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Sweden: Appellate Court Declares Decision on Shared Reindeer Herding Rights Invalid

(Jan. 26, 2021) On December 16, 2020, the Appellate Court for Upper Norrland remanded the Vapsten reindeer case to the court of first instance, ordering it to rehear the case to determine which Sami group has a better right to herd reindeer in the Vapsten reindeer herding area in northern Sweden. (Appellate Court of Upper Norrland, Decision Case No. T-269-20, on file with author.) The District Court of Lycksele had previously issued a decision on February 28, 2020, whereby it recognized an equal right for members of the Vapsten Sami Village and Vapsten Lappby to herd reindeer in the Vapsten reindeer herding area. (Lycksele District Court T 329-17, on file with author.)

The appellate court held that the district court’s decision had violated 17 kap. 13 § of the Swedish Procedural Code because neither party had argued that it had an equal right, only a “better right,” to herd reindeer. The issue before the court was thus whether an equal right to reindeer husbandry can be considered part of a petition for a better right to reindeer husbandry. The appellate court recognized that the district court was attempting to apply the rule set forth in the Girjas Supreme Court Case Decision, which was issued just weeks before the lower court made its ruling. The Appellate Court for Upper Norrland recognized that a joint right may be considered a smaller right in relation to an exclusive right, but held that the adversarial principle (kontradiktoriska principen) requires that the parties be given a chance to argue for and against the interpretation. Thus, the lower court did not have a right to assign an equal right to reindeer herding without first asking the parties to comment and argue this.

Specifically, the appellate court found that

[u]nder all circumstances it is obvious that the consequences of a court decision on a joint right to reindeer husbandry is not in the least equitable with the consequences that can be predicted from a court decision on a better right to reindeer husbandry. Overall, the appellate court finds that a joint right to reindeer husbandry, in relation to a better right to reindeer husbandry, must be considered something else than what the Lappby has petitioned for and that the district court has thereby, in violation of the rules in 17 ch. 3 § Procedural Code, made a decision that exceeds the petition.

The court went on to say that “in accordance with the appellate court’s evaluation the actions of the district court have constituted a serious procedural error, which has influenced the outcome of the case and which cannot without considerable inconvenience be cured by the [proceedings in the] appellate court.” (Appellate Court of Upper Norrland, Decision Case No. T-269-20.)

The district court was ordered to rehear the case in accordance with the ruling.

The parties had the right to appeal the appellate court’s decision by January 13, 2021, but, according to reports, the parties have apparently chosen not to appeal the case. In an interview with Swedish Radio, one judge from the district court argued that the appellate court had misunderstood the role that the Girjas decision played in the district court’s decision and that the Girjas decision was not relevant in determining whether the Vappsten Lappby petition for a better right also included a petition for an equal right.

When the case is reheard, new judges must rehear it because the judges that initially heard the case would be considered biased. (4 kap. 13 § Procedural Code.)