Reindeer husbandry rights in Norway
by Elisabeth Einarsbøl (2005)
Sámi reindeer husbandry
There are two types of reindeer husbandry in Norway: Sámi and non-Sámi. This article will focus on Sámi reindeer husbandry, and will provide a brief introduction to reindeer husbandry legislation in light of its historical development from 1751 to the present day.
Reindeer herding within the reindeer pasture area is in principle exclusively Sámi. The law is open to exceptions, however, upon application and when duly justified. One may also herd reindeer within the so-called “concessions areas”, i.e. land south of the reindeer pastures; both Sámi and Norwegians herd reindeer here.
Reindeer are herded across large land areas, from the Russian border in the northeast to LakeFemundenin the southeast. The Sámi reindeer grazing area covers roughly 40 percent of Norway’s land area and provides pasture for more than 200 000 reindeer. Reindeer are herded mainly in the mountains and in the lower inland and coastal outfields. At best 2 800 Sámi currently possess the right to brand reindeer and exercise the trade.
The Reindeer Herding Act of 1978 currently regulates the permits for Sámi reindeer husbandry. Reindeer herder applicants must be of Sámi ancestry, and either a parent or grandparent must have had reindeer herding as their main occupation. In addition, each reindeer herder must own or be associated with an operational unit.
To be of Sámi ancestry means to belong to a Sámi family. The Reindeer Herding Act itself does not specify how closely related this family must be. Current guidelines for interpretation will be related to one’s own or previous generations’ use of the Sámi language at home and whether the individual perceives himself or herself as Sámi. These same criteria are applied to Sámi individuals wanting to register on the Sámi Electoral Roll in order to vote during Sámi Parliament Elections, and can therefore serve as a starting point for the interpretation of “Sami ancestry”.
It is required that a parent or grandparent must have had reindeer herding as their main occupation. This criterion will also act as a clear indication of Sámi ancestry, since reindeer herding within the reindeer pasture area has traditionally been – and still is – a Sámi trade.
The right to practise reindeer herding is tied to the owning or keeping of reindeer within an operational unit. An operational unit is a form of public permit to own a certain number of reindeer. In addition, a few close relatives may also keep reindeer within a relative’s operational unit.
An operational unit is typically acquired by consent from the administration of the relevant reindeer husbandry area, or by a transfer by inheritance or agreement from close relatives or the spouse. Whichever the case, the person acquiring the operational unit is responsible for ensuring that the conditions for keeping reindeer are met. A person may, however, irrespective of background take over an operational unit upon the death of his or her spouse.
A reindeer herder in possession of an operational unit must observe the requirement to herd reindeer as his principal activity. The motive for this requirement is the need for proper operations, responsibility and availability. “Principal activity” is not defined further in preparatory legislative work, but its interpretation should not hinder the combining of reindeer herding with other occupations.
A person that wants to own reindeer but that is either unable or unwilling to own an operational unit must be closely related to the current owner(s). Parents, children, siblings and children of siblings of a reindeer herder who owns an operational unit may, with proper consent, herd reindeer within the relative’s operational unit.
The right to herd reindeer comprises a number of intrinsic utilisation rights, such as dwelling, migration, pasture, erection of necessary facilities, hunting, trapping and fishing as well as the right to firewood and timber. Additional utilisation methods may come into being as reindeer herding develops.
The right to reindeer pasture is valid within the reindeer husbandry area, and grants grazing rights in the mountains and outfields. These rights are built on civil law, within the reindeer pasture area as well. The burden of proof that pasture rights do not apply to a specific area currently rests with landowners.
The right to firewood and timber is a “household” right, i.e. they are limited to personal use; in addition, they must be used in connection with reindeer herding. The rights of reindeer-herding Sámi to hunt, trap and fish are dependent upon the right to legally practise reindeer herding within one’s own district. In contrast to people who have “settled down”, reindeer-herding Sámi are exempt from various fees and charges. Moreover, the rights to hunt, trap and fish are not limited to the reindeer-herding Sámi’s own needs.
Reindeer herders are obliged to ensure that reindeer husbandry is practised according to reasonable norms. This means that the reindeer are to be kept under proper control and within lawful pastures. Furthermore, all reindeer owners practising reindeer herding within a given district share joint and several liability for pasture damage.
Public administration of the reindeer herding industry is handled by the Ministry of Agriculture and Food, the Reindeer Husbandry Board and the regional boards. These three public entities constitute a hierarchal management system empowered to make decisions in industry-related cases. For example, they have authority to make decisions regarding the right to an operational unit, the number of operational units, maximum number of reindeer, fixed grazing periods and designated grazing areas.
The Reindeer Herding Act of 1978 also contains a provision regarding compulsory measures. This provision must be assessed in view of reindeer husbandry’s general protection against encroachment in the industry, according to Norwegian and international law.
Judicial basis and legal protection
The judicial basis of reindeer husbandry is built upon custom and immemorial usage. This means that the right to herd reindeer is built up through a sure use of real property over a long time and in good faith. In practise, this usage must have a 100-year history of intensity and continuity, and the reindeer herders themselves must be convinced that they have a right to the usage in question.
The right to real property according to customary or immemorial usage may be acquired over time without prior agreement or legal basis. If a perception has been established and usage has been ascertained over a sufficient period of time, Norwegian law recognizes the establishment of property or usage rights. Usage rights apply independent of the person who owns the land.
One consequence of this concept that rights connected to reindeer herding have a judicial basis independent of the law is that reindeer husbandry legislation cannot be considered complete with regard to the rights reindeer herders have. This furthermore results in limitations as to which laws may be altered without conflicting with reindeer husbandry rights stemming from custom or immemorial usage.
To what extent protection against encroachment in customary usage applies is uncertain. In principle, the character of the encroachment must be weighed against the traditional use of the area in question. Legal protection will also vary depending on the extent of encroachment.
Today the reindeer herding industry must be said to possess the same right to expropriation compensation as other claimants when property or usage rights are deprived. This means that the right to compensation when usage rights are deprived applies independently of whether this is done in favour of agriculture, forestry or other interests.
Moreover the right to herd reindeer is protected in Norway Constitution § 110 as well as our international obligations set forth in ILO Convention 169 and the 1966 UN Convention on Civil and Political Rights, Article 27. These provisions grant the Sámi, as an indigenous people and ethnic minority, the right to a material cultural protection. This means that the Sámi may require that the physical and financial conditions for their cultural practises be fulfilled. Encroachment in Sámi cultural practises must be regarded in consideration of these obligations.
The way we view the character of reindeer husbandry and its protection against encroachment has varied over time. Following is a brief review of some important events in its development through legislation and legal practise.
The Lapp Codicil
The first regulation of reindeer husbandry took place in 1751 with the creation of the Lappekodisillen (“Lapp Codicil”). This was a supplementary agreement to a border agreement between the then Denmark/Norway and Sweden/Finland. Central is a provision regarding the right to move reindeer across the border according to need and in accordance with customary use. This provision recognizes the need of Norwegian Sámi to use pastures in Swedenand that of Swedish Sámi to use pastures in Norway, based on ancient customs. The agreement has been repeatedly and temporarily set aside all the way up through 1 May 2005, the latest occurrence during the Reindeer Grazing Convention of 1972.
Today the Lapp Codicil is again in force, regulating reindeer grazing across the borders between Norwayand Sweden, although the two countries disagree on which legal obligations the codicil carries with it. Norwayhas chosen to implement the Lapp Codicil through a Norwegian law, which in reality is a continuance of the law which in its time implemented the agreement from 1972. The law does not recognize border-crossing reindeer herding activities as a right based on custom. Thus it may, through its regulation of which areas Swedish Sámi may use for grazing, conflict with the provisions of the Lapp Codicil regarding the right to graze according to custom. Swedish Sámi have, for instance, used certain Norwegian areas for grazing since the 1600’s, according to the 1968 Altevann ruling.
It remains to be seen whether the parties can come to an agreement through new negotiations. The Lapp Codicil is currently an international rights agreement which cannot be cancelled by only one of the parties. Moreover, rights according to custom could exist independently of it. Both Swedenand Norwayhave obligations towards reindeer husbandry according to internal and international law, and this in any case must influence the outcome of the case through any new negotiations. Although the codicil did not introduce any new rights by confirming the right to migrate according to ancient custom, its recognition of customary rights implies legal obligations that both Swedish and Norwegian authorities must abide by.
When Sweden, as a result of the first Napoleon war, conceded Finlandto Russiain 1809, this impacted on Norway. Russia/Finland closed the border with Norwayin 1852, which prevented Norwegian Sámi from using Finnish areas for winter grazing. This led to increased pressure on the pasturelands in inner FinnmarkCounty. In 1854, Norwaydecided for the first time to limit the practise of reindeer herding by prohibiting summer grazing for some affected areas in inner Finnmark.
In 1883 the felleslappeloven (“Common Lapp Law”) was introduced. This law applied to reindeer husbandry in Norwayand Sweden, regulating reindeer herding in TromsCountyand the areas south of it. The law contained certain provisions regarding the reindeer herding Sámi’s custom-usage rights, but it was primarily intended to strengthen the rights of the settled population (farmers) against what was regarded as encroachment from the reindeer herders. One example of this was the introduction of the principle of joint responsibility for grazing damages. It was unclear to what extent the protection of customary rights applied under this law.
As a result of the national social-Darwinist mindset, reindeer husbandry was considered a dying industry for quite some time. This viewpoint prevailed as well when the Reindeer Act was passed in 1933. The reindeer husbandry customary rights provisions were removed from the law and put into preparatory legislative work. The 1933 Act was the first to gather reindeer herding legislation into one Act.
A turning point
The first Supreme Court ruling to positively affirm reindeer herding rights acquired by customary and immemorial usage is the 1968 Altevann ruling, which granted a group of Swedish Sámi the right to compensation for the loss of their grazing and fishing rights in an area of inner TromsCounty. These reindeer herding Sámi had built up rights according to immemorial usage. The Supreme Court ruling was the first of its kind to recognize that Sámi can acquire rights to grazing areas under civil law. Reindeer husbandry had passed from the field of trade rights to the arena of private property rights.
Reindeer husbandry today
Reindeer herding rights today are regulated by the Reindeer Herding Act of 1978. Current legislation, as in the past, provides no statement on the judicial basis of reindeer husbandry. That reindeer herding Sámi can possess rights under civil law to the areas they use for reindeer herding stems, for the time being, from the preparatory work to the Act of 1978 and from precedents.
This new attitude towards reindeer husbandry leads to the realisation that we can no longer consider reindeer herding a collective right due the Sámi as a group. Since the right to herd reindeer can be obtained through customary and immemorial usage, one small group of Sámi may be able to win this right at the cost of other reindeer herding Sámi. This can be consequential should other interests encroach on the reindeer husbandry trade.
There has been a development in how one views the judicial basis of reindeer herding, and therefore also the type of protection reindeer herders have against other interests. There can no longer be any doubt that the judicial basis of reindeer husbandry rests upon customary and immemorial usage. However, it is still somewhat unclear as to how far the protection of customary rights can be applied in practise. Each case must therefore be decided individually.