sou · GUB314 · 2007-01-01 00:00:00 — When the area in which there is a reindeer herding right is to be clarified, use must be made of the concept of a tract (trakt), which is hard to define. We have taken the view than it must refer to a large area that meets the reindeers need to shift between different kinds of land depending on grazing conditions from year to year. We also discuss how to assess evidence in cases about the exis- tence of the reindeer herding right. As these cases often involve very old circumstances it goes without saying that no direct wit- ness evidence is available and the evidence that is available is gener- ally in written form. But other kinds of evidence can also be cited. On many occasions the evidence is such that, considered sepa- rately, each piece is not strong enough but when considered to- gether they can have considerable force. In general the party who claims the existence of a fact has the burden of proof. In the case of the reindeer herding right it is the side that has the burden of proof. Even if this is formally the case, it goes without saying that the burden of proof shifts to the opposing side if the can pro- duce evidence of a certain power. In cases concerning the existence of the reindeer herding right, the side is represented by the villages. We consider that a judgment in such a case is binding on the whole collective of reindeer even though only one village or certain villages have taken part in the proceedings. The land-owner side in such proceedings is often represented by private land-owners. It is, however, usual for all the land-owners affected not to be repre- sented in the proceedings. In such a case the courts ruling does not have formal legal force concerning those who have not been in- volved, but it goes without saying that it has very strong status as proof to the extent that the court has made a determination based on the facts in the case. Under reindeer husbandry legislation the reindeer herding right is independent of agreements between land-owners and reindeer owners. It is however, not unusual to enter into agreements with one another concerning joint land-use. There can also be an inter- est in reaching agreements on a reindeer grazing right outside of the reindeer herding area determined by customary law or in areas where it is unclear whether or not there is a reindeer herding right. At the end of chapter 10 we point out that current legislation does not provide scope for stable contractual solutions. In chapter 11 we take a position on the outer boundary for reindeer grazing. It is important to repeat that our position will not acquire the force of law. A determination with legal force of the question of whether or not a land area is burdened by a reindeer herding right can only be obtained through a court ruling. This does not mean that we regard our work as meaningless. We have had the ambition of bringing forward as much material as possible that can serve as relevant information in support of decisions about where rights exist under customary law and we hope that, as a result of the conclusions we have drawn from this, we can help to make fu- ture legal proceedings largely unnecessary. The sources we have used are drawn from archives, maps, official publications, scientific works and information we have received from Samis and land-owners. On the basis of this information and guided by the principles that have been expressed earlier in the re- port we have divided the reindeer herding area into the following categories: 1. proven reindeer grazing right 2.reindeer grazing right not proved according to land-owners, but preponderant probability of a reindeer grazing right in our view 3.reindeer grazing right claimed by the , but not proved or less probable in our assessment 4.no reindeer grazing right. As a further category we have reported areas that are currently subject to court proceedings. For constitutional reasons such areas have been excluded from our assessment. Our conclusions are illustrated on a map that is attached to the report. In this context it must be said that the Committees deci- sions concerning the extent of the reindeer herding area refer to categories 1 and 2. The grouping can be described very briefly in the following way. According to the current law, the whole province of Lapland is inside the reindeer herding area and is reported on our map as within grazing area 1. Most mountain villages and all villages have their year-round lands in this province. We also assign the concession area in to category 1 even though all reindeer herding there is not conducted by Samis. We have taken the view that it is not part of our remit to comment on the disputes on land-use that occur between mountain and for- est villages on the one hand, and concession villages, on the other. For the remainder of we have made the following grouping. An area 2 A, which follows the approximate line – Gullträsk – – Vittjärv – , lies within the reindeer gazing area. Another area that cannot in our view be as- signed to the reindeer grazing area with sufficient certainty and therefore belongs to Category 3 (area 3 A) is delimited by the ap- proximate line –– Vittjärv – . Areas 2 B and 4 A consists of enclaves within area 3 A. Area 2 B – inside the rein- deer grazing area – can be described as Kallaxheden (a moor) and its surroundings and area 4 A consists of an area that, as a result of a final, non-appealable judgment in 2002, is not burdened with a reindeer herding right. Further south, at the coast, is grazing area 2 C, the delimitation of the area is roughly – – – Jävre. The rest of the province of forms part of category 1, whose area extends along the coast between Jävre and . As regards the interior of the province of rights under customary law are beyond dispute. In the view of the land- owners, the assessment of the area towards the coast is not alto- gether uncontroversial. We have considered that a line delimiting the inner parts (category 1) from the outer (category 2) can be drawn between – – – – Ör- träsk. Our view is thus that the whole of lies within the reindeer grazing area. It must, however, be pointed out that Area 5 A, which consists of the Bjurö peninsula, is the subject of ongoing legal proceedings and is therefore excluded from our as- sessment. Large parts of have not only been affected by grazing in historic periods; this grazing has also gone on continuously until the present. Despite this rights under customary law are more or less questioned in large parts of the province. However, there is also an area in the north where these rights are beyond dispute. We have assigned this area to category 1 and re- ported it on the map in grazing area 1 A. This area also includes the parishes that belong to County. On the other hand Municipality belongs to County, and in view of ongoing legal proceedings it is reported as category 5 B. Otherwise, in moving through and into we largely follow the map of ning and from 1978 and the line on a map by (the ). This means that the major part of the province of lies within the reindeer grazing area and that it shall be reported as category 1, since no dissenting view has been reported by land-owners concerning particular tracts. In the southeast part of County, however, we have deviated from this line in certain areas because we have not been able to show that reindeer herding there is based on ninety-year prescription. We do not con- sider that we have sufficient evidence for a grazing right based on prescription from time immemorial south of our line ei- ther. There are some areas between our outer line and the line pro- posed by land-owners. These intermediate areas have been assigned to category 2 in accordance with the principles set out above. In there is also an area round Näkten that ought to belong to category 1. In addition, in there is an area – 5 C – that is excluded on account of ongoing legal proceedings, namely the area at . All year-round lands in the province of obviously belong to category 1. We have assigned the gazing lands in in the province of to the reindeer grazing area, but have placed them in category 2 due to the lack of a sufficiently reliable investigation. We have assigned the grazing lands in the whole of Municipality, i.e. the remainder of the prov- ince of apart from the year-round lands defined by law, as well as certain areas in Municipality, to category 4 as a result of final, non-appealable judgments. New grazing area belongs to category 2 and the Villages year- round lands belong to category 1 to the extent that they do not belong to category 4 as a result of the above judgment. has also had the remit of identifying, in accordance with Convention No 169, the land that the occupy and use together with others. As yet only a few countries have ratified Convention No 169. The question of a possible Swedish ratification has been raised on several occasions. The main obstacle to Swedish accession to the Convention has been the question of indigenous peoples right to land. The Convention requires that the rights of ownership and possession of the peoples concerned over the lands they tradition- ally occupy are recognised. In addition, measures shall be taken in appropriate cases to safeguard the right of the peoples concerned to use lands not exclusively occupied by them, but to which they have traditionally had access for their subsistence and traditional activities. The Convention also requires that governments shall take steps as necessary to identify the lands which the peoples con- cerned traditionally occupy, and to guarantee effective protection of their rights of ownership and possession. Our analysis of the requirements set up in article 14 of the Convention results in conclusions that differ in significant respects from those drawn by the previous inquiry. We do, however, agree with the Inquiry that the Convention does not require a formal ownership right in order for lands that are used by the in- digenous people to be assigned to lands that it traditionally occu- pies. There is, however, a minimum level that the rights must reach to be applicable. We consider that this minimum level is not ful- filled by the reindeer herding right that the have under rein- deer husbandry legislation. This means that we do not share the view of the Inquiry that all state-managed year-round land shall be classed as land possessed by the under the Conven- tion. In our view, which is based on the current law, there is no large continuous area to which the have a right that is as strong as the right to which the Conventions requirements con- cerning rights of ownership and possession refer. This does not mean that we want to rule out the possibility that there may be limited areas in the year-round lands, where the Samis use is both sufficiently intensive and exclusive that they should be classed as Sami-possessed lands on Swedish accession to the Convention. It is appropriate for the Samis to be awarded a formal ownership right to this land following the identification of the land and a property formation procedure. This will give them a right to make use of the land that is independent of reindeer hus- bandry legislation. We share the view of the Inquiry that the outer boundary of the land that the use together with others coincides with the outer boundary of the reindeer herding area. What can be seen as a weakness in Swedish law in relation to the requirements of the Convention is that there is no alternative to the determination of questions concerning land rights by the courts. In chapter 14 we have outlined a proposal for such an alter- native. A Swedish investigation and mediation institute In recent years there have been several cases concerning land rights. In the instances where the courts have undertaken a sub- stantial review, this review has been preceded by extremely pro- tracted proceedings and the investigation and legal costs incurred by the parties in these cases have been considerable. In some in- stances, however, final, non-appealable court rulings have arisen without the court making any substantial determination in the case; in every instance the reason has been that the side has not considered that it has the financial possibilities of contesting the action. We believe that, through this investigation, we have fulfilled our remit of producing supporting information that can help to resolve future conflicts on the reindeer herding right, but we are well aware that our pronouncements, which do not have legal force, have not been able to clear up existing uncertainties in a way that has not met with objections. This means that there is an evident risk that conflicts on land rights will also arise in the future. The main source of these conflicts is unclear legislation, which gives the parties affected grounds for different views about the le- gal position. The design of the law is also to blame for the fact that conflict resolution requires extensive and costly investigations. The responsibility for legislation rests with the state. We therefore con- sider – like the Inquiry – that the state should assume respon- sibility for the costs of these investigations. It is not satisfactory when a party refrains from a determination of his rights for finan- cial reasons. In a society based on the rule of law conflict resolution is ulti- the responsibility of independent courts. It is, however, usual in most contexts for determination by the courts to be pre- ceded by an attempt to reach an agreed solution. But in the case of the reindeer herding right there appears to be limited potential for stable contractual solutions as an alternative to court decisions. This is largely to do with the fact that the legal regulation of rein- deer husbandry originates from a period when the were placed under state guardianship. The interests of the were to be protected by special Swedish administrative officers and the county administrative boards, and this meant there was no need to regulate matters in agreements. We consider that, in the first place, the conflicts on land rights should be resolved through agreement between the parties. One important reason for this is that, in many respects, the legisla- tion appears to be outdated and is not contributing to the satisfac- tory development of reindeer husbandry. The current law relates to historic conditions when both reindeer husbandry and the other industries that compete for land resources operated under com- pletely different conditions from today. As a result, conflict reso- lution based strictly on the application of the current law does not always lead to a satisfactory and appropriate outcome for the par- ties. By disregarding legal considerations, an agreed solution can aim for what is appropriate and can thereby help to limit the need for a costly investigation of historical circumstances. In other countries that have acceded to the Convention or that are affected by rules in public international law on the rights of indigenous peoples, special investigation and mediation bodies have been set up for conflicts on land rights. We consider that such a body should also be set up in . This is also important if is to accede to the Convention and meet its requirements. It has not been part of the Committees remit to put forward proposals on an investigation and mediation institute. We have therefore been content to point to the need for such an institute. However, in addition to this, we have stated that amendments in the areas of civil law and legal procedure are needed to enable such a body to help bring about stable contractual solutions. Guorahallabarggu váldodoaibma leamaš, eanemusat vuorkámaterialaid bokte, rádjet makkár guovlluid sápmelaččat boazodoallulága mielde oažžut geavahit guohtoneanan golggotmánu rájis gitta cuođđŋumánnui (dálveláidumin). Dát oassi barggus lea namuhuvvon olggut ráji ohcan. Barggus leamaš nai eará bealli. Dat lea leamaš heivehallat daid tearpmaid mat lea nr 169 () konvenšuvnna 14 artihkalis ruoŧa diliide. Dát artihkal gieđahallá eatnamiid mat árbevirolaččat eamiálbmogiidda (traditionally occupy) ja maid sii árbevirolaččat geahvahit ovttas earáiguin (which they traditionally have access for their subsitence and traditional activities). Daid guokte lágán eatnamiid mii leat namuhan siskit rádjin. Min barggu máhttá oaidnit joatkkan ovdal dahkkon guorahallamii, namalassin n. g. ILO- guorahallamii man ovdalaš leanahearra jođihii. guorahallama bargu leai suokkardit makkár doaimmat livčče dárbbašlaččat dasa ahte Ruoŧŧa máhtálii deavdit daid gáibádusaid maid soahpamuš nr 169 bidjá daiddá stáhtaide geat servet dasa (Ruoŧŧa ii leat dahkan dan ain). ILO- guorahallan buvttii ovdan árvalusas jagi 1999 (SOU 1999:25). Evttohusas árvaluvvui earret earáid ahte sierra rádjegeassinkommišuvnda vuođđuduvvo. Juo álggus lea dárbu čilget ahte kommišuvnna bargu muhtin muddui lea rádjejuvvon. Danin ii gula min bargui evttohit láhkarievdadusaid, mii fertejit buktit árvalusaimet dálá rievtteortnega mielde. Dát buktá earret eará mielddis ahte mii leat gitta dain duopmustuolumearrádusain mat leamaš, ja maid ahte min cealkámušain mat gusket árvevirolaš eatnamiidda (sedvanemarker) ii leat formalalaš láhkavuoibmi. maid olggobealde min barggu dahkat ealáhuspolitihkalaš veajáhallamiid, dálá diliid vuođus, boazoealáhusa ja eará ealáhusaid beroštumiid gaskkas ja min bargui iigula boazodoalluriekti iige jearaldat geas lea riekti geavahit dan. Loahpas galgá maid lasihuvvot ahte dat áigi ja dat návccát mat mis leamaš čađahit dán barggu leamaš dat mii lea rádjen dán. Veadjá leat nu ahte jus čiekŋalebbo duktamat dahkkojit vissis guovlluin dalle máhttá dakkár máterialas gávdnat duođastusaid dálveguohtumiidda. Dákkár gáldduin, nugo duopmustuolugirjjid, áviisačállosiid, mii eat leat máhttán dahkat dutkamušaid. Veadjá maid nu ahte, jus mis livcce leamaš gullevaš áššedieđut, dalle máhtálii ráhkadit vuđđoleabbo čielggadeami eará rievttisystemain go dan man mii leat geavahan, goitge de lege ferenda- oainnuin maid ferte váldit vuhtii go mearrida gokko olggut ja siskkit rádji lea. Muhto go dákkár čielggadeapmi ii leat dahkkon dán rádjái, duopmustuoluid mearradusaid bokte, dat ii dáidde máhttit leat vuođđun dakkár de lege lata- cealkámušaide mat min bargui. Boazodoallu ja servodaga rievdan Jahkečuđiid mielde lea boazodoallu rievdan siskit ja olggut váikkuheamiid dihte. 1700 jagiide ledje sámit guovllus meastá iešmearrideaddji. Čuovvuvaš jahkečuđiid siste sin sajádat rievddai veahádahkan eanandoalu ja meahccedoalu laskama dihte. Norrbottena ja Västerbottena mearrarittuin ja Jämtlanddas ja Härjedalenis laskkai dan áiggi olmmošlohku sakka. 1700 jagiid gaskamuttus lea norrlandda oassi ruoŧa albmogis vihtta proceantta ja jagi 1930, dalle go leai alimus, dat leai 13,3 proceantta. Muhto boazodoalli sámi albmotlohku ii stuorrun, dat bisánii 1800-jagiin ja njiejai 1900 jagiin. Dađimielde šadde eanetlohku sápmelaččain ohcat dineža boazodoalu olggobealde. Sámikultuvrra vuođđu álggu rájis leai bivdu ja guolásteapmi ja ovtta bearrášis eai lean go moadde lojes bohcco. 1600 jagiin rievddai servodat stuorit johtti boazodoallui main ealut ledje ealáhusa vuođđun. Guhká dát bargovuohki leai intensiivalaš čuohtenár bohccuin. 1800 loahpageažis ja 1900 álgojagiin iđii ekstensiivalaš boazodoallu, ealut ledje stuorit ja reainnideapmi ii lean nu garas. Eiseváldit barge guhká dán ovdaneami vuostá, muhto nuppi máilbmesoađi maŋŋá árvvoštallui dát vuohki doallat ealuid lunddolaš ođasmahttin nugo dat mii eanandoalus čađahuvvui seamma áiggis. Maŋemus golbmalogi jagi 1900 lea dát buktán mielddis stuorra lassáneami boazologuin, erenoamážit Jämtlandda ja Västerbottena leanain. Lassáneapmi leamaš goit vuollelis daid meriid maid eiseváldit leat dohkkehan. Ii leat goit veadjemeahtton ahte dát ovdáneapmi lea čuohcan gaskavuođaide boazodoalu ja eará servodaga gaskas. Nuppi bealde lea industrialaš meahccedoallu ihtán, johtolatvuogit rievdan, eanuid dulvadeamit, turismma j. n. a. čuohcan boazodoallui. guhka go siskkit lea geainnuid haga lea boazu ja geres áidna mátkkoštanmáŧolasvuohta. Stáhta anii danin ahte leai deaŧálaš sudjet sámiid ealáhusaid ja eastadit sámiid norgga beallái johtimis. Dán áigumuša lea ráđđehus ja riikkabeaivi doaláhan gitta ođđa áiggi rádjái. Earret eará lea dát boahtán oidnosii jagi 1886 boazoguohtonlágas ja dan lága maŋŋelboahttiin. Sámiid vuhtiiváldin lea dattege vajálduvvon go leamaš stuorit miella doarjut eará ealáhusaid ovdaneami. Dát riiddut iešguđet ealáhusaid gaskkas leat dagahan máŋggaid imašlaš, muhtimin rasisttalaš oainnuid vuođul, eiseváldiid mearradusaid. goitge deaŧálaš deattuhit ahte oktavuođat sámiid ja fásta orruid gaskkas eai álo leamaš diggeáššit. Dávjá, erenoamážit ovdalaš áiggiin, dát leat leamaš buorit oktasašbarggut. Boazodoalulágain leat muhton tearpmat maid duogáža ferte dovdat jus galgá ipmirdit. Deaŧálepmosat dain leat sánit nugo sámi vearrueatnamat (lappskattelanden), lappmarkrádji, gilvinrádji ja boazoguohtonvárit Jämtlandda leanas. Sámi vearrueatnamat ledje guovllut maid sierra bearrášat nikte ealuideaset guohtumii giđđat, geasset ja čakčat. Dálvit ohce láidumiid olggobealde iežaset eatnamiid. guhkás go historjjálaš gáldduin máhttá oaidnit gieđáhalle rievttigeavaheamis ja eiseváldiid gieđahallamiin, sámi vearrueatnamiid 1600 jagiin, dakkár vugiin mii leai seamma go ruoŧelaš vearrubuondoriid eatnamiid. 1600 jagiid loahpageažis ja 1700 jagiid vuosttaš lahkis eahpidišgođii ruvdnu sihke vearrubuondoriid ja sápmelaččaid rievtti eatnamiiddaset. Gonagaslaš dáhkadusa bokte jagi 1789 sihkkarasttui buondoriid oamestanriekti dáidda. Dát ii dáhpahuvvan sápmelaččaid rivttiin Vel ovddosguvlui gieđahalle dáid eatnamiid nugo ruvnnaeanan. Sierra sámi vieru vuostá dát láigojuvvoje leanastivrrain ja eai šaddan, nugo ovdal, dohkkehuvvon duopmustuoluin. Dađistaga šattai olles systema sámi vearrueatnamiid hárrái siskkit deattu vuollái ja rievddai. Oktá sivva dása leai boazodoalu rievdan. Sierra sámi vearrueatnamat šadde ila gáržžit stuora boazoeaiggádiidda geat ihtegoahte 1800 jagiid loahpageažis. Jagi 1928 jávkkai sihke sámivearru ja sámi vearrueatnamat. Lappmarkrádji Västerbottenis ja Norrbottenis gessui 1700 jágiid gaskkasmuttus. Vuosttaš ulbmil dainna leai movttidahttit eanandoalu koloniserema. Mearragáttiid buondoriid gilde guolásteamis čázadagain lappmarkeriin ja nu láhkái gilvalit dainguin sámiiguin ja ođđadálolaččaiguin mat orro doppe. Ođđadálolaččat mat orro lappmarkeriin besse eret muhton vearuin ja sis ii lean bággu čálihit iežaset soalddáhin. Álggus eai vuordán ahte galge šaddát riiddut sápmelaččaiguin. Gonagalaš čállagis jagi 1749 deattuhuvvui ahte ođđadálolaččain ii lean lohpi hehttet eará ealáhusaid, namalassin sámi ealáhusaid. Gonagalaš čállagiin lappmarkerráji birra eai gávdno njuolggádusat mat dadjet ahte dat livčče rádjin sámiid dálvejohtimiin. Praktiihkas dat ii leat doaibman dakkáriin ge. Moanaid gáldduin 1700 ja 1800 jágiin, ollusat dain girkolaš, duođastit ahte sámit dávjá johte mearragáttiid suohkaniidda, gitta mearrarittuide ja sulluide das olgolis. Gonagalaš čállagiin mat almmohuvve 1800 jagiid álgogeažis daddjo ahte buondoriin leai geatnegasvuohta gárdut iežaset suoidnevuorkkaid bohccuid vuostá. Dat doalai maid deaivasa mearragáttiid suohkaniin ja Norrbottena leanain ja Jämtlandda leanas. Dát čájeha ahte ráđđehus doarjjui sámiid rievtti guođuhit ealuideaset doppe dálvet. Sierra leanahearrat dahke mearrádusaid dan vuostá, muhto láhkageahččaleamiin čilgejedje ahte dáin mearrádusain ii leat vuoibmi. Jämtlanddas ja Härjedalenis ii gávdnon mas ledje nannejuvvon rájit nugo dain guovtti nuorttat leanain ledje. Muhto guorahallamat čájehit ahte Jämtlandda lappmarker leai dovddus tearbma. Guovlu leai duoddarat nuortan Frostvikenis gitta oarjjás Härjedalenii.