Text by:
Anna Bohman.

Web-edition by:
Hanjo Schlüter
Sept. 1999

Old Customary Rights

There is a recognizeable trend in the world today that the area available for nomadic people is decreasing. This may have evolved as a result of political trends, but also from the growing pressure of industrial, economic interests, increasing the exploitation of of the natural environment and decreasing opportunity and space for traditional land use.
 

The Sámi community of Tåssåsen

The reindeer herders in Sweden are only one example of this global trend. A number of legal processes effecting Sámi land rights are taking place in Sweden today. 
Tåssåsen, a Sámi community in the midst of Sweden, is one of 12 Sámi communities which have been sued by private land owners. The land owners refuse access for reindeer on their forest lands. These lands make up the winter grazing areas for the reindeer. 
Tåssåsen failed in the lower court, the verdict is now being appealed. Reindeer herding rights in Sweden are granted by the principal of old customary rights. Only documentary historical proof of land use is admissible in Swedish courts. The herders of Tåssåsen can not provide the requested written evidence of their traditional land use and the chances for Tåssåsen of winning the case are minimal.
In other parts of the world there are legal precedents in which supreme courts have shown a more progressive attitude towards indigenous peoples.

The Delgamuukw Decision, Canada

One well known example is the ‘Delgamuukw decision’ in British Columbia, Canada. This case was started on behalf of 51 hereditary chiefs, representing most of the tribal rulers of the Gitksan and Wet’suwet’en peoples. The chiefs asked the court to rule that they had ownership and jurisdiction of an area of about 58,000 square kilometres in northwest BC.
In Delgamuukw the Supreme Court of Canada recognized that the existing laws of evidence worked against Indigenous Peoples and consequently emphasized the validity of evidence in the form of oral histories of the people. The supreme court statement read as follows:
“Notwithstanding the challenges created by the use of oral histories as proof of historical facts, the laws of evidence must be adapted in order that this type of evidence can be accomodated with the types of evidence that courts are familiar with, which largely consists of documentary evidence (…)”
The Delgamuukw judgment contains elements that will influence cases of this kind for years to come. Perhaps most important is that oral histories and other non-documentary evidence to show past occupancy must now be placed on equal footing with written evidence. 
 

Land right in Norway

Norway also has a Sámi reindeer herding culture which faces a similar kind of conflicts as the Sámi in Sweden.
Shortly after Norway’s ratification of the ILO-169 convention, the state decided to change the laws of evidence for old customary rights. In a conflict where there is uncertainity about immemorial possession, it is up to the land owner to prove that the Sámi do not have old customary rights in the area.
The burden of proof in this case is the exact opposite of that acknowledged in Sweden.
(ILO stands for International Labour Organization and is a UN-agency. The convention 169 is an international agreement on indigenous peoples’ land right. Sweden is in the process of investigating consequences and demands if they would ratify the convention. The government’s decision will be made in early 2000)

Further Examples

One can observe efforts from some countries to make amends with the way the court system worked during the period of colonization. In 1996, the Australian Supreme Court gave native title to certain areas of Queensland back to the Thayorre and Wik people. This is called the ‘Wik-case’ and constitutes a landmark in Australian history.
‘Nunavut’ in Canada may be the most dramatic example of this new approach in indigenous land right issues. Nunavut, which means ‘our land’ in Inuit language is a new self-governed territory on the map of Canada since April, 1st 1999. Nunavut with its 27,000 inhabitants, most of them Inuit, has its own parliament, cabinet and premier.

Outlook

The Sámi community of Tåssåsen does not claim self-government. Tåssåsen does not claim monopoly on the use of forest lands, but ask to respect their rights and to allow multiple forest use in Swedish forests. They want a managed co-existence with the forest owners. Tåssåsen Sámi community has therefore demanded that the government establishes a ‘reindeer damages fund’ financed by the state. Private land owners would be able to receive subsidies from the fund if they suffer damage from reindeer grazing. Today the reindeer herders of Tåssåsen find themselves in a situation where they can not prove their immemorial possession of the winter grazing area by written documents. The right to have access to winter grazing land is a question of survival for the Sámi and their culture.

The historical conflicts over land use in areas with private land owners must be settled once and for all. Sámi rights must be guaranteed by law.