Abstract
For the first time in the Swedish Supreme Court, a small Sami reindeer herding community has won an important victory affirming the community’s small game hunting and fishing rights. Because of protracted use and the concept of immemorial prescription, the Court recognised the community’s exclusive hunting and fishing rights, including the right to lease these rights to others. Such leases have long been prohibited by legislation and the State has retained its powers to administer such leases. This case signifies a considerable development in the area of Sami law. In its decision, the Supreme Court made some adjustments to the age-old doctrine of immemorial prescription, and provided insights into how historic evidence should be evaluated when the claimant is an Indigenous people. A common motivator for these adjustments is an enhanced awareness of international standards protecting Indigenous peoples and minorities. Even ILO Convention No. 169 – the only legally binding convention concerning Indigenous rights, but which Sweden has not yet ratified – is relevant when it comes to evaluating Sami customary uses. The Court addressed the problem of gaps in the historical material and used evidence from other parts of Swedish Lapland and adjacent time-periods, making reasonable assumptions to fill in these gaps. The Court imposes on the State the burden of proof regarding the extinguishment of already established Sami rights, as well as proof that extinguishment by legislation or expropriation, is “clear and definitive”. These conditions were not met in this case.
Highlights
The Swedish Supreme Court delivered its verdict on the historic Girjas case[1] in January 2020.This article aims to analyse and unwrap this landmark case.The Girjas case could well be described as a “David and Goliath” narrative: a small Indigenous community in a remote corner of the Swedish Far North up against the Swedish State
This article unfolds as follows: Section 2 provides general context as well as background for the lawsuit commencing the Girjas case; Section 3 describes in more detail the claims made by the Girjas reindeer herding community (RHC) and matters of evidence; Section 4 summarises the Court’s reasoning regarding the role of public international law; Section 5 addresses issues related to the onus of proof and the principles behind the Court’s assessment of the evidence; Section 6 analyses and discusses the key part of the judgement – the matter of customary law/ immemorial prescription and its relevance for Sami hunting and fishing rights; and Section 7 concludes and discusses our analysis and findings
The Supreme Court of Sweden has only decided three cases dealing with the recognition of Sami rights: the 1981 Skattefjäll (Taxed mountain) case,[11] the 2011 Nordmaling case,[12] and the 2020 Girjas case13 – all of which are closely related to reindeer herding rights (Sami RHCs)
Summary
The Swedish Supreme Court delivered its verdict on the historic Girjas case[1] in January 2020.This article aims to analyse and unwrap this landmark case.The Girjas case could well be described as a “David and Goliath” narrative: a small Indigenous community in a remote corner of the Swedish Far North up against the Swedish State. While Swedish legal culture and the Constitution require the judge to Christina Allard and Malin Brännström apply the law and not engage in law-making,[8] the Girjas case attests to the fact that, depending on the matter at hand, and the character of the legal sources, elements of law-making may occur in the Supreme Court With this backdrop, the aim of this article is to describe, analyse and discuss the Girjas case for an international audience.[9] This article unfolds as follows: Section 2 provides general context as well as background for the lawsuit commencing the Girjas case; Section 3 describes in more detail the claims made by the Girjas RHC and matters of evidence; Section 4 summarises the Court’s reasoning regarding the role of public international law; Section 5 addresses issues related to the onus of proof and the principles behind the Court’s assessment of the evidence; Section 6 analyses and discusses the key part of the judgement – the matter of customary law/ immemorial prescription and its relevance for Sami hunting and fishing rights; and Section 7 concludes and discusses our analysis and findings
Sign-in/Register to view highlights & summary Sign-in/Register to access full text options 
Free) 
Talk to us
Join us for a 30 min session where you can share your feedback and ask us any queries you have
Schedule a call
