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Norway: Supreme Court: Finnmark Estate Agency Has Right to Regulate Fishery, Hunting and Use of Natural Resources in Finnmark

(Mar. 30, 2018) On March 9, 2018, the Norwegian Supreme Court issued a unanimous judgment in a dispute regarding who may regulate fishing, hunting, and the use of natural resources in the Nesseby municipality in Finnmark (part of the Sápmi region in the northern part of Norway, inhabited by the Sami people).  (Supreme Court Case, HR-2018-456-P, Mar. 9, 2018 (in Norwegian) and English Summary, Lovdata website.)

The case stems from a conflict of who may regulate the use of natural resources in Finnmark, an area where Sami people have been present for thousands of years. Currently the area is managed by the Finnmarkseiendommen FeFo (the Finnmark Estate Agency), which is also considered the owner of 95% of the land in Finnmark but had previously not been determined the owner of the disputed area. (§ 6 Lov om rettsforhold og forvaltning av grunn og naturressurser i Finnmark fylke (finnmarksloven), Lovdata website.)

The Norwegian government instituted FeFo in 2006 to regulate the use of resources in the Finnmark area, transferring ownership from the national state. (Finnmarkseiendommen, JUSTICE DEPARTMENT (Sept. 14, 2005).) FeFo is made up of six persons, three chosen by the Sameting (Norwegian Sami Parliament) and three chosen by Finnmarks Fylketing (Finnmark City Council). (§ 7 Finnmarksloven.) All must be residents of the Finnmark area and include both men and women chosen by the two bodies. (Id.)

In governing the Finnmark area, FeFo is bound by Finnmarksloven, which among other things mandates universal public access to and respectful use of the land, but also limits the use of motorized vehicles in the mountainous area of Finnmark. (§ 21 Finnmarksloven; see also § 3 Lov om motorferdsel i utmark og vassdrag (motorferdselloven) (LOV-1977-06-10-82).)

The issue in the case was whether “the local population in a special part of the municipality, in addition to having user rights based on immemorial use, also have the right to manage and administer the renewable resources that the user rights are tied to, or if that right belongs to the Finnmarkseiendommen Finnmárkkuopmodat (FeFo) as owner [grunneier]. Among other things this concerns the control of hunting, trapping, and fishing.” (Supreme Court Case, HR-2018-456-P (translation and emphasis by author).)

The Utmarkdomstol for Finnmark (Finnmark Land Tribunal), which had previously heard the case, had found that Unjárgga gilisearvi/Nesseby bygdelag (a local organization that aims to protect the Nesseby population’s interests and is currently led by Sami members) had the right to regulate big game hunting (storvilt) and to disperse the financial gains thereof. (Utmarksdomstolen for Finnmark, Saksnr. [Case No.] 14-164739TVI-UTMA, Jan. 23, 2017, at 5.)

The Norwegian Supreme Court, on the other hand, found that although the Sami group had used the area in a way that constituted “immemorial use,” the determination did not require that the group also be given management rights over the area. The user rights were also determined not to be exclusive. (Case HR-2018-456-P ¶¶ 119, 149.) Because the Sami group is not deemed the owner of the land, the Finnmark Estate Agency should continue to regulate the area’s use, effectively giving FeFo the right to determine who may hunt and fish in the area as well as how much hunting and fishing the area may sustain. (Id. ¶ 149.) It also gives FeFo the right (and duty) to consult with Nesseby bygdelag to determine how Nesseby bygdelag is to use its immemorial rights. (Id. ¶ 195.) The Court determined that the International Labour Organization (ILO) Convention Concerning Indigenous and Tribal Peoples in Independent Countries could not be read to include a right to self-determination or self-regulation in the manner Nesseby bygdelag proposed. (Id. ¶¶ 194, 197; International Labour Organization, Indigenous and Tribal Peoples Convention, June 27, 1989, No. 169, ILO website.)

The case is anticipated to have great effects on how Sami rights are regulated in Finnmark in the future. (Carl-Gøran Larsson & Samuel Frode Grønmo, Bygdelag tapte sak i Høyesterett om naturrettigheter i Finnmark, NRK (Mar. 9, 2018).)

The case touches on issues similar to those in the Girjas case in Sweden, which is expected to be heard by the Swedish Supreme Court later this year.  (See Elin Hofverberg, Sweden: Appellate Court Grants Sami Village “Better Right” to Hunting Rights, but Not Control over Them, GLOBAL LEGAL MONITOR (Mar. 8, 2018).)