Indigenous Rights and Norwegian Law: The Problem of Sami Customary Law and Pastoral Rights in Norway

Abstract

"In Norway, Sami reindeer pastoralists - representing the only exclusive Sami traditional livelihood - were for many years vanguards and and emblem for Sami issues and Saminess, as for instance in providing a basis for establishing Sami land use rights in Norwegian jurisprudence, and for expressing the uniqueness of Sami as an indigenous people.

"This process came about quite recently, as a consequence of decisions by the Supreme Court where herders were acknowledged a right to compensations for major intrusions into their livelihood. The court decisions of the so-called Altevann-case1 in 1968 and the Kappfiell case in 1975 confirmed a principle that herders, in terms of their traditional land use, had an established usufruct right. Before this, herders - like any other Sami interests - were simply ignored in terms of impact studies and compensations following state expropriations for developments projects in their pasturelands. Since then, other historical law documents, like the Lapp codicill, a supplement to international treaty between Sweden and Norway of 1751, which provides special legal recogniton of the interests of the Sami who were exploiting the pastures across the national border as part of their traditional livelihood, have been used to advocate Sami rights to land and self-government. However, after 1751, these legal measures were abolished and neglected for the establishment of legal system based on Norwegian statute law.

"During latter years, reindeer herders remain in the public focus, but their significance has changed dramatically. To some extent it has been reversed. I will here discuss some of the problems and paradoxes of this development - in terms of the significance of Sami customary law (in reindeer herding), and how this is being defined in specific courts cases from Finnmark county Northern Norway. In spite of the continuing controversies, and the increased cultural and political significance of indigenousness, herders are no longer central characters in this - in many ways they are becoming less important - culturally speaking, as well as politically - to a large extent they have been reduced to economics and an ecological problem."