The 2011 Swedish Supreme Court Ruling: A Turning Point for Saami Rights

Abstract

In 1998 a lawsuit was filed at the Umea District Court, Sweden, by 120 landowners in Nordmaling against the three Saami villages of Ran, Vapsten and Umbyn. The complaint concerned the entitlements to lands in the territory of Nordmaling, owned by the plaintiffs but habitually accessed by the Saami as winter pasture for their reindeer. The question was whether the Saami villages fulfilled the legal requirements of use over rime and had the right to herd according to customary right. In 2006 the landowners lost their claims in the District Court, which ruled in favour of the Saami, establishing the Saami villages' customary fight in the disputed territories. The landowners appealed to the Court of Appeals in Ovre Norrland, but lost again in 2007. The case was then appealed to the third and highest legal instance, the Swedish Supreme Court, which reached its verdict on 27 April 2011, ending the 14-year-long legal process. The Supreme Court upheld the previous verdicts, ruling that the Saami reindeer herders are entitled to graze their animals in the territory of Nordmaling according to the principle of customary rights. This is the first major legal victory for the Saami after decades of defending their right to herd reindeer on privately owned lands. Had the three Saami villages lost access to these winter pastures, the herders would have had to choose either to stop their herding practices overall, or to reduce significantly the number of animals, putting at risk the survival of their livelihood and culture as pastoralists over the long term. Besides granting herding rights in Nordmaling to the herders of Ran, Vapsten and Umbyn, this final ruling provides important guidelines about Saami land rights more broadly. The court confirmed that customary fights form the strongest legal principle for herding rights on winter pastures, and defined herding rights as collective rights that apply to the whole Saami reindeer herding population, and cannot expire. These new legal guidelines represent a call for a redefinition of state responsibilities in these matters, as well as stronger political measures to understand and solve the periodical local conflicts between Saami herders and landowners. Legal Precedents to the Nordmaling Case The Saami victory in the Nordmaling case needs to be understood against the long list of similar cases that preceded it. The first major legal process where Saami villages claimed stronger rights to land and water was the Altevatn case, tried in the Norwegian Supreme Court and closed in 1968. In that instance, Swedish Saami herders obtained confirmation of their 'immemorial' land rights (sw. Urminnes havd) to summer grazing in parts of Norway. The Altevatn victory sparked a similar legal contest for land rights in Sweden, known as the Taxed Mountain case (sw. Skattefjallsmalet) which closed in 1981. The Saami asked for confirmation of their user rights and possibly even ownership rights Coased on 'immemorial right'), over specific contested northern territories that are used year-round for herding purposes. The Supreme Court ruled against the Saami claims, but confirmed that a nomadic population could acquire ownership rights to land and water through 'immemorial use', defined as occupation and use gained so far back in time that no one knows or can remember when their ancestors first came to be there. The ruling for the Taxed Mountain case also established that the burden of proof for immemorial right rests with the Saami and must be secured in court for each contested land area. The Saami have since been fighting for their rights to use lands for grazing through drawn-out and costly legal processes, which they have most often lost. In the 1990s a number of forest companies joined seven hundred landowners in a lawsuit against Saami herders in what came to be known as the Harjedalen case. The land owners claimed that the Saami lacked customary rights to herd their reindeer 'below' the border of the defined year-round grazing areas2 in the territory of Harjedalen, and accused the reindeer herds of damaging newly planted tree saplings. …