Sweden: Appellate Court Grants Sami Village “Better Right” to Hunting Rights, but Not Control over Them
(Mar. 8, 2018) On January 23, 2018, the Appeals Court for Upper Norrland (Hovrätten for Övre Norrland) decided that the Sami village Girjas has a “better right” to fishing and hunting rights in its reindeer-grazing area than the Swedish state, concluding that the state has no right to fishing or hunting in that area. The Court found, however, that Girjas’s right was not exclusive and the continued licensing of hunting and fishing on the property by the Swedish state did not violate the Swedish Constitution. (Appeals Court for Upper Norrland, Jan. 23, 2018, Case No. T 214-16, on file with author.)
The Court, thus, in part, overturned the lower court’s decision by finding that the Sami village does not control its own fishing rights and does not have the right to transfer or assign those rights to others. (Id.)
The district court had previously determined that only Girjas had fishing and hunting rights in the area on the basis of prescription since time immemorial, that those rights had never ceased, and that therefore the Swedish distribution of fishing and hunting rights in this area violated the principle of protection of property found in 2 kap. 15 § Regeringsformen, the Swedish Constitution. (District Court of Gällivare, Feb. 3, 2016, Case T 323-09 (on file with author); see also Elin Hofverberg, Sweden: Court Recognizes Exclusive Fishing Rights of Sami Village, GLOBAL LEGAL MONITOR (Feb. 9, 2016).)
Commentators and stakeholders alike have struggled to determine the meaning and precedent value of the decision that Girjas now has an established legal right but still does not control that right. (David Rydenfalk & Jörgen Heikki, SSR:s förbundsjurist: Märkligt med rätt utan inflytande över rätten, SVERIGES RADIO (Jan. 24, 2018).)
The Girjas Sami village chairperson, Matti Berg, has announced that the Sami village interprets the decision as meaning that the Swedish authorities must consult with the Sami village before issuing fishing and hunting permits. (Lars-Henrik Andersson, Girjas sameby: Otydligt domslut, SVENSK JAKT (Jan. 23, 2018).
Both Swedish State and Sami Village Appeal to Supreme Court
The Girjas Sami village has reportedly appealed the case, as has the Swedish state through the Justitiekanslern (Chancellor of Justice). (Marja Påve & Marie-Louise Niia, TV: Girjas sameby överklagar hovrättens dom, SVERIGES RADIO (Feb. 2, 2018); Press Release, Justitiekanslern, Girjas sameby ./. staten angående ensamrätt till småviltsjakt och fiske (Feb. 19, 2018).) The Swedish state has requested an extension of time to provide its reasoning for its appeal until March 20, 2018. The Supreme Court has not yet decided to accept the case but is expected to do so.
Currently, all hunting in the area of Girjas Sami village is blocked by the local County Administrative Board on the basis of a request by the Sami village. The Board decided that hunting is disruptive to the reindeers’ grazing when large quantities of snow make it difficult for them to find food. (Mikaela Sjöstedt, Småviltsjakt avlyses på Girjas område – väcker reaktioner, SVERIGES RADIO (Feb. 8, 2018).) The decision to temporarily ban all hunting in the Girjas area has been questioned by the Swedish Hunting Association (Jägarforbundet), which maintains that there are not enough reindeer in the area to warrant the Board’s decision. (Maria Dahlgren, Jägarförbundets helikopterflygning i Girjas kan leda till straff, SVERIGES RADIO (Feb. 21, 2018).) Despite the Swedish Hunting Association’s concern, the County Administrative Board has decided that it will not repeal its decision at this time. (Boo Westlund, Den avlysta fjälljakten kommer inte att omprövas, SVENSK JAKT (Feb. 21, 2018).)
There are currently no restrictions on fishing in the Girjas area. (Inget fiskeförbud i Girjas, SVERIGES RADIO (Feb. 14, 2018).)
If Girjas Sami village wins the case on appeal, the Sami village, rather than the local County Administrative Board, would determine whether members of the Swedish Hunting Association can hunt or fish in its area.
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