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Sweden’s burden of proof on Sámi villages

Sofie Palm | 28 March 2023

The legal struggles of the Sámi people against the state have rarely been so acknowledged by the media as in the last five years in Sweden. Looking back historically at court cases driven by Sámi villages or Sámi people, a pattern of the high burden of proof emerges quickly concerning cases with land rights. This struggle has not gone unnoticed by different UN bodies, which have criticized Sweden for not fully realizing the human rights of the Sámi people and putting pressure on Sweden to revise the national legislation to ease the burden of proof for Sámi litigants in cases regarding indigenous people's right of use of land. The Sámi right claim of the use of land mainly connects to traditional reindeer herding, which is considered a part of the Sámi culture. This post examines key findings from recent court cases, highlighting both unresolved problems and recent developments.

The UN has criticized Sweden for de facto discrimination against Sámi communities in legal disputes, as the burden of proof for land ownership rests exclusively on the Sami. It has also been shown that Sami villages can't obtain legal aid under the Legal Aid Act, despite being the only legal entities empowered to act as litigants in disputes regarding reindeer herding rights. Sámi litigants also face legal challenges in proving a minimum of 90 consecutive years of use of the area to establish their right to use the land for reindeer herding. This often results in costly court processes that Sámi villages can't afford.


In light of the criticism, it was suggested that Sweden should grant necessary legal aid to the Sámi villages in court disputes related to land and grazing rights. The state was also encouraged to create new or change existing legislation so it would be a shared or flexible burden of proof. The main argument for change, however, was the encouragement that Sweden should move forward with the ratification of the International Labour Organization Indigenous and Tribal Peoples Convention, 1989 (No. 169), which would strengthen the indigenous rights legislation.


As a response to the criticism and encouragement of new legislation, the Swedish state/government has done little to adapt or change their ways. Minor developments and changes, however, can be seen in the Supreme Court judgments and reasoning in Nordmalingsmålet in 2011 and Girjasmålet in 2020. Both cases were brought by indigenous Sámi people regarding land rights. These cases demonstrate the gradual adaptation of the judicial system to align with the UN's criticisms, although this process takes time and spans over several years.


In the Nordmalingsmålet case, the court denied the Sámi litigants the benefit of an eased burden of proof since it would be unfair to the other party since it was a civil case between civilians in the eyes of the court. However, the court did acknowledge the general principle of free sifting (consideration, evaluation) of evidence, meaning that the parties can invoke all the evidence they can obtain and the value of the evidence is freely assessed by the court. Thus, must the different characteristics of the reindeer husbandry rights and other circumstances be taken into account by the court in its evaluation.


In the more recent Girjasmålet case, the court determined that the Sámi litigants must prove their claim of time immemorial against the state, which is defined as a minimum of 90 years of continuous use of the area in question, which at this point in time had been criticized (as shown above) by the UN. The state, on the other hand, according to the court’s ruling, must prove the Sámi claim wrong and demonstrate circumstances that may result in the termination of a right arising through time immemorial. This means that the burden of proof can shift between the parties, a concept known as the false burden of proof or shifting burden of proof. Additionally, the court established a reduced burden of proof for the Sámi, considering the historical and general power imbalances between the parties. Lastly, the court also emphasized that caution must be taken when evaluating historical evidence, due to the state's fiscal interests through time and thus the distorted portrayal of Sami culture both in the state and general research documentation.


When examining the court's response to criticisms and recommendations from the UN bodies, it is evident that the Sámi people still are facing a significant amount of challenges against the state in the courtrooms. For example, the financial costs that the process entails for Sámi villages are still a cause of concern, since it threatens to impede their ability to assert their rights as indigenous people and a minority in Swedish society. There is a chance that the costs for the Sami villages will become so decisive for Sámi legal issues that it puts a damper on the Sámi people's legal vindication and the incorporation of their legal rights into society. Despite the slow progress and the presence of numerous legal barriers, the recent developments in Supreme Court cases involving the Sámi people and their right to land use claims have resulted in a small yet positive change in the burden of proof.

 
 

Sofie Palm is a Master's student on the program for human rights at the School of Global Studies, University of Gothenburg. During the fall of 2022, she did an internship in the research project on Litigating land rights in Sápmi, also at SGS. The post reflects her views and is not part of the research project.


Sources

Legal cases:

NJA 2020 p. 3

NJA 2011 p. 109

UN documents:

UN Human Rights Committee (HRC), Concluding observations of the Human Rights Committee Sweden, 7 May 2009, CCPR/C/SWE/CO/6, Available at: https://www.ohchr.org/en/documents/concluding- observations/ccprcsweco6-concluding-observations

UN Human Rights Committee (HRC), Concluding observations of the Human Rights Committee Sweden, 28 April 2016, CCPR/C/SWE/CO/7, Available at: https://tbinternet.ohchr.org/_layouts/15/TreatyBodyExternal/ Download.aspx?symbolno=CCPR%2FC%2FSWE%2FCO%2F7&Lang=en

UN Human Rights Council, The situation of the Sami people in the Sápmi region of Norway, Sweden and Finland, 6 June 2011, A/HRC/18/35/Add.2, Available at: https://www.ohchr.org /sites/default/files/Documents/Issues/IPeoples/SR/A-HRC-18-35-Add2_en.pdf

UN Human Rights Council, Report of the Special Rapporteur on the rights of indigenous peoples on the human rights situation of the Sami people in the Sápmi region of Norway, Sweden and Finland, 9 August 2016, A/HRC/33/42/Add. 3 Available at: https://undocs.org/Home/Mobile?FinalSymbol=A%2FHRC%2F33%2F42%2FAdd.3&Language=E&DeviceType=Desktop&LangRequested=False

UN Committee on the Elimination of Racial Discrimination (CERD), Concluding observations of the Committee on the Elimination of Racial Discrimination Sweden, CERD/C/SWE/CO/18, 21 August 2008, Available at: https://www2.ohchr. org/english/bodies/cerd/docs/co/CERD-C-SWE-CO-18.pdf

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