sou · GUB314 · 2007-01-01 00:00:00 — This means, for example, that we are bound by rulings that have been made by the courts and that our pronouncements on the Samis customary lands will not have any formal legal force. In addition, it is not part of our remit to strike balances in industry policy be- tween the interests of reindeer husbandry and other industries in the light of the current conditions. does our remit include the substance of the reindeer herding right or the question of who is entitled to exercise that right. Finally it should also be noted that our work has been limited by the time and resources at our disposal. Thus it is not impossible that deeper surveys of limited areas will be able to find historical evidence of grazing in material that we have been unable to study, such as parish registers, newspaper items, etc. It is also pos- sible that, with access to expert knowledge in the field, we could, by making a more thorough analysis of other legal systems than the one we have carried out, have at any rate stated views de lege fer- enda (i.e. about what the law ought to be) of importance for the assessment of both the outer and the inner boundary. However, as no such analysis has yet been carried out in connection with court rulings it would have been able to form the basis for the pronouncements de lege lata (i.e. about what the law is) that fall within our remit. Changes in reindeer husbandry and society the centuries reindeer husbandry has been affected by both external and internal change. In Lapland itself, the had more or less sole control until the 18th century. In the following centu- ries they were transformed into a minority by the expansion of ag- riculture and forestry. At the same time there was sharp population growth in the communities of and Norrbot- ten and in and . In the mid-18th century accounted for 5 per cent of the Swedish population, but when the regions share peaked in 1930 it was 13.3 per cent. In contrast, the reindeer-herding population did not increase, and actually stagnated in the 19th century and fell in the 20th cen- tury. time most Samis had to seek a livelihood outside of reindeer husbandry. To begin with, culture was mainly based on hunting and fishing and at that time a family only had a few tame reindeer. The 17th century saw a transition to large-scale reindeer nomadism with reindeer herds as the main source of livelihood. For a long time these operations were intensive, which meant that the herds were relatively small with only around a hundred animals. In the late 19th and early 20th century extensive reindeer herding evolved with larger herds and looser supervision. The authorities resisted this development for a long time, but since the Second World War extensive reindeer herding has been seen as a natural modernisation corresponding to what was happening at the same time in agricul- ture. During the last three decades of the century this has led to a marked increase in the number of reindeer, especially in and Counties; this growth has, however, remained within the limits approved by the authorities. Nevertheless, it is not impossible that this development has put strains on the rela- tionship between reindeer husbandry and the rest of society. On the other hand, the emergence of large-scale forestry, changes in communications, the expansion of hydropower, tourism and other factors have led to strains on reindeer husbandry. As long as inner was roadless country, the reindeer and the ackja, or sledge, was the only possible means of commu- nication. The state therefore saw it as important to safeguard livelihoods and prevent Samis from migrating . The Riks- dag (Swedish Parliament) and the Government have retained this ambition in modern times, as expressed in the 1886 Reindeer Grazing Act and successor legislation. However, consideration of the Samis has often been outweighed by the stronger interest of supporting the development of other industry. This conflict be- tween different interests has been the source of many remarkable and sometimes outright racist, attitudes and public decisions. However, it is important to underline that the relationship between the and the permanent population should not solely be viewed in a conflict perspective. In many cases, especially long ago, it has involved fruitful cooperation. The historic boundaries of reindeer husbandry Legislation on reindeer husbandry works with a number of con- cepts that can only be understood when their background is known. The most important of these concepts are the Taxed Lapp Lands (lappskatteland), the Lapp Lands boundary (lappmarksgräns), the cultivation limit (odlingsgräns) and the reindeer grazing moun- tains (renbetesfjäll) in County. The Taxed Lapp Lands were areas that individual families used long ago for the maintenance of their reindeer herds in the spring, summer and autumn. In the they sought grazing for their herds outside of their own lands. As far as can be seen from the historical material, in the 17th century case-law and the au- thorities treated the Taxed Lapp lands in a way that corresponded to the taxed land held by the tax-paying farmers (skattebönder). In the late 17th century and the first half of 18th century, however, the Crown questioned the right of both the tax-paying farmers and the to their land. But a Royal of 1789 guaranteed the tax-paying farmers ownership of their land. This was not to be extended to the right of the to their Taxed Lapp Lands. In- stead, from then on these were treated as Crown land. This land was leased by the county administrative boards in return for a cer- tain Lapp tax and land titles were not registered at the courts, as they had been previously. time the whole system of Taxed Lapp Lands was exposed to internal pressures and changed. One reason was the development of the reindeer husbandry itself. The individual Taxed Lapp Lands were too small for the large reindeer owners who emerged at the end of the 19th century. The Lapp tax and the Taxed Lapp Lands were finally abolished in 1928. The border of the Lapp Lands in and Counties was drawn in the mid-18th century. Its main purpose was to stimulate agricultural colonisation. farmers were pro- hibited from continuing to fish in watercourses in the Lapp Lands in competition with the there and the colonists. Colonists in the Lapp Lands were granted certain tax exemptions not available in parishes and were exempt from the system of involuntary military service (knektutskrivning). Initially no conflict was antici- pated with the Samis. A proclamation from 1749 underlined that the colonists were not allowed to harm anyone elses livelihood, i.e. The proclamations on the Lapp Lands boundary do not contain any regulations stating that it was to be a boundary for migrations. did it act as one in practice either. Various sources from the 18th and 19th centuries, not least church sources, provide evidence that in the the often migrated with their rein- deer down to the parishes, sometimes all the way to the Gulf of Bothnia coast and to the off the coast. The procla- mations issued in the early 19th century on the obligation for farmers to enclose their hay-drying racks to protect them from reindeer also applied to the parishes in and Counties and to rural areas in County. This shows that the Government assigned the the right to let their reindeer graze there in the . Although individual county gov- ernors took decisions in the opposite direction, these local deci- sions were declared invalid when reviewed by higher authorities. In and there were no Lapp Lands with set boundaries like in the two northern counties. However, our inves- tigation shows that Lapp Lands were an established concept. The area extended along the mountain range from in the north to in the south. in these Lapp Lands were hit very hard by the partition of Crown land to private ownership carried out in the 1820s. The had a pre-existing free grazing right on Crown lands, but when these lands were sharply reduced, major problems arose. The reindeer grazing mountains set aside for needs in the early 1840s were totally inadequate. At the end of the 19th century the state tried to correct the worst mistakes by purchasing expansion homesteads (ut- vidgningshemman). However, the resulting expanded reindeer grazing mountains were never intended to also meet needs of grazing land in half of the year, as is clear from the in- quiries and the Riksdag record. The cultivation limit was established when the Riksdag decided in 1867 to draw a provisional boundary between the cultural lands of the Lapp Lands and the mountain communities. In principle, land above this boundary would be land and no new con- struction would be permitted there. However, discussions on where to draw this boundary was to be drawn on for many years, which meant that the expansion of cultivation in the Lapp Lands could continue and the wording used in the first Reindeer Grazing Act about this boundary was diffuse. The location of the cultiva- tion limit was fixed definitively in 1890 and it could therefore be described in much clearer terms in the 1898 Reindeer Grazing Act. Under this Act and all subsequent Acts the have the right to stay with their reindeer throughout the year above the cultivation limit in and Counties and on the reindeer grazing mountains in County. Partition was carried out first in County. In the other counties it was carried out at a slower pace and a later date. In the early 1870s it was the turn of the areas above the Lapp Lands boundary. For the , the partition decree for the Lapp Lands in and in 1873 was a turning point. It decreed that the were free to use reindeer grazing areas on Crown land throughout the year. In addition, they were able to do so without restriction on private land that was to be partitioned off in the Lapp Lands during the half of the year, when the reindeers sole diet was reindeer moss and it was therefore felt that no appreciable damage could be done to agriculture and forestry. This decree and the discussion of the concept of customary laws in that context portended the first Reindeer Grazing Act. Customary law is embodied in statute law The 1870s saw serious conflicts in concerning the right of the to graze their reindeer outside the reindeer grazing mountains. These conflicts became known throughout the country as the culture struggle. In the course of this struggle, it became clear that the legislation was in chaos. the years, regulations had been issued and had then been forgotten or replaced by new regulations with diametrically opposed content. Frequently the new regulations originated from local decisions taken by various county governors. The provisions concerning the enclosure obli- gation were a highly illustrative example of this. As government minister pointed out in the bill proposing a Reindeer Grazing Act, there was an evident need to bring together all the provisions in a clear and unified whole. appointed in 1882 to study the matter presented its report in 1883. It contained the draft of our first concerted Reindeer Grazing Act. The first section of this act was to read as follows: Subject to the provisions issued in this Act, the Lapps are entitled to stay with their reindeer not only in the Lapp Lands of and and in the land set aside for them in County but also in the other tracts that they have by ancient custom visited up to now and to avail themselves of the land and water there to maintain themselves and their reindeer. The Lapps may, however, only stay without the permission of the land-owner or user concerned on pri- vate property located outside of the Lapp Lands of and or inside those parts of these Lapp Lands declared suitable for cultivation at a previously conducted or future partition during the months of October, , , January, February, and April when these grounds have not also been retained at partition as reindeer grazing land or when unusual weather conditions present an obstacle to migration. Despite opposition, mainly from representatives from , the proposal was adopted by the Riksdag in 1886. The law has sub- sequently been modified in various respects through Reindeer Husbandry Acts in 1989, 1928 and 1971. However, the provisions on customary law have been retained even though their wording has been altered. The actual texts of the acts have not specified the boundaries for customary law. However, all the committees of in- quiry that have prepared the legislation have conducted extensive investigations to determine where these boundaries might con- ceivably be located. These preparatory works provide a wealth of material for a closer study of the geographical extent of customary law. The terms of reference for state that, in its work, the Committee is primarily go through the material held by various public authorities. As historical issues are involved, this work has almost exclusively consisted of research in the, often very old, archives of defunct public authorities. The great bulk of these archives are held by the state archive institutions, primarily the National Archives and the Regional Archives in (for County) and in (for the rest of ). In some cases, however, they are still held by public authorities and institutions that exist today. The archive material we have had to assess is extremely exten- sive. In order not to drown in it we have had to use certain strate- gies. Archaeological investigations have been ruled out for several reasons. One very weight reason is that our investigation does not cover periods when hunting and fishing were the main liveli- hoods. Our investigation only applies to the period after reindeer nomadism became a principal livelihood, i.e. from the 17 century and onwards. Another interesting archival source that we have had to refrain from using for reasons of time is a closer study of exten- sive local source series such as judgment books, parish registers and the like. The material that has been of greatest importance for the Inquiry has been the archives of the Government and the central adminis- trative authorities held at the National Archives. For the older pe- riod particular mention can be made of the archives of the Royal Chancellery, the Legal, Financial and and for the Minis- try of Education and Ecclesiastical Affairs (Direktionen för ecklesiastikverk). For the period since the civil service reform of 1840 ministry records and files and archives have been particularly important. Fourteen committees of inquiry have given some degree of consid- eration to the question of the geographical extent of reindeer grazing lands. These committees have, in turn, initiated local in- vestigations. They have also had a number of maps prepared that form the core of the digital map collection that the Boundary De- limitation Committee has made available on the website of . As regards the regional archives, the archives from the Cathedral Chapter in , the county administrative boards, the en- forcement districts, the Swedish administrative officers for the (lappfogdarna) and the county agricultural boards has been of most importance. Printed sources have, of course, been used in addition to archive material. In this context, official publications in the form of Riks- dag records, the Swedish Government official reports (the SOU series and its predecessors), compendiums of legislation, etc. are obvious sources. Some older reports and topographical de- scriptions have also turned out to be of great value. There is a very great deal of scientific and amateur literature about the . A good deal of this literature has been useful, but it is nonetheless striking to see how much of it has revolved around religious, political, legal and ethnographic issues and how at- tention has been given to the conditions for reindeer husbandry as such. This has meant that the work of has had to build to a great extent on hands-on basic research in archives. In the work of a great deal of effort has been put into analysing how different types of source material have come into being and what has been the background to them. This has been seen as an essential pre-condition for an assessment of the value of the sources and an understanding of the contexts behind them. This careful examination provides material for a principled discussion of the source critical problems in chap- ter 8. Some of the issues concerning source criticism deserve to be given special emphasis. In various court cases in recent years the have been required to give an, often detailed, account of where they were with their reindeer in the 90 years that preceded the 1886 Reindeer Grazing Act. On closer inspection these de- mands appear to be unreasonable. The registration of migra- tions that existed at that time does not make such an account pos- sible. An investigation has to proceed by making use of probabili- ties based on several factors: the detailed investigations of migra- tion patterns carried out around 1900, natural conditions, the char- acteristics of the reindeer, sporadic contemporary evidence, general descriptions in the historic sources and retrospective interviews. In addition, account should be taken of the consultative comments made on various legislative proposals by the municipalities and authorities in the relevant counties. In many cases they provide a picture of the local view in these counties of the geographical ex- tent of customary rights. Unfortunately, there are also gaps in the evidence for grazing in the 20th century. While the authorities in County made noteworthy attempts to systematically document where these took place, in other counties neither the , the land-owners nor the authorities grasped that there was a need to do so, as far as can be judged because it was thought that rights under customary law had been established through the Reindeer Hus- bandry Acts and the village statues for the villages down to the Gulf of Bothnia coast. Apart from this, the other factors that the investigation also points to include the difficulties that can arise from the failings of memory. On closer inspection, areas identified as normal grazing areas have turned out to only be normal during a par- ticular surveyable period, and in many cases that period has tuned out to be shorter that could have been expected. Moreover, it is necessary to be attentive to the shifts of perspective that the spirit of the times and the personal views of individual informants often give rise to. Topographic account of information about grazing lands This sizable chapter gives a detailed account of the sources infor- mation available on grazing in various areas from different periods. The ambition has been to achieve roughly the same level of detail as has occurred in legal proceedings, and to do so, as far as possible, for an area large as the whole of the reindeer herding area. Obviously this has resulted in a large volume of text. On other hand, it provides more of an overview than the material that emerges in legal proceedings concerning regional or more limited areas. There are quite a number of pitfalls in the material. Maps and other documents are often based on county boundaries. It is im- portant to pay attention to this. In several cases current county boundaries differ from boundaries a hundred years ago. Of course, the reindeer are not aware of administrative boundaries either. This is why the old Lapp Lands have been used as the basis for the ac- count. This is a better reflection of the natural migratory pattern of the reindeer. Our conclusions from this extensive documentation are set out in chapter 11. As regards the two maps referred to there, it can be mentioned that county treasurer map from 1959 is based on an extensive survey of grazing lands that he con- ducted in County. The map from was produced in connection with national physical planning in the 1970s. It is based on interviews with the villages, which were then processed by the relevant authorities. In addition to these maps, several other maps are also interesting. Special mention can be made of the maps produced as a result of the interview survey with 211 Samis from the whole rein- deer herding area carried out in 1912–1913 (map no 7.7.1–5). Prescription from time immemorial In chapter 10 we set out our view of the concept of prescription from time immemorial. Our starting point is current law, as we have interpreted it. In the context, it should be noted that inter- pretation is made more difficult by the fact that to a great extent there are no explanatory preparatory works and there is practically no case-law. Prescription from time immemorial is a concept that has deep historic roots. Since the late 19th century it has been used to le- gitimise the reindeer herding right. Prescription from time imme- morial was discarded from the Land Code in 1972, but is still found in the Reindeer Husbandry Act. The reindeer herding right is a constitutionally protected right that arises through a long-term use of land and water accepted by others. The reindeer herding right based on prescription from time immemorial differs in many re- spects from to other rights based on prescription from time im- memorial. In several respects the requirements for prescription from time immemorial under the Land Code are not relevant when this legal construct is to be applied to the reindeer herding right. We therefore consider that the reindeer herding right based on pre- scription from time immemorial should be regarded as a separate legal institution, which should, however, be interpreted in accor- dance with what used to apply under the Land Code, where rele- vant. The law has nothing to say on question of how long a use must have continued for prescription from time immemorial to exist, except that it must have continued for such a long time that no now living person remembers or has heard from his forefathers when it started. The import of this has not been established in case- law. We consider that in the interest of clarity there should be a specific time limit and in accordance with certain pronouncements in doctrine we have opted for 90 years. If the reindeer herding right is not exercised, the same time should elapse before a pre-estab- prescription from time immemorial is held to have lapsed. If, on the other hand, there has not been time to establish a reindeer herding right based on prescription from time immemorial, the po- sition is somewhat different. However, the requirement concerning intensity of use that generally applies for the of pre- scription from time immemorial cannot be applied to a reindeer herding right based on prescription from time immemorial. decision should instead be based on what appears reasonable from the perspective of reindeer husbandry. Therefore no regard should be paid to interruptions of use that are a normal result of having to wait for the re-growth of reindeer moss in an area that has been grazed off or that are due to a district only being used in years known as flenår, when a crust of ice forms on the ground in the autumn, preventing the reindeer from reaching the moss. As a gen- eral rule we have assumed that a continuous interruption of use for a period of 30 years means that the period for the appearance of prescription from time immemorial has been broken. According to our interpretation, an assessment of whether a reindeer herding right based on prescription from time immemorial has been established shall take account of use both before and after the oldest Reindeer Grazing Act and up to and including our own time. In our opinion, the fact that prescription from time immemo- rial was removed from the new Land Code is of no importance for the application of prescription from time immemorial to the rein- deer herding right. The reindeer herding right is independent of the division of land into real property units.