The balance between the right to reindeer herding and other interests of land use in Sápmi - A labour- and human rights perspective on the situation of the Swedish Sami

In this thesis, the question of how to balance the right to reindeer herding against competing interests of land use in Sápmi in accordance with the indigenous rights of the Sami, will be examined. In order to answer this question other questions needs to be answered – What is the right to reindeer herding? Who is the holder of the right? Where can the right be exercised and finally, how can the right be restricted? The aim of the thesis is to bring clarity to these legal issues from a human rights and labour rights perspective. The method used is a combination of a legal dogmatic method and a comparative legal method. The legal system in Norway is the comparison object as it has common characteristics and similar legal issues are dealt with in Norway. Reindeer herding is one of the traditional occupations of the Sami people. Traditional occupations are protected by a number of different international instruments as well as by instruments within the European system. In Sweden, the traditional occupation of the Sami, the reindeer herding, is protected by the Reindeer Husbandry Act. The Act stipulates that only Sami that have a membership in a Sami village can engage in the reindeer husbandry and hence is the holder of the right to reindeer herding. The right to reindeer herding can be exercised in reindeer herding areas which to some degree follows from the Act. In cases of disputes whether or not there is a right to reindeer herding in an area, the situation shall be solved in Court. In cases concerning the use of land and natural resources, the Sami are referred to seek protection for their right to reindeer herding in proceedings on the practical use of land resources. Areas of importance for the reindeer husbandry are protected against intrusions by the Environmental Code as they are of so-called national interest. In cases of competing interests of land use, preference should be given to the action that is most sustainable. However, in these proceedings the special nature of the reindeer husbandry and its extensive use of land are not taken into consideration and the Sami party always ends up on the losing side as intrusions that will not significantly harm the reindeer husbandry are permitted. This leads to violations of the right to reindeer herding as the consequence of these permits is fragmentation of reindeer herding areas. Sweden has not ratified any Convention explicitly protecting the right to traditional occupations. However, this right consists of other human rights set forth in other instruments that Sweden is obliged to follow. Sweden is therefore obliged to guarantee the right to traditional occupations and reindeer herding for the Sami, as they are an indigenous people and a national minority entitled to special protection. If applied appropriately, the existing rules in Sweden can provide an adequate protection. In order to promote the Sami rights further Sweden can take inspiration from Norway and ratify the ILO Convention No. 169, establish a concrete protection of the promotion of the Samis’ cultural rights and work for a stronger Sami Parliament.In this thesis, the question of how to balance the right to reindeer herding against competing interests of land use in Sápmi in accordance with the indigenous rights of the Sami, will be examined. In order to answer this question other questions needs to be answered – What is the right to reindeer herding? Who is the holder of the right? Where can the right be exercised and finally, how can the right be restricted? The aim of the thesis is to bring clarity to these legal issues from a human rights and labour rights perspective. The method used is a combination of a legal dogmatic method and a comparative legal method. The legal system in Norway is the comparison object as it has common characteristics and similar legal issues are dealt with in Norway. Reindeer herding is one of the traditional occupations of the Sami people. Traditional occupations are protected by a number of different international instruments as well as by instruments within the European system. In Sweden, the traditional occupation of the Sami, the reindeer herding, is protected by the Reindeer Husbandry Act. The Act stipulates that only Sami that have a membership in a Sami village can engage in the reindeer husbandry and hence is the holder of the right to reindeer herding. The right to reindeer herding can be exercised in reindeer herding areas which to some degree follows from the Act. In cases of disputes whether or not there is a right to reindeer herding in an area, the situation shall be solved in Court. In cases concerning the use of land and natural resources, the Sami are referred to seek protection for their right to reindeer herding in proceedings on the practical use of land resources. Areas of importance for the reindeer husbandry are protected against intrusions by the Environmental Code as they are of so-called national interest. In cases of competing interests of land use, preference should be given to the action that is most sustainable. However, in these proceedings the special nature of the reindeer husbandry and its extensive use of land are not taken into consideration and the Sami party always ends up on the losing side as intrusions that will not significantly harm the reindeer husbandry are permitted. This leads to violations of the right to reindeer herding as the consequence of these permits is fragmentation of reindeer herding areas. Sweden has not ratified any Convention explicitly protecting the right to traditional occupations. However, this right consists of other human rights set forth in other instruments that Sweden is obliged to follow. Sweden is therefore obliged to guarantee the right to traditional occupations and reindeer herding for the Sami, as they are an indigenous people and a national minority entitled to special protection. If applied appropriately, the existing rules in Sweden can provide an adequate protection. In order to promote the Sami rights further Sweden can take inspiration from Norway and ratify the ILO Convention No. 169, establish a concrete protection of the promotion of the Samis’ cultural rights and work for a stronger Sami Parliament