeer activities in its Cross-Border Reindeer Herding Act (Lov om svensk reinbeiting i Norge og norsk reinbeiting i Sverige (grensereinbeiteloven (LOV-1972-06-09-31)).
The case before the Norwegian Supreme Court involved a group of Swedish Sami reindeer herders (Saarivouma sameby) who have an established and legally recognized right in accordance with the Cross-Border Reindeer Herding Act to herd reindeer in Norway during summer months. However, in a 1968 ruling that predated the Grazing Treaty of 1972, the Supreme Court had recognized the Saarivuoma’s right to graze in a larger area. (Supreme Court Case Rt-1968-429 (Altevatn-saken), on file with author, which acknowledged both the Talma sameby’s and Saarivuoma sameby’s grazing rights in Norway.)
The Saarivuoma sameby sought a declaratory judgment, arguing that their continuous historic use of the larger area, amounting to use since time immemorial, gave them an exclusive right to herd reindeer in that territory. This right, they argued, included the right to herd in a larger area during summer months and emergency winter grazing, irrespective of the provisions in the current Cross-Border Reindeer Herding Act.
Thus, the issue before the court was whether the Sami group had a right to herd reindeer in Norway on the basis of its historic time-immemorial use, or whether their right to herd was subject to restrictions specified in Norwegian law.
The Supreme Court held that “[t]he Saarivuoma have a right to herd reindeer in the disputed area in Norway, independent of provisions found in the Cross-border Reindeer Herding Act, including its regulations.” However, it also held that the Norwegian state does not need to financially compensate the Saarivuoma sameby for past infringements of that right and that the parties must bear their own litigation costs before the court. (Case at ¶ 234.)
Reasoning of the Court
The case was expressly difficult for the five-member-panel, as stated specifically in the verdict by Judge Falkanger. (¶ 60.)
Relying on legislative history and the Lappkodicil Treaty of 1751, the Norwegian Supreme Court held that Swedish Sami have a right to herd in Norway on the basis of time-immemorial use, and that this right may not to be reduced as a result of later conventions between Sweden and Norway or through Norwegian law. Thus, the Cross-Broder Reindeer Herding Act, which in its current wording and with accompanying regulations limits the Saarivuoma sameby’s time-immemorial right, does not apply to them.
The court, however, did not determine the extent of the Saarivuoma’s rights in relation to other Sami groups. Because the Norwegian Stállonjárga reinbeitesdistrikt and the Swedish Talma sameby both claim grazing rights in the area (Bardu and Målselv municipalities), the court could not establish whether the right to herd reindeer in the specified area was an exclusive or primary right in relation to others. (¶ 126.)
The majority of the court found that the Saarivuoma sameby did not have a right to compensation from the Norwegian state for the imposed infringements of its rights. In the court’s view, because the Norwegian state’s actions were based on a treaty between the Swedish and Norwegian states, it was the responsibility of the Swedish state to ensure that the Swedish reindeer herders’ rights were respected. (¶ 156.)
One judge dissented, arguing that the case should not have been heard under the current circumstances because the extent of the Saarivuoma sameby’s rights in relation to the Norwegian state could not be established without also hearing other Sami groups that claimed equal or similar rights in the specified area. (Noer dissent, ¶ 227.) Specifically, she argued that “[e]veryone cannot have a grazing right at the same time.” (¶ 209.)Despite having to bear their own costs, the case was welcomed as a win by the Saarivuoma sameby. Reportedly, the negotiations for a new cross-border reindeer herding treaty between Norway and Sweden are ongoing.