lördag 16 december 2017

The Right to Land and Water

The Sami right to land and water is a heated and much-debated question. That this question has not been granted a satisfying solution results in regular international criticism from, among others, UN, OECD and the Council of Europe.

It is also the reason for Sweden not yet having ratified the ILO (International Labour Organization) Convention 169 concerning the rights of indigenous peoples. The questions are about, among other things, the land areas referred to, which rights follow and who the rights shall include.

Lappskatteland – Sami Tax-lands
In modern history, the Sami have been the holders of so-called lappskatteland, Sami tax-lands. Dividing up land between different families in a Sami reindeer-herding and economic district (a sameby) was necessary to be able to carry on hunting, fishing and reindeer herding. The Sami tax-lands constituted tax land, according to both the district courts and the county authorities in the middle of the 1600’s. In other words, the Sami owned the land they used. Tax lands could be both inherited and sold. During the 1700’s and 1800’s, the Sami gradually lost the right of possession of their old lands, partly due to infringement and demands from farming settlers moving farther north and inland. These farmers were granted ownership rights of their tax lands in 1789, something that was previously exclusive to nobility. Since the Swedish authorities no longer respected the Sami tax-lands, the county administrative board suggested that they should be abolished, which the Riksdag decided in 1928, even if no clear decision was previously taken on a governmental level on the ceasing of the including of Sami on tax land.

Sami common lands
Reindeer husbandry is carried out on the lands of the sameby with rights based on prescription from time immemorial. Prescription from time immemorial is a legal right because one has always used the land and received nothing (which is often confused with the economic monopoly that Riksdag and the government decided). These lands can simultaneously be privately or state-owned. What is actually state-owned and how the state can prove that the state is the rightful owner is another question. The state does not have registration of title to the land. The state has often referred to the Royal Decree of 1683 on that forests, “properties that lie in the wilderness”, belong to the Crown. Which land did it pertain to? And was it really ownerless?

Learn more about this in the Summery chapter by the Swedish Government Investigations (SOU) report on traditional Sami lands, “Samernas sedvanemarker”, download here.

Hollowed-out legislation
The Sami right has gradually been hollowed out in Swedish legislation. In the first Reindeer Grazing Act (RBL) of 1886 became the Sami’s individual right a collective right on all year-round lands. RBL 1898 worsened conditions for forest samebys by degrading protection for winter grazing grounds. §30 of the Reindeer Husbandry Act states that he who owns or uses land may not take measures that result in considerable disadvantage for reindeer husbandry (if the measures are not allowed by the government). In other words, state or private land owners are allowed to take measures on the lands of samebys if they do not result in “considerable disadvantage” for reindeer husbandry. The concept is not unambiguous and can be interpreted differently in different instances. Winter grazing grounds are not included in this regulation. Nor is there any regulation on the damages for encroachment on the right to use.

Hunting & fishing
Regulations stipulated in §§ 25, 31 & 34 of the Reindeer Husbandry Act grant sameby members the right to hunting and fishing, however, samebys cannot grant the right to others. All others with hunting and fishing rights are allowed to do this. Since the county administrative board administrates the fees for hunting and fishing licenses and these are to go back to the samebys, it seems to be the Sami’s hunting and fishing rights one administers anyways. Another question is whether it is the Sami or the state that has hunting rights on state land? “Double hunting right” was weakly asserted for the first time in 1987 in a proposition, and has since then become a virtually accepted fact.

ILO 169
The International Labour Organization (ILO) Convention ILO 169 did not create any new land rights, but places demands on that those land rights that exist shall be recognized and respected, and that the Sami reindeer husbandry right is to be respected in an equal manner as other land rights in Sweden. The scope of the rights must also be clarified. The shortcomings that exist today apply to the geographical extent of winter grazing, extent of hunting and fishing rights, the right to grant hunting and fishing rights and the protection of the right to reindeer husbandry in relation to other land use. The convention does not grant the samebys the right to veto, however the right to consultation. Samebys are already today the parties entitled on land where the right to reindeer husbandry applies.

Oppositions
The majority of Sami are not members of a sameby and are according to legislation on equal footing with other Swedish citizens. If one has not inherited one’s right to reindeer husbandry, it is very difficult to become a member of a sameby. The members of a sameby do not willingly open the door to more reindeer herders that are to get along on the already strained reindeer grazing lands. Sami not included in samebys have in other words in practice difficulty carrying out reindeer husbandry and do not either have hunting and fishing rights on the sameby land. The special treatment of reindeer herders descends from the first reindeer grazing act in 1886 and has caused great opposition among the Sami people.

© Sametinget 2017
Uppdaterad: 2016-05-02

Om Sametinget

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