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Regulating the Movement of Grazing Reindeer in the North – The Reindeer Convention of 1919

Santa with toys in a sleigh, drawn by reindeer, with a church on the right and another in the distance, publisher not identified, between 1880 and 1890. (Prints and Photographs Division, //hdl.loc.gov/loc.pnp/ppmsca.40208.)

As Norad prepares to track Santa and his reindeer as they travel the world, I note that the movement of reindeer has been a regulated issue in the Northern countries of Europe for centuries. Ever since the nation states were created, the indigenous Sami have had to abide by national and international treaty rules governing how their reindeer move across the Norwegian, Swedish, and Finnish borders in the region of Sapmi.

One of the legal documents regulating this issue was the Reindeer Grazing Convention of 1919 between Sweden and Norway (1919 års Renbeteskonvention). The convention specifically regulated the access to the regions of Troms fylke and Norlands fylke in Norway and Norrbotten län, Västerbottens län, and Jämtlands län in Sweden. In accordance with its provisions, Swedish Sami’s rights to herd reindeer in these areas were limited both in the number of the reindeer and during specific time periods of the year. Specifically, they were not allowed to herd their reindeer in Norway after September, and the number of reindeer allowed fluctuated throughout the summer months. Conversely, Norwegian Sami were not allowed to graze in Sweden during the winter months. Swedish Sami representatives claim that this convention infringed on their right to graze Norwegian land throughout the year, based on time immemorial (urminneshävd), and was one of the reasons for the forced migration of several Swedish sami communities in the 1930s.

Current Status of Norwegian-Swedish Sapmi Border

The 1919 Reindeer Grazing Convention was replaced with the Reindeer Grazing Convention of 1972. When the 1972 Convention expired and came due for extension in 2002, Sweden and Norway could initially not agree on the terms of a new treaty.

In 2009, Norway and Sweden agreed on a new convention, but the convention was never ratified by the Swedish Parliament. Thus, currently, the legal status of reindeer herders in the cross-border area of Norway and Sweden is unclear.

In Norway, the Lov om svensk reinbetiting I Norge og norsk reinbeiting I Sverige (grensreinbeiteloven) applies, and the Norwegian government continues to argue that there are too many Swedish reindeer in Norway. Whereas the Swedish government in March 2019 announced that it will not apply regulations pertaining to the 1972 treaty. Instead, it appears it will apply the Lapp Codicil of 1751 (also known as the Magna Carta of the Sami People).

The Swedish-Norwegian Reindeer Border Crossings and the Courts

Earlier this year, the Norwegian Borgarting Court of Appeals (Borgarting Lagmannsrett) found that Swedish Sami Village Talma (Talma Sameby) does not have a grazing right for its reindeer during the winter months. (Borgarting Lagmannsrett [Boargarting Court of Appeals] LB-2017-97958-2 (Jan. 6, 2019).) The case became final on April 24, 2019, when the Norwegian Supreme Court refused to grant leave to hear its appeal (HR-2019-766-U, on file with author).

Last week, on December 20, 2019, the Swedish Svea Appellate Court found (in T 7463-18, on file with author) that the Swedish government had violated the Swedish Constitution when they extended the 1972 treaty to apply between 2002 and 2005, as this was a form of exercise of public authority that rested with the Swedish government agencies and not the Parliament (myndighetsutövning). Specifically, the court found that the extension law that the Swedish Parliament passed in 2002 does not meet the requirements of generality that the Swedish Constitution requires. In addition, it violated the 2:15 RF provision, which states that any expropriation must be compensated for in monetary terms. Thus, the court found that the government had violated both the Constitution and the rights guaranteed in article 6.1 of the European Convention on Human Rights. Talma Sameby received monetary compensation of 1.2 million SEK (US$127,000).

For Talma Sameby the verdict is important, as earlier this year it lost in Norwegian courts when it tried to avoid fines it had occurred for letting its reindeer graze in Norway during the winter months. That the Talma Sameby has a right to reindeer grazing during the summer months was established by the Norwegian Supreme Court in 1968 (Norwegian Supreme Court Rt-1968-429 (Apr. 20, 1968), on file with author), but it did not find that the Sameby had a right to graze during the winter months. In that case, the Supreme Court of Norway did not determine that the grazing right was an exclusive right, in fact another Sami village had the same rights declared, and it found that it was also likely that these grazing rights were shared with additional Swedish and Norwegian Sami communities.

Disputes over reindeer grazing rights among Sami groups in Sweden are also currently pending before Swedish courts, where two groups of Sami are arguing over who has the better right to graze in the Vapsten area.

Where reindeer roam close to the  Arctic Circle continues to be a controversial issue.

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