– We at Luleå University of Technology are unique in Sweden about this research. The Supreme court refers in the verdict, among other things, to my published work, and has taken an impression of what I have written about customary law and the prescription from time immemorial, says Christina Allard.
Her research area covers land use and property law issues, especially in relation to the Sami people and other indigenous people.
– As far as customary law is concerned, the Supreme court refers to my book "Renskötselrätt i nordisk belysning", where I compare the law in Sweden, Norway and Finland partly in the light of the Girjas court process. I show why the three legal systems differ on the matter.
A historic land use case
The legal process between Girjas Sami village and the Swedish state was going on for over ten years. In 2009, the Sami village sued the state and in January 2020 the verdict from the Supreme court came. Girjas Sami village won the historic land use case. The Supreme Court has granted Girjas Sami village the sole right to control who can fish and hunt within it's reindeer herding area.
– This is important, as customary law is typically a weaker and more general right. Prescription from time immemorial is perceived as a stronger right. It is gratifying that the Supreme court has raised the issue of the historical material and that you have to be careful when interpreting it, says Christina Allard, adding:
– Back in time, the Sami people had an oral storytelling culture – the written sources come from the state and its authorities. If it is unclear, it may be interpreted in a direction that benefits the interests of the state. The verdict clearly states that one must be careful about it.
In its considerations, the Supreme Court has taken into account that the practice of reindeer husbandry, fishing and hunting takes place over large areas. Old property law concepts are adapted to agricultural contexts limited to smaller areas, Christina Allard explains.
– The Supreme court has tried to adapt the concepts to fit into the context of Sami land use, which is very important. The fact that they do this is due to available research, but also because it has, nationally and internationally, became more focus on the rights of indigenous people.