Jon Inge Sirum v. Esslan Reindeer Pasturing District, No. 4B/2001 (21 June 2001) ("Selbu" case/Sami herding rights)

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This case was originally brought by private landowners against the reindeer pasturing district to resolve whether Sami/Saami herders had the right to pasture reindeer on unenclosed private land.  The Norwegian Supreme Court ruled in favor of the Sami herders, finding that they had used extensive areas of land from "time immemorial." The Court made a number of important pronouncements in recognizing Sami herding rights: 1) traditional land use/herding rights cannot be evaluated against modern agricultural practices; 2) the Sami are nomadic, and thus would not have left many permanent traces of their land use; 3) oral accounts of land use are important to consider because the Sami had no great need for use of written language.

Relevant excerpts from the case concerning the above points:

p.17 “In the assessment of the evidence account must be taken of the fact that the Sami have had a nomadic way of life, and that reindeer husbandry leaves few permanent traces.  Indirect evidence, such as Sami place names and reports, must be ascribed significance as evidence of reindeer husbandry in the disputed area.” p.  24 -25 “The acquisition of a right through use from time immemorial rests on three elements:
There must be a certain amount of use, which must have taken place for a long time and been exercised in good faith.  However, there are no fixed criteria for the determination of whether the individual conditions have been satisfied.  Brækhus/Hærem: Norsk Tingsrett [Norwegian property law], page 610, maintain that the conditions are not independent – “one may for example relax to some extent the requirements relating to time, where the exercise of the use has been more marked and vice versa, and secondly account is also taken of other factors such as the nature and quality of the right, how burdensome it is for the serving property and how necessary it is for the person or persons who claim to have the right”.  This is in my opinion an adequate description.  This basis of acquisition is relevant in many situations.  And as is emphasised in the quotation above, weight must be placed inter alia on the “nature of the right”.  Since the present case concerns common of pasture for reindeer, consideration must be given to the particular circumstances within reindeer husbandry.  This was also emphasised by the Lapp Commission, cf.  the first column of page 42 of its report.  It has also been taken as established in case law, thus cf.  Rt 1985 532, the Mauken case.  The requirements must be adapted to the use of the area made by the Sami and the reindeer.  Account must be taken of the fact that the Sami have had a nomadic form of life.  Factors that have been stressed for other grazing animals cannot be automatically applied to the pasturing of reindeer.  These aspects must be brought into the assessment.
Of concrete factors I wish to stress in particular that reindeer husbandry is very land-
intensive and that the amount of territory used varies from year to year depending on the weather, wind and quality of the pastures.  Thus it cannot be required that reindeer have pastured in a specific area every year.  Both for this reason and on account of the Sami’s nomadic way of life, an interruption cannot prevent the acquisition of a right even where any such interruption is of considerable length.  In this connection I may mention that in the Mauken case reindeer husbandry was deemed to have protection against tortious liability even though, since the beginning of the 1920s, it had not been exercised in the area for more than a generation.  But in the case of any interruption a longer total period of time must be required.
The consequence of taking account of the nature of the reindeer is that weight must be placed on its pasturing pattern.  The reindeer makes use of huge areas, and the surroundings, topography, food supply, weather and wind etc.  determine its use of the area.  A typical pasturing pattern is that reindeer roam.  The fact that reindeer have certain core areas, for example for calving, does not mean that the area of use is not considerably larger.  Thus the acquisition of a right cannot be excluded solely because it is what is called “occasional pasturing” that has taken place.  “ p.29 “In cases of this kind one is confronted with a particular problem of method: On the basis of their economic adaptation and social structure, the Sami reindeer herders had no great need to make use of the written language, cf.  Pareli and Severinsen: Noen metodeproblemer i sørsamisk historieforskning [some problems of method in South-Sami historical research], printed in Ottar nr.  116-117 pages 29-37 on page 30.  On the other hand, like the permanent residents, the Sami did of course have oral accounts.  Such accounts that have been handed down must be assessed meticulously, but cannot be generally rejected.  And where they are supported by other information, they may be given increased weight.
Further, I refer to the fact that since the Sami were nomads and on the whole used organic materials that decompose, it might also be difficult to find physical traces of reindeer husbandry.
These factors indicate caution when it comes to drawing conclusions from the fact that there is a lack of concrete information about the Sami’s presence in an area.  This applies not least in Selbu where the investigations in respect of Sami cultural relics have had a very modest scope.”

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Thursday, June 21, 2001
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