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Sweden: Court Recognizes Exclusive Fishing Rights of Sami Village

(Feb. 9, 2016) On February 3, 2016, the District Court of Gällivare announced its verdict in a hunting and fishing rights dispute between the government of Sweden and Girjas, a Sami village (a community of the indigenous Sami people that is a special legal entity with special legal rights and duties different from an ordinary Swedish village).  (Press Release, Gällivare District Court, Dom i målet mellan Girjas sameby och Staten genom Justitiekanslern [Judgment in the Case of Girjas Sami and the State, Through the Chancellor of Justice] (Feb. 3, 2016), Gällivare District Court website; District Court of Gällivare, Case T 323-09 Feb. 3, 2016 (on file with author).)

Background 

The Sami village Girjas sued the government to obtain a declaratory judgment that it has the sole fishing and hunting rights to the area in which the village was located or, in the alternative, that at least Girjas shares joint control over the hunting and fishing rights with the government. (Case T 323-09, supra, ¶ 2.)

The District Court decided in favor of the Sami village and declared that Girjas has the sole hunting and fishing rights to its land, based on the principle of urminnes hävd (prescription by time immemorial).  The Court found that the Sami have been living, hunting, and fishing on the land in question for at least 1,000 years and that the population thus have rights to it through prescription by time immemorial.  (Id. ¶ 6.19.)

Prescription by Time Immemorial

Prescription by time immemorial is, according to the District Court, a longstanding tradition in Swedish law first initiated in the Kristoffer Landslag (King Kristoffer’s National Law from 1442) as a way of acquiring property, in addition to acquisition by heritage, trade, purchase, gift, or deed (indebtedness). Since then the concept made its way into the Swedish Land Law Code of 1734; it was defined there as “when a property or right has been enjoyed for such a long time, and exercised, that no one remembers how and when the right came to be.”  (Id. ¶ 6.16.2.)

The District Court prescribed as the test for prescription by time immemorial that there be an area of land at issue and that the land in question:

  • be defined;
  • have distinct borders;
  • be in use by someone without protest from any other party; and
  • has been in that status for at least 90 years. (Id. ¶ 6.16.2.)

According to the District Court, the Sami have enjoyed fishing and hunting rights based on the principle of prescription by time immemorial from the time the Swedish state implemented legislation recognizing this type of acquisition of rights in the Swedish Land Law Code of 1734. The District Court found that no measure or act had caused that right to be invalidated and that the Sami of that region still enjoy these rights.  The Court thus declared Swedish legislation that permits the Swedish state to give out hunting and fishing permits on the property as in violation of the Swedish Constitution (Regeringsformen) as applied in this case.  (Id. ¶ 6.19.)

The Court went on to declare that Girjas has the exclusive right to grant fishing and hunting permits on the property. (Id.)

Chancellor of Justice (Justitiekansler) Anna Skarhed, who represents the state, expects that the state will appeal the decision. (Nils Eklund, Troligt att domen överklagas [Judgment Likely to Be Appealed], SR (Feb. 3, 2016).)