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Are Mainland European states better at dealing with the rights of Indigenous peoples?

Updated: Mar 13, 2020

Comparing the Girjas Sami village case with Mabo


Disclaimer: The views expressed are that of the individual author. All rights are reserved to the original authors of the materials consulted, which are identified in the footnotes below.


State control over natural resources on the territory of indigenous peoples is a controversial and highly political issue. The criticism expressed in the general debate on the rights of indigenous people’s is directed primarily towards non-European states and their effects to establish laws which infringement into what is perceived as the indigenous peoples’ native title to natural resources.[[1]] To the same extent, the Scandinavian laws that already allow Norway, Sweden and Finland to control natural resources of their indigenous peoples’ – the Sámi – territory are not discussed.


That the criticism is mainly extra-European can be explained by geopolitical reasons.[2] However, it is more difficult to explain why the underlying assumptions that underpins the criticism –indigenous peoples’ historical rights to land and resources based on their pre-colonization existence – to a small extent exist in relation to the Scandinavian states. It is mainly within the Sámi population and its immediate proximity that such criticism emerges. In the general debate, this criticism is peripheral.


Image source: https://commons.wikimedia.org/w/index.php?curid=41684212


The lack of a major debate about the Scandinavian states’ control over natural resources on Sámi land and whether this in fact violates Sámi pre-colonial land rights can of course be linked to a lack of general awareness of the Sámi (or other indigenous groups living in mainland Europe).


I would, however, also link it to Europeans inherent belief that protection of fundamental human rights – such as property rights – works better in Western European states than in criticized countries. An assumption based on a fundamental confidence in an independent judiciary that objectively protects against arbitrary governmental infringement of private property rights.


Protection against state violations is central to the regulation of property rights.

Protecting private property is basically about limiting the state’s legitimate right to restrict or control possession. However, the state’s right to regulate or control a possession depends on the state having a legal basis for this – which is a central part of the rule of law. The legal basis for the state’s right to control land and resources becomes even more important when it comes to an area colonized and previously inhabited by another population group.


In areas inhabited by other groups by the time of colonisation on central question is how did the state right to control arise and on what grounds?


In the debate on colonialization, this issue is given room mainly for extra-European colonialization. In mainland Europe, the issue becomes more nuanced and it seems that European states adopt a slightly different approach to their legality over historically colonized areas and what is means. That there is a difference in the view between European colonialization on the mainland and extra-European colonization can be illustrated by highlighting arguments from the Swedish Supreme Court case Girjas Sami Village v the Swedish state [[3]] and the Australian High Court case Mabo v the State of Queensland. [[4]]


The Mabo Case – Reasoning of the High Court of Australia


Although there is little reason to go in and discuss the specifics of Girjas and Mabo– the focus below is on the courts’ approach to the origin of the indigenous peoples' rights – it can be emphasized that while Mabo is about legal claim for ownership over native land, Girjas is about legal claim for control over small game and fishing licenses within native land.


Similarities in both cases are the awareness that existed in the colonizing states – Sweden and the Great Britain – that the areas claimed sovereignty over were not deserted, per se, but inhabited by others. [[5]] Whether these groups had such a social structures and laws that they could be equated with a civilised nation and thus constituted one, was, however, up for questioning in both cases.

Other things that underpinned states’ takeover of territory were whether the population that existed could be considered to have met the requirements for occupation. [[6]] Here, the natural conditions differ fundamentally between the disputed areas. While it is possible to practice cultivation of land covered by the Mabo case, it is fruitless to practice cultivation of land covered by the Girjas dispute.


As Barbara Hockings pointed out in her analysis of the Mabo case – where she also sheds light on previous judgments about Australia’s right to land –

the historically distinction made between ‘the finding facts and of law’ had a detrimental effect on native indigenous land rights. [[7]]

That the facts showed that the land was inhabited and that the inhabitants had their own rules for land use did not by necessity meant that they inhabited the area in a legal sense. [[8]]

The position that there was a difference between finding of facts and of law meant that area could be occupied by the colonizing state under the doctrine of terra nullius. The colonising state could therefore apply its land law in this area. Any land rights thus had to be evaluated according to the laws of the colonising states. The High Court decision in Mabo brought two changes in relation to this.

First, it was found that since the area was inhabited, the doctrine of terra nullius could not be used. Consequently, the radical title – that all uninhabited land belonged to the crown – was reduced to a sovereign title to a territory – precluding the automatic allocation of property title or beneficial ownership of land. [[9]] The right had to be transferred to the state. This is due to the lack of a legal vacuum when it comes to land rights. [[10]] In the Mabo-case, the High Court therefore takes the position that it is assumed that indigenous population had land right when Great Britain established sovereignty over the area and the only question was whether these rights had survived or been legally transferred or extinguished.[[11]]


The Girjas Case – Reasoning of the Supreme Court of Sweden


In Girjas, the Swedish Supreme Court seems to adopt a different approach to the origin of Sámi rights than its Australian counterpart. In the end, the court found that the village – in relation to the state – had an exclusive right to small game and fishing in the disputed area, but that the state’s right control of resources in Sapmi – the homeland of the Sámi – generally does no conflict with Sámi’s right to hunt and fish. This is the result of the court’s position on the origin on Sámi rights and the basis for which Sámi rights should be evaluated.

The starting point for the Supreme Court’s assessment of whether the Sámi had the right to control small game and fishing licenses lies after the Swedish state established supremacy over the area – in the second half of the 16th century. [[12]] The Supreme Court’s position here is that it cannot be assumed that the Sámi, as original inhabitants of the area, by their custom established a customary right. In any case, it is not possible to clarify any established rights that the court considered could have legal relevance today. [[13]]


Assuming that the Sámi lacked an established legal system for land use before they were colonized – which would today bring about legal protection – had the legal effect that the evaluation of whether the Sámi had the right they claimed would be done on the basis of the laws and principles of the colonizing state. This in competition with the state’s claim to rights to the same resources – based on their supremacy and clamed ownership of the areas. [[14]] Unlike Mabo, the legal question was not reduced to whether pre-colonial Sámi rights survived the annexation, but whether the alleged right existed at all.

This leads to questions of the Supreme Court’s position on the relationship between the sovereign title to a territory and property title or beneficial ownership of the land. The court’s reasoning seems to indicate that in some areas of northern Sweden it is possible to equate the sovereign title to a territory with property title or beneficial ownership of the land. This seems to be the case in areas sparingly used by the nomadic population where the rights of the state must be rebutted by the colonized inhabitants; or is it the position of the Supreme Court that the Sámi lost their native title when they subordinated themselves Swedish supremacy and legal system imposed upon them?


Comment


There are several legal differences between Mabo and Girjas, however, but the above illustrates that creeping colonialization within mainland Europa is to the disadvantage of the Sámi to seek reparation of historical wrong doings. It would have been more advantageous for them if there had been a clear time for colonialization – as is usually the case for overseas colonialization.

In some aspect – as the focus of Sámi custom in assess land rights conflict –the Swedish Supreme Court’s ruling adopts a position that is favourable to the Sámi. At the same time, it benefits the state. The court’s position resembles a colonial position that allows for due concern to take care of the well-being of both sides from the respective sides point of view, where, nevertheless, the indigenous people’s interests remain subordinate to the interests of the state.[[15]] As such, the decision does not call into question the state’s supremacy and legitimacy over the area, nor the general right to control land and resources in Sapmi. This is far from the progressive approach taken by the Australian High Court in the Mabo case.


Jan Mikael Lundmark

Feature Writer


SOURCES


[1] Most recently in relation to Brazil: Reuters in Brasília ‘Brazil's Bolsonaro unveils bill to allow commercial mining on indigenous land’ (The Guardian, 6 February 2020), <https://www.theguardian.com/world/2020/feb/06/brazil-bolsonaro-commercial-mining-indigenous-land-bill> Accessed 18/03/2020.

[2] William Rasch, ‘Human Rights as Geopolitics: Carl Schmitt and the Legal Form of American Supremacy’ (2003) Cultural Critique 120.

[3] Girjas Sami Village v Sweden [SSC] T 853-18 Swedish Supreme Court.

[4] Mabo v Queensland (No 2) [1992] HCA 23; (1992) 175 CLR 1 (3 June 1992).

[5] It is obvious from Mabo and Girjas that the existence of the population groups before sovereignty was established is not called into questioned.


[6] One issue most often discussed in this context is the intensity of land use. Daniel Lavery, ‘"NOT PURELY OF LAW" - THE DOCTRINE OF BACKWARD PEOPLES IN MILIRRPUM.(Australia)’ (2017) 23 James Cook University Law Review 53, 61; Taxed Mountains (Skattefjällsmålet) NJA 1981 s 1 SSC, 227.

[7] Barbara Hocking, ‘Aboriginal Law Does Now Run in Australia - Reflections on the Mabo Case: from Cooper v. Sturat through Milirrpum to Mabo’ (1993) 15 Sydney Law Review 187, 188.

[8] Ibid, 188.

[9] Ulla Secher, ‘The Mabo Decision - Preserving the Distinction between Settled and Conquered or Ceded Territories’ (2005) 24 University of Queensland Law Journal 35, 46f.

[10] Hocking (1993), 194.

[11] Ibid, 191.

[12] Girjas (SSC) (SE) [53], [191].

[13] Ibid[170]-[171].

[14] Ibid[53]-[55].

[15] cf M B Hooker, Legal pluralism: an introduction to colonial and neo- colonial laws (Oxford: Clarendon Press 1975), 197, and Stephen Henry Roberts, The history of French colonial policy, 1870-1925 (London: Frank Cass 1963), 71-74.

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