Utmarksdomstolen for Finnmark – Finnmárkku Meahcceduopmostuollu

Translation from Norwegian

(Coat of Arms of the Kingdom of Norway)

FINNMARK LAND TRIBUNAL – UTMARKSDOMSTOLEN FOR FINNMARK – FINNMÁRKKU MEAHCCEDUOPMOSTUOLLU

JUDGEMENT

Delivered: 23 January 2017 Utmarksdomstolen for Finnmark/ Finnmárkku meahcceduopmostuollu/ Finnmark Land Tribunal

Case no.: 14-164739TVI-UTMA

Tribunal: Judge President Mr Nils Asbjørn Engstad Vice-President Ms Marit Nervik Tribunal Member Mr Jan Åge Riseth Tribunal Member Mr Benny Solheim Acting Tribunal Member Mr Hans-Tore Bjerkaas

Concerning: Claim for control of usage rights to uncultivated land

Nesseby Bygdelag/ Unjarga Gilisearvi/ Nesseby Attorneys Mr Brynjar Østgård, Mr Øyvind Rural Association Ravna

versus

Finnmarkseiendommen/ Finnmark Estate Attorney Ms Kristin Bjella Reinbeitedistrikt 5/6/ Reindeer Grazing District 5/6, Attorney Mr John Jonassen care of President

No restrictions on publication under Freedom of Information Act, section 2, fourth paragraph, confer FOI Regulations, section 3.

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Contents

UTMARKSDOMSTOLEN FOR FINNMARK/ FINNMARK LAND TRIBUNAL – UTMA-2014-164739 1

THE FINNMARK LAND TRIBUNAL'S DISPOSITION: 13

1. INTRODUCTION 13

1.1 Regarding the Finnmark Act and the process leading up to adoption 13

1.2 Regarding the dispute 14

1.3 Regarding the parties 15

1.4 The Disputed Area 16

1.5 Regarding Unjárgga gielda/ Nesseby kommune – a Coastal Sami rural district 16

2. THE VARANGER SAMI HAD CONTROL OF THE RESOURCES IN THE DISPUTED AREA BEFORE THE STATE BECAME INVOLVED 17

3. REGARDING THE FURTHER ASSESSMENT 19

4. EVOLUTION OF THE LAWS AND REGULATIONS 20

4.1 Royal Decree of 1775 relating to Land Demarcation 20

4.2 Land Sale Act of 1863 21

4.3 Act of 3 August 1897 regarding Peat-cutting on State Land in Finnmark 22

4.4 Land Sale Act of 1902 22

4.5 Land Sale Act of 1965 23

4.6 Hunting, trapping, collection of eggs and down 23

4.7 Freshwater fishing 24

4.8 Cloudberries 25

4.9 Summary 25

5. VILLAGERS' AND OTHERS' USE OF DISPUTED AREA, CUSTOMS AND LOCAL LEGAL PERCEPTIONS 26

5.1 Land management – land demarcation and lease tenure of uncultivated hayfields 26 5.1.1 Land demarcation 26 5.1.2 Uncultivated hayfields and fodder harvesting 27

5.2 Timber and firewood 28

5.3 Peat and turf 29

5.4 Hunting and trapping, collection of eggs and down 29

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5.5 Freshwater fishing 30

5.6 Outfield grazing for domestic livestock 31

5.7 Cloudberries 32

5.8 Other people's use of the Disputed Area 33 5.8.1 Reindeer herding 33 5.8.2 Use of Disputed Area by permanent residents of Vestre Jakobselv 34 5.8.3 Grazing Societies' use of the Disputed Area 34 5.8.4 Other people's use of the Disputed Area 34

5.9 Summary 35

6. LEGAL POINTS OF DEPARTURE 36

6.1 Reflections based on international law 36

6.2 Regarding Sami legal perceptions, customs and formation of customary rights 38

6.3 Svartskogen judgement (Rt-2001-1229) 39

6.4 Stjernøya judgement (HR-2016-2030-A) 39

6.5 Beiarn-Skjerstad judgement (Rt-1991-1311) 40

6.6 Regarding established legal rights 40

7. ASSESSMENT OF RURAL ASSOCIATION'S CLAIM BASED ON THEIR OWN ARGUMENTS 42

7.2 Has the State acquired a prescriptive right that extinguishes the villagers' right to manage the uncultivated resources in the Disputed Area? 42

8. CONCLUSIONS REGARDING THE RIGHT TO CONTROL USAGE RIGHTS AND RESOURCES 43

8.1 The villagers' usage of parts of the Disputed Area has been dominant 43

8.2 The scope and intensity of the State's interventions in that part of the Disputed Area where villagers of Unjárga/ Nesseby have exercised dominant use 45

8.3 Conclusions 49

9. LEGAL COSTS 51

CONCLUSION OF JUDGEMENT 52

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This case concerns a dispute as to whether the local population in the area extending from the Álddajohkka/ Meskelva river in the west, to the border between Unjárgga gielda/ Nesseby kommune/ Nesseby Rural District and Vadsø Rural District to the east, have acquired collective rights on an independent legal basis to use, control, and manage a more closely defined area of uncultivated land in Unjárgga gielda/ Nesseby Rural District, including the right to manage income from the sale of game and fishing licences. The Disputed Area stretches from Álddajohkka/ Meskelva river in the west to the border between Unjárgga gielda/ Nesseby Rural District and Vadsø Rural District in the east, and from the shorebreak/ coastal shallows to Ánnejohmohki/ Jakobselvkroken, all of which lies in Unjárgga gielda/ Nesseby Rural District. The Finnmark Land Tribunal was established in 2014 on the authority of the Finnmark Act (Finnmarksloven), Section 5: Relationship to established rights, third paragraph and Section 36: The Uncultivated Land Tribunal for Finnmark. The full name is The Act of 17 June 2005 no. 85 relating to Legal Relations and Management of Land and Natural Resources in the County of Finnmark (lov 17. juni 2005 nr. 85 om rettsforhold og forvaltning av grunn og naturressurser i Finnmark fylke). The Finnmark Commission was appointed by Royal Decree of 14 March 2008. The Finnmark Commission's mission is to investigate land and water rights in Finnmark, see the Finnmark Act, Section 5, third paragraph. Based on current national law, one of the tasks of the Commission is to investigate the rights of land use and land tenure on the land that Finnmark Estate acquired from the state-owned National Forestry Service, Statskog SF, on 1 July 2006, see the Finnmark Act, Section 29: The Finnmark Commission, first paragraph. The Finnmark Estate is an independent legal entity established on the authority of the Finnmark Act. The Finnmark Commission identifies land areas for investigation and decides the order of study. Potential rights holders in the area should be notified. The Commission itself is responsible for obtaining information concerning the matter. Once the Commission has studied an area, it will issue a report with information on who the Commission believes to be the owners or tenure holders of the land, what rights of use exist in the Commission's view, and what facts the Commission has based its findings on. The Finnmark Estate shall, without undue delay, come to a decision based on the conclusions of the Finnmark Commission. Reference is made to the further provisions on the Finnmark Commission in the Finnmark Act, Chapter 5 I: The Finnmark Commission. The Finnmark Land Tribunal is a special court whose task it is to rule on disputes over rights arising after the Finnmark Commission has studied an area. Disputes may be referred to the Land Tribunal by writ of summons no later than one year and six months after the Finnmark Commission has issued its report, see the Finnmark Act, Section 38: Summonses. Reference is made to the further provisions on the Finnmark Land Tribunal in the Finnmark Act, Chapter 5 II: The Uncultivated Land Tribunal for Finnmark. In a meeting held on 30 October 2008, the Finnmark Commission decided that Unjárgga gielda/ Nesseby Rural District should be announced to the public as Area 2. Potential rights holders were duly notified at the time of the public announcement. On 8 June 2009, Unjárgga Gilisearvi/ Nesseby Rural Association brought an action, claiming a collective right of use for residents of the Unjárga/ Nesseby Parish, and surrounding villages north of the Varangerfjorden, to an area from Šoaratjohka in the west to the border between Unjárgga gielda/ Nesseby Rural District and Vadsø Rural District in the east, and from the shorebreak/ coastal shallows to Ánnejohmohki/ Jakobselvkroken. On 13 February 2013, the Finnmark Commission issued its report on the land use and land tenure rights in Area 2, Unjárga/ Nesseby. In regard to the claim asserted by the Rural Association, the Commission concluded as follows: "The Commission has worked on the basis that the people of Nesseby have an original right to various forms of use of uncultivated land, an original right that was formed independently, alongside the Finnmark Act, see Chapter 8 of the Report. This right of use also accrues to the people living in the area defined by the claim asserted by the Nesseby Rural Association, from Šoaratjohka to the border between Vadsø and Nesseby Rural Districts, and from the shorebreak to Ánnejohmohki/ Jakobselvkroken. The Rural Association's claim for "acknowledgement of a right of use for the population of Nesseby's traditional areas" may therefore be considered to have been satisfied. The acknowledged right is not an exclusive or special right within the Rural Association's area, but a general right of an original nature which may be exercised within the framework of the law, and such that the local use is entitled to a certain legal protection, see Part 8.2.12 above. The local population has not acquired any special rights over and beyond this."

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The Finnmark Estate discussed the Finnmark Commission's report in a board meeting on 9-10 April 2014. As for the Commission's conclusions on the claim asserted by the Unjárgga Gilisearvi/ Nesseby Rural Association, the Board made the following decision, with four votes to one: "The Finnmark Estate has no comment regarding the Finnmark Commission's conclusion that the people of Nesseby have an original right to various forms of use of uncultivated land, which has an independent basis alongside the Finnmark Act, Section 22 (rights of rural district residents) and Section 23 (rights of county residents). These are rights that are not exclusive or special rights, but a general right of an original nature administered by the Finnmark Estate within the framework of the Finnmark Act. By writ of summons of 12 August 2014, the Unjárgga Gilisearvi/ Nesseby Rural Association, c/o Mr Johan Chr Ravna, Solicitor, filed an action before the Finnmark Land Tribunal, claiming that the local people of the Nesseby Rural Association have an exclusive right to use the areas indicated on the map on page 126 of the Finnmark Commission's report. Such right includes use, control, and management, including income from the sale of hunting and fishing licences. It was further claimed that no right has been established in private law for the Norwegian State to exercise control of the use of resources in the areas where the Nesseby Rural Association has acquired rights on an independent legal basis. On 15 December 2014, the Finnmark Estate entered a reply arguing that the Rural Association's claim for exclusive rights of use should be rejected, that the Finnmark Estate and its predecessors have acquired a right to exercise control of the use of the resources in the area, and that such control takes place within the framework of the Finnmark Act. In February 2015, the Land Tribunal was informed that Ms Nina Ravna, Solicitor, and Mr Øyvind Ravna, Doctor of Law, would assist the Rural Association as legal assistants, see the Dispute Act (formerly the Civil Procedures Act) (tvisteloven), Section 3-7, first paragraph, confer Section 3-3, fourth paragraph, and confer the Finnmark Act, Section 46: Relation to other legislation, second paragraph. The Forum for Nature and Outdoor Life in Finnmark (Forum for natur og friluftsliv i Finnmark) entered a written submission on 26 March 2015 to throw light on public interests, see the Dispute Act, Section 15-8, and see the Finnmark Act, Section 46, second paragraph. The Klubvik Sheep Breeding Society (sauavlslag), Klubvik Grazing Society (beitelag) and the Jakobselv Grazing Society (beitelag) entered written submissions on 16 April 2015 to throw light on public interests. In June 2015, Mr Brynjar Østgård, Solicitor, took over as new counsel for the Unjárgga Gilisearvi/ Nesseby Rural Association. At the same time, Solicitors Johan Chr Ravna and Nina Ravna withdrew from the case. Doctor of Law Øyvind Ravna continued to assist the Rural Association as their legal assistant. The Main Hearing was scheduled for 7-11 September 2015, but had to be postponed until the bare-ground/ snow-free season in 2016, on account of the difficult financial situation of the Land Tribunal. The Tribunal's strained financial situation was due to its responsibility to cover the parties' costs from the Tribunal's own budget, see the then Section 43, first paragraph of the Finnmark Act, and see the then Section 9, second paragraph of the Finnmark Commission and Finnmark Land Tribunal Regulations. The Main Hearing was scheduled to start on 16 August 2016 and last for eight days. On 3 May 2016, the Land Tribunal decided to take a break in the hearing between the presentation of evidence and the closing arguments of counsel. The reason for the break was to give the parties the opportunity to observe the Supreme Court's judgement in the Stjernøya case in their closing arguments, which judgement was handed down on 26 September 2016 (HR-2016-2030-A). On 30 June 2016, Reindeer Grazing Districts 5D/6 declared party assistance in support of the Finnmark Estate, see the Dispute Act, Section 15-7, and see the Finnmark Act, Section 46, second paragraph. On 14 August 2016, the Unjárgga Gilisearvi/ Nesseby Rural Association filed an objection to the Reindeer Grazing District being permitted to act as party assistant, but withdrew their objection once the Main Hearing started. The Main Hearing was held in the period 15-19 August 2016 in Vadsø, and continued on 19-20 October 2016 in Tromsø. Ms Gunn-Britt Retter, President of the Unjárgga Gilisearvi/ Nesseby Rural Association, appeared on their behalf, and she also made a statement to the Tribunal. Solicitor Brynjar Østgård and Professor Øyvind Ravna also attended.

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Section Manager Sverre Pavel and Solicitor Kristin Bjella attended for the Finnmark Estate. Mr Sverre Pavel made a statement to the Tribunal. Mr Frank Sivertsen, Vice-President, and Mr Iver Per Smuk, President, together with Solicitor John Jonassen attended on behalf of Reindeer Grazing Districts 5D/6. Mr Iver Per Smuk made a statement to the Tribunal. During the hearing in Tromsø on 19-20 October 2016, only Solicitor John Jonassen attended for the party assistant. Mr Steinar Pedersen, Historian and Doctor of Philosophy, now retired, was summoned as an expert witness. In addition, 13 witnesses were heard, and such documentation as is indicated in the Court Records was presented. Moreover, parts of the Disputed Area were inspected on 18 and 19 August 2016. The inspection carried out on 18 August 2016 followed the bare-ground trail from Unjárga/ Nesseby to Lavdjnevárri. The inspection carried out on the following day studied the areas of Galbajohka, Galbajohjávri, Buorregárddanjávri and Skálvejávri. The parties, party assistants, and witnesses pointed out elements in the terrain and offered detailed explanations of the use of the areas. By letter of 12 October 2016 to the counsel, the Land Tribunal pointed out that, based on the particulars of claim laid down by the parties during the introductory speeches, it was conceivable that the Land Tribunal would have to assess whether both the landowner and rights holders in the Rural Association have the right to take part in the management of the uncultivated land resources in the Disputed Area, irrespective of the Finnmark Act's provisions regarding resources management. Counsel were invited to comment on this matter in their closing arguments. During the Main Hearing, the Rural Association expanded the area covered by its particulars of claim to include the Álddajohkka/ Meskelva river. No objections were raised regarding the expansion of the claim area. As for the Land Tribunal's composition, let it be known that Tribunal member Ms Kjersti Schanche is a member of the Unjárgga Gilisearvi/ Nesseby Rural Association. At a planning meeting on 16 January 2015, the parties were informed that Ms Kjersti Schanche will withdraw from the processing of all aspects of the case, see the Courts of Justice Act (domstolloven), Section 108, see the Finnmark Act, Section 46, second paragraph. No objections have been raised regarding the Land Tribunal's competence in the matter. For the record, there is no other competent court to which the case could have been referred, compare the Finnmark Act, Section 46, second paragraph, and see the Courts of Justice Act, Section 38. The Deputy Tribunal Member was unable to take part in the Main Hearing due to illness. On 29 July 2016, the Norwegian Courts Administration temporarily appointed Mr Hans-Tore Bjerkaas, retired former head of the Norwegian Broadcasting Corporation, as a member of the Land Tribunal from 15 August to 31 December 2016. Hans-Tore Bjerkaas has been a member of the adjudicating court in the present case. Hans-Tore Bjerkaas was also appointed on a temporary basis as a member of the Land Tribunal in the period from 16 January to 23 January 2017, in connection with pronouncement of the judgement. The Dispute Act applies as far as it is suitable for the Land Tribunal's activity, see the Finnmark Act, Section 46, second paragraph. In principle, the Land Tribunal seeks to comply with the four-week deadline for pronouncing judgement as provided in the Dispute Act, Section 19-4, fifth paragraph, though admitting that this provision is not very suitable for a Tribunal whose judges do not have their primary place of work at the Tribunal, and whose judges live and work in different places around the country. The case has been labour- intensive, and the judges have convened for deliberation on four occasions, namely on 21 October 2016, 28 November 2016, 21 December 2016, and 23 January 2017. In addition, the judges held a teleconference for deliberation on 16 January 2017. Therefore, the judgement has not been pronounced within the general 4-week deadline for pronouncing judgement.

Unjárgga Gilisearvi/ Nesseby Rural Association has principally argued as follows: The case concerns the right to exercise control of the rights of use enjoyed by the local population, which rights have been acknowledged, in respect of the renewable natural resources on the uncultivated land in Unjárga/ Nesseby, where the Finnmark Estate is the registered landowner. The Finnmark Commission has acknowledged that the local people of Unjárga/ Nesseby have an original right to various forms of use of non-cultivated land, and that this right has an independent basis alongside the Finnmark Act. However, the Commission's view is that these rights do not go beyond the rights set out in the

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Finnmark Act, Section 22 and Section 23, and thus that the Finnmark Estate has the right to exercise control of the use of resources. The Finnmark Estate further holds that the Norwegian State's interventions and legal arrangements after the State had been established as landowner, over time have caused a right to be established for the State to control the use of resources, and that this right was transferred to the Finnmark Estate when the Finnmark Act entered into force. Furthermore, the Finnmark Commission has also performed an assessment of differences as set out in the Prescriptive Rights Act (hevdsloven), Section 5. In order to have acquired the right to control the resources, the local people, under such differential assessment, must have exercised comprehensive and intensive use which clearly goes over and beyond the original right. Unjárgga Gilisearvi/ Nesseby Rural Association disagrees with these assessments. The local people have both used and managed the natural resources on the uncultivated land in Unjárga/ Nesseby. The State's legal interventions have not extinguished the local people's right to control these resources. The Commission's assessments rely on an incorrect interpretation of the law. A differential assessment corresponding to the evaluation under the Prescriptive Rights Act, Section 5, will undermine the purpose of the Finnmark Act. The Finnmark Act, Section 5, which provides that the Act does not interfere with established rights, and the Storting's express wish that the Act defines the start of a new era, is a salient point in the consideration of the case. In the event the assessment were to find that the State had established a right to control the use of resources on the uncultivated land in Unjárga/ Nesseby, then this would indicate that the status was incorrect. If so, the Finnmark Act has reversed this status, see Rt-1991-1311 on page 1321 (Beiarn-Skjerstad). Reference is also made to the report of 9 August 2016 by the UN Special Rapporteur on the Rights of Indigenous Peoples regarding the situation of the Sami people in the Sápmi region of Norway, Sweden and Finland, paragraph 24, which says that the State's previous initiatives in Finnmark cannot support continued State landowner rights. The Finnmark Commission is itself responsible for obtaining information concerning the matter, see the Finnmark Act, Section 32: Responsibility for obtaining information. The Commission has omitted a number of important reports and other written sources when assessing the rights situation in Unjárga/ Nesseby, and this may have coloured the Commission's opinion regarding developments in this study area. Sami people have been the dominant part of the population of Unjárga/ Nesseby. It is generally the case that Sami people represented the largest population group in Finnmark until far into the 1800s, see Gudmund Sandvik (1997): Om oppfatningar av retten til og bruken av land og vatn i Finnmark fram mot slutten av 1960- åra (Perceptions of Land and Water Use Rights in Finnmark until the Late 1960s), in Norwegian Public Report NOU 1997:4, Naturgrunnlaget for samisk kultur (The Natural Basis for the Sami Culture), page 606. In 1900, the Sami people made up 1,264 of Nesseby Rural District's 1,512 inhabitants, see Amund Helland: Norges land og folk, Finmarkens Amt (The Land and People of Norway, Finnmark County), Volume I, page 14, and Proposition to the Odelsting no. 20 (1901-1902), page 60-61. In 1744, there were no Norwegians among the 144 inhabitants belonging to the Agnesnes Finnish Chapel at the head of the Varangerfjorden, see Utdrag av Major Schnitlers grenseeksaminasjonsprotokoller, bind I (Excerpts from Major Schnitler's Border Inspection Protocols, Volume I), Institute of Norwegian Historical Written Sources (Norsk Historisk Kjeldeskrift-Institutt), page 401. Among the locals that Jacob Fellmann met in Unjárga/ Nesseby in the 1820s, only the local Sheriff spoke Norwegian, see Jacob Fellmann: Anteckningar under min vistelse i lappmarken (Notes during my Visit to Lappland) (1906), page 40-43. Fellmann was a vicar in Utsjok and Enare in the period 1819-1830. According to the early 20th century writer, Amund Helland, there were very few Sami people who with any benefit could read a Norwegian newspaper, see Amund Helland: The Land and People of Norway, Finnmark County, Volume III, page 150. With the Sami people's lack of knowledge of the Norwegian language, combined with the Sami oral tradition, one should not overemphasise written material. The local population's use of the uncultivated land in Unjárga/ Nesseby is very long-lived and extensive. Regarding this use, reference is made in part to the Finnmark Commission's findings and conclusions in the Finnmark Commission Report Area 2 Nesseby, page 61. Further reference is made to Øystein Nilsen: Varangersamene, boplasser og ressurser (The Varanger Sami, Settlements and Resources) (1990), which includes a long list of a uncultivated hayfields. Further accounts are also available from the same author in Øystein Nilsen: Varangersamene; bosetning, næring, folketall,

UTMA-2014-164739-E Page 7 av 53 utmarksbruk mv. fra historisk tid til i dag (The Varanger Sami; Settlements, Livelihood, Population, Use of Uncultivated Land, etc. from Historic Times until the Present Time) (2009). The Norwegian Institute for Cultural Heritage Research (NIKU) has also produced the NIKU Expert Report for the Finnmark Commission. The full title is NIKU Oppdragsrapport 43/ 2011, Felt 2, Unjárgga gielda/ Nesseby kommune, sakkyndig utredning for Finnmarkskommisjonen (NIKU Commissioned Report 43/ 2011, Area 2, Unjárgga gielda/ Nesseby Rural District, Expert Report for the Finnmark Commission). Reference is also made to Steinar Pedersen (2001): Fra bruk av naturgodene etter samiske sedvaner til forbud mot jordsalg til ikke-norsktalende (From the Use of Natural Resources According to Sami Custom to Prohibition of the Sale of Land to Non-Norwegian Speakers) and Deanodat: Ei bygd innerst i Tanafjorden (Deonodat: A Village at the Head of the Tana Fjord), in Norwegian Public Report NOU 2001:34 Samiske sedvaner og rettsoppfatninger (Sami Customs and Legal Perceptions), page 289 et.seq. Another source of reference is Trygg Jakola: Utmarksslåtter i Jakobselv-området (Uncultivated Hayfields in the Jakobselv Area), Varanger Year Book 1991. The villagers' management of the uncultivated land resources has a long tradition and is described by Peter Schnitler in his Border Inspection Protocols from 1742 to 1745, Volume 3. Schnitler describes local management and control that is exercised according to a well-established management system with clear rules for how natural resources are to be exploited. The local people's use has been exercised in an area where the State had little representation, and where there must have been an internal sharing of usage and management. Church records show that a number of private, unregistered properties existed in the area, independently of the Land Demarcation Decree of 1775. The uncultivated hayfields surveyed may have been old meadows already used for haymaking, and where the State's demarcation only cemented such use. It is not sufficient to relate only to the Land Demarcation Decrees, and ignore the actual use that occurred, see Sverre Tønnesen: Land Rights in Finnmark (1979), page 149. In the same way as for Deatnu/ Tana, it is also true for Unjárga/ Nesseby that the Sami culture and Sami society, with its uncodified laws, are part of everyday life, see Elina Helander (2001): Samiska rättsuppfatningar i Tana og Rätt i Deanodat (Sami Sense of Justice in Tana and the Law in Deanodat), in Norwegian Public Report NOU 2001:34 Sami Customs and Legal Perceptions, page 488-489. The people of Unjárga/ Nesseby have managed their own areas, and the resources within these areas. Reference is also made to the inspection of the Disputed Area and the statements made by witnesses during the inspection on the use and internal allocation of the resources in the area. The closer to the village the uncultivated land lies, the more exclusive the use has been for those locals who live closest to the area. Acreage deeper inside the Disputed Area has been common to the villagers, and for acreage deepest into the Disputed Area there have also been users other than the permanent residents of Unjárga/ Nesseby. The Finnmark Commission designates such informal mechanisms as "accepted practice" and therefore something other than exercising control, see the NIKU Expert Report for the Finnmark Commission, page 104. This approach is too narrow. In a later Finnmark Commission Report Area 6, Varangerhalvøya vest (Varanger Peninsula West), page 168, the Commission seems to acknowledge that in Gulgofjorden there has been an internal allocation of resources. The local usage is an established usage over a long period of time, and because it is tied to one place, it has a stronger standing than that of the reindeer herding usage in the Brekken Cooperative (Brekken sameie), see Rt-1968-394 on page 401. With regard to control and management of the resources, the various means of exploitation cannot be considered in isolation. The villagers of Unjárga/ Nesseby have exploited all renewable resources available, and made adjustments depending on the times and circumstances. Their use has been comprehensive, as it was in the Svartskogen judgement (Rt-2001-1229), where the Supreme Court relied on an overall picture of the resource exploitation methods. There has been no particular State presence in the area. The County Governor 's seat was in Alta from 1738 to 1814, then in Tromsø until 1866, then in Hammerfest until 1888, and later in Vadsø. The Norwegian State has not exploited the resources, nor engaged in any physical governance of the Disputed Area. In more recent times, the State as law enforcement agency, has had a certain presence in the shape of the Reindeer Police, which fact cannot be afforded any weight in this context. To the extent there has been any State intervention in the form of regulation of lumbering, the justification has been forest protection considerations based on social interests in a wider context. The leasing of fishing rights to the local Hunting and Fishing Association has not harmed the local population. The demarcation of land is probably a legal initiative that the Norwegian State has

UTMA-2014-164739-E Page 8 av 53 carried out, perhaps in the belief that it was acting as landowner, but such demarcation of land may also be an expression of State regulation of common land, and has in any case not compromised the villagers' interests. The State has not extinguished the villagers' right to exercise control over uncultivated land resources in the Disputed Area, see the Prescriptive Rights Act, Section 9. As already mentioned, there has been no actual use by the Norwegian State, and legal initiatives provide no basis for extinguishment of a prescriptive right in rem, see Sivillovbokutvalet (Civil Code Subcommittee), Rådsegn 6 Om hevd (Recommendation 6 on Prescriptive Right), page 27. Nor has the villagers' right to exercise control over uncultivated land resources been extinguished by the formation of a settled or established non-statutory right, as a result of the Norwegian State's legal initiatives. The Beiarn-Skjerstad judgement (Rt-1991-1311), where rights of use had lapsed due to the landowner's active governance measures, must be viewed in light of the formal legal effects of Rt-1918-454 (Veikvatnet), where the Supreme Court concluded that the Norwegian State, through active stewardship in the 1800s, had become the owner of the right to fell timber in the Disputed Area. The Svartskogen judgement (Rt-2001-1229) is highly relevant for the question of extinguishment of a prescriptive right in rem because the Norwegian State had made arrangements as owner, but nevertheless lost not only the right to manage the area, but also the title to the land. Legal initiatives by the Norwegian State such as the issuing of leasehold deeds for uncultivated hayfields were not recognised as important by the Supreme Court, because the tenant farmers had not necessarily understood that, by their signature, they entered into a leasehold agreement with the landowner. The Svartskogen judgement is important in communities where the Sami language and agricultural harvesting of uncultivated land have been dominant. The Finnmark Estate administers people's rights in general until specific rights can be identified in the ongoing mapping process. Acquired rights receive special protection in the Finnmark Act, Section 5, second paragraph, and fall outside the remit of the administrative system that the Act provides for, see Proposition to the Odelsting no. 53 (2002-2003) regarding the Finnmark Act, page 122, and Recommendation to the Odelsting no. 80 (2004-2005), page 45. Reference is also made to Kirsti Strøm-Bull: Finnmarksloven – Finnmarkseiendommen og kartlegging av rettigheter i Finnmark (The Finnmark Act – The Finnmark Estate and Mapping of Rights in Finnmark), in Lov og Rett (Law and Justice), 2007, page 545-560, on page 560. It is outside the remit of this case to decide how the administration of these resources is to be implemented and whether the landowner and usage rights holder should share the responsibility. The Unjárgga Gilisearvi/ Nesseby Rural Association entered the following particulars of claim: 1. The local population of Nesseby, c/o the Nesseby Rural Association, has acquired collective rights on an independent legal basis to use the area indicated on the map in the enclosed pleading of 8 September 2016. 2. The rights include use, control, and management, including income from the sale of game and fishing licences. 3. No right has been established for the Government – on the private law basis which has now been transferred to the Finnmark Estate – to control the exploitation of resources in the areas and with regard to the rights embraced by Count 1 above.

The Finnmark Estate has essentially argued as follows: The Finnmark Estate acknowledges that the local population of Unjárga/ Nesseby has acquired collective rights of use in Unjárgga gielda/ Nesseby Rural District, in line with the conclusions of the Finnmark Commission. These are rights with independent legal protection. However, the Rural Association's claims imply demands for exclusive management rights in the Disputed Area and an all-inclusive right of use. In order to decide in this matter, one must first consider whether the villagers enjoy a special right of use, and subsequently whether they have a right to control and manage the resources on uncultivated land. The Finnmark Act does not imply that an acknowledgement of the right of use, also engenders a right to exercise control, of the resources embraced by the right of use. The Act is a continuation of former legislation with regard to the use of uncultivated land, though now also with the influence of the Sami Parliament, see Proposition to the Odelsting no. 53 (2002-2003) regarding the Finnmark Act, page 7. The Sami Parliament has exercised a very strong influence when it comes to changes in use of uncultivated land, see the Finnmark Act, Section 10: Changes in use of uncultivated land and transfer of real property, first and second paragraphs. The

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Act, Section 24: Special rights for local utilisation, provides for special rights for local utilisation, and the Finnmark Estate also has a legal obligation to prioritise locals in the event of scarce resources, see Section 26: Local management of hunting and fishing, and Section 27: Further conditions for utilisation of renewable resources and restrictions thereon, of the Act. The system underlying the Act implies that the local population has influence over the management of resources. It follows from Article 15 (1) of the ILO Convention no. 169 concerning Indigenous and Tribal Peoples in Independent Countries that the people in question shall have the right to use and exercise control of these resources. The role of the Sami people in the control of these resources through the Finnmark Act means that this requirement has been met. Article 34 of the Convention provides that the nature and scope of the measures to be taken to give effect to the Convention shall be determined in a flexible manner. The Finnmark Act, Section 5, first paragraph, postulates that acquired land tenure rights exist in Finnmark, while the second paragraph stipulates that the Act does not interfere with such rights. Existing rights are to be identified and respected. Acquired rights of use and tenure rights fall outside the remit of the management system provided for by the Act, see Proposition to the Odelsting no. 53 (2002-2003) regarding the Finnmark Act, page 122. The provisions of the Finnmark Act, Chapter 3: Renewable resources on the Finnmark Estate's land, do not apply if other rules have been established which have legal standing, see the Finnmark Act, Section 21: Main principles for management, second paragraph. The Finnmark Act does not imply a change of system, but rather that acquired rights shall be mapped and identified. For legal acquisition through immemorial usage to be recognised, a certain level of use must exist, which has persisted over a long period of time, and which has been exercised in good faith, see Rt-2001-769 (Selbu). The alleged rights holder bears the burden of proof that the conditions for acquisition of rights have been met. However, a presumption exists that the rights holder is in good faith, see the Prescriptive Rights Act, Section 4. Strict requirements apply for acquisition of rights through immemorial usage of commons land, see Rt-1968- 583 (Soknedal Søndre) on page 593. The area cited in the claim covers approximately 470,000 decares. The area has no natural boundaries and seems to have been chosen at random. There has been extensive parallel and simultaneous use by other groups in the area, and in such a manner that the area has been used by others to a greater degree the farther away from the village you get. There are access roads from Jakobselv, fra Oardajávre/ Ordovann, and from Nyborg. There is no reason to believe that the people of Unjárga/ Nesseby have made greater use of the area than others. Nowadays the area is used for recreational rather than commercial purposes. Documentation shows that the Norwegian State's governance has been extensive and visible to the people of Unjárga/ Nesseby, especially in the Disputed Area. As concerns the Norwegian State's role as landowner, reference is made to the Land Demarcation Decree of 1775 and the subsequent Land Sale Acts of 1863, 1902 and 1965. The legislation reflects the Norwegian State's role as landlord and exercise of authority over a long period of time, see also the conclusions of the Legal Rights Working Party under the Sami Rights Committee in Norwegian Public Report NOU 1993:34 Rett til og forvaltning av land og vann i Finnmark (Ownership and Management of Land and Water Rights in Finnmark), page 230 et.seq. Reference is also made to leasehold protocols and deed letters for Unjárga/ Nesseby, which document extensive demarcations of land and uncultivated meadows in Unjárga/ Nesseby and the Disputed Area, from 1862 until the present. The State's practical and legal interventions regarding land use and land tenure in Finnmark must be factored into the Property Law assessment in the normal manner, see the Supreme Court's judgement of 26 September 2016, HR-2016-2030-A (Stjernøya), premise 73. Legal standing may become established and settled due to legal instruments and actions, see Falkanger and Falkanger: Tingsrett (Property and Land Tenure Law), 7th edition (2013) page 367. Through its property rights as well as its management, the Norwegian State has established its legal standing in Unjárga/ Nesseby, see Rt-1963-1263 (Vinstra) and Rt-1991-1311 (Beiarn- Skjerstad). Neither extinguishment of a prescriptive right in rem, nor contrary usage, can be used to challenge established legal standing, which is an independent legal institution. The local population's right of use remains in force, but the right to exercise control of the resources on uncultivated land has gradually been acquired by the Norwegian State and is now codified in the Finnmark Act. For more than 150 years, the Norwegian State has exercised its position as landlord of Unjárga/ Nesseby. There is no basis for claiming that the residents have objected to the State's ownership right or the way it has exercised this right, or that the people of Unjárga/ Nesseby did not understand the significance of documents pertaining to their land tenure and property rights. Sales of land were advertised in church yards, see for

UTMA-2014-164739-E Page 10 av 53 example the notice by the Finnmark Land Sale Commission of 4 October 1908. Transcripts of ministerial books from 1885-1895 show that Sami and Norwegian were both used for confirmations. Furthermore, many people in Unjárga/ Nesseby spoke Norwegian, see Jens Andreas Friis's ethnographic map of Finnmark from 1861. In order to take the Sami population into account, the people of Finnmark was given special voting rights in 1821, without being required to own land. Finnmark had a greater share of people eligible to vote relative to the number of residents than elsewhere in the country. Teachers had to master both Sami and Norwegian in Unjárga/ Nesseby in 1867, as evidenced by the notice of a vacancy for a school teacher in the Tromsø Stiftstidende. Sami residents also purchased real estate, as reported by the same newspaper on 27 October 1907 regarding the Finnmark Land Sale Commission. Permitted use does not form a prescriptive right, see the Prescriptive Rights Act, Section 7. None of the methods of use of the land are in dispute, and none are in conflict with established rights. The Village Residents have not acquired special rights of use over and beyond what the Finnmark Commission accepts as their due. The right of use must be assessed for each individual resource. Livestock properties enjoy an independent grazing right for as large a flock or herd as can be winter-fed on the holding, but the Village Residents have never had the right to exercise control over grazing land for livestock. For the harvesting of bladder-sedge, eggs, and down, no special rights have been established for the Village Residents. Up until 1951, all people had free hunting rights in Finnmark, and such hunting rights were exercised by many groups. The Village Residents have no rights associated with management of the hunting activity. Nor is there any evidence of local management of fresh water fishing. At least since 1820, a right for the Norwegian State to demarcate uncultivated hayfields in the Disputed Area has been established. Berry-picking is a universal right to which the local people have no special rights, nor any right to manage in any particular manner. Neither individually nor collectively for the resources on uncultivated land has the use been of such intensity or scope as to satisfy the requirements laid down for recognition as immemorial use. In the alternative, it is argued that the Village Residents have not acquired a special management right for each individual manner of use. A specially protected right of use does not automatically include an exclusive management right. The local population has complied with the governance initiatives exercised by the Norwegian State. It falls outside the competence of the Land Tribunal to decide on the interpretation of the general provisions in the Finnmark Act, Chapter 3: Renewable resources on the Finnmark Estate's land, and the Finnmark Estate's practices in regard to these general rules. Therefore, the plaintiff's particulars of claim, Count 2, must be dismissed. If this part of the particulars of claim was meant to define in negative terms what follows from the particulars of claim, Count 1, then the particulars of claim, Count 2, must be dismissed, as they imply demanding judgement for the same thing twice. The Finnmark Estate has entered the following particulars of claim: 1. The Finnmark Estate is acquitted in respect of the plaintiff's particulars of claim, Count 1. 2. The plaintiff's particulars of claim, Count 2, is dismissed. 3. The Finnmark Estate is awarded legal costs.

Reindeer Grazing District 6/5D has essentially argued as follows: Reindeer herding has been the dominant use of the Disputed Area. The Varanger Peninsula is a geographically limited summer pasture for reindeer. The Varanger siida have for a long time employed transit routes through the area, for reindeer herds that far outnumber the livestock belonging to the village farmers. Following the closing of the national border with Finland in 1852, the use of the Disputed Area for reindeer herding was intensified, and since then, reindeer husbandry has been the dominant use of the area. The Unjárgga Gilisearvi/ Nesseby Rural Association has few members, and lacks status as a legal entity to control and manage the resources of the Disputed Area. The delimitation of the Disputed Area has been determined based on discretionary judgement, and without hearing opposing views ("contradiction") from neighbouring villages. There are several access roads into the Disputed Area, which shows that it has been common land used by more people than those living in the Rural Association's geographical footprint. Reindeer herders are concerned about their own livelihoods if the right to manage the resources in the Disputed Area is to be vested with the Rural Association rather than the Finnmark Estate. The stated purpose of the

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Finnmark Act lends a sense of security when it comes to the Finnmark Estate's management of the resources. For reindeer herding, the best solution is clearly that the Finnmark Estate continues to manage the area. In the event there should be a basis for shared management of the Disputed Area between the landowner and usage rights holders, then reindeer herding must also be granted influence over the management. Reindeer Grazing Districts 6/5D have entered the following particulars of claim: 1. Reindeer Grazing Districts 6/5D concur with Claims 1 and 2 of the Finnmark Estate. 2. Reindeer Grazing Districts 6/5D are awarded legal costs from the Norwegian Government, see the Finnmark Act, Section 43: Costs of the case, first paragraph, second sentence. Alternatively, regarding legal costs: 3. The Nesseby Rural Association c/o Ms Gunn Britt Retter shall be ordered to reimburse the costs of the case for Reindeer Grazing Districts 6/5D.

The Klubvik Sheep Breeding Society, Klubvik Grazing Society and the Jakobselv Grazing Society have entered written submissions to throw light on public interests, see the Dispute Act, Section 15-8. The grazing societies state that the Klubvik Grazing Society has flocks of sheep on the pastures in the area from Klubvik to Vuonnabahta/ Varangerbotn, and that the Jakobselv Grazing Society has flocks on the pastures in the area from Klubvik to Jakobselv. In 1983, the grazing societies erected barrier fences along the road from Jakobselv to Suovvejohka/ Bergebyelva with the permission of the Finnmark Land Sales Office (Jordsalgskontor). Later on, the barrier fence was extended west of Suovvejohka/ Bergebyelva and from Álddajohkka/ Meskelva to Nyborg. In addition, flock separation fences and flock gathering fences have been erected. The sheep grazing societies have also reported that they have marked miles of gathering trails with twigs in order to be able to navigate the terrain. The grazing societies want long-term agreements, like the ones they have with the Finnmark Estate at present. Free grazing must not cease to exist because the area is divided into smaller parcels by Rural Associations, thus risking that the grazing societies will only be able to make short-term, variable agreements with the Rural Associations. In order to determine the grazing capacity of the land, vegetation land surveys were conducted in 2009. Based on the results, the grazing area west of Álddajohkka/ Meskelva can feed 1000-1200 sheep, while the grazing area from Suovvejohka/ Bergebyelva to Jakobselv can feed 4200-5100 sheep. Today, the sheep graze freely on the northern side of the barrier fence, and many sheep graze on both sides of the border between Unjárgga gielda/ Nesseby Rural District and Vadsø Rural District.

The Forum for Nature and Outdoor Life in Finnmark has entered written submissions to throw light on public interests, see the Dispute Act, Section 15-8. The Forum has referred to the fact that the first uncultivated hayfields/ grass meadows to be surveyed in the Disputed Area in 1857, were staked out for immigrants from Gudbrandsdalen, who had knowledge and experience of land tenure on natural grassland. The legal authority to survey uncultivated hayfields came into existence as late as the Land Sale Act of 1863. A total of 215 uncultivated meadows were surveyed in Unjárga/ Nesseby from 1857 to 1945. There is no basis for claiming that these parcels of land involved any formalisation of existing patterns of usage, as explained in the NIKU Expert Report for the Finnmark Commission. Incidentally, this Expert Report suffers from a number of methodological errors and omissions. Most of the wild meadows/ hayfields are located within the Disputed Area. The Rural Association has not laid claim to or exercised exclusive rights of use of uncultivated land. The same applies to all other resources on uncultivated land. The Mountain Act (fjellova) has never applied as law in Finnmark. Therefore, it is not relevant to make comparisons with the governance system that follows from the Mountain Act. The Svartskogen judgement is not comparable with the situation in Unjárga/ Nesseby.

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The Finnmark Land Tribunal's disposition:

1. Introduction

1.1 Regarding the Finnmark Act and the process leading up to adoption The heated controversy sparked by the hydro-electric power development of the Alta-Kautokeino watercourse revealed that the State needed to clarify its relationships with Sami culture and the legal standing of Sami people in Norway. The Sami Rights Committee was appointed in 1980. This Committee was handed a comprehensive mission, including to investigate, assess and propose amendments to the rights of the Sami people for the management of lands and waters, and to secure opportunities for the Sami people to exploit the natural resources in their settlement areas. Gradually a consensus emerged that it would be desirable first to clarify the national law aspect of Sami Rights and Sami Policy. In light of the Sami Rights Committee's recommendation to Parliament of 1984, NOU 1984:18 Om samenes rettsstilling (The Legal Status of the Sami People), Norway's Sami Act was adopted in 1987, and the Norwegian Constitution, Article 110.a, relating to the National Authorities' obligations towards the Sami people, was added by Constitutional Amendment in 1988. Simultaneously, the Sami Rights Committee continued to work to clarify the legal situation in Finnmark, and identify means to protect the natural resources base for Sami culture. The Committee set up special working parties and appointed experts to explore the land-tenure property rights, usage rights and administrative practices, and to update the report on international law and the rights of non-nationals, in NOU 1984:18 The Legal Status of the Sami People. This work resulted in three Norwegian Public Reports: NOU 1993:34 Ownership and Management of Land and Water Rights in Finnmark, comprising contributions from two Working Parties set up by the Sami Rights Committee, namely the Legal Rights Working Party and the Administrative Practices Working Party. The second, NOU 1994:21 Bruk av land og vann i historisk perspektiv (Land and Water Use in Finnmark in a Historical Perspective) contains four separate reports on the actual usage and legal perceptions in Finnmark. The third, NOU 1997:5 Urfolks landrettigheter etter folkerett og utenlandsk rett (The Land Rights of Indigenous and Tribal Peoples under International and Foreign Law) was published by the International Law Working Party, simultaneously with the Main Report in NOU 1997:4 The Natural Basis for the Sami Culture. The majority of the Sami Rights Committee proposed in NOU 1997:4 Finnmark grunnforvaltning (Finnmark Land Administration), that a new body should be set up to manage the land and non-renewable resources in Finnmark. This body would be separate from Statskog SF, as it then was, and would be empowered to act as landlord of the State's lands in Finnmark. A minority opted for Samisk grunnforvaltning (Sami Land Administration), which could be established as a special Sami administrative body instead of the Finnmark Land Administration in rural districts and villages which so chose. The main purpose of the land administrations would be administrative in nature. It was expected that the activity could be financed by revenues from sale and leasing of land and issuance of licences for a variety of activities on the land, but that any deficit each year could be covered by the Norwegian State. For more details of this process, see the account in the White Paper: Proposition to the Odelsting no. 53 (2002-2003) for an Act relating to Legal Relations and Management of Land and Natural Resources in the County of Finnmark (the Finnmark Act), page 10 et.seq. The same Government White Paper proposed that the Government should establish a new and independent body, the Finnmark Estate, which would receive the ownership rights for the land that was then the responsibility of Statskog SF. The Finnmark Estate would have a board of directors with equal membership elected by the Sami Parliament and Finnmark County Council. In light of objections, from Sami voices among others, that the proposed Finnmark Act did not comply with Norway's international law obligations, the Parliamentary Standing Committee on Justice commissioned an international law report from Professors Hans Petter Graver and Geir Ulfstein. Following consultations with the Sami Parliament and Finnmark County Council, the Committee on Justice submitted its findings in a Recommendation to the Odelsting no. 80 (2004-2005), which, among other things, contained new provisions in the Act in Chapter 5: Survey and recognition of existing rights. The Finnmark Act was adopted on 17 June 2005, and with its enactment the Finnmark Estate assumed control of the real property in the county of Finnmark that Statskog SF held the registered title to, or owned without holding such title, see Finnmark Act, Section 49: Transitional provisions.

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The purpose of the Act is to facilitate the management of land and natural resources in the county of Finnmark in a balanced and ecologically sustainable manner for the benefit of the residents of the county and particularly as a basis for Sami culture, reindeer husbandry, use of non-cultivated areas, commercial activity and social life, see Finnmark Act, Section 1: The purpose of the Act. According to Section 3: Relationship to international law, the Act shall apply with the limitations that follow from ILO Convention No. 169 concerning Indigenous and Tribal Peoples in Independent Countries, and the Act shall be applied in compliance with the provisions of international law concerning indigenous peoples and minorities. According to Section 5: Relationship to established rights, second paragraph, the Act does not interfere with collective and individual rights acquired by Sami and other people through prescription or immemorial usage. Chapter 2: The Finnmark Estate, provides among other things that the Finnmark Estate shall be governed by a board consisting of six persons, where Finnmark County Council and the Sami Parliament shall each elect three members. Chapter 3: Renewable resources on the Finnmark Estate's land, deals with renewable resources. Section 21 provides that the Finnmark Estate shall manage the renewable resources on its land in compliance with the purpose of this Act and within the frameworks provided by the Wildlife Act, the Act Relating to Salmonids and Freshwater Fish and other legislation. Section 22, first paragraph, letters a to f, sets out the rights of persons resident in the rural districts, and in Section 23, first paragraph, letters a to e, the rights of persons resident in the county of Finnmark are set out. Section 22 provides that persons who are resident in a rural district have the right, on Finnmark Estate land in the rural district, to fish for freshwater fish with nets, fish for anadromous salmonids with fixed gear in the sea, gather eggs and down, fell deciduous trees for domestic fuel, cut peat for fuel and other domestic purposes and remove deciduous trees for use as fence posts and poles for hay-drying racks in the reindeer husbandry and agriculture industries. Section 22, second paragraph, provides that reindeer herders have the same right as the persons resident in the rural district for the period during which reindeer husbandry takes place there. Section 23 provides that persons who are resident in Finnmark have the right, on Finnmark Estate land, to hunt big game, hunt and trap small game, fish in watercourses with a rod and line, pick cloudberries and remove timber for home crafts. Section 23, second paragraph provides that agricultural holdings shall have grazing rights for as large a herd as can be winter-fed on the holding. Section 24 provides that individuals or groups of persons who are associated with a rural district and whose livelihood is wholly or partly associated with the utilization of renewable resources in the vicinity of the rural district may be assigned special rights to local utilisation. Section 26 allows for local management of hunting and fishing, in that the Finnmark Estate may grant special rights to local associations, for up to ten years at a time, to administer hunting, trapping and fishing in specific areas of the Finnmark Estate land. Section 27 provides further conditions for utilisation of renewable resources and restrictions on such utilisation. Section 27, first paragraph provides that the Finnmark Estate may issue further rules for utilization of renewable resources as mentioned in Section 22 (a) to (f) and Section 23 (a) to (e). On the other hand, the provisions of this Chapter 3: Renewable resources on Finnmark Estate's land, shall not apply in so far as other rules follow from established rights, see Section 21, second paragraph, and confer Section 5: Relationship to established rights, and Chapter 5: Survey and recognition of existing rights.

1.2 Regarding the dispute The Finnmark Commission has concluded that the local population who are permanent residents of Unjárgga gielda/ Nesseby Rural District, by their extended and continuous use, hold original "customary rights" of use, based on ancient custom, in the Disputed Area, and that these customary rights were in all essentials established long before the State's position as landowner became established in the rural district. This conclusion is not contested, and is relied on without further discussion by the Finnmark Land Tribunal. The position of the State as landowner, and later the position of the Finnmark Estate, is thus not a matter of dispute. The Commission has further found that no exclusive or collective usage rights have been acquired for the population of Unjárgga gielda/ Nesseby Rural District that are more extensive than the usage rights that are

UTMA-2014-164739-E Page 14 av 53 regulated by the Finnmark Act, Section 22 and 23. This is understood to be undisputed by the Finnmark Estate. In their opening writ, Unjárgga Gilisearvi/ Nesseby Rural Association asserted that the local population enjoy exclusive rights to use the Disputed Area. Since then, the claim has been adjusted so that the usage rights include the management and administration of the usage rights. Thus, the Rural Association disputes the Finnmark Commission's conclusion that the State's initiatives in the course of time have resulted in the formation of a right for the State to exercise control of the utilisation of resources, and that this right to control and manage the resources was transferred to the Finnmark Estate by the enactment of the Finnmark Act. The Commission's conclusion is that the rights essentially enjoy an undisputed independent legal basis in parallel to the Act, in the same way as the Southern Norway commons rights, and in the same way as reindeer herding rights in areas where they were driven from immemorial times. The Commission has assessed the situation to be that the State's initiatives, after the State became established as the landowner, have not by nature or content been such as to cause any usage rights of the local population to be extinguished. Regarding the Commission's assessments, reference is made to Finnmark Commission Report Area 2 Nesseby (2013), page 57-123, especially the Summary on page 122. The Rural Association's claims build primarily on two independent assertions. The first is that the village people have an original and independent right to use and manage the Disputed Area which is protected by the Finnmark Act, Section 5, second paragraph, unprejudiced by the State's practical and legal initiatives in the area in the course of time. The second is the argument that the usage rights of the villagers, including the opportunity to manage them, have not been extinguished solely due to the State's legal initiatives. The term "Finnmark Commons" was launched by Sverre Tønnesen to describe the State's unregistered lands in Finnmark. According to Tønnesen, this land met the requirements for a commons, not least since no specific person owns the land, and because the commons idea is consistent with the reality, namely that the villagers hold rights to the land within and around their villages through immemorial/ ancient usage. Tønnesen believed that several commons could coexist in Finnmark which were dissimilar, see Sverre Tønnesen: Retten til jorden i Finnmark (Land Rights in Finnmark) (1979), page 308 et.seq. The Legal Rights Working Party under the Sami Rights Committee also discussed the question of commons in Finnmark. The working party pointed out that areas that were then viewed as State land in Finnmark cannot be termed a commons in the same sense that the term is used in Southern Norway, but that it could nevertheless be appropriate to call them a commons of a very special type. In Finnmark, a number of measures affecting the local population on State land were subject to administrative practices and special legislation that deviated on several counts from the legal position of the Southern Norway commons. See NOU 1993:34 Ownership and Management of Land and Water Rights in Finnmark, page 297-322. To the extent that the land that was transferred to the Finnmark Estate, when the Finnmark Act entered into force, can be termed a commons, it is subject to regional control by the Finnmark Estate, within the purview of the Finnmark Act, which is a different situation than, for example, State Commons, which are controlled locally within the purview of the Mountain Act. It is the Finnmark Estate's right to exercise control of the usage rights and resources in the Disputed Area that are challenged by this litigation.

1.3 Regarding the parties The Unjárgga Gilisearvi/ Nesseby bygdelag/ Nesseby Rural Association was founded on 25 March 2007. Its geographical activity covers the area from Álddajohkka/ Meskelva river in the west to the district boundary with Vadsø in the east. Information received indicates that roughly 120 households are situated within the geographical extent of the Rural Association, and that all persons and families who belong in the activity area may be members of the Rural Association, which currently has 36 individual members. The Finnmark Estate is an independent legal entity, see Finnmark Act, Section 6: The legal position of Finnmark Estate. By the entry into force of the Finnmark Act, Chapter 2, the Finnmark Estate assumed control of the real property in the county of Finnmark that the National Forestry Service, Statskog SF, held the registered title to, or owned without such title, including the Disputed Area in this action, see Finnmark Act, Section 49: Transitional provisions, first paragraph. The Finnmark Act grants to the Finnmark Estate the status of an ordinary private landlord in most respects. However, there are certain restrictions on the Finnmark Estate's ownership powers, which we need not elucidate further here.

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1.4 The Disputed Area The Disputed Area lies entirely within Unjárgga gielda/ Nesseby Rural District, on the northern side of Varangerfjorden, and predominantly north of the active geographical extent of the Rural Association. The Disputed Area includes Finnmark Estate land, extending from the fjord, through the forested areas to the far south of the Disputed Area, and thence northward into the plateau and mountain areas bounding on Deanu gielda/ Tana Rural District. There is no question that the Disputed Area covers approximately 470 square kilometres. The more specific boundaries of the Disputed Area to the west are where the Álddajohkka/ Meskelva river flows into Varangerfjorden, thence going north along Álddajohka/ Meskelva and onward along Elijasjohka and Geađgejohka, thence generally northward to the boundary with Deanu gielda/ Tana Rural District at Govdoaivi/ Midthaugen. From there, the Disputed Area is bounded in the north along the boundary with Deanu gielda/ Tana Rural District in a northeasterly direction to the boundary between Unjárgga gielda/ Nesseby kommune and Vadsø kommune in the east, and there follows the district boundary in a southerly direction to the Varangerfjorden. In the south the Disputed Area is bounded by the shorebreak in Varangerfjorden.

1.5 Regarding Unjárgga gielda/ Nesseby kommune – a Coastal Sami rural district The boundaries for Unjárgga gielda/ Nesseby Rural District were laid down in 1865 and adjusted in 1937 and 1993. The rural district is bounded by Vadsø Rural District in the east and north, by Deanu gielda/ Tana Rural District in the north and west, and by Sør-Varanger Rural District in the south. The district boundaries historically followed the parish boundaries at the coast, and the watershed boundaries in the mountains, and not the usage traditions for the land. The district boundaries have been subject to some dispute. Prior to 1937, the district boundary ran north of Oarddojávri/ Ordovann lake, on the Varangerhalvøya peninsula, but the district line was then moved south to Ánnejohka/ Jakobselva river. In 1993, the district boundary was slightly revised, so that parts of the areas that were lost in 1937 were reinstated. Nesseby Rural District Council protested in both 1937 and 1982 against the boundaries within the Varanger Peninsula, which it was claimed paid little regard to the Varanger Sami's traditional use of areas that became part of Vadsø and Båtsfjord Rural Districts. Among the older population of Unjárga/ Nesseby, it remains the common perception that Unjárgga gielda/ Nesseby Rural District should by rights include Oarddojávri/ Ordovann lake, see Øystein Nilsen: The Varanger Sami (2009), page 22 et.seq. Around the year 1700, there were supposedly 550 people living in present-day Unjárgga gielda/ Nesseby Rural District, see Øystein Nilsen: The Varanger Sami (2009), page 31. The population was roughly similar at the census in 1801. In the ensuing 150 years the population steadily grew: in 1865 it was 1168; and in 1951 it was 1512. Later, the population has steadily declined and stood at 884 persons in 2010. In 1865, the records show that something over 70 per cent of the population of Unjárga/ Nesseby were Sami, around 20 per cent were Norwegian, more than 5 per cent were Kven, and a good 2 per cent were of mixed descent. Ten years later, the population had increased to 1305, with the proportion of Sami at 65 per cent, the proportion of Norwegians had declined slightly to just over 10 per cent, and the proportion of Kven had increased to 10 per cent. See Finnmark Commission Report Area 2 Nesseby, page 60. In 1900, the number of registered Sami was 1264 out of 1512 total residents in the district, so about 84 per cent, while 167 Norwegians and 81 Kven were registered, see Amund Helland: The Land and People of Norway, Finnmark County, Volume II (1906/1907), page 50. In 1920, the records reported 801 Sami in a total population of 1160 (69 per cent), 94 Kven, 54 mixed Sami- Kven, and 211 others, mainly Norwegian. In the population census for 1950, ethnicity was recorded indirectly by language (presumably the primary tongue) as the identity marker. Of a total population of 1511, 895 spoke Sami, 403 Norwegian, 79 Sami and Norwegian, 32 Kven, 2 Sami and Kven. All told, there were 976 Sami speakers, which is to say 65 per cent. The population census in 1930 recorded mixed ethnic residents' language preferences: In both the Norwegian- Sami and Sami-Kven mixed language categories, Sami was clearly the first choice, respectively 25 to 2, and 75 to 2. In Norwegian-Kven mixed marriages, Norwegian was the preferred primary tongue, whilst among Sami- Kven couples, Sami was the primary tongue. According to Anton Hoëm, locally what happened was a

UTMA-2014-164739-E Page 16 av 53 combination of strong "Samification" and "Norwegianisation", but almost no "Kvenification", a fact that Anton Hoëm claims is consistent with the general local opinion that Unjárga/ Nesseby was still very predominantly a linguistic area where Sami was the daily tongue. Children in the district therefore lived in a fully Sami- language world, except when attending school, and being taught Norwegian in Norwegian. Linguistically the children's language environment until 1940 was Sami, reports Anton Hoëm, Fra noaidens verden til forskerens. Misjon, kunnskap og modernisering i sameland 1715-2007 (From the World of the Shaman to the World of the Scientist. Mission, Knowledge and Modernisation in the Land of the Sami 1715-2007), (2007), page 418. After 1950, the population of Unjárga/ Nesseby was no longer registered by ethnic criteria, but it is fair to say that 60 per cent of the population in 1960 were of Sami heritage, see Anton Hoëm (From Shaman to Scientist) (2007), page 415-419. In 1970, there were 625 persons (53 per cent) who responded that they considered themselves Sami, whilst 350 persons (48 per cent of those entitled to vote) were registered in the Sami Population Register in 2005, see Einar Eythòrsson: Sjøsamene og kampen om fjordressursene (The Coastal Sami and the Fight for Fjord Resources) (2008), page 21, and see also Vilhelm Aubert: Den samiske befolkning i Nord-Norge (The Sami Peoples in North-Norway) (1978). Compared with other Coastal Sami villages, Sami language and culture have been extremely well maintained in Unjárga/ Nesseby. Even in the 1950s, it was common for entire classes to begin mandatory schooling without being able to speak Norwegian. Both the language and the local lifestyle, with its combination of uncultivated land usage, fishing and animal husbandry, were kept alive into the 1960s, see Øystein Nilsen: The Varanger Sami (2009), page 30 -31. Unjárga/ Nesseby is still considered the least Norwegianised Coastal Sami district in Finnmark, see Einar Eythòrsson: The Coastal Sami and the Fight for Fjord Resources (2008), page 218.

2. The Varanger Sami had control of the resources in the Disputed Area before the State became involved Settlements in Varanger date back in a continuous line for at least 10,000 years, and have been the source of a rich cultural heritage. Even though both archeological and historical sources provide documentation of long and unambiguous effects by other cultures and peoples, the Varanger Sami still, even from the Middle Ages, represented a large and well-established population in a stateless territory, as neighbouring peoples and the emerging nation states gradually developed trade routes and levied taxes. In a process that extended for half a millennium and included a series of hostilities between Russia, Denmark-Norway and Sweden, the Sami peoples of East-Finnmark and Varanger were the subjects of competitive tax regimes and colonisation efforts, until the final national borders were drawn up in 1751 and 1826, see Lars Ivar Hansen and Bjørnar Olsen: Samenes historie fram til 1750 (A History of the Sami People up to 1750) (2004), Chapter 4 and 5. Norwegian colonisation of the seaward coastline of Finnmark accelerated in the second half of the 1200s. This development was connected with the increasing importance of commercial fisheries, which led to Norwegian fishing villages springing up even along the Finnmark coast. Norwegian central government was keen to establish institutions that could be a mark of Norwegian sovereignty in the area. On the far east of the Varangerhalvøya Peninsula, the Vardøhus Fortress and Vardø Church were established in the early 1300s. Varangerfjorden was home to fishing settlements on the islands of Ekkerøy and Vadsø in 1520, and in the east and north of the peninsula there were similar fishing villages in Makkaur, Vardø and Kiberg. See Lars Ivar Hansen and Bjørnar Olsen: A History of the Sami People up to 1750 (2004), page 165-168. In the initial decade of the 1600s there was contention between Denmark-Norway on the one hand, and Sweden on the other, as to who had the right to collect taxes from the Coastal Sami. The Kalmark War (1611-1613) ended with Sweden, through the armistice of Knärödfreden in 1613, abandoning its claim of sovereignty over the Coastal Sami from Tysfjord to Varanger, and simultaneously abandoning all claims to sovereignty over the area where the Coastal Sami lived. From 1613, the coast and the fjords, and the immediate inland strip, were uniquely subject to Denmark-Norway. The Disputed Area lies in a fjord region between the coast and the inland, but still within the so-called "privative" Danish-Norwegian zone. The Sami who lived in this area were Dano-Norwegian subjects, whilst the inland Sami were still under Swedish jurisdiction. Only with the boundary treaty of 1751 were the areas in today's Guovdageainnu suohkan/ Kautokeino Rural District, Kárašjoga gielda/ Karasjok Rural District, and areas within Deanu gielda/ Tana Rural District and Unjárgga gielda/ Nesseby Rural District, subject to the sovereignty of Denmark-Norway. The national border between Norway and

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Russia was drawn only in 1826. Regarding these developments, see Steinar Pedersen: Bruken av land og vann i Finnmark inntil første verdenskrig (Land and Water Use in Finnmark before World War I), collected in NOU 1994:21 Land and Water Use in Finnmark in a Historical Perspective, Chapter 3, and see also Lars Ivar Hansen and Bjørnar Olsen: A History of the Sami People up to 1750 (2004), page 262-267. In his doctoral thesis in 1972, Mr Sverre Tønnesen argued that most probably there was no ownership assertion or determination to take possession on the part of the national government, for what Tønnesen called the "Finnmark Commons", until the end of the 1600s, see Sverre Tønnesen: Land Rights in Finnmark (1979), page 10. The King as the territorial overlord exercised that function in the Finnmark coastal and fjord regions. Most likely, the King considered the area a commons in a private law sense, and not as Crown lands. We can presume that the King considered the rights of the Finnmark residents as being equal to those of other citizens in other commons, and that they were thus entitled to whatever use they had exercised since time immemorial. Sami and Norwegian residents of Finnmark may have held different legal perceptions regarding their use of the resources. Most likely, both groups felt they had rights in the commons, and in particular in that part of the commons that belonged to the Village Residents, fishing village, or siida (Sami village). See Kirsti Strøm Bull's summary of Tønnesen' s views in Kirsti Strøm Bull: Jordsalgslovgivning. En rettshistorisk lovgjennomgang av jordsalgslovgivningen i Finnmark i perioden 1775-1965 (A Legal History of Land Sale Legislation in Finnmark in the Period 1775-1965) (2014), report prepared for the Finnmark Commission, page 5-7. The Disputed Area lies in the inner part of Varangerfjorden where the influence of Norwegian colonisation was for a long time less than in some coastal areas in Finnmark. The Varanger Sami were numerous and affluent, and in the 1500s made up more than 10 per cent of the taxpayers and one third of the Coastal Sami population in Finnmark. The Sami lived in trapping communities organised into siidas, or villages comprising several families who cooperated on major common activities, for example hunting for wild reindeer, at the same time as siida members enjoyed usage rights for other trapping, fishing and harvesting. For the Varanger siida, the trapping of wild reindeer is particularly well documented in the large gathering pens with guide fences, clear precursors of modern structures, and trapping pits, see Øystein Nilsen: The Varanger Sami (2009), page 6-11. There may have been six siida in Varanger during the period when catching wild reindeer was important. The Sami were required to pay a fee to the feudal overlord in Vardøhus for their round-up operations, and the district accounts show that rustling pens in Varangereidet were still in use in the late 1500s and early 1600s. The catch seems to have declined after 1600. See Lars Ivar Hansen and Bjørnar Olsen: A History of the Sami People up to 1750 (2004), page 187 and 209. The hunter-gatherer community was nomadic with seasonal migrations depending on available resources throughout the year. From the mid-1500s, the increasing trade contacts probably led to overexploitation of the wild reindeer herds, and thereafter to a gradual transition to domestic reindeer husbandry and livestock. The Reindeer Sami developed their specialised livelihood with a migration pattern between summer and winter pasture, see Anton Hoëm (From Shaman to Scientist) (2007), page 65. The migration pattern for reindeer herders was relatively stable from the 1600s to the mid-1800s, with summer grazing on the Varangerhalvøya and winter grazing in Enare and Utsjok in neighbouring Finland, see Øyvind Ravna, Reindriften i Varanger – rettshistorie (Reindeer Herding in Varanger – A Legal History), collected in Ottar 4/2014, page 23 et.seq. The other Varanger Sami migrations largely followed the Varangerfjorden, spending summers at the fjord mouth, and winters close to the fjord head. From the late 1600s, Norwegians began to occupy the summer homesteads around the fjord mouth, and migrations later in the 1700s were shorter, with a further concentration on a twin-settlement pattern in the 1800s, see Anton Hoëm (From Shaman to Scientist) (2007), page 64-65 and Øystein Nilsen: The Varanger Sami (2009), page 34-35. Animal husbandry was well suited to the migrations of the Coastal Sami, and early immigrants to Unjárga/ Nesseby also adopted this twin-settlement pattern. Utilisation of resources resulting from seasonal migrations has embraced all available resources, such as fish in the fjord and mountain lakes, harvesting of deciduous forests for firewood, cutting of peat, pasture for livestock and domesticated reindeer, hunting and trapping of reindeer and small game, berry-picking, gathering of eggs and down, and so forth. In this context reference is made to an anonymous account of the Coastal Sami from the late 1500s, quoted in Gudmund Sandvik: Perceptions of Land and Water Use Rights (1997), in NOU 1997:4 The Natural Basis for the Sami Culture, page 583. Further reference is made to Sverre Tønnesen: Land Rights in Finnmark (1979), page 49, and to Excerpts from Major Schnitler's Border Inspection Protocols from 1742-45, Volume III, Article 7. The Sami communities had their own, internal rules for division of access to the various types of resources since as far back as it is possible to determine. The studies of ancient Sami social structures point to the idea

UTMA-2014-164739-E Page 18 av 53 that area and resource management was regulated between the various siida families, and between individual members of the siida using internal Sami judicial systems, see Lars Ivar Hansen and Bjørnar Olsen: A History of the Sami People up to 1750 (2004), page 281. According to Sverre Tønnesen, the homestead traditions led to the Coastal Sami being allowed to live according to their own legal perceptions of the law of property and land tenure (tingsrett) for quite a long time, see Sverre Tønnesen: Land Rights in Finnmark (1979), page 50-51. In the Varanger region, each group had its territory, albeit the boundaries for the territories were not absolute. It was possible to access ground owned by others if there was due cause to do so, see Anton Hoëm (From Shaman to Scientist) (2007), page 61-64. Whilst reindeer herding and other Sami uses of the commons areas in other parts of the country could be perceived as "tolerated use", where others had stronger rights, it seems that the Dano-Norwegian authorities in the 1700s accepted that the Varanger Sami held exclusive rights to utilise the resources in their immediate vicinity, see Lars Ivar Hansen and Bjørnar Olsen: A History of the Sami People up to 1750 (2004), page 308. Sami whale hunting in Varanger extends way back in time, reports Einar Niemi: Vadsøs historie (History of Vadsø), Volume I, page 187. According to Sverre Tønnesen, the Coastal Sami in Varanger engaged in whale hunting in the 1600s and 1700s by encircling the whale, then killing it. He notes that this was probably a special privilege that the Sami had, which the King did not interfere with by claiming taxes or dues from the catch. An accord effected in 1591 between the Varanger Sami and residents of fishing villages (presumably Vadsø and Ekkerøy), seems to assume that the Varanger Sami alone had the inner part of the fjord as their village cooperative, or village commons, whilst further out in the fjord they would follow the ancient custom where the whale was shared between King and commoners. This custom seems to have persisted at least until around 1760, when whales that beached to the west of Klubben, which is just east of the Disputed Area in this case, would belong to the Sami, whilst whales that drifted ashore to the east of Klubben, belonged to the "Nordland Commons in Wadsøe Parish", see District Recorder Hans Paus: Samling til Finmarkens Beskrivelse (Anthology of Descriptions of Finnmark). For further discussion, see Sverre Tønnesen: Land Rights in Finnmark (1979), page 36 and page 327. From the second half of the 1500s to the second half of the 1600s, the Sami hunter-gatherer community in Varanger was under pressure. Livelihood adaptations became more differentiated, and at the same time more specialised. According to Einar Niemi, the transition to domesticated reindeer husbandry and animal husbandry resulted in conflicts within the Sami community, and in relation to Norwegian citizens in Varanger. The Siida extended family system was under threat of dissolution, from the new livelihood where large domesticated reindeer herds migrated across siida boundaries. The conflicts with Norwegians were due to competition for resources among the two peoples, who were both forced to restructure their livelihoods with a greater emphasis on sheep farming. See Einar Niemi: History of Vadsø, Volume I, page 182-186. From about 1900, the seasonal migrations of the Coastal Sami declined in inner Varanger, see Anton Hoëm (From Shaman to Scientist) (2007), page 408. The old hunter-gatherer community gradually transitioned to a combination culture that emphasised subsistence farming, which remained stable until about 1920. The demise of the Pomor trade with Russian coastal communities represented the end of the relative economic independence of the Coastal Sami, so that they essentially became an integral part of the monetary economy, depending on both national and international markets for their fish sales, see Anton Hoëm (From Shaman to Scientist) (2007), page 408 et.seq. As Sverre Tønnesen has pointed out, all permanent use over an extended period on specific areas will likely give rise to a general opinion in the community that the use has led to the formation of certain rights, at least if the resources in question are limited, and this opinion will likely evolve into an established rule of law, see Sverre Tønnesen: Land Rights in Finnmark (1979), page 51-52. To the Land Tribunal, it is sufficiently clear that the general picture must be, that the population of Unjárga/ Nesseby, before the State became more involved in the area, exercised their own, internal, customary rules for distribution of the resources, that they duly managed the resources they felt they enjoyed the sole rights to, and that they believed they enjoyed such rights to manage and control the resources.

3. Regarding the further assessment The question of land-tenure, property rights and title has not been made a subject of dispute in this litigation. The view that the State holds title to land in Finnmark is essentially based on the idea that this became an

UTMA-2014-164739-E Page 19 av 53 established situation. Even though the Norwegian State acquired jurisdiction over parts of Finnmark county following the Peace Treaty in 1613, and after the national boundaries were set up in 1751 and 1826, and this jurisdiction did not necessarily imply the transfer of property rights and private tenure rights to the State, the State's ownership rights nevertheless became established with the passage of time. Yet, even if the State in the course of time established an ownership position over the land in the Disputed Area, that does not necessarily mean that the State took over the administrative rights to the usage rights and resource utilisation. That is something that needs to be separately assessed. When assessing if management rights have been forfeited by the local population, the actual use, local customs and local legal perceptions will be central factors, together with the State's actions and interventions in the area. In what follows, a description is given of an evolution where the Norwegian State gradually strengthened its intervention in the Varanger area, through arrangements for the land, and as a regulatory power through its legislation and administrative actions. The question in what follows will be whether the State, as the Finnmark Commission found, through these actions, acquired the rights to exercise control of the usage rights associated with uncultivated land resources in the Disputed Area. Against this backdrop, the Land Tribunal finds it necessary to describe the usage, customs and legal perceptions of the local population, as we can discern them from the materials available to the Tribunal. The parties have submitted extensive historical records, including all the public reports published in connection with the Sami Rights Committee's work. Moreover, the Land Tribunal has made use of other available literature describing population links to local usage and exploitation of the natural resources. The latter material helps elucidate the key disputed issues in this case, which the parties have illuminated and commented on. The State's earlier physical and legal initiatives for the land will be incorporated in the ordinary way as elements when assessing the claims by the Rural Association, see Supreme Court judgement and ruling of 28 September 2016 in the Stjernøya case (HR-2016-2030-A, premise 73). As for the State's interventions, then in the Land Tribunal's assessment, there are hardly any traces of the State as a user of the Disputed Area, or as a law enforcement authority within it, so it will be the legislation, the administrative actions that the legislation has authorised, and possible other arrangements that will be of interest in this context. It will also be of interest in this context to clarify any omissions by the State, whether there are resources in the Disputed Area that the State has failed to administer, and which have remained under the self-determination of the local population, and whether there may be regulations that the local population did not comply with, but rather continued their usage according to ancient custom. The evolution of the laws and regulations is thoroughly described in the Finnmark Commission Report Area 2 Nesseby, and for a more detailed review, readers are referred to it. The Land Tribunal finds it expedient at this point to provide an account of how the legal and regulatory frameworks evolved, and thereafter to provide an account of how the regulations were actually formed, and how they functioned in the Disputed Area.

4. Evolution of the laws and regulations

4.1 Royal Decree of 1775 relating to Land Demarcation The first organised parcelling out of agricultural land in Finnmark started with the Royal Decree of 1775 relating to Land Demarcation (or more fully: Land Allotment in the County of Finnmark, with Local Demarcation and Taxation, of 27 May 1775). This is the first statutory regulation of land and natural resources in Finnmark. A report by District Recorder Hans Paus: Finmarkens økonomiske tilstand med forslag om dens forbedringer (Finnmark's Economic Standing with Proposals for Betterment) (1769), can be seen as a precursor to the Royal Decree. He describes great poverty along the coast of Finnmark, which he believed was largely due to unfavourable utilisation of the resources. He therefore suggested that parcels of land be allocated, so that every settler could understand the limits of his property. The County Governor, Mr Fieldsted, pointed out in a memorandum of 31 March 1775, that those who cleared the land had no other legal tenure than the claim-ticket that the Governor had issued, which essentially did not apply beyond the lifetime of the individual. According to Gudmund Sandvik, the county authorities started to issue claim-tickets in the 1760s, see NOU 1993:34 Ownership and Management of Land and Water Rights in Finnmark, page 417. A claim-ticket granted a right to use a piece of land. For more details on the background

UTMA-2014-164739-E Page 20 av 53 for the Royal Decree of 1775, see Kirsti Strøm Bull: A Legal History of Land Sale Legislation in Finnmark in the Period 1775-1965 (2014), page 7. The Land Demarcation Decree opened the way for surveys of agricultural land for full ownership. Demarcation was free of charge. Each settlement would get land sufficient to feed four head of cattle, see Section 1 of the Royal Decree. Section 6 of the Royal Decree crystallised the rights of the Village Residents and the public to make use of the land "as hitherto". Usage that was not regulated in detail in the Decree, like hunting and reindeer herding, would continue as before. The Decree, Section 7, provided that the parcel would revert to the King's estate if left fallow and unworked for three years. The Land Demarcation Decree was the first statutory instrument to include the birchwood forests in the Disputed Area. The forests were vital both as firewood and as building materials. The rule in Section 4 of the Decree authorises the use of birch forests subject to demarcation. It is fair to assume that the Decree provided an unlimited time and exclusive right of usage for the birch forests for village residents. Village Residents would be safeguarded, by having a legal basis for the local birch forests. See the review by the Legal Rights Working Party under the Sami Rights Committee in NOU 1993:34 Ownership and Management of Land and Water Rights in Finnmark, page 88 et.seq. The rule in the Decree regarding leafy forest remained in force until the passing of the Land Sale Act of 1965, which in Section 4 provided that, on the State's unregistered land, the villagers had the right to demarcation of deciduous forest for firewood and household use. Every land claim that was surveyed under the Land Demarcation Decree of 1775 included the rights to fish in lakes and small rivers which lay within the boundaries of the parcel, or which were adjacent to it, see Decree, Section 3. By that means, every holding acquired the same right to fish on its own land as had been the case under King Christian V's Norwegian Laws of 15 April 1687, see RG-1956-109. However, in places where common fishing had prevailed, the new land claims would not abolish that privilege, see Decree, Section 6.

4.2 Land Sale Act of 1863 New legal statutes regulating the divestment of State land in Finnmark were adopted in 1863 with the Act regarding Divestment of State Land in Finnmark Rural Districts. From now on, land in Finnmark would be sold so that the buyers could feel more connected to the land they received special rights to. The land was sold with standing forest, see Sverre Tønnesen: Land Rights in Finnmark (1979), page 152. The size of the plot would no longer be limited to what was needed to feed four head of cattle, but would be granted of a size that seemed proper. Section 1 of the Act prohibited the sale when divestment would violate the interests of the district, for example when the land was "claimed" as "summer paddock/ enclosed pasture" for livestock owned by the permanent residents or Reindeer Sami, or for peat-cutting, or when the land was used or might be claimed as a migration route for the Reindeer Sami, or for the passage of residents. Section 1 also prohibited divestment when the land merely consisted of wild meadow hayfields that were unsuited for cultivation. The Act abolished the county ticket scheme. People who had county tickets for land that had been built on, or cultivated and fenced in, could now receive a deed. However, the right to receive a deed did not apply for the many county tickets that had been issued over the years for uncultivated hayfields that could not be cultivated. The Land Sale Regulations of 1864 and 1876 permitted the leasehold tenure of uncultivated hayfields for five years at at time, see Kirsti Strøm Bull: A Legal History of Land Sale Legislation in Finnmark in the Period 1775-1965 (2014), page 48-49. The Land Demarcation Decree of 1775 did not attempt to regulate domestic livestock grazing. As authorised by the Land Sale Regulation of 1864, clauses were nonetheless written into deeds for grazing on uncultivated land. The increasing immigration from Finland to East-Finnmark worried the Norwegian authorities, and through the Land Sale Regulation of 1876 an addendum was made to Section 4, letter d), aiming to prevent the resale of land to Finnish-speaking buyers. Sale to non-life heirs required the consent of the County Governor. This rule was repealed by the Land Sale Regulation of 1895. The same concerns led to the introduction, in the Royal Decree of 1879, of a sales ban in parts of Unjárga/ Nesseby, Sør-Varanger and Deatnu/ Tana. This ban was also repealed by the Land Sale Regulation of 1895. See Kirsti Strøm Bull: A Legal History of Land Sale Legislation in Finnmark in the Period 1775-1965 (2014), page 47-48, 60 and 128.

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4.3 Act of 3 August 1897 regarding Peat-cutting on State Land in Finnmark The Royal Decree of 1775 relating to Land Demarcation lacked any provisions for peat-cutting, as, according to Sverre Tønnesen, this was included in the "delights" that would still remain in general use. Despite the use of peat being recognised in Finnmark for several hundred years, the use of peat as fuel did not become commonplace until well into the 1800s when the population expanded greatly. This use was an unregulated, ancient and immemorial use by the villagers in Finnmark in their own rural area, see Sverre Tønnesen: Land Rights in Finnmark (1979), page 269 et.seq. The need to regulate peat extraction from the marshes seems to have been an issue raised by the Finnmark County Aldermen in 1893. In the Act of 3 August 1897 regarding Peat-cutting on State Land in Finnmark (lov 3. august 1897 om Torvskur paa Statens Grund i Finmarken), a demarcation scheme was launched to secure rational use. Peat-cutting on State lands would be permitted until further notice but only for household use as demarcated, and subject to rules issued by the County Governor, see the Act, Section 1. Peat resources were reserved for the village residents and could not be extracted by others except with the Governor's permission, see the Act, Section 2. When considering the sale or leasing of land, it was emphasised that areas of birchwood forest or peat marshes could not be sold. The Land Sale Act of 1902 perpetuated the rule in the Act of 1863, whereunder areas necessary for the peat supplies of the population would not be divested. The Land Sale Act of 1965 repealed the 1897 Act regarding Peat-cutting, because it was felt there was no longer any need to have a special law about peat-cutting in Finnmark. On the other hand, the Land Sale Act of 1965 provided that residents in a rural district could, until further notice and subject to demarcation, cut peat for household use on peat marshes which were within the district boundaries on the State’s unregistered land. See for reference NIKU Expert Report for the Finnmark Commission, page 125-129. As already noted, the Finnmark Act grants persons resident in a rural district or village the right to cut peat for fuel and other household uses on Finnmark Estate land, see Finnmark Act, Section 22: Rights of the persons resident in municipalities/ rural districts, first paragraph, letter e): cut peat for fuel. Under the rule in Finnmark Act, Section 27: Further conditions for utilisation of renewable resources and restrictions thereon, the Finnmark Estate may issue regulations for such exploitation. This authorisation has never been employed.

4.4 Land Sale Act of 1902 The Land Sale Act of 1902, or more fully the Act of 22 May 1902 regarding Sale of State Land and Ground in Finnmark County Rural Districts (Lov 22. mai 1902 om Afhændelse af Statens Jord og Grund i Finmarkens Amts Landdisktrikt) replaced the Act of 1863. From now on, divestment would be made by demarcation at the free discretion of a Commission. The Act established a Commission consisting of three assessors who would organise the divestment. An amendment in 1939 provided that divestment would be prepared by one or several such Commissions, each with their specific district. The rules for divestment and land tenure were laid down in the Act's Section 1. Sales prohibitions in the Land Sale Act of 1863 were perpetuated. Furthermore, divestment could not take place if the land was important for the conservation of forests. The Land Sale Regulation of 1902, issued pursuant to the Land Sale Act, limited the grazing privileges in the sense that the granting of a paddock/ enclosed pasture right would not prevent the future utilisation and divestment of that land for cultivation and building. In 1955, the grazing privileges awarded by land sale were further weakened, since the government could now restrict the grazing rights, regulate the grazing, relocate it from one place to another without compensation, and – following one year's notice – demand the full withdrawal of the grazing privileges on State land without compensation. See, for reference, Kirsti Strøm Bull: A Legal History of Land Sale Legislation in Finnmark in the Period 1775-1965) (2014), page 85-88 and 129. Under the Land Sale Regulation of 1902 it was possible for uncultivated hayfields to be leased out if they could not be divested. The land could be leased out for cutting of peat, or include bird colonies, plots for hunting lodges, fishing lakes and the right to fish for salmon and sea trout. For reference, see the Recommendation for an Act and Regulations relating to the State's Unregistered Land in Finnmark County (Innstilling om lov og forskrifter om Statens umatrikulerte grunn i Finnmark fylke), published 29 September 1962, page 14.

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The same Recommendation also explains the contract terms and conditions for sale and land-tenure, see page 16. To prevent properties being used for financial speculation, from 1915 to 1932 provisions were incorporated in the deeds that restricted the right of resale and mortgaging. From the 1930s, clauses were written into the deeds to secure the government's right to dispose of the land for a range of purposes: as the bedrock for public roads, gravel quarries, snow barriers, pole foundations, etc. Under the Land Sale Act of 1902, plots for holiday cabins were leased out for a period of five or ten years, on condition that the tenant could not dispose of any forest on the plot without authorisation from the Forest Warden.

4.5 Land Sale Act of 1965 The Act of 12 March 1965 relating to the State's Unregistered Land in the county of Finnmark repealed the Land Sale Act of 1902. The Land Sale Act of 1965 applied until 2005, when the Finnmark Act came into force. The Land Sale Regulation of 15 July 1966 codified further aspects of land tenure. The Land Sale Act, Section 2, continued the authorisation in the Land Sale Acts of 1863 and 1902 under which the Land Sale offices could sell or lease out the State's unregistered land. Certain exceptions were allowed in Section 2, second paragraph, including a ban on sale of land that the government considered necessary grazing pasture for reindeer, and for the migrations of the Mountain Sami, and land that needed to be in State ownership for reasons of forestry, mining, fishing, recreation and nature conservation interests, to mention a few. The Unregistered Land Act, Section 4, granted villagers the right to demarcation of deciduous forest for firewood to meet household needs, and Section 5 granted a right to cut peat for household needs subject to demarcation within the district boundaries. In 1977, a new Section 5.a was added to the Unregistered Land Act, whereby only Finnmark residents would have the right to pick cloudberries on State land. Other Norwegian citizens and foreign nationals could only pick cloudberries if the berries were consumed at source.

4.6 Hunting, trapping, collection of eggs and down The Royal Decree on Land Demarcation of 1775 made no mention of hunting and trapping in the "commons". However, the King was conferred hunting rights that had previously been leased out, see Royal Decree, Section 5. According to Sverre Tønnesen, these hunts came under the "delights" that would continue as before, see Royal Decree, Section 6. This had to be seen in conjunction with the Trade Directive of 1702, which warned traders not to put impediments in the way of the local population's hunting privileges, and prohibited visitors from hunting in Finnmark. Steinar Pedersen has described the Trade Directive as particularly important, especially given that, within it, the King formally acknowledged that hunting was a special form of livelihood for Sami communities that must be protected against harmful competition. According to Pedersen, this is one of the first and clearest examples when the Sami customary law (sedvanerett) in Finnmark received the King's royal blessing. Pedersen reports that hunting in the 1700s was close to a Sami exclusive right. This idea is reinforced by the fact that the District Recorder, Mr Hans Paus, in 1769, recommended that the leasing of otter and seal hunts on certain islands should end, see Steinar Pedersen (2001): From the Use of Natural Resources According to Sami Custom to Prohibition of the Sale of Land to Non-Norwegian Speakers, and Deonodat: A Village at the Head of the Tana Fjord, collected in NOU 2001:34 Sami Customs and Legal Perceptions, page 366-367. The Trade Directive of 1702 was repealed in 1778. The repeal must be seen in connection with the adoption of the Land Demarcation Decree in 1775, see Royal Decree, Section 6, which ruled that resources that had been utilised jointly by the public or individual villages should continue "as hitherto". The Land Sale Act of 1863 provided a broader opportunity to control special hunting rights, and the Land Sale Regulation of 1876, Section 7, issued under the Land Sale Act, Section 3, authorised the leasing of hunting rights for up to five years. There are no records to show that this authority was ever used in the Disputed Area, or elsewhere in Unjárga/ Nesseby. The Hunting Act of 1899, Section 8, second paragraph, provided that hunting and trapping were free to all Norwegian citizens on State lands in Finnmark. It was not necessary to obtain a hunting licence. Big game hunting was not prevalent in Finnmark, and nor was it regulated by the Act. The rule remained in force until replaced by the Hunting Act of 1951, which in Section 19, first paragraph, provided that hunting and trapping

UTMA-2014-164739-E Page 23 av 53 of small game was free for all Norwegian citizens subject to issuance of a hunting licence on the State land in Finnmark. Exceptions were made for big game in the fourth paragraph. Section 19 of the Act provided for some preferential rules for village residents relative to other residents of Finnmark County, and for Finnmark residents relative to other citizens. Reference is made to Sverre Tønnesen: Land Rights in Finnmark (1979), page 279-285. The Hunting Act (jaktloven) of 1951 was replaced by the Wildlife Act (viltloven) of 1981. The latter builds on a general protection policy that entails that all game is basically protected, so a different policy than what followed from the Hunting Act of 1951. On State lands which were not regulated by the Mountain Act, such as the State lands in Finnmark, small game hunting and trapping were permitted, subject to obtaining a hunting licence, and payment of a fee, for all Norwegian citizens. The opportunity to grant preferential rights to village residents was perpetuated. Hunting of elk was regulated in Section 16, which provided that elk and other big game could not be killed except by further regulation setting out the areas where hunting could take place. The Finnmark Act grants persons resident in the county the right to use the Finnmark Estate's land to hunt big game and the right to hunt and trap small game, see Finnmark Act, Section 23, first paragraph, letter a) and b). Hunting and trapping of this kind is subject to licence in the form of a permit, see Finnmark Act, Section 27. The collection of eggs and down on untenured land outside the leased egg and down parcels has probably belonged among the "delights" that, under Section 6 in the Land Demarcation Decree of 1775, vested in common usage and could be utilised as before, in compliance with local customs and tradition. Regulations for collection of eggs and down in commons and highlands were provided in the Hunting Act of 1899, in the sense that there was a general ban on egg collection from all sorts of birds, except those not protected during the spring close-season. There is dispute whether this regulation applied to the untenured land in Finnmark. An Amendment Act in 1932 placed the untenured land in Finnmark on a par with the commons elsewhere in Norway. The Hunting Act of 1951 provided in Section 51, fifth paragraph, that on State lands in Finnmark, the taking of eggs from all birds was prohibited except those excluded from protection. In Finnmark, villagers nevertheless enjoyed the same right to collect eggs on State land as the landowner enjoyed on his own land. The rule was perpetuated in the Wildlife Act of 1981, which applied until replaced by the Finnmark Act, which grants persons resident in any rural district in the county of Finnmark, the right on Finnmark Estate land to collect eggs and down, see Finnmark Act, Section 22, first paragraph, letter c). The Finnmark Estate can issue further rules regarding collection, see Finnmark Act, Section 27.

4.7 Freshwater fishing The Land Demarcation Decree of 1775 provided no further regulation of freshwater fishing. The first rules about that came with the Salmon Act (lakseloven) of 8 April 1905. For other, non-salmonid species in fresh water in the "major rivers", the principle that the benefit should accrue to common local use, was replaced by rules whereunder exploitation was free for all Norwegian citizens, see Salmon Act, Section 2, first paragraph. Yet the rule was not intended to apply in contravention of established rights, see Salmon Act, Section 7, which allowed for the local population to enjoy a protected position. The rule about free fishing was continued without amendment in the Act of 27 February 1930 concerning Salmon and Sea Trout Fisheries (lov av 27. Februar 1930 om laks- og sjøørretfiskeriene), Section 2. Until the Salmon and Inland Fishing Act (lakse- og innlandsfiskeloven) of 1964, inland fishing was free to all Norwegian citizens, and since then free to all Norwegian citizens resident in Finnmark. Under the Finnmark Act, Section 22, first paragraph, letter a), persons resident in a rural district in Finnmark shall have the right on Finnmark Estate lands to fish for inland fish using a net, and under Section 23, first paragraph, letter c), those resident in the county of Finnmark shall have the right to fish in water courses using a rod and hand-line. Section 26 of the Act allows the Finnmark Estate to lease out rivers and fishing lakes for up to ten years at a time. The Finnmark Act gives preferential rights to residents of Finnmark rather than visitors in regard to rod fishing, and gives preferential rights to residents rather than others in regard to inland fishing with a net.

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4.8 Cloudberries The exclusive right of the landowner to pick cloudberries for sale and household use in cloudberry patches in Nordland, Troms and Finnmark counties was enacted by special Act of 9 June 1854, and was incorporated in the Criminal Code by the Act of 8 June 1874, and perpetuated in the Penal Code of 1902, Section 400, second paragraph. For many years it was unclear whether the Penal Code of 1902, Section 400, second paragraph, also applied to what was called the State's unregistered land in Finnmark, or whether it only applied to normal, privately-owned land. The State's view was that the rule also applied on State lands, and that on account of the State's position as landlord, the State could issue regulatory provisions about cloudberry-picking on State lands in Finnmark. The County Governor of Finnmark issued such provisions on 7 July 1953, under which cloudberry-picking on the State's unregistered lands in Finnmark would not be permitted until further notice, except for permanent residents of Finnmark County. In Sverre Tønnesen's opinion, the Penal Code of 1902, Section 400, second paragraph, did not apply on State lands. He believed that the State, as landlord, could not, without special authority, intervene in the rights to pick cloudberries that the population had acquired due to immemorial usage and local customs, see Sverre Tønnesen: Land Rights in Finnmark (1979), page 276-278. Given the doubt that was raised regarding whether the State, as landlord, could issue regulatory provisions about cloudberry-picking on State lands in Finnmark, in 1977 a provision was added to the Land Sale Act, Section 5.a, first paragraph, whereby the right to pick cloudberries on the State's unregistered lands in Finnmark would be reserved, as a general rule, for the county's own population, see explanation above in respect of the Land Sale Act of 1965. The third and fourth paragraphs of the provision allowed individuals, groups or Village Residents to acquire sole rights to harvest specified cloudberry fields, provided the necessary restrictions were accepted, that such sole rights did not conflict with the special rights of others. The Finnmark Act, Section 23, first paragraph, letter d) prescribes that the residents of Finnmark County shall have the right to pick cloudberries on lands owned by the Finnmark Estate. Under the terms of the Finnmark Act, Section 27, the Finnmark Estate may lay down further rules governing cloudberry-picking. These powers have not been exercised.

4.9 Summary The laws and regulations so far reviewed show that the State governed the land and regulated the use of key resources in Finnmark increasingly from the second half of the 1700s. Regulation covered central uncultivated land resources and was administered by government bodies. Land demarcation was the purview of the county authorities, which from the 1760s started to issue claim- tickets, and later controlled and monitored the Royal Decree on Land Demarcation of 1775. The Land Sale Acts of 1863 and 1902 were almost exclusively implemented by civil servants, in central government and regionally. In 1864, a regulatory code was issued for the local bailiff, sheriff or tax-collector to undertake land sales and leasehold transactions. Following the Land Sale Act of 1902, a Commission was set up to oversee divestments. Over the years, various bodies, including the Land Sales Board, Land Sales Director and Land Sales Office were established to oversee the State lands in Finnmark. When hunting and trapping were not covered by the Land Demarcation Decree, the positive reasons for the decision seem to be the importance of hunting and trapping for the Finnmark Sami, and the alignment with the King's recognition that this was a matter of Sami customary law. When the Forestry Directorate, later Statskog, was established in 1957, the management of the State lands in Finnmark, which until then had been under the purview of the Ministry of Agriculture, was transferred to Statskog. The management of fishing and game hunting came under the Directorate of Natural Resources, but when the regulations were amended in the 1990s, management of fisheries was transferred to the Land Sales Office, and game management was transferred to Statskog. A review of the land sale arrangements was made by the Administrative Practices Working Party under the Sami Rights Committee in NOU 1993:34 Ownership and Management of Land and Water Rights in Finnmark, page 412 et.seq.. In Gudmund Sandvik's view, management in general may mean the implementation of laws and regulations, as set out in NOU 1993:34 Ownership and Management of Land and Water Rights in Finnmark, page 412. In that sense, laws, regulations and local byelaws show how the result must be, or should be, whilst a description of the management says more about whether the result has or will actually materialise. Based on this, the Land

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Tribunal will offer a description and an assessment of the use by villagers and others of the Disputed Area, local customs and legal perceptions, and the effects that regulation had in the Disputed Area.

5. Villagers' and others' use of Disputed Area, customs and local legal perceptions

5.1 Land management – land demarcation and lease tenure of uncultivated hayfields

5.1.1 Land demarcation The Land Demarcation Decree of 1775 had little impact in Unjárga/ Nesseby or other locations in East- Finnmark (Øst-Finnmark) in the initial years. In the first 20-30 years after the Decree was passed, land demarcation was almost entirely confined to West Finnmark (Vest-Finnmark), see Steinar Pedersen: Land and Water Use in Finnmark before WWI, collected in NOU 1994:21 Land and Water Use in Finnmark in a Historical Perspective, page 74-75 (new impression, page 85). According to Sverre Tønnesen, the Decree was by nature an agricultural law that paid little regard to Sami traditions, and this was one primary reason that the Coastal Sami population continued their semi-nomadic migrations until far into the 1800s, and were not particularly interested in demarcation of land claims. See Sverre Tønnesen: Land Rights in Finnmark (1979), page 133-134 and 150-151. The differences in land demarcation in the east and west of Finnmark County may still have several explanations. The Sami seasonal migrations in Varanger meant families frequented several homesteads in the course of a year, so it was inconvenient to have one homestead. Also, there were few people, and not much competition for space, see Steinar Pedersen: Land and Water Use in Finnmark before WWI, collected in NOU 1994:21 Land and Water Use in Finnmark in a Historical Perspective, page 75 (new impression, page 85). But another explanation could be that the custom of exclusive and collective usage was a key concept among the East-Finnmark Sami, and that the custom could be used to allocate the pasture lots. The Sami knew which pasture lots they could use, and which lots were used by neighbours. Therefore there was no pressing need to clarify individuals' rights to the parcels of land. Reference is made to Allan Kristensen: Samiske sedvaner og rettsoppfatninger – med utgangspunkt i studier av tingbøkene fra Finnmark for perioden 1620-1770 (Sami Customs and Legal Perceptions – based on studies of Court Records from Finnmark for the period 1620-1770), collected at NOU 2001:34 Sami Customs and Legal Perceptions (background material for the Sami Rights Committee), page 51-53. The area in Unjárga/ Nesseby seems hardly to have been impacted by State regulation until the announcement of the Land Demarcation Decree and the initial decades thereafter. The Finnmark Commission has found that the State's first known land demarcation in Unjárga/ Nesseby dates from 1824, and that in August 1830, a score of county deeds were issued to individuals in Vuonnabahta/ Varangerbotn. According to the Finnmark Commission, in the following years a not inconsiderable number of property title transfers and land surveys were conducted in the rural district. See Finnmark Commission Report Area 2 Nesseby, page 66. This documentation has not been submitted for perusal by the Land Tribunal, but there is no reason not to trust this information. The Expert Report for the Finnmark Commission refers to Nilsen (2003:17), who states that "a long time passed before the Sami even understood that they could purchase land and get a paper deed for it, the oldest properties on the Sami population's part are from after 1850", see NIKU Expert Report for the Finnmark Commission, page 95. Examples have been submitted of private unregistered properties in East-Finnmark, including one property in Unjárga/ Nesseby, which is reported in the Church Book for Vadsø in 1787. Furthermore, a memorandum has been submitted from the Finnmark Commission of 1826 which can suggest that on the northern side of Varangerfjorden, private unregistered properties had been surveyed and staked out without the owners receiving a deed. As already mentioned in the account of the Land Sales Act of 1863, land sales were prohibited in parts of Unjárga/ Nesseby during the period 1876-1895. The significance of the ban on land demarcation is unclear. In around 1900, however, Unjárga/ Nesseby was among the local districts in Finnmark where the greatest number of land claims (utmål) were lodged, almost ten a year, see Kirsti Strøm Bull: A Legal History of Land Sale Legislation in Finnmark in the Period 1775-1965 (2014), page 96-97.

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The State has leased out land for holiday cabins and Sami turf huts in the Disputed Area.

5.1.2 Uncultivated hayfields and fodder harvesting In Unjárga/ Nesseby, uncultivated hayfields became common towards the end of the 1800s when the horse revolutionised transport, so that most people transitioned to permanent residence. The uncultivated hayfields are important because the land around the farms did not provide sufficient winter fodder. The wilderness was cleared of birch and willow, and in some cases tens of decares of natural pasture were cleared. River grass was cut from a boat with a long-handled scythe. The hay was dried on the ground, cane scaffolds or hay-racks, and later stored on cane, stakes or luovve (storage racks). In addition to the land at two seasonal homesteads and natural hayfields in marshes, lakes and along all river valleys, it could even be necessary to undertake a winter harvest of marsh grasses and water grass protruding through the ice, including canes and thin willows and birch twigs, to have sufficient to survive the winter austerity, see Øystein Nilsen: The Varanger Sami (2009), page 35 and 42 et.seq. According to Prestbakmo, in addition to harvesting the natural meadows, in many places it was common to gather lichen, heather, leaves, dwarf birch, kelp and seaweed as fodder, although the scale of this harvest varied a great deal from one location to another. Unjárga/ Nesseby is mentioned as one of the places where gathering lichen was vital. The herders gathered lichen where the reindeer were unable to graze. The lichen pastures were distributed so that each family had its own parcel. Cane, heather and leaves were a more random harvest, depending on demand in the particular year. In the coastal and fjord areas, kelp and seaweed were important: they were stewed together with poor quality hay, fish left-overs, lichen and similar, see Hans Prestbakmo: Bruken av utmarksressursene i Finnmark i dette århundret (Use of Outfield Resources in Finnmark in this Century), collected in NOU 1994:21 Land and Water Use in Finnmark in a Historical Perspective, page 169 (new impression, page 212). Migration between two homesteads occurred right up to the Second World War. Horses made hay-making possible as far from the village as the lake at Suovvejávre/ Bergebyvannet (35-40 km). Hay was brought down on sleds in the winter. A turf hut was almost always erected on the natural meadow. After the transition to non- nomadic life, people continued to harvest at the disused homesteads, and by the 1950s there were therefore strident protests from people in Unjárga/ Nesseby against implementation of property divisions, as families wanted to continue harvesting the wild meadows, rather than occupying more coherent properties close to the farmsteads, see Øystein Nilsen: The Varanger Sami (2009), page 33-36. According to the Expert Report for the Finnmark Commission, the leasing out of the hayfields was largely a codification of a system that was already in place, in the form of an informal distribution of the harvest areas without interference by the authorities, see NIKU Expert Report for the Finnmark Commission, page 95. In the same report, it says that only some of the hayfields in Unjárga/ Nesseby were land claims, and they were harvested according to ancient custom, see Report, page 14. Some lease deeds have been shown to the Land Tribunal. For example, Mr Ole Persen Maja Meskelv was allowed to lease the uncultivated hayfield "Aljevæje" in 1869, which was a wild meadow "that by him for a long period has been utilised", according to the deed letter. This meadow admittedly lies just outside the Disputed Area, but was clearly leased on the basis of long use. According to Øystein Nilsen, not everybody had the formalities in order, but the villagers perceived the informal custom to be stronger than the formalistic letter. It seldom happened that people violated other people's harvest patch. People without a land tenure contract paid nothing to the State. The fodder fields were passed by family line, down through the generations, despite the lack of formal rights. If there were no life heirs, then remote relatives and even verddevuohtta (friendships) were the criteria to take over other people's fodder fields, see Øystein Nilsen: The Varanger Sami (2009), page 45 et.seq. Each family had its fixed places to cut wild grasses/ bladder sedge, and families could divide up areas between them, with clear boundaries that everyone respected, see Hans Prestbakmo: Use of Outfield Resources in Finnmark in this Century, collected in NOU 1994:21 Land and Water Use in Finnmark in a Historical Perspective, page 177 (new impression, page 223). Anton Hoëm maintains that customary laws applied both on the harvest fields that were superficially cultivated, on the uncultivated hayfields, and on the marsh meadows. Normally, the primary home was at the location offering the best livelihood. The other properties, which were largely inherited, were plots of land scattered

UTMA-2014-164739-E Page 27 av 53 about the village and outfields, as a manifestation of the family's historical ties, see Anton Hoëm (From Shaman to Scientist) (2007), page 434. The Land Tribunal has no reason to doubt that the uncultivated hayfields that were leased, were to a large extent a continuation of customary use and allocation of use. Still, in the circumstances, a large number of uncultivated hayfields were leased out in the Disputed Area. This may be due, in part, to the government officials having a personal interest in getting things organised. As Prestbakmo says in his report: "the Sheriff was keen to get things organised. He was paid for each claim he surveyed", see Hans Prestbakmo: Use of Outfield Resources in Finnmark in this Century, collected in NOU 1994:21 Land and Water Use in Finnmark in a Historical Perspective, page 168 (new impression, page 211). Documentation has been submitted showing that recorded leases covered more than 200 uncultivated hayfields in Unjárga/ Nesseby up to 1945. Almost half are in the Disputed Area. The NIKU Expert Report for the Finnmark Commission, page 95, refers to clearly incorrect information from other sources, that it was only in about 1920 that leasing of uncultivated hayfields started. A closer review of the documentation submitted shows that the uncultivated hayfields were surveyed and claimed in two main phases. The first demarcations took place over a 30-year period from 1857 to 1887, involving about 20 demarcated hayfields, most of which were granted between 1880-1887. The other flurry of demarcations occurred in the period from 1910 to 1919, with a clear peak in the years 1909-1911.

5.2 Timber and firewood The forests have been an important resource that were utilised as firewood, animal fodder, building material, and assorted tools and implements. Birchwood was an attractive fuel, and the annual consumption was normally 12-20 horse loads, or roughly 3-5 "cords" (each 2.2 cu.m). Both firewood and fodder were sledded home on winter ground. Bringing home the firewood was also an important job for horse owners, who often did this work as part of a barter system for neighbours who had no draught animal. The need for tools in the Coastal Sami's hunter-gatherer society was great, and the forests provided materials for all sorts of implements and structures. Even strips of birch bark from large trees were commissioned as roofing tiles, see Øystein Nilsen: The Varanger Sami (2009), page 53 et.seq and see Anton Hoëm (From Shaman to Scientist) (2007), page 433. As already noted, the rule in the Land Demarcation Decree whereby people could use the deciduous forest according to demarcation, stayed in place until the adoption of the Land Sale Act of 1965, which prescribed that on the State's unregistered lands, villagers had the right to be allocated leafy forest as firewood for home use. Tree cutting in Unjárga/ Nesseby seems initially to have been subject to a demarcation scheme under the County Governor's rules of 23 April 1874, when a general project was introduced for wood cutting in the deciduous forest throughout the county, see Finnmark Commission Report Area 2 Nesseby, page 88 with further reference to NOU 1993:34 Ownership and Management of Land and Water Rights in Finnmark, page 93-94. According to Prestbakmo, forest demarcation for firewood apparently did not become a fixed arrangement in Unjárga/ Nesseby until about 1920, see Hans Prestbakmo: Use of Outfield Resources in Finnmark in this Century, collected in NOU 1994:21 Land and Water Use in Finnmark in a Historical Perspective, page 170-171 (new impression, page 214). According to the Expert Report for the Finnmark Commission this may be true, but it does seem rather late, given that there were a number of poaching trials from Nord-Varanger in the latter half of the 1800s, in which violators were sanctioned for logging outside the demarcation zones. Wood cutting for firewood in Unjárga/ Nesseby gradually evolved to the point where a Forestry Inspector would allocate permitted areas, see Anton Hoëm (From Shaman to Scientist) (2007), page 432-434. According to the Expert Report for the Finnmark Commission, the forest is the one resource on uncultivated land that has been most strictly regulated in detail since way back in time. Written sources and interviews alike show that the general legal perception is that the population have a right to free timber for domestic use on former State land. Firewood demarcation is seen on this basis as a job for the State, and later the Finnmark Estate, as manager and police authority, rather than as landlord. Even though villages and families have utilised the same areas for generations, it is nevertheless not unusual that forest parcels are exchanged. The system of free parcel demarcation has been established for a century and has won general respect. See NIKU Expert Report for the Finnmark Commission, page 121-125.

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5.3 Peat and turf The Land Tribunal has seen Instructions dated 5 November 1898 for Inspectors of the County Peat Office in Finnmark. Paragraph 2 of the document instructs Inspectors to ensure, among other things, that "all peat-cutting on State land is performed according to the prevailing rules and issued instructions, and if this is not done, to report accordingly to the immediate superior", who was the Peat Master or County Governor. The Inspectors were instructed to survey their district at least twice a year, including once after cutting or staking out, see Paragraph 3. Peat that had been taken unlawfully was to be confiscated, see Part 7. Announcements were also submitted to the Land Tribunal from 1907, 1918 and 1929 which ban the stripping of heather turf, among other places in Unjárga/ Nesseby. The Expert Report for the Finnmark Commission provides a review of the uses and legal perceptions regarding peat. Although there may have been legal rules about extracting peat, none of the respondents interviewed recall any peat being demarcated, but it is a common view that families earned customary rights to their areas. Some interviewees remembered that there was a Peat Master who could come by and check that the cutting of peat was correctly done, see NIKU Expert Report for the Finnmark Commission, page 125-129. Cutting of peat in Unjárgga gielda/ Nesseby kommune persisted until sometime between 1940 and 1960. The peat was taken in May when the marshes had thawed sufficiently to lift the peat, and that was when it was first extracted. By midsummer's night it had dried, and was laid in a stack. A single household could get through 25- 45 stacks of peat, which amounted to 50-90 journeys by horse and sled. The common long sled was used. To transport peat or hay, a special peat rail, or hay rail, was fastened to the sled. Provided the distance to the homestead was not too great, it was possible to pull the peat fuel or hay by hand. Peat and hay could also be carried home in sacks, and in the case of peat this was especially true for "summer peat", which was the summer fuel. According to Anton Hoëm, as pressure on the peat marshes intensified, a system evolved whereby each household had special places to cut the peat, but no demarcation was performed, see Anton Hoëm (From Shaman to Scientist) (2007), page 432-434.

5.4 Hunting and trapping, collection of eggs and down According to Sverre Tønnesen, the importance of hunting declined greatly during the 1700s in Finnmark, but hunting still remained one of the key commercial elements for both Mountain Sami and Coastal Sami, see Sverre Tønnesen: Land Rights in Finnmark (1979), page 279. Steinar Pedersen notes that throughout the 1800s, hunting is described as a uniquely Sami livelihood in the County Governor's five-yearly reports. The Governors sometimes offered quite detailed opinions regarding what birds and animals were hunted for commercial purposes. Grouse stood out as particularly important, whilst fur pelts also provided a good return thanks to the trade with Russia. The Sami took seabirds for their flesh. The last elk was felled in Tana in 1850, and wild reindeer were mentioned as a hunted species as late as 1900. One Governor's report states that hunting was a valuable side-line for Reindeer Sami and Coastal Sami alike. The trapping of grouse in snares was particularly vital to the local economy. In Alta, Porsanger and Sør-Varanger it was not until the 1900s that sports hunting commenced on a tentative scale. This caused strong reactions and Mr Isak Saba, member of the Norwegian parliament (Storting) for Unjárga/ Nesseby, in 1907 tabled a motion with two other Finnmark MPs to delay the start of hunting for hare and grouse, and extend the season in winter. The motion was passed, see Steinar Pedersen (2001): From the Use of Natural Resources According to Sami Custom to Prohibition of the Sale of Land to Non-Norwegian Speakers, and Deonodat: A Village at the Head of the Tana Fjord, collected in NOU 2001:34 Sami Customs and Legal Perceptions, page 368-371. As already mentioned, hunting and trapping were free for any Norwegian citizen on State land in Finnmark until the Hunting Act of 1951. Hunting and trapping are traditionally a key commercial livelihood in inner Varanger, and in the first half of the 20th century, hunting and trapping were the main sources of income for some families. Grouse trapping was the most important, mainly using snares (for willow grouse/ ptarmigan) for sale, but also shooting expeditions for common/ rock ptarmigan occurred, see NIKU Expert Report for the Finnmark Commission, page 113. Continuing into the 1950s, it was common for young lads who had finished compulsory schooling and adult males without fixed employment to spend the winters trapping grouse. In the 1920s and 30s, good prices could be obtained for grouse. Typical volumes in the course of a winter might reach 200-400 birds for a two-man team, and in productive years up to 800-900 grouse, but there are instances when up to 1500 grouse were taken. Important trapping areas included Ánnejohmohki/ Jakobselvkroken and upper Bergebydalen, reports Øystein Nilsen: The Varanger Sami (2009), page 50 et.seq.

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Hans Prestbakmo discusses the legal perceptions and distribution of trapping areas for snare traps in Unjárga/ Nesseby: Village Residents had parts of the countryside where they set snares. They very rarely strayed into the neighbouring village's area. Once grouse trapping started in an area, other people stayed clear. From Unjárga/ Nesseby it is said that every family normally had fixed areas where they set traps. Others viewed these areas as belonging to the families in question, and respected that right, see NOU 1994:21 Land and Water Use in Finnmark in a Historical Perspective, page 172 (new impression, page 216), and confer: NIKU Expert Report for the Finnmark Commission, page 116. A number of NIKU informants verify these legal perceptions. Snare trappers had a customary right to their areas, and this was respected by others. At the same time, arrangements were flexible, so that snares could be located where the grouse were, and the boundaries between families were not clearly defined. NIKU sums up the situation by saying that snare trapping was an important livelihood and a primary source of income for individual families until the 1960s. It was a vital source of cash revenue from the interwar years until the end of the reconstruction period in the 1950s. Since then it has declined, but is still pursued, though on a smaller scale. The sales figures from poultry merchant Aage Pedersen in Deatnu/ Tana are variable, but there continue to be several thousand grouse in good years. Snare trapping is an ancient and unbroken tradition that persists to this day, see NIKU Expert Report for the Finnmark Commission, page 116-117. Both the petroglyphs/ rock paintings in Alta and other archeological finds show that elk were known in Finnmark as long ago as the Stone Age. The elk population in Scandinavia as a whole has varied a great deal over the centuries. While elk were very populous across most of Scandinavia until the 1700s, they had largely disappeared in most places by about 1800. In Finnmark, elk were again seen or shot from about 1900. Reference is made to Morten Günther, Steinar Wikan and Tor Arne Bjørn: Elgen i Pasvik (The Elk in Pasvik) (2001), page 6, and to Hans Haagenrud, Om elg og elgjakt på Varangerhalvøya (Regarding Elk and Elk Hunting on Varanger Peninsula), in Hjorteviltet (Deer Hunting) (2000), page 47. In Unjárga/ Nesseby the elk again made an appearance as an occasional guest in the first half of the 1900s, and some hunting took place there in the 1940s and 50s, see Øystein Nilsen: Varangerhalvøya nasjonalpark og lokale samiske interesser (Varanger Peninsula National Park and Local Sami Interests), Fylkesmannen i Finnmark (County Governor of Finnmark), Report no. 6-2003, page 14. After the Second World War the elk populations started to expand, and in 1961, Unjárga/ Nesseby was one of five municipalities in Finnmark where elk hunting was opened pursuant to the Hunting Act of 1951, see Hans Haagenrud, page 47. Elk hunting is now the most important form for local huntsmen in Unjárga/ Nesseby, where more than 100 elk are killed each year. In the initial years, elk hunts were under the control of the Forest Warden in East-Finnmark according to a bidding system. The present hunting arrangement provides rural district residents with a degree of privilege, since the allocations award 60 per cent of the hunting licences to locals. See for reference NIKU Expert Report for the Finnmark Commission, page 119. Collection of eggs and down was important among communities in coastal regions of Finnmark in immemorial times. The Varanger Sami collected eggs and down, see Øystein Nilsen: The Varanger Sami (2009), page 68. There is information to suggest that the local population collected eggs and down on Sjåholmen rock, and down on Løkholmen rock, see NIKU Expert Report for the Finnmark Commission, page 133. Just how extensive this activity has been in the Disputed Area is unclear. It is apparent from the Expert Report that drawing conclusions about people's legal perceptions or the unwritten rules for these resources, is a difficult matter. Still, it became clear from NIKU's interview transcripts that at one public meeting, there were such strong objections to a motion to protect Sjåholmen, that the Governor's officials could hardly get a word in, as the people saw the proposal as a threat to the common property of the local community, see Einar Eythòrsson and Alma Elizabeth Thuestad: NIKUs sakkyndige utredninger for Finnmarkskommisjonen (NIKU's Expert Reports for the Finnmark Commission) in Ottar, the popular scientific journal of the Tromsø University Museum, 5/2016, no. 313 page 32.

5.5 Freshwater fishing Inland fishing was unrestricted for all Norwegian citizens until the Salmon and Inland Fishing Act of 1964, and since then for all Norwegian citizens who are resident in Finnmark. Freshwater fishing has been vital to the people of Unjárga/ Nesseby. Within the rural district, there are many excellent fishing lakes and several salmon streams. Salmon, Arctic char and trout were caught in rivers and lakes, see NIKU Expert Report for the Finnmark Commission, page 104 et.seq.

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The lake Suovvejávri/ Bergebyvann is situated within the Disputed Area. The lake is described as a food parlour for the Nesseby people, and is also used by people from Vestre Jakobselv and Vadsø. The catchment Suovvejohčázádat/ Bergebyvassdraget, which runs out of Suovvejávri/ Bergebyvannet, has always been a highly productive river course. Until the 1960s-70s, the fish population was such that everyone who wished to, could at any time obtain table fish in the river in summer. The lake remains productive, and a few thousand Arctic char are taken every year from it. Before about 1950, there is talk of two annual expeditions for Nesseby inhabitants to the lake, first in connection with hay-making in the wild meadows, and then again later in the autumn to fish for winter reserves. It was normal to have large catches, which were salted and driven home by horse. According to the Expert Report for the Finnmark Commission, the scale of the fishery in the lake is hard to calculate, but it is said that a family could fish a couple of barrels for winter supplies. See NIKU Expert Report for the Finnmark Commission, page 106-107. The lake Suovvejávri/ Bergebyvann remains very popular, see Øystein Nilsen: The Varanger Sami (2009), page 46-47. Another water course, the Oarddovassdraget, which is now part of Båtsfjord Rural District, was very productive. The Varanger Sami long enjoyed almost exclusive fishing here. Even though there were many expeditions from the surrounding villages, they were in the minority, and became more significant only some years into the 1900s. After 1900, when the draught horse became more ubiquitous, there might be 10-20 annual expeditions up to Oarddojávri. On a single trip, you could catch 700-800 kilos of sea char (migratory char), salmon, trout and Arctic char, requiring two horses. The fish was used for private consumption and sale, primarily to neighbours in the village. When the mountain road across Båtsfjordfjellet was completed in 1955, production in Oarddojávri declined drastically. Other inland lakes on the Varangerhalvøya peninsula that were important to the Varanger Sami were Nástejávri/ Stjernevann and Geatnjajávri. Fishing for salmon and sea trout in Suovvejohka/ Bergebyelva and Vesterelv in Unjárga/ Nesseby has been leased out to the Hunting and Fishing Association in Unjárga/ Nesseby since 1956. Fishing in Annejohka/ Jakobselva, which for part of its length forms the boundary between Unjárgga gielda/ Nesseby Rural District and Vadsø Rural District, has been leased out to the Hunting and Fishing Association in Vadsø since 1952. According to the Expert Report, there have been no conflicts regarding these leases in Unjárga/ Nesseby, see NIKU Expert Report for the Finnmark Commission, page 111. A deed of lease has been presented showing that Storfjeldvandet lake, which we are told is probably today called Nordvivatnet, was leased out by the bailiff of Tana to Mr Karsten Schanche in the years 1879-1883. Nordvivatnet lies just north of the E75 road at Ceavccageagđi/ Mortensnes, in the southeast of the Disputed Area. According to Prestbakmo, unwritten laws governed the inland fishing rights in Unjárga/ Nesseby. Early in the 1900s, fishing was with nets in the lakes close to the winter quarters, some way inland. Turf huts were erected beside the lakes where they used to fish. Here we are told that each family had its own area, its lakes, that they utilised. They were handed down by inheritance, and no other people engaged in fishing as a livelihood in these lakes. The system seems to have prevailed right up to the last war, see Hans Prestbakmo: Use of Outfield Resources in Finnmark in this Century, collected in NOU 1994:21 Land and Water Use in Finnmark in a Historical Perspective, page 175 (new impression: page 220). On the other hand, in the Expert Report, it says that this description may need to be qualified based on the interview material, in the sense that it did not apply to all lakes. For example, there is the clear opinion that fishing in Suovvejávri/ Bergebyvannet was, and remains, a joint venture, and that fishing there has not been and is not the exclusive preserve of Nesseby residents. In other areas, where families were established in usage areas in outfields as a continuation of the usage of previous generations, the fishing lakes may be a part of the resource area connected with the family, or which the family feels a responsibility to safeguard. Here there is the opinion that the legal perception is consistent with the way people look at the cloudberry fields, usage is described as a continuation of a family tradition and a harvesting culture that also means a level of responsibility to protect the resources for later generations. Yet this does not represent a claim of exclusive usage rights, but is more an expectation that the established practices of families are respected, see NIKU Expert Report for the Finnmark Commission, page 109-110.

5.6 Outfield grazing for domestic livestock The area between Álddajohkka/ Meskelv and Vestre Jakobselv seems to have been used as cattle and sheep pasture from immemorial times. Domestic animals were common in all families associated with the Disputed Area until the 1950s. Animal husbandry was typically such that most families had a couple of cattle, and 10-20

UTMA-2014-164739-E Page 31 av 53 sheep, as a component in a combined livelihood that relied on fishing and haymaking on uncultivated land. Cattle grazing is less relevant today. Horses were common after 1900. In 1907, some 83 horses were registered in the rural district, and in 1949 there were 81. Sheep are understood to have grazed in close proximity to the villages. According to Nilsen, it was normal for sheep to return home daily, and be herded into a pen for the night. The reason for this practice was to protect against wolves, and also to milk the ewes. Even so, some sheep grazed further up in the forest all summer. See for reference Øystein Nilsen: The Varanger Sami (2009), page 43. In general, grazing pastures for sheep were used continuously for many hundreds of years. The scope was relatively stable for a long time, but from about 1995 there has been an increase in the number of grazing animals, which has sometimes led to conflicts between sheep farmers and reindeer herders, where the two species graze in the same area. The area between Álddajohkka/ Meskelv and Suovvejohka/ Bergebyelva river is currently used by Klubvik Grazing Society and Nesseby Old Norwegian Sheep Society (villsaulag). See for reference NIKU Expert Report for the Finnmark Commission, page 74 and 103. The Land Demarcation Decree in 1775 did not include any regulation of domestic grazing. According to Tønnesen, grazing of this kind had been going on for at least 200 years in the "Finnmark Commons", prior to the passing of the Decree, and the Decree can only be understood to mean that this grazing should continue as before. However, as already mentioned, clauses were written into deeds for outfield grazing, under the powers of the Land Sales Regulation of 1864. Later, the Land Sales Regulation of 1902 restricted the grazing rights, in the sense that a demarcated paddock/ enclosed pasture, should not prevent the future utilisation of the land, or its sale for cultivation and building. In 1955 the grazing rights allocated with land tenure were further restricted, because the competent authorities could restrict the grazing right, regulate grazing, move it from one place to the next without compensation, and at one year's notice demand complete relinquishment of the grazing right on State land with no compensation. In practice, people did not necessarily rely on paper documents, but perceived the grazing right as a common privilege for everyone living in the area, see NIKU Expert Report for the Finnmark Commission, page 103, with further reference to Hans Prestbakmo: Use of Outfield Resources in Finnmark in this Century, collected in NOU 1994:21 Land and Water Use in Finnmark in a Historical Perspective, page 168 (new edition, page 211). The Finnmark Commission has found that the original commons rights rule, whereby farmsteads in Finnmark have a right to graze livestock on the uncultivated land, has been retained in Unjárga/ Nesseby, both for properties established before 1864, and those after. It is a self-evident right for the number of animals that the property can feed in the winter, see Finnmark Commission Report Area 2, Nesseby, page 78.

5.7 Cloudberries As already noted above, in 1977 a provision was enacted in the Land Sales Act, Section 5.a, first paragraph, whereby the right to pick cloudberries on the State's unregistered land in Finnmark would be reserved, as a general rule, for the populations living in the county of Finnmark. The Legal Rights Working Party under the Sami Rights Committee reported that the Land Sales Act, Section 5.a, only crystallised an already-established legal standing, that the local population already enjoyed, on the basis of customary rights, based on their use and legal perceptions from immemorial times, and the lack of intervention by the authorities, namely that they had acquired a right to pick cloudberries on State land, see NOU 1993:34 Ownership and Management of Land and Water Rights in Finnmark, page 177-180. The special right that persons resident in Finnmark enjoy to pick cloudberries on the Finnmark Estate's land is now enshrined in the Finnmark Act, Section 23: Rights of persons resident in Finnmark, first paragraph, letter d: to pick cloudberries. The same Act, Section 27, prescribes that the Finnmark Estate may issue further rules for utilisation of renewable resources, including cloudberry- picking. According to the Administrative Practices Working Party under the Sami Rights Committee, the Land Sales Regulation, Section 8.a, empowered the Land Sales Office to administer the cloudberry resources on the State's unregistered land in Finnmark, including demarcation of the cloudberry patches. The Land Sales Authorities have been extremely reluctant to establish sole rights to cloudberry fields, and to the extent that they have done so, it was in the interests of small village communities with few or sparse nutritional resources in the areas Guovdageaidnu/ Kautokeino and Kárášjohka/ Karasjok. See the reference at NOU 1993:34 Ownership and Management of Land and Water Rights in Finnmark, page 512-515. For the local residents of Unjárga/ Nesseby, cloudberries were an essential foodstuff and supplement to the diet as the autumn and winter wore on, and also a highly valued source of revenue until the 1950s. In fact,

UTMA-2014-164739-E Page 32 av 53 cloudberries continued to be a useful cash crop into the 1990s for many locals. In the Disputed Area, there are many small marshes in the forest belt, and large berryfields in the highlands, in the areas south of Máddavárrene and Øvre Bergebydalen and Øvre Jakobselvdalen. Ánnejohmohki/ Jakobselvkroken is a popular destination for berry pickers from throughout the rural district. According to the NIKU Expert Report for the Finnmark Commission, page 134, the cloudberry resource has been divided and managed by the population itself, without significant State intervention. This is unlike the situation for firewood and peat. The most common method was to carry the cloudberries down. Pickers took what they could in backpacks, and from about 1930 they also used bicycles, and from the 1950s also mopeds and motorcycles. Even though horses were often spared, from the 1920s-30s horses were also used to bring in the cloudberry harvest, and from the 1960s onward tractors were employed, see Øystein Nilsen: The Varanger Sami (2009), page 48. In the NIKU questionnaires and interviews, it is clear that the cloudberry has been important both for private consumption and for sale, and that back in the 1950s it was not unusual to have expeditions on horseback lasting up to a week, with camping tents, cloudberry-picking, and fishing. Each village had its special spots: "The villages from Abelsborg in the west, Nesseby Rural District, and eastward to Hammernes, have frequented Bergebydalen, up to Jakobselv-kroken", see NIKU Expert Report for the Finnmark Commission, page 131-137. The NIKU report has a fairly comprehensive review of the legal perception regarding cloudberries. Altogether there seems to have been a clear understanding within the villages that the various families have their fixed marshes, but that there is seldom any direct reaction if people go into other people's marshes. At the same time as established usage is expected to be respected, it is nevertheless claimed that there is no direct exclusive usage right. Established turf huts and multipurpose use of family areas probably tend to support a family's claim, however. Beyond that, there were two clear rules that evolved: –Unripe picking is absolutely prohibited and is subject to social sanctions; –Nearby marshes are reserved for the elderly, the infirm and expectant mothers, who are unable to make a long journey.

5.8 Other people's use of the Disputed Area

5.8.1 Reindeer herding The Disputed Area is an ancient piece of countryside used by reindeer herders, since the Varanger herdsmen families (siida) have passed through the area for their migrations for a long time, as argued by the Reindeer Grazing District 6/5D. According to the Expert Report for the Finnmark Commission, reindeer herding in Unjárgga gielda/ Nesseby Rural District is split into two reindeer grazing districts: Reindeer Grazing District no. 6 Várjatnjárga and Reindeer Grazing District no. 5 D Unjárgga dálveorohat (Nesseby winter grazing district). These two districts are used by the same reindeer herders as are organised in the Várjjat siida. Winter grazing is largely inland on the southern side of Varangerfjorden, whereas the summer grazing takes place on the Varangerhalvøya peninsula in District 6, partly along the coast, but also within the peninsula in Unjárgga gielda/ Nesseby Rural District and in three other Rural Districts: Vardø, Vadsø and Båtsfjord. Reference is made to NIKU Expert Report for the Finnmark Commission, page 31 and 62-63. The use of areas by the Reindeer Sami of the Varanger siida in present-day Unjárgga gielda/ Nesseby Rural District and their legal predecessors, appears both stable and well-established. This is particularly true of the summer grazing, which seems to have continued on the Varanger Peninsula since the 1500s, and was frequented by quite large herds since the 1600s. Nevertheless, the Disputed Area is believed mainly to have been used as autumn and late summer grazing, and as a migration route in spring, see Finnmark Commission Report Area 2 Nesseby, page 46. It is believed that reindeer herding increased in scope from the beginning of the 1700s, with a recession in the mid-1700s, then expanded again in the 1800s. In 1850, the Varanger herd comprised an estimated 25,000 head of deer, whereas in 1901 and 1912 it seems to have been roughly 10,000 strong. The cause of the decline is clearly the closing of the national border with Finland in 1852, and the ensuing migratory restrictions. The Varanger Sami lost their prime winter grazing areas, and risked confiscation of ten per cent of the deer that strayed onto Finnish territory. The head count in Reindeer Grazing District no. 6 was fairly stable in the years 1984-85, with the lowest head count in 2000-01 of 7846, and a maximum head count in 2007-08 of 12,841. See for reference the NIKU Expert Report for the Finnmark Commission, page 65, and compare Øyvind Ravna, Reindeer Herding in Varanger – A Legal History, collected in Ottar 4/2014, page 23-26.

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According to the testimony that Mr Iver Per Smuk gave to the Land Tribunal, the reindeer herders in the district erected fences in the Disputed Area in the 1960s and 1970s in order to tag and slaughter the livestock. Otherwise, this Tribunal finds that the reindeer herders employed the Disputed Area for hunting, trapping, fishing, berry-picking, logging of trees for firewood, and cutting of bladder sedge, as informants revealed in the NIKU Expert Report for the Finnmark Commission, page 70. The Land Tribunal has formed the impression that sheep-farmers in recent years have started to use grazing areas which were not previously used to graze sheep, at the same time as reindeer herding has started using the areas close to the village for autumn grazing, see NIKU Expert Report for the Finnmark Commission, page 103-104. This was also illustrated during the inspection of the Disputed Area, when Mr Iver Per Smuk pointed out that reindeer trekked through the area near Unjárga/ Nesseby Parish, where also the witness Mr Øystein Nilsen confirmed that this was the case, but that there was no conflict since cattle were brought indoors for the autumn when the reindeer returned to the area.

5.8.2 Use of Disputed Area by permanent residents of Vestre Jakobselv The residents of Vestre Jakobselv (West Jakobselv) in Vadsø Rural District utilised the eastern parts of the Disputed Area for hayfields, hunting, fishing and cloudberry-picking. More details are described in Finnmark Commission Report Area 2 Nesseby, on page 130-135. The fishing resource in Suovvejávri/ Bergebyvannet lake has been exploited by people from Unjárga/ Nesseby and from Vestre Jakobselv, and the same is true for cloudberry patches in the eastern part of the Disputed Area, see NIKU Expert Report for the Finnmark Commission, page 106-107, 110 and 134-136. The overview of the uncultivated hayfields also suggests that residents in Vestre Jakobselv made use of these wild meadows in the Disputed Area. Almost certainly, they also put up turf huts nearby the hayfields. The Finnmark Commission has concluded that the people of Vestre Jakobselv have a share in the general usage rights for uncultivated land within an area that extends roughly five kilometres from Ánnejohka/ Jakobselva, into the Disputed Area, for as far as the river forms the boundary between Unjárgga gielda/ Nesseby Rural District and Vadsø Rural District, northward to Ánnejohmohki/ Jakobselvkroken.

5.8.3 Grazing Societies' use of the Disputed Area The local sheep grazing societies, namely Klubvik Sheep Breeding Association (sauavlslag)/ Klubvik Grazing Society (beitelag) and Jakobselv Grazing Society (beitelag) have flocks of sheep on the pastures in the area from Vuonnabahta/ Varangerbotn to Jakobselv by arrangement with Finnmark Land Sales Office (Jordsalgskontor), later the Finnmark Estate. The grazing societies erected barrier fences along the road from Jakobselv to Suovvejohka/ Bergebyelva, with the permission of the Finnmark Land Sales Office. Later on, the barrier fence was extended west of Suovvejohka/ Bergebyelva river and from Álddajohkka/ Meskelva to Nyborg. In addition, flock separation fences and flock gathering fences have been erected. The sheep grazing societies have also reported that they have marked miles of gathering trails with twigs in order to be able to navigate the terrain. Today the sheep graze freely on the north side of the barrier fence, and a considerable number of sheep graze back and forth across the boundary between Unjárgga gielda/ Nesseby Rural District and Vadsø Rural District.

5.8.4 Other people's use of the Disputed Area Areas between Suovvejohka/ Bergebyelva river and Máttavárri in the centre of the Disputed Area were utilised for autumn hunting of small game by hunters who were not residents of Unjárga/ Nesseby, at least in 1924, 1928 and 1937. This may be deduced from Guest Books in a hunting lodge that was erected on a plot of land leased out for a turf hut in Suonjo. The number of hunters who registered in the Guest Books each year, from what has been shown to this Tribunal, seems to vary from 3-4 to no more than ten. According to the witness, Mr Thorbjørn Bjørklid, who presented the Guest Books, it seems that villagers served as porters for lodge owners, and that there were also other people from outside the village in the territory, particularly from "the upper class" in Vardø and Vadsø. Several witnesses testified that the northern and eastern parts of the Disputed Area were utilised by non-residents of Unjárga/ Nesseby for autumn small game hunting and fishing, from the 1960s and later.

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The municipal boundary with Deanu gielda/ Tana Rural District in the north of the Disputed Area is unlikely to have formed a firm boundary for usage, but use of the Disputed Area by residents in Deanu gielda/ Tana Rural District and Båtsfjord Rural District has not been illuminated, at least in respect of any usage before the end of the Second World War. Witness Karl Terje Sagen, who served in the Reindeer Police in the 1980s, testified that fishing and berry-picking were carried out in Ánnejohmohki/ Jakobselvkroken by people from Deanu gielda/ Tana Rural District, Vestre Jakobselv, Vadsø and Unjárga/ Nesseby.

5.9 Summary The review above provides a basis for concluding that the villagers of Unjárga/ Nesseby exploited all available forms of usage in the Disputed Area, at least until the mid-1900s. In the NIKU Expert Report for the Finnmark Commission, NIKU has charted the use of the areas and resources in Unjárga/ Nesseby. The mapping is based on responses received to a questionnaire carried out in connection with preparation of the report. The mapping is also understood to be based on information obtained in interviews with a selection of informants. This by no means offers a complete survey of usage, but offers a clear indication that the villagers have exercised an all- inclusive use. The usage linked to domestic animal husbandry, such as uncultivated hayfields/ wild meadows and grazing areas for cattle, sheep and horses, has been most extensive in the green belt north of Varangerfjorden, inland towards the mountain areas and in the valley catchment along Suovvejohka/ Bergebyelva river, inland towards Ánnejohmohki/ Jakobselvkroken, but also in the mountain areas around Máttavárri/ Sørfjellet. The usage areas for extraction of firewood, peat, freshwater fish, and other harvesting, like extraction of bladder sedge, berries, cane, eggs and down, show the same pattern, but for these uses the mountain areas were less popular. In terms of snare trapping and small game hunting, the mountain areas in the north of the Disputed Area were also used. See NIKU Expert Report for the Finnmark Commission, page 159-168. The total overview of all charted use gives the impression that usage has been more intense the closer the outfields lie in relation to the village. Most probably, the villagers' use was also more exclusive the closer the outfields lie in relation to the village. The NIKU questionnaire has been the subject of criticism. A letter from the Forum for Nature and Outdoor Life in Finnmark, dated 20 May 2010, was submitted to the Finnmark Commission, in which they maintain that the questionnaire was spurious and argumentative. The latter particularly applied to the question of legal perceptions, and where the response options offered little room for open answers. This criticism was the subject of comment by Einar Eythòrsson and Alma Elizabeth Thuestad in NIKU's Expert Reports for the Finnmark Commission, in Ottar, the popular scientific journal of the Tromsø University Museum, 5/2016, no. 313, page 26-33. Here it is apparent that roughly 10 per cent of the households in Unjárga/ Nesseby answered the questionnaire, and most responses were extremely comprehensive with clear markings on the map. When this material is collated with other documentation, the Land Tribunal sees no reason to doubt the main findings regarding usage as summarised above. Also other users have frequented the Disputed Area, but until the mid-1900s this use seems mainly to be restricted to the residents of Jakobselv in Vadsø Rural District, as regards the eastern part of the Disputed Area. Also, the reindeer herder Sami have traditionally used the inner parts of the Disputed Area for spring and autumn migrations from winter to summer grazing areas, and more recently increasingly also to areas close to the village. In some areas the State has exercised actual regulation and management of the uncultivated resources in the Disputed Area, but not in others. The distinction seems broadly to lie between what can be called management of commons-like rights on the one hand, and more general rights on the other. By "commons-like" rights, this Tribunal is referring to the rights that, under commons or freehold rights, are held by Village Residents to meet the farmstead's needs, such as the extraction of timber, peat-cutting, and grazing for domestic livestock. By "general rights" is meant those rights that have a broader range of users, like hunting, trapping, fishing and berry-picking. The clearest example of State management is the leasing of holiday cabin and turf hut plots, leasing of salmon streams, leasing of uncultivated hayfields, and demarcation of leafy forests. As explained above, the uncultivated hayfields were important since the land around the farms offered insufficient winter fodder. Based on the documentation reviewed above, there are solid grounds to conclude that demarcation of uncultivated hayfields in the Disputed Area broadly followed custom-based usage patterns.

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The forests have been an important resource for several usages, but have also been the resource that for the longest period has been regulated, and where unlawful extraction apparently also in some cases was punished by sanctions in the latter 1800s, if not in the Disputed Area, then at least in Nord-Varanger, as the Expert Report for the Finnmark Commission notes. Peat-cutting has also been the subject of demarcation, but this was for all practical purposes left in the villagers' own control. Clauses were incorporated for domestic grazing in the deeds, but also domestic grazing seems to have been left to the villagers' own use, without any further State control. The same is true for freshwater fishing, except when the salmon streams Suovvejohka/ Bergebyelva and Ánnejohka/ Jakobselva were leased out from the 1950s. There was free hunting and trapping until 1951, and after that, hunting seems to have been more closely regulated by the State authorities. Berry-picking is basically a component of the general public's rights of harvest. Even though picking of cloudberries has been the subject of special legislation, in practice cloudberry-picking was unrestricted for Village Residents in the Disputed Area. Administration of the outfield areas can also include distribution of usage areas by and among villagers, the Land Tribunal believes. In that sense, the villagers seem to have pursued a form of informal administration of the available cloudberry resources, and for snare trapping, by means of well recognised and accepted standards among Village Residents. The use and control of the more general rights, on the other hand, becomes less exclusive to the east in the Disputed Area, where there was also competing usage by the neighbouring village.

6. Legal points of departure

6.1 Reflections based on international law In order to adjudicate this case it is not necessary to undertake an in-depth analysis of the international law sources. However, it is relevant to mention the Indigenous Peoples Convention, ILO Convention no. 169 concerning Indigenous and Tribal Peoples in Independent Countries, which is incorporated within the scope of the Finnmark Act. The Convention was adopted in 1989. It is a revision of an earlier ILO Convention no. 107 concerning the Protection and Integration of Indigenous and Other Tribal and Semi-Tribal Populations in Independent Countries of 1957. The 1957 Convention was adopted with the idea that indigenous and tribal populations should be integrated and assimilated into the predominant national culture in order to survive. Norway did not ratify the 1957 Convention, in the belief that no such population groups as discussed in the Convention existed in Norway. In a recommendation to Parliament in 1984, the Sami Rights Committee reported in NOU 1984:18 The Legal Status of the Sami People, page 302-313, that developments had overtaken the basic belief in integration and assimilation expressed in the 1957 Convention. This fact was also recognised by the ILO, which in 1985 initiated work to revise the Convention. The 1989 Convention was ratified by Norway as the first country to do so in 1990, and Norway became bound in international law under the Convention in 1991, when it entered into force. As of today, the modern convention has been ratified by 22 countries. It was ratified by Norway as part of her commitments under international law. However, the Convention has not been generally incorporated into Norwegian law, but is incorporated and applies as Norwegian law within the scope of the Finnmark Act, see Finnmark Act, Section 3: Relationship to international law. The Norwegian Constitution, Article 92, which assumed its present form in the Constitutional Amendment of 13 May 2014, enjoins the State authorities to "respect and safeguard the human rights as embodied in this Constitution and within treaties on human rights to which Norway is bound". A Supreme Court Grand Chamber judgement on 16 December 2016 (HR-2016-2554-P, Holship), makes clear that the provision does not elevate all international human rights provisions to which Norway is bound by adoption of the present Article 92 in the Constitution, to the rank of the Constitution. So therefore, Article 92 cannot be construed as an incorporation rule, but must be understood as an injunction to the courts and other authorities to enforce human rights at the level where they are implemented in Norwegian law. See premise 70 in the judgement at HR-2016- 2554-P. For that reason, the ILO Convention will take precedence before the rules of the Finnmark Act, should there be any conflict between the two sources. If the Act does not deal with topics that the ILO Convention takes up,

UTMA-2014-164739-E Page 36 av 53 then the Convention will not have the same position in Norwegian law. A situation like this has to be resolved by the lawmakers. In other words, the courts cannot apply the ILO Convention to expand the Finnmark Act. See Recommendation to the Odelsting no. 80 (2004-2005), page 33. The view that the ILO Convention cannot be used "to expand the Finnmark Act" emphasises that incorporation was intended to be limited to the Finnmark Act's own provisions. Despite the Act regulating procedures to clarify rights, it does not regulate the material or substantive rules that form the basis on which the rights are clarified. Reference is made to the Supreme Court decision of 28 September 2016 (HR-2016-2030-A, Stjernøya), premise 76. The same judgement and ruling, in premise 77, by contrast states that "when applying the property law rules to rights acquisition, however, the Convention Article 14 (1) will apply, due to the application of the so-called presumption doctrine". This doctrine presumes that Norwegian law, whenever possible, shall be construed in accordance with international law. This must also apply to the Convention, Article 15. From the 1989 Convention, Article 15 (1) it follows that: "The rights of the peoples concerned to the natural resources pertaining to their lands shall be specially safeguarded". According to NOU 2007:13 Den nye sameretten (The New Sami Rights), page 614-615 (Sami Rights Committee 2), this implies that the areas and resource utilisation that takes place must receive some level of protection against actions and interventions that may threaten exploitation. "These rights include the right of these peoples to participate in the use, management and conservation of these resources" they have traditionally used. This does not mean that the indigenous peoples must be afforded decisive influence, but it does mean they must have active involvement in the decision process, through their representative bodies, or through the groups or individuals that this present case concerns most directly. According to the Sami Rights Committee 2, the management arrangements that have been established for the land in Finnmark through the Finnmark Estate, can help fulfil these obligations in the areas that Samis have utilised, but where their use has not been sufficient to form a basis for the recognition of ownership and possession rights. The same view is expressed by Professors Graver and Ulfstein in their international law assessment of a draft new Finnmark Act, see Hans Petter Graver and Geir Ulfstein: Folkerettslig vurdering av forslaget til ny Finnmarkslov (International Law Assessment of Draft New Finnmark Act), published 11 June 2004, page 37. Otherwise it follows from the 1989 Convention, Article 8, that "In applying national laws and regulations to the (Sami) peoples concerned, due regard shall be had to their (Sami) customs or customary laws." The Convention's land-rights provisions are compiled in Part II Land. The key provision concerning Land is found in Article 14 (1): "The rights of ownership and possession of the peoples concerned over the lands which they traditionally occupy shall be recognised". Furthermore: "Governments shall ... guarantee effective protection of their rights of ownership and possession", but shall have no obligation to establish new rights for the indigenous people. The rule distinguishes between areas where the indigenous peoples have been the dominant user group, and those areas which other groups have also used. In the first case, it may provide a basis for recognising ownership rights, and in the last case, a basis for recognising usage rights. Limited use by others therefore does not preclude the acquisition of property rights by virtue of exercising ownership from immemorial times, see HR-2016-2030-A (Stjernøya), premise 83. Given the Convention's Article 34 on flexible implementation, it must be assumed that a State fulfils Article 14 (1) if, when applying internal property law, it allows for cultural characteristics of the indigenous people's use and sense of justice. Furthermore, adjustments to the 1989 Convention can mean that the "good faith" test must be adapted to the Sami sense of justice, and factors that are characteristic for Sami utilisation of the natural environment, see Gunnar Eriksen: Alders tids bruk (Immemorial usage) (2008), page 343 et.seq. The Land Tribunal also refers to its remarks regarding how to interpret the Convention, Article 14 (1) in its judgement of 20 August 2015, concerning reindeer herders' claim to ownership title on parts of the land on Stjernøya (UTMA-2014-162528-3, UTMA-2014-164564). Comments by the ILO Committee of Experts on the Application of Conventions and Recommendations (CEACR), from 2009 and 2014, regarding Norway's pursuance of the 1989 Convention, based on the Norwegian State's reports for 2008 and 2013, respectively, seems to find that the process for clarification of rights in Finnmark seems to meet the requirements of the Convention. See their Observation (CEACR) – adopted 2009, published 99th ILC session (2010), and Observation (CEACR) – adopted 2014, published 104th ILC session (2015). Yet on both occasions the Committee has stated that it "trusts" that the rights analysis and recognition of usage and ownership rights under the Finnmark Act are consistent with the Convention, Article 14 (1) and Article 8. The Committee also asked the government to report on the progress in clarifying the

UTMA-2014-164739-E Page 37 av 53 rights, and how the Sami rights and interests will be safeguarded in the continuing process, in regard to stewardship of the uncultivated land. Among other international observations relating to the rights analysis in Finnmark, we can mention that the UN Special Rapporteur's report of 6 June 2011 remarked that the Finnmark Act is a compromise, designed to satisfy a multiplicity of Sami and non-Sami interests in the county of Finnmark, and that the Act had been commended by the Sami Parliament. Whether the Act will promote Sami self-determination and resource rights, will depend on how the Act is implemented over time. See Report of the Special Rapporteur on the rights of indigenous peoples, James Anaya – The situation of the Sami people in the Sápmi region of Norway, Sweden and Finland, dated 6 June 2011, paragraph 44. Five years later, another Report of the Special Rapporteur of 9 August 2016, was sharper in tone, because it noted that the Finnmark Commission had largely failed to find any basis for recognising individual or collective Sami ownership or usage rights, beyond the usage rights already recognised for all residents of Finnmark. The Special Rapporteur notes that such conclusions seemed to be based on the idea that the State's former active and extensive arrangements for land and resources, had extinguished the ownership and usage rights of the local population. The Report also notes that the State's historical interventions cannot give grounds for its continuing ownership: "... the State's earlier dispositions as the claimant of property rights in Finnmark cannot be considered to create law in order to support its continued ownership of land." The Report further points out that the Sami community's weakening links to its land areas and resources are a result of the former assimilation policy towards the Sami, and that the point of departure for clarification of rights should be the Sami's customary use, as enshrined in the UN Declaration on the rights of Indigenous Peoples, Article 26 (3), and the ILO's 1989 Convention, Article 8 (1). See, for reference, 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, dated 9 August 2016, paragraph 23-25 and 77. These observations that tie in with international law suggest that the Land Tribunal when applying internal Norwegian property and land-tenure law to the case issues in question, must have due regard for Sami customary usage and Sami legal perceptions, including aligning with the good faith standard for Sami legal perceptions and concerns that are characteristic of Sami exploitation of natural resources.

6.2 Regarding Sami legal perceptions, customs and formation of customary rights The term "Sami customs" is intended in a broad sense to mean customs that occur in the Sami areas. In all essentials they will be local customs. The research that has been done in this field shows extensive practices and customary rights in the Sami areas, see NOU 2001:34 Sami Customs and Legal Perceptions, page 28. Customs can refer to use of an area or natural resources, where steady use can evolve into a customary right due to usage and coordinated practices. Reference is made to Kirsti Strøm Bull: Reindriftens rettshistorie i Finnmark 1852-1960 (Reindeer Herders' Rights History in Finnmark 1852-1960), collected in NOU 2001:34 Sami Customs and Legal Perceptions, page 88. The terms "rettsoppfatning" (legal perception, sense of justice), "sedvane" (customs) and "sedvaneretts- dannelse" (formation of customary rights) therefore refer to human perceptions of what is right and wrong, and how these subjective ideas are manifested in human interactions. The actual use is the key thing. Legal perceptions are not individual, but are shared immediately and by practices over time by many. Formation of customary rights takes place when these perceptions become manifest over time, through physical actions, typically the use of natural resources, with effects on the legal positions of multiple people or groups. Formation of customary rights is in this sense a non-institutionalised formation of law with limited geographical impact, such as local customs, customs among Village Residents, or wider Sami customs. See Gunnar Eriksen: Tilvenningen til samisk kultur og rettstenking i norsk høyesterettspraksis. Om møtet mellom en muntlig og en tekstbasert rettskultur (Accustomisation to Sami Culture and Legal Thought in Norwegian Supreme Court Practice. Regarding the Encounter between an Oral and a Written Legal Culture), collected in Kart og Plan (Maps and Planning), 2002, page 230-247, on page 233. This brings the Land Tribunal over to the three Norwegian Supreme Court judgements which it seems most relevant to consider when adjudicating this case. The judgements affect the relationship between local users and the State as landlord in commons-like situations, and involve to a greater or lesser degree, also the application of customs when deciding the rights of local users.

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6.3 Svartskogen judgement (Rt-2001-1229) The Svartskogen case in 2001 concerned a dispute between the State and tenant farmers in Manndalen in the county of Nord-Troms. regarding the land-tenure rights to an outfield area of 116 square kilometres. The outfield was part of the ancient Skjervøy estate, which was sold to Joachim Irgens in 1666. Several changes of ownership later, the area was sold to the State in 1885. At that time, the relations between some of the permanent residents in Troms and the reindeer herders were strained. One key reason seems to have been that the border with Finland was closed to reindeer in 1852, so that many Kautokeino Samis went looking for new pastures for summer grazing. This led to a committee being set up in 1866 to investigate the situation and propose a solution. One of the proposals was to buy certain properties for reindeer herding. The proposal omitted Manndalen valley, but the Svartskogen area was purchased by the State with a view to erecting a fence right across the valley. However, the fence was never erected, and, according to the first-voting judge, there was no information of any serious usage conflict between permanent residents and reindeer herders, see judgement, page 1232. Following the land purchase in 1885, all use of Svartskogen had been exercised by the population of Manndalen, except for reindeer herding. Regarding the use, the first-voting judge concluded that almost from the very start of the division, the population of Manndalen, with the exception of reindeer herding, had exercised all the usage opportunities that Svartskogen offers. Persons from all registered farm estates had taken part, even though not all utilised the area equally intensively. The opinion had been that no individual farm had greater rights than others. Internally within the population in the valley, there had moreover been few conflicts regarding use, and where there were disagreements, solutions were found locally. Utilisation had changed in nature in line with what was natural during different periods. Briefly, the usage was characterised by continuity, it had been all-embracing, intensive and flexible, as the judgement states on page 1244. As regards good faith, the first-voting judge remarked that the population from long ago believed they had the right to utilise the "commons", see judgement, page 1244. The division of property may have reinforced this belief. The extensive use of Svartskogen had continued ever since the sale in 1885 without the State voicing any protest. Summer chalets had been established, meaning that the population transitioned to an entirely new way to exploit the area, without asking the State for permission to do so. From the late 1970s, the population had related to the State rather more extensively, especially after the National Forestry Service, Statskog, took over administration in 1980. Yet the first-voting judge found it unnecessary to discuss whether the conditions for acquisition of rights due to immemorial use were now no longer met. Since the subdivision in 1885, then for almost 100 years before the present, use had been exercised that included everything the area could be utilised for, and in the first-voting judge's opinion, this use was exercised in good faith. In the Svartskogen case, emphasis was put on the fact that a large part of the population were poorly versed in the Norwegian language, and that regard must be had for the fact that, between Norwegians and Samis, misunderstandings can arise in communication, because linguistic and cultural differences can cause one party to interpret the other incorrectly, see judgement, page 1249. Despite the villagers using different phrases for the nature of their rights, a unanimous Supreme Court found that the State was not the owner of the Disputed Area.

6.4 Stjernøya judgement (HR-2016-2030-A) The Stjernøya case concerned a claim from a reindeer grazing district and reindeer herding family that they were the owners of parts of Stjernøya island off Altafjorden. The claim did not succeed. The Supreme Court found, as already mentioned in Part 6.1, that the alleged rights could not be founded directly on ILO Convention no. 169 on Indigenous and Tribal Peoples. Yet the Supreme Court did make the point that property law principles are to take account of Sami traditions, see premise 85 in the judgement, which aligns with the ILO Convention, Article 8 (1), which states that, "In applying national laws and regulations" to Indigenous and Tribal peoples, "due regard shall be had to their customs or customary laws". The mission of the Finnmark Commission to report on the usage and ownership rights based on "current national law" is embodied in the Finnmark Act, Section 29: The Finnmark Commission. For this Tribunal's decisions, the same thing follows from Section 46: Relation to other legislation, second paragraph, confer

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Dispute Act, Section 11-3. According to the Supreme Court, this must mean that the State's earlier legal and physical interventions regarding the land in Finnmark will be included, in the normal way, when assessing claims of land tenure and ownership based on immemorial usage. The State had exercised ownership privileges on Stjernøya since the 1700s, and the island residents had also utilised the island's uncultivated resources. The Supreme Court found that there was insufficient basis to establish a property right based on occupation. Nor had usage been sufficiently intensive and dominant to establish property rights based on immemorial usage.

6.5 Beiarn-Skjerstad judgement (Rt-1991-1311) In the Beiarn-Skjerstad judgement, the question was whether the private parties had the right to utilise the forest on a commons-based or private legal framework, on what was undoubtedly the State's unregistered land in Beiarn and Skjerstad Rural Districts in Nordland. The private parties did not succeed in their claim. They held grazing rights, but no other usage rights. The State argued that in the 1700s and 1800s, felling of trees had taken place there, that far exceeded what was authorised in King Christian V's Norwegian Laws, NL 3-12-6. The first-voting judge said the felling had ended in about 1850, when a number of individuals were convicted of illegal logging. Since the exercise of timber rights had been stopped by consequent and long-standing administrative practices and criminal prosecution of those who violated the felling ban and other regulations, the view was established that the State, as landowner, had full control of the forest. The Supreme Court found that the logging rights had extinguished since "so much time had passed after the State in fact established itself as the normal owner of the forest, that this situation was now long since established".

6.6 Regarding established legal rights When the Finnmark Commission finds that the right to exercise control and manage resources in Unjárga/ Nesseby has over time passed to the State and subsequently the Finnmark Estate, the finding seems to build on the idea that the right to exercise control evolved into a so-called established right (festnet rettsforhold). Briefly, established right means that the established situation is accepted, even though it may build on a misunderstanding or other erroneous starting point, because it would be unhelpful to tear up an existing situation that has been established for a long time. According to Karl Arne Utgård, an established right means an arrangement which is relied on by both parties, and that the legal institution therefore as a rule will only be relevant where the arrangements are known to those to whom it applies. The standard of good faith is not so important for established rights. However, the passivity of the rights holders over an extended period is taken into account. In this case, the rights holders will be the Village Residents. The time horizon for established rights will be roughly the same as for immemorial use, which is about 100 years, in the range of 50-150 years, depending on the intensity and exclusivity of the use, see Falkanger and Falkanger: Tingsrett (Property and Land Tenure Law), 7th edition (2013), page 364-365. Based on the doctrine of established rights, the majority of the Legal Rights Working Party in the Sami Rights Committee concluded that the State was the owner of the unregistered land in Finnmark, see NOU 1993:34 Ownership and Management of Land and Water Rights in Finnmark, page 259 et.seq. This opinion has met with criticism in judicial theory. Gunnar Eriksen is highly critical of the conclusion. One point of appeal by Eriksen is that the arguments to say that the State has fulfilled the condition of use of the area, is hidden when you consistently speak as if the State has exercised "ownership privileges", without being able to take the discussion beyond a theoretical review of the ownership concept. According to Eriksen, it would have been difficult for the people of Finnmark to know when the State exercised ownership privileges and when it exercised administrative authority. Regarding the question of ownership rights, Eriksen believes that possession of a predominantly legal nature is not without effect or irrelevant, but rather we should consider whether the State's management in an overall assessment has been so extensive and exclusive that it can justify full property rights in private law, see Gunnar Eriksen: Alders tids bruk (Immemorial usage) (2008), page 303. It is a contentious issue whether established legal rights are an independent basis for land tenure acquisition. With reference in part to the Finnmark Act, preliminary works, Borgar Høgetveit Berg finds that established rights are just such an independent land tenure acquisition basis, see Borgar Høgetveit Berg: Hevd (Prescriptive Right) (2005), page 71, and see Proposition to the Odelsting no. 53 (2002-2003) regarding the Finnmark Act,

UTMA-2014-164739-E Page 40 av 53 page 37. According to Karl Arne Utgård, it was only with the Supreme Court's decision in 1937 concerning forestry felling rights in Follafoss commons (Rt-1937-158), that established rights were recognised as a separate legal basis, see Karl Arne Utgård: Bruk i alders tid (Use in Time Immemorial), collected in Jussens Venner (Friends of the Law), 2002, page 258-260. Also in (14-164739TVI-UTMA)/ , the assumption seems to be that established rights are an independent land tenure acquisition basis. Falkanger and Falkanger also seem to believe that it may be easier to speak of established rights than of immemorial usage, where it is not solely a matter of physical use and legal arrangements for a specific area, but where there are also "more extensive opinions" expressed through legislation, regulations and administrative practice, see Falkanger and Falkanger, op.cit., page 367. Gunnar Eriksen believes that established rights are not an independent acquisition basis, despite the wording. In his opinion, it is also incorrect to say that established rights are synonymous with immemorial usage, even though the purpose of both phrases is the legal idea that we should not unravel an established reality. According to Eriksen, a distinction must be drawn between those cases where established rights seem to be an acquisition basis, and those cases where the concept of "established" is simply an argument. The greatest importance that the idea of established rights has had is in cases where the commons rights, or uncultivated land rights, of villagers have conflicted with the State's interests, or those of some other major landowner, see Gunnar Eriksen: Alders tids bruk (Immemorial usage) (2008), page 286-287 Ernst Nordtveit finds that the expression "festnede rettsforhold" (established rights/ prescription) has probably arisen because it is a better fit than "alders tids bruk" (immemorial usage) in cases where it is not the case that anyone has directly acquired a right to a land area, but where the exploitation of an area which for a long time has been shared between several rights holders, has been organised in a manner that suggests a particular legal understanding. Accordingly, it seems as if Nordtveit looks at established rights as a variation of "lokal sedvanerett" (local custom), and compare also Gunnar Eriksen, who finds it just as appropriate to look at "established rights" as a form of local adaptation, similar to customary rights, see Eriksen, op.cit., page 293- 297. Nordtveit, too, believes one should be reluctant to accept established rights as an independent legal basis. There is clearly a risk that one accepts arrangements that the stronger party in a relationship has pressed through. According to Nordtveit, it is not easy to state with certainty whether the Supreme Court practice offers a basis to operate with established use as a separate "form of acquisition/ land-tenure", even though the Supreme court in the Vinstra judgement (Rt-1963-1263) and Beiarn-Skjerstad judgement (Rt-1991-1311) refused to examine the historical lines, but decided the cases on the basis of established opinions. See Ernst Nordtveit: Høgsteretts rolle ved utvikling av rettar til fast eigedom (The Role of the Supreme Court in Formation of Rights to Real Property), collected in Lov Sannhet Rett – Norges Høyesterett 200 år (Law Truth Justice – The Supreme Court of Norway 200 years) (2015), Schei, Skoghøy, Øie (editors), page 775-776. The question of whether established rights are an independent acquisition basis is not a defining one in this case, where the title to the land is not in dispute. The different views on the question expounded above, are nevertheless relevant also in this context. The Finnmark Act and the process used for mapping and recognising rights that the Act has promoted, intrinsically mean unravelling seemingly established rights, where the State has been the stronger party. This Tribunal considers the case to be a question of whether the State, or others, by their actions over time, have eroded the legal perceptions and original, custom-based stewardship rights of the villagers in the uncultivated resources, and whether, if so, this must be accepted as a situation that has solidified almost like a new custom. Just how much importance should be given to Falkanger and Falkanger's "more extensive opinions", is a sensitive issue, since in the Sami areas, it is not simply a matter of relating to laws, regulations and administrative practices, but more importantly, there is the Norwegian State's assimilation policy towards Sami and Kven, as the UN Special Report on Indigenous and Tribal People's Rights has recognised, see above in Part 6.1. This last factor will be rather subdued in the approach that the Land Tribunal is taking, since a time factor must be applied in order for "a new custom" to be said to have been established, see more about this in Part 8. Regarding the question of management rights to the resource exploitation in the Disputed Area, the Land Tribunal therefore finds that the topic of assessment will first and foremost be whether the State's claim of sovereignty and resource management has been so extensive and so intense that it has eroded the villagers' original management rights, local customs and legal perceptions, and so a new legal perception has been established over time.

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7. Assessment of Rural Association's claim based on their own arguments

7.1 Does the Finnmark Act, Section 5, second paragraph, protect the Rural Association's original rights to exercise control of the resources in the Disputed Area regardless of the State's later interventions? The usage rights in the Disputed Area that belong to the resident population in the tract of land from Álddajohkka/ Meskelva in the west, to the boundary between Unjárgga gielda/ Nesseby Rural District and Vadsø Rural District in the east, are the original rights that were established long before the State laid claim to land in the area. Neither the State's interventions nor other people's use of the Disputed Area have led to any extinction of the usage rights. The Finnmark Act, Section 5, second paragraph, provides that the Finnmark Act shall not interfere with the collective and individual rights that Samis and others have established by custom or immemorial use. The Rural Association is understood to be saying that Section 5, second paragraph, protects the Association's original stewardship rights over the resources in the Disputed Area, unprejudiced by later interventions by the State. The Land Tribunal refers here to the Supreme Court finding in the Stjernøya judgement, that the State's earlier legal and physical interventions over the land in the normal way will feature as elements in the assessment of property law claims to the land that Finnmark Estate is the registered owner of. This means that one has to examine the State's interventions also in this case, but nevertheless such that property law principles must be applied to Sami traditions, confer the account of the Stjernøya judgement above in Part 6.4. In the Land Tribunal's view, therefore, a concrete assessment must be made on the basis of the actual situation, as to whether rights exist that are covered by the Finnmark Act, Section 5. This assessment is made below in Part 8. If the villagers' original rights to exercise control of the usage rights have not been extinguished, then those rights must also enjoy protection under the Finnmark Act, Section 5, second paragraph. That means, if accurate, that the Finnmark Estate does not hold the right to administer the usage rights, confer also Section 21, second paragraph, of the Act. Reference here is also made to the White Paper: Proposition to the Odelsting no. 53 (2002-2003) for an Act relating to Legal Relations and Management of Land and Natural Resources in the County of Finnmark (the Finnmark Act), Commentary on Section 5, page 122: "Earned usage rights and property rights will thus fall outside the administrative system that is envisaged in the Act." The rule in the Finnmark Act, Section 5, second paragraph, also expresses the general principle that an owner must respect the rights that others have to the property, see Kirsti Strøm Bull: The Finnmark Act – The Finnmark Estate and Mapping of Rights in Finnmark, collected in Hans-Kristian Hernes and Nils Oskal, editors: Finnmarksloven (The Finnmark Act) (2008), page 153-156. This must be seen in the context that the rights acquired by immemorial usage or by custom/ prescription are protected, even if this is not apparent from the historical Land Register, see Land Registration Act (tinglysingsloven), Section 21, second paragraph. In the Svartskogen case (Rt-2001-1229) for example, the State's formal ownership had to yield to the Manndalen residents' rights established by immemorial usage. Although the Finnmark Act, Section 5, second paragraph here seems to express the obvious, there is rather more to this rule. When the Samis' rights are mentioned in particular, it is to emphasise that Samis' traditional use of lands and waters is a type of use that can form a basis for rights. The State has previously argued that the population's use of uncultivated resources was "tolerated use", and thus could not form a basis for acquired rights by custom or immemorial use. The rule makes it clear that such a view cannot stand, and that the use that has been practised can form a basis for the establishment of rights, see Proposition to the Odelsting no. 53 (2002-2003), op.cit., page 122.

7.2 Has the State acquired a prescriptive right that extinguishes the villagers' right to manage the uncultivated resources in the Disputed Area? The Land Tribunal has taken the starting point that the peoples of the Disputed Area, in the years before the State started to regulate the land, had its own, internal custom-based rules for distribution of the resources, that they controlled the resources they believed they had the sole rights to, and that they believed that they enjoyed such stewardship rights. It is useful to look on this as an original right to exercise control of the resources. Gradually as competition for the resources hardened, changing conditions led to collapse of the local social order, making it difficult for the villagers to themselves manage the resources. The Norwegian State became

UTMA-2014-164739-E Page 42 av 53 ever more involved through its interventions on the land, and as the regulatory power through its legislative and administrative actions. The Land Tribunal concurs with the Rural Association that the State has not extinguished the villagers' right to manage the uncultivated resources in the Disputed Area, see Prescriptive Rights Act, Section 9. Actual usage did not exist by the State, and legal initiatives do not provide a starting point for extinguishment of the rights of others, see Sivillovbokutvalet (Civil Code Subcommittee), Rådsegn 6 Om hevd (Recommendation 6 on Prescriptive Right), page 27. According to Mr Sverre Tønnesen, regulations and other instruments that put conditions in place so that the pre-existing use is organised and facilitated in the best interests of the users, cannot be considered a contrary custom established by the State. The same must apply, says Tønnesen, when the State has simply allowed uses to continue without any intervention, see Sverre Tønnesen: Land Rights in Finnmark (1979), page 77. Tønnesen's views are particularly relevant for the uncultivated hayfields that were parcelled in the Disputed Area. The Land Tribunal cannot see any other measures by the State that have extinguished the villagers' right to manage resources in the Disputed Area, so also from this viewpoint there is no extinguishment of rights. The State's regulation of timber extraction may be a different situation, and this is a matter to which the Land Tribunal will return in Part 8 of this judgement.

7.3 Can the State's legal interventions have caused the extinguishment of the right of the local population to exercise control over the uncultivated resources, due to non-statutory rights that have become established law? The Rural Association goes on to argue that the villagers' right to exercise control over the uncultivated resources has not been extinguished by a non-statutory right that has grown up or become an established right. The heart of this argument is that legal interventions by the State cannot legitimise the extinguishment of rights. This argument touches on a key issue in this case, namely whether the State's interventions, although essentially all of a legal nature, can nonetheless have led to the transfer of stewardship rights over individual resources, in whole or in part, to the State. The Land Tribunal believes the legal situation allows us to ask whether the State, by its actions over time, has eroded the legal perceptions of the villagers, and the original, custom-based stewardship rights over the uncultivated resources, and whether, if this is the case, that it must be accepted as a situation that has crystallised, essentially as a new custom. Reference here is made to the review above of the Beiarn-Skjerstad judgement (Rt-1991-1311) and the discussion of established legal standing. However, the Land Tribunal will return to this question below in Part 8. Here we will comment on the argument that it is the formal legal effects of the Veikvatnet judgement (Rt-1918- 454), which found that the State, by its active management during the 1800s, had become the owner of the forest, which justified the result of the Beiarn-Skjerstad judgement, explained in brief above. The Rural Association finds that this result would have been different, if the Supreme Court could solely rely on the applicable property law. They particularly refer to the fact that the first-voting judge raised the issue of whether it was "fair that farmers in Nordland shall be in a weaker position when it comes to utilisation of the State's unregistered land than farmers elsewhere in the country", and answered this question by saying that, if the established situation was to be changed, it would need a change in the law, or actions by the State as landowner. It is possible that the Rural Association is correct in its assumption, but it is also possible that the remarks by the first-voting judge were not intended to express anything except a view of what would be a natural division of functions between the courts and the lawmakers.

8. Conclusions regarding the right to control usage rights and resources

8.1 The villagers' usage of parts of the Disputed Area has been dominant So far in this discussion, the Land Tribunal has used terms such as "villagers" and "the permanent population/ residents of Unjárga/ Nesseby" to describe the local people's use of the Disputed Area. This is because also other permanent residents of Unjárga/ Nesseby, whose homesteads were west of Álddajohkka/ Meskelva, have almost certainly used the Disputed Area. The concept of Village Resident is by no means clearly defined, since the potential rights holders in this case could easily be a larger circle than the permanent residents in the tract of land between Álddajohkka/ Meskelva and the municipal boundary towards Vadsø. In a process intended to clarify the scope and content of the rights that Samis and others have acquired on the basis of custom or immemorial usage, or other basis, see Finnmark Act, Section 5, third paragraph, there is little sense in denying

UTMA-2014-164739-E Page 43 av 53 the village population in a Coastal Sami area the right to exercise control of resources and usage in uncultivated areas, on the grounds that permanent residents in the neighbouring village in the same Coastal Sami area may enjoy a similar right. As noted above, it is natural to imagine that the villagers of Unjárga/ Nesseby had established an original right to exercise control of the resources in the Disputed Area, before the State became involved in the area. In the Land Tribunal's opinion, the villagers' usage, in the years since then, has been dominant, with the exception of the belt along Ánnejohka/ Jakobselva. The use was not simply intensive, but seems also to have been exclusive in the areas near the village. That the use of the mountain areas in the north of the Disputed Area must have been less intensive, follows from the environmental conditions, see Rt-1967-101 (Junkerdalen), and Falkanger and Falkanger: Tingsrett (Property and Land Tenure Law), 7th edition (2013), page 336. Usage is largely identical with the Manndalen population's use of Svartskogen, even though Svartskogen, compared with the Disputed Area in this case, is more clearly defined by topography. All the relevant usage methods were exploited in the Disputed Area, at least until after the 1950s. It seems as if there were few conflicts regarding use, because the usage arrangements were based on custom and according to ancient habits. The use was established long before the State got involved in regulation of the area, and the use has been notable for its continuity, it was all-embracing and it was intensive. As already noted, other people's use of the Disputed Area until the mid-1900s was largely restricted to the population in the Jakobselv area in Vadsø Rural District, in regard to the eastern part of the Disputed Area. The Reindeer Herding Samis have traditionally used the inland parts of the Disputed Area for autumn and late- summer grazing for their herds, and as a migratory path in the spring. In recent years, reindeer husbandry has increasingly also made use of areas close to the village. Based on a similar usage basis, the Supreme Court found that the population of Manndalen had extinguished the State's title to Svartskogen, since they had also acted in good faith. In the Svartskogen judgement, the Supreme Court took account of the Sami sense of justice, as the court emphasised both its collective nature, and the fact that Sami legal perceptions have not distinguished sharply between property rights and usage rights. In Sami legal thinking, usage has been the central factor, see Gunnar Eriksen: Samiske sedvaner og bruk av naturressurser før og etter Selbu- og Svartskogdommene fra 2001 (Sami Customs and Use of Natural Resources before and after the Selbu and Svartskogen Judgements in 2001), collected in Kritisk Juss (Critical Jurisprudence), 2004, page 289-304, on page 303. With this as the starting point, it must also be possible to entertain something that is less than acquisition of an ownership title, namely that the villagers in a Coastal Sami area may still have retained an original right to exercise control over resources and their usage rights on State land, on the basis of the usage that is discussed above. In the Land Tribunal's assessment, the Svartskogen judgement also makes it clear that Coastal Sami Village Residents can acquire landowner rights to uncultivated lands, where reindeer husbandry has been practised and is still being practised. In Finnmark the general rule will be that Coastal Sami use of the natural environment and uncultivated lands takes place in areas where ordinary reindeer husbandry also takes place. The population in Manndalen and the Reindeer Herder Samis had for many years been the sole users of Svartskogen. The reindeer herders' use of the area did not prevent the permanent residents in the village to have acquired ownership rights to the uncultivated land areas. However, the question of reindeer husbandry use of Svartskogen was not discussed as such or examined as an issue. The approach must presumably be that we must assess the intensity of use of both the reindeer herders and the villagers. In the Land Tribunal's assessment, the use by reindeer herders does not prevent the villagers from holding a right to exercise control over the uncultivated resources and their usage rights in the Disputed Area. Reindeer Husbandry Inspector, Mr Kristian Nissen, drew up a map of the herdsmen families (siida) in Finnmark in 1911-1912. The summer pasture for the Varanger siida at the time was in Oarddajávri, outside the Disputed Area, the calving areas were just north of Govdoaivi/ Midthaugen, also outside the Disputed Area, but during the mating season in 1911 the herds of reindeer were in the east of the Disputed Area, between Suovvejohka/ Bergebyelva and Ánnejohka/ Jakobselva, east of Máttavárri/ Sørfjellet. Reference is made to the map shown in NIKU Expert Report for the Finnmark Commission, page 49. It can be seen from Ørnulv Vorren's study of pasture use and migration patterns in reindeer husbandry in Finnmark in the period 1953 to 1957, that at that time, the spring migration routes for Varanger siida passed through the Disputed Area south of Duottar-Cevvelaš, thence to Máttavárri/ Sørfjellet, thence to Boazoaivi/ Reinhaugen and across Suovvejohka/ Bergebyelva south of Suovvejávri/ Bergebyvann, then to ford across Ánnejohka/ Jakobselva out of the Disputed Area. The calving areas, the areas for summer grazing, and the

UTMA-2014-164739-E Page 44 av 53 mating grounds were outside the Disputed Area, further north and east on the Varanger Peninsula. The herd grazed on the summer pastures right up to the end of November, when it was situated on the south side of the Varanger Peninsula, towards inner Varanger, then trekked towards Sieiddá in Deanu gielda/ Tana Rural District. See, for reference, Ørnulv Vorren: Finnmarksamenes nomadisme (Finnmark Sami nomadism), Tromsø Museum Guides, Vol. IX, Part II, page 250-254, and compare Vol I, K 44-46. A comparison with present-day reindeer husbandry, as illustrated online at kilden.skogoglandskap.no, shows largely the same situation. Yet it can be seen that in addition to the spring migration routes described by Vorren, a migration route has also been established across Máttavárjeaggi, the large flat marshes south of Máttavárri/ Sørfjellet mountain. According to a contemporaneous account, they move along the southeastern slope of Máttavárri/ Sørfjellet to continue across the flat marshes between the upper reaches of the rivers Suovvejohka/ Bergebyelva and Ánnejohka/ Bergebyelva, see Øyvind Ravna: Reindriftssamer – Fire århundrer og åtte årstider med Varangersiidaene/ Boazodoallosámit-Njeallje jahkečuoáµi ja gávcci jágiáiggi Várjjátsiiddaigguin (Reindeer Herding Sami – Four Hundred Years and Eight Seasons with the Varanger siida) 2007, page 94. The online map of reindeer herding also shows that the Disputed Area is part of a larger gathering area, used in the autumn. Reindeer husbandry demands extremely large areas of land, and land requirements vary from year to year depending on weather, wind and pasture quality, see Rt-2001-769 (Selbu), page 789. These time scales, compared with present-day husbandry in the area, nonetheless give the predominant impression that the Disputed Area was largely a migratory area for the reindeer during spring migration, and that the area otherwise is, and has been, grazing and gathering areas for autumn migration, from summer grazing areas to winter grazing areas south of Varangerfjorden. The overall picture is that the villagers' year-round, comprehensive, enduring and – given the conditions – intensive use of the Disputed Area, dominates the reindeer herders' seasonal migrations and grazing footprint. The situation is different for the western villagers in Vestre Jakobselv and their use of the eastern-most part of the Disputed Area. Here too, this part of the Disputed Area must have been used by Varanger Samis in historical times, but from the mid-1800s, particularly due to Finnish migration into the Jakobselv area, the use by Jakobselv residents of this area for hayfields, hunting, fishing and cloudberry-picking increased. In many ways this use can be compared with the Nesseby people's use of the same area. As noted above, the Finnmark Commission has concluded that the population in Vestre Jakobselv have a share in the general usage rights on uncultivated land, in an area that extends roughly five kilometres from Ánnejohka/ Jakobselva into the Disputed Area, as far as the river forms the border between Unjárgga gielda/ Nesseby Rural District and Vadsø Rural District, northward to Ánnejohmohki/ Jakobselvkroken. In the Land Tribunal's assessment, this coexisting use by the Village Residents shows that the village people from Unjárga/ Nesseby did not enjoy dominant use of this part of the Disputed Area. For that part of the Disputed Area where villagers of Unjárga/ Nesseby have exercised the dominant use, the case situation indicates that they have an all-encompassing and exclusive usage right. In this area, there has hardly been any competitive use until the latter half of the 1900s, except for reindeer herders. In so far as there was other use, for example by hunters during the autumn hunt, it was hardly any impediment to the villagers, so that the question of preventing competing use has hardly been relevant. The question in what follows is whether the sense of justice regarding the Nesseby people's management rights for the exploitation of usage and resources in the Disputed Area has been eroded over time. In the Land Tribunal's opinion, this must at least apply for that part of the Disputed Area where there has been notable competing use by the Jakobselv people. Whether the villagers of Unjárga/ Nesseby and the villagers of Jakobselv can have shared an understanding that both user groups jointly have such a management right, is something that falls outside the remit of this litigation, so the question will be left open. A further assessment must therefore be restricted to that part of the Disputed Area where the villagers of Unjárga/ Nesseby have exercised a dominant use.

8.2 The scope and intensity of the State's interventions in that part of the Disputed Area where villagers of Unjárga/ Nesseby have exercised dominant use Regarding the question of whether the State has acquired the right to manage the resources in the Disputed Area, then as already noted it will be relevant to keep in mind how extensive and intensive the State's arrangements have been in the area. Moreover, the issue arises regarding what time span should be assumed in our assessment. For immemorial usage the time requirement is between 50 and 150 years, depending on the

UTMA-2014-164739-E Page 45 av 53 further details. Given the prevailing legal practice, then roughly the same time scale must apply to the question of whether a new local custom has taken root that constitutes an established right. The Land Tribunal starts with the point that adoption of the Finnmark Act must in all cases form one extremity of the assessment. One can ask if the time horizon must be further shortened, since the Finnmark Act was the result of objections over a long period from Sami advocates, against the State's ownership of the unregistered land in Finnmark. In that regard we can refer to Otto Jebsen and his considerations in NOU 1993:34 Ownership and Management of Land and Water Rights in Finnmark, page 282. It may also be the case that such objections started to come in only when the Sami in post-war years started to become conscious of the conflict between the official Norwegian doctrine of State ownership of "unregistered land" and their own sense of justice, see Jebsen, page 397. It is unlikely to be of decisive importance for the outcome of the decision whether the Finnmark Act forms the end point of the time horizon, or whether the time horizon is shortened somewhat. The assessment will in any case be complex, where the time factor is one of several elements. The Land Tribunal has failed to find any evidence of State intervention in the Disputed Area prior to the first land survey of an uncultivated hayfield in 1872. True, the Jacobselv meadows were parcelled in 1857, but the meadows are situated in the aforementioned belt along the river Ánnejohka/ Jakobselva. After that, a score of hayfields were parcelled in the period from 1882 to 1887. Prior to the 1880s, the State cannot have extinguished the villagers' perception that they were entitled to manage the resources in the Disputed Area. It must still have been custom that regulated the extraction of resources. It was also the custom that people moved between several homesteads along the north side of Varangerfjorden. The Coastal Sami adapted to seasonal variations in the natural resources and resource availability. From about 1900, seasonal migrations in Inner Varanger declined, but migration between two homesteads continued right up to the Second World War. This adaptation occurred in several places in Finnmark, and entailed that there was no primary connection with a farmstead. Even terms such as "innmark" and "utmark" (infield and outfield) are not necessarily very meaningful, either for the seasonal migration between homesteads, or even later when the Coastal Samis became residential. The infields and outfields provided a coherent material basis for existence where all forms of usage were employed. Uncultivated hayfields and outpasture were necessary since the land close to the farms did not provide sufficient winter fodder. In addition to the land from two seasonal homesteads, and the uncultivated hayfields in marshes, lakes and along all river valleys, it could be necessary to have a winter harvest of marsh grasses and water grass that stuck up from the ice, and of canes and thin willow and birch twigs to have enough to survive the shortage of fodder in the spring austerity. When assessing the local sense of justice, it must be remembered that this use took place, and these were the local adaptations to the natural resources. According to Hans Prestbakmo's report, referenced below, tenant farming of hayfields in the typical Sami districts seems to have been organised by unwritten laws. From Unjárga/ Nesseby we are told that only parts of the meadowlands were parcelled, otherwise the harvests proceeded according to ancient custom. We are told that hayfields were known right up to Ánnejohmohki/ Jakobselvkroken, 25-30 km into the peninsula. One informant reported that the main hay-making areas on marshlands were divided up, so that everyone had a piece, although there were no surveyed land claims, see Hans Prestbakmo: Use of Outfield Resources in Finnmark in this Century, collected in NOU 1994:21 Land and Water Use in Finnmark in a Historical Perspective, page 168-169 (new edition, page 211). This comports with Elina Helander's reflection [in Swedish] that "... external laws or rules can experience certain difficulties trying to be effective in such an environment. It is full of standards already. Those who wrote the laws and rules therefore find it difficult to get the population to live by the laws and rules. Briefly, we can establish that the Samis affected, as a social group, have developed local customs and a sense of justice that they are bound to follow, to a greater or lesser extent. Presumably it is the case that in large parts of North- Norway there are in practice two working legal systems, the law of custom and the statutes of the Norwegian State", see Elina Helander: Sami Sense of Justice in Tana and the Law in Deanodat), collected in NOU 2001:34 Sami Customs and Legal Perceptions (background material for the Sami Rights Committee), page 450, left- hand column. Prestbakmo reports that, everywhere, people collaborated on exploitation of the uncultivated land, and that people respected each other's use. Several elders reported that disputes were almost unheard of, and that everyone respected the unwritten laws for resource utilisation that applied in the local communities. Nobody asked who owned the land because what you were using belonged to the community, the Village Residents, and could be exploited by all in accordance with the unwritten rules that existed. Prestbakmo refers to one

UTMA-2014-164739-E Page 46 av 53 informant who said: "The idea that there should be any permit to harvest in the outfields did not exist". There was little intervention on the part of the authorities when it came to harvesting fodder on the uncultivated land. This seems to have been accepted as a right of usage, see Hans Prestbakmo: Use of Outfield Resources in Finnmark in this Century, collected in NOU 1994:21 Land and Water Use in Finnmark in a Historical Perspective, page 169 (new impression, page 212). Regarding the local sense of justice in Finnmark, Richter Hansen reports that we must assume that the established custom/ prescription (hevd) was commonplace all over Finnmark, particularly in the period between the wars. Many were engaged in farming without having their formal land-tenure rights in order, but it was clear that people behaved as if such a right existed. People respected each other's established custom. "Established custom in such situations was considered just as much a right as formal property rights. This is apparent, for example, from the fact that disputes about established rights for hayfields could generate just as much passion as if they were private property", says Einar Richter Hansen in Bruken av naturressursene i Finnmark fra 1918 til ca. 1970 (Use of Natural Resources in Finnmark from 1918 to about 1970), collected in NOU 1994:21 Land and Water Use in Finnmark in a Historical Perspective, page 290 (new impression, page 365). Regarding the question of when the State may have eroded the opinion of villagers, that they were entitled to manage the resources in the Disputed Area, we must also look at the language issue. Much of the local population of Unjárga/ Nesseby still remained poorly versed in the Norwegian language in the latter half of the 1800s, and some way into the 1900s. Reference here is made to what was previously mentioned, that something over 70 per cent of the inhabitants of Unjárga/ Nesseby were Sami in 1865, and that 10 years later the proportion was about 65 per cent. In 1900, the proportion of Samis was about 84 per cent. The Rural District then also included Polmak, which was separated from Unjárga/ Nesseby in 1903. According to Amund Helland: The Land and People of Norway, Finnmark County, Volume II (1906/1907), page 434, there were only nine Norwegian-speaking Samis among the total 1,262 Sami who were resident in Unjárga/ Nesseby and Polmak. According to Helland, very few Samis of the day could read a Norwegian newspaper and get any benefit from it, see Amund Helland, Volume III, page 150. The Finnmark Estate has referred to a number of factors that can support the idea that Norwegian proficiency was not so bad after all. They referred to the fact that teachers had to be proficient in both Sami and Norwegian in Unjárga/ Nesseby in 1867, and that also Sami residents purchased properties. They also referred to a transcript of ministerial books from 1885-1895 which show that both Sami and Norwegian were spoken at confirmations, and that otherwise there were many who spoke Norwegian in Unjárga/ Nesseby. This last point was made with reference to Jens Andreas Friis's ethnographic map of Finnmark in 1861. Still, the map does not seem to indicate any more than what has already been stated, that the proportion of Samis among the population was between 65-80 per cent, and varied across the decades in the latter half of the 1800s. Friis's map may suggest that there was a concentration of Norwegian families resident between Ceavccageađgi/ Mortensnes and Klubben øst (Klubben East) in the Disputed Area, 10-12 families all told, whilst the other population, roughly 40 Sami families all told, lived in the area from Boaresárku/ Bergeby to Álddajohkka/ Meskelva. As noted earlier, the uncultivated hayfields in the Disputed Area were surveyed in two main periods, with a clear focus on the periods 1880-1887 and 1909-1911, where Sami was still the dominant language in Unjárga/ Nesseby. In the Svartskogen case, much emphasis was given to the idea that much of the population were poorly proficient in the Norwegian language, and regard must be paid to the fact that in communications between Norwegians and Samis, misunderstandings may have arisen due to language and cultural differences, which may have meant that people interpreted each other in the wrong way, see Rt-2001-1229, page 1249. The existence of land-tenure agreements does not unequivocally prove that tenants accepted that they were without rights in the Disputed Area. The reason could just as easily be that they more readily acquiesced to an edict from the authorities, or that they saw benefits in being allocated a particular parcel of land, provided that it was respected by the other tenants, see Rt-2001-1229, page 1248. As noted earlier, the Land Tribunal has no grounds to doubt that the uncultivated hayfields that were leased to tenant farmers to a large extent were a continuation of the customary usage and division of usage. Parcelling of uncultivated hayfields is not in and of itself sufficient reason to conclude that the local sense of justice was eroded. But in any case, a good faith acquisition of collective rights does not require everyone in the group to be in good faith, see Rt-2001-1229 (Svartskogen), page 1249. The equivalent argument must apply to the

UTMA-2014-164739-E Page 47 av 53 question of whether the State has eroded a local sense of justice regarding the right to exercise control, since even if someone had perceived it that way, that does not abolish the rights of the community as a whole. The Demarcation Scheme that was introduced for peat by the Act relating to Peat-cutting on State Land in Finnmark from 1897 was explained by the need to conserve the peat marshes. The Act presupposed the appointment of a Peat Master and local wardens, see Sverre Tønnesen: Land Rights in Finnmark (1979), page 270. Yet it seems as if the demarcation scheme was only implemented to a very small extent in Unjárga/ Nesseby. Peat extraction lasted until between 1940 and 1960. Extraction seems to have taken place by local arrangement, without interference by the State, and can hardly have tended to erode the local legal perception, that the resource was subject to internal distribution among the Village Residents. The right to have pasture for livestock was regulated by clauses in land deeds, authorised in the Land Sale Regulation of 1864 and 1902. Bearing in mind the language situation and the large complement of Samis in Nesseby/ Unjárga, one can ask if the contractual regulation was understood, but in any case, the practical pasture arrangement was left to the villagers' own use and stewardship, without further State governance. Incidentally, one can also question whether the Finnmark Act confers any powers for Finnmark Estate to control pasture usage, given that livestock pasture is not among the usage rights that the Act, Section 27: Further conditions for utilisation of renewable resources and restrictions on such utilisation, can grant authority to exercise control of, see Section 22, letter a-f, and Section 23, letter a-e. The right to engage in hunting and trapping in the Disputed Area cannot be seen to have resided with the State as landowner. The Land Tribunal concurs with the Finnmark Commission, which with reference to the Legal Rights Working Party under the Sami Rights Committee, concluded that, for hunting and trapping of small game, the hunting right is not a right that has accrued to the State as landowner, but a larger or smaller circle of the commons. Reference here is to the Finnmark Commission Report Area 2 Nesseby (2013), page 109 and 112, and to NOU 1993:34 Ownership and Management of Land and Water Rights in Finnmark, page 168. In practice, trapping of small game was left under local control. Hunting of small game was unregulated until 1951. Hunting was administered in formal terms by the State for a fifty-year period before the Finnmark Act was passed, but it is clear from the description of the actual practice above, in Part 5.4, that hunting and trapping arrangements were made locally, and were an important source of income for many up to the 1960s. The hunting legislation is a regulatory law that cannot be said to have eroded the local sense of justice for the right to resources, and the customary distribution arrangements for extracting the resources. Hunting rights have not been leased out in the Disputed Area. It may be that big game hunting seems to be relatively modern, but the review above shows that the population of elks has varied a great deal over time, both in Finnmark and Scandinavia otherwise. Some elk hunting was also pursued in Unjárga/ Nesseby in modern times, before the hunting was formalised in 1961. The Land Tribunal concurs with the Finnmark Commission minority, that elk hunting in the Disputed Area is part of the original hunting rights that the local population of Unjárga/ Nesseby have earned for themselves, see Finnmark Commission Report Area 2 Nesseby (2013), page 111. Big game hunting has historical roots back to the wild reindeer hunting of the Varanger Samis, and illustrates that in a long time perspective, hunting forms also change and adapt to different times and conditions. The hunting rights of the local population in the Disputed Area must thus be considered to also include the right to harvest new hunt-worthy species. Both for small game and big game in this part of the Disputed Area, where dominant usage has been exercised by the villagers that this case concerns, the hunting rights and administration of those rights belong to the permanent population. Fishing rights in fresh water lakes in the Disputed Area are also something that cannot be seen to have been a right that belonged to the State as landowner. The Legal Rights Working Party of the Sami Rights Committee found that fishing rights in fresh water on State land in Finnmark do not belong to the State as landowner, but are a commons right that requires regulation, see NOU 1993:34 Ownership and Management of Land and Water Rights in Finnmark, page 162. The Land Tribunal concurs with this starting point. Still, there exists a special right for freshwater fishing for the villagers in the part of the Disputed Area where they have exercised dominant usage. Administration of the fishing rights lies with this permanent population. The fishing laws are a regulatory instrument that cannot be said to have eroded the local sense of justice for the rights to local resources and the customary distribution arrangements for resource extraction. The fishing by villagers in fresh water lakes has been unregulated. It seems that freshwater fishing was not actively managed by the State in practice. The Land Tribunal does not know of any case where fresh water is or was leased out in the Disputed Area, except for the leasing of the Nordvivannet lake between 1879-1883 to Mr Karsten Schanche, see Part 5.5 on freshwater fishing in this judgement.

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Cloudberry-picking has also in practice been left under local control. For collection of eggs and down, too, the State has not exercised any form of control in the Disputed Area. The general picture is that the State has only minimally effected any measures in the Disputed Area, and for the aforementioned usage areas, the Land Tribunal considers that the State's measures have not been sufficiently prolonged, comprehensive or intensive to erode the local sense of justice, and to take away what the Land Tribunal has deemed an original right to exercise control. The situation is different for regulation of fishing in the river Suovvejohka/ Bergebyelva, and for extraction of timber. Since 1956, the salmon stream Suovvejohka/ Bergebyelva has been leased out to the local Fishing and Hunting Association, which was established in that year, and which has actively managed fishing in the river. The lease arrangement originated in an enquiry of 26 March 1956, from the Association, to the Land Sales Foreman in Finnmark, to manage the river and its tributaries. The Rural District Executive Committee recommended, by decision of 27 March 1956, that the request be granted. It is clear from the decision that the Rural District had allocated funding for salmon steps in the Bergebyfossen rapids, and the steps were expected to be completed that spring. According to the Executive Committee, it was very important for the river to be regulated and for effective husbandry to be established. By the lease deed of 26 May 1956, "the foreman in Finnmark Land Sales Commission" leased to "Nesseby Parish Hunting and Fishing Association the State's fishing rights in Bergebyelva with tributaries in Nesseby Parish". The lease included "the fishing rights that the State may have at any time" in the water course, see Clause 1 in the lease deed. As mentioned above in Part 5.5, there were no local conflicts regarding control of the river. It seems that the arrangement was not in conflict with the interests of the villagers. Unlike for other freshwater fishing in the Disputed Area, the villagers, in the case of Suovvejohka/ Bergebyelva, have actively taken a stewardship role by agreement with the State. The lease arrangement has the hallmarks of a form of public law administration of the water course to create good conditions, see Ingvald Falch: Bygdelagsrettigheter til laksefisket i vassdragene i Finnmark (Rights of Village Residents to Fish for Salmon in the Water Courses of Finnmark), Institute of Private Law, University of Oslo, stencil series no. 188, page 99-100. The lease has not eroded the perception of local fishing rights, but is important for administration. The arrangement was promoted by local forces, the local population has aligned with the arrangement, and it seems in essentials to have been accepted locally for such a long period, that the State must be said to have acquired the right to regulate the fishing in the river by leasing it out, by the time the Finnmark Act entered into force. This right has been transferred to the Finnmark Estate. The forests are the single resource on uncultivated land that have been subject to strongest detail regulation since relatively long ago. Illegal felling was a criminal offence that was prosecuted in Nord-Varanger in the latter half of the 1800s. The general perception of justice is that the population has a right to fell trees for private use on former State land. The demarcation rules (whereby trees are designated for felling) are considered a job for the State, and subsequently the Finnmark Estate, as custodian and police authority, rather than as landowner, but the system of free parcel demarcation has been established over a century, and is generally respected. Forest demarcation was introduced before 1900, and it seems that the local population has for sufficiently many years held the view that the exploitation of the resource is controlled by the State. This part of the case content is therefore very similar to the Beiarn-Skjerstad judgement reported at Rt-1991-1311.

8.3 Conclusions The Finnmark Land Tribunal concludes that the State's interventions have not extinguished the rights of the permanent residents on the land between Álddajohkka/ Meskelva and the border between Unjárgga gielda/ Nesseby Rural District and Vadsø Rural District to manage big game hunting, hunting and trapping of small game, freshwater fishing, collection of eggs and down, cutting of peat for fuel and other household needs, picking of cloudberries, and livestock pasture in that part of the Disputed Area that is defined by the following boundaries: From where Álddajohkka/ Meskelva meets Varangerfjorden, thence going north along Álddajohka/ Meskelva, and further north along Elijasjohka and Geađgejohka, thence to where the road from Nyborg crosses Geađgejohka. From there, the boundary follows the road in a northeasterly direction to a point northwest of Davitvárri/ contour 451. From there, the area is bounded along a straight line running northwest across Govdoaivi up to the border with Deanu gielda/ Tana Rural District. From there, the area is bounded along the boundary with Deanu gielda/ Tana Rural District in a northeasterly direction, and then follows the boundary between Unjárgga gielda/ Nesseby Rural District and Vadsø Rural District, along Ánnejohka/ Jakobselva to a point roughly 670

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metres west of where the boundary for Varangerhalvøya National Park crosses Ánnejohka/ Jakobselva. From there, the area is bounded by a straight line running southeast to a point southwest of Suovvejávri/ Bergebyvannet roughly 460 metres west of the boundary for Varangerhalvøya National Park. From there, the area is bounded by a straight line running southwest to a point at Čoskajeaggi roughly 480 metres south of the boundary to Varangerhalvøya National Park. From there, the boundary follows a straight line east to Ánnejohka/ Jakobselva at Aldonneset. From there, the boundary follows the boundary between Unjárgga gielda/ Nesseby Rural District and Vadsø Rural District to Varangerfjorden. To the south, the area is bounded by the shorebreak in Varangerfjorden. The boundary is drawn on the map, and is enclosed on page 77 of this judgement. The map has been reduced and is not true to scale. The area within the boundary is about 395 square kilometres. The Land Tribunal's assessment of the evidence should basically suggest a judgement that is close to what was the Rural Association's original assertion, that the local population enjoy exclusive rights to use the Disputed Area, including the rights of management and administration, and rights to revenues from sale of hunting and fishing licences. Notwithstanding this, the claim has been modified during the case preparations, and the Land Tribunal will address the claim that was asserted in the Main Hearing. Yet the result must be that the administrative rights also include the economic return on these rights. As already noted, the administration of river fishing rights in Suovvejohka/ Bergebyelva is excluded from these rights. A solution involving a local right to exercise control over uncultivated resources is well recognised in Norwegian law. The Act relating to the Exploitation of Rights and Entitlements in the State Commons (The Mountain Act, Fjellova) of 1975 regulates administration of State Commons, with the exception of forestry operations and logging rights in forests. The State Commons are administered to a large extent locally, and revenues accrue to the local community. Even though the villagers engage in traditional uses, new forms of revenue and return have arisen, especially in the form of hunting and fishing licences. The Mountain Act Committee found in its Recommendation for an Act relating to the Exploitation of Rights and Entitlements in the State Commons (Innstilling om lov om utnyttelse av rettigheter og herligheter i statsallmenningene), page 6-7, as follows: "Given the theory of the State's ownership rights, on the other hand, Mountain Villages will not get the reward from modern forms of use, which today count far more than traditional usage by the villages. Recognising that mountain villages from ancient times have exercised usages of commons areas that were at all times relevant and economically viable, the Mountain Act Committee finds that mountain villages must assume all exploitation rights and all administration of the commons. This must be the result regardless of whether we build on a legal foundation, or build on economic arguments to ensure that mountain villages have a fair basis for existence/ livelihood. The draft law therefore aims in part to transfer the State's revenues in the State commons to the Mountain Boards..." The result that the Land Tribunal has reached builds on key Supreme Court practices, and is well consistent with the concerns that should be safeguarded under ILO Convention no. 169, Article 8, Article 14 (1) and Article 15 (1). Yet the Land Tribunal cannot exclude the possibility that other residents of Unjárga/ Nesseby may enjoy similar rights in the Disputed Area, wholly or in part. Therefore, a judgement is delivered whereby the population in the tract of land between Álddajohkka/ Meskelva and the border between Unjarga gielda/ Nesseby Rural District and Vadsø Rural District are awarded the right to manage the abovementioned resources, until a determination is made by binding judgement, or other basis, that is recognised in Norwegian law, that also others enjoy equivalent rights in whole or in part. As already noted, the Land Tribunal has discussed with the parties whether one might imagine that land owners and usage rights holders among the Village Residents have the right to take part in management of the uncultivated resources in the Disputed Area, regardless of the rules in the Finnmark Act regulating management of resources. The counsel were invited to comment on this approach in their pleadings. From both the plaintiff's side, and the defendant's side, this was rejected as a relevant approach. Yet the Land Tribunal still believes that the Tribunal has arrived at a result that is correct in substance, and one that also lies within the particulars of claim submitted by the parties. The delimitation of rights areas that the Land Tribunal has found also lies within the parties' particulars of claim. It is outside the jurisdiction of this Tribunal to decide on how the new administration of the Disputed Area should be organised. This must be resolved either by amendments to the law or by measures from those entitled to do so among the Village Residents and the Finnmark Estate.

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Given the result that the Land Tribunal has reached, there are no grounds to examine more closely the Finnmark Estate's claim, Count 2.

9. Legal costs This case concerns a claim for rights that were opposed by the Finnmark Estate, and it therefore follows from the Finnmark Act, Section 43, first paragraph, that the State must cover the parties' necessary expenses of the case. Unjárgga Gilisearvi/ Nesseby Rural Association failed to file any formal claim for award of legal costs in the procedure, which must be due to an error, since this was part of their claim when the Rural Association brought an action before the Finnmark Land Tribunal. Neither the Finnmark Act nor the preliminary works for the Act provide any detailed description of what should be deemed "necessary expenses" for the parties. The Dispute Act, Section 20-5, first paragraph, referring to assessment of reimbursement of legal costs, must, however, be assumed to offer further guidance, when determining whether expenses were necessary under the Finnmark Act, Section 43, first paragraph, second sentence. In this assessment, weight shall be afforded the necessity of the expenses, given their significance for the case, see Dispute Act, Section 20-5, first paragraph, second sentence. Expenses for counsel will basically be counted as a necessary expense. Moreover, expenses must be connected with the legal process and the actions must lie within the range of what was reasonable in order to safeguard the interests of the party in a sound and proper manner. Only expenses for work, investigations and so forth on questions which, in a generous assessment, can be said to be significant for the decision or progress of the case, will be necessary expenses. See the treatise by Schei et.al.: Tvisteloven (The Dispute Act), Commentary Edition, 2nd edition (2013), page 725-726.

Legal costs for Unjárgga Gilisearvi/ Nesseby bygdelag/ Nesseby Rural Association Mr Brynjar Østgård, Solicitor, has submitted costs on behalf of Unjárgga Gilisearvi/ Nesseby bygdelag/ Nesseby Rural Association of NOK 2,440,410.70 inclusive value added tax. The costs include the fees and outlays for Mr Østgård totalling NOK 1,185,433.70 inclusive VAT. His fee schedule covers 392 hours of work from assuming the post of counsel for the plaintiff in June 2015, until the completion of the Main Hearing. His fees for these hours amounts to NOK 1,094,000 inclusive VAT. The costs also include travel outlays and other outlays for Mr Østgård amounting to NOK 91,433.75 inclusive VAT. The costs also include fees for Mr Johan Chr Ravna, Solicitor, of NOK 465,750 inclusive VAT. This covers 207 hours, of which 90.5 hours were before the summons was filed, and the remainder were for case preparations until June 2015, when Mr Brynjar Østgård took over duties as counsel for the plaintiff. The Rural Association's costs also include fees and outlays to the legal assistant, Professor Øyvind Ravna, of NOK 789,227 inclusive VAT, of which NOK 765,062.50 is fees for a total of 390.25 hours of work. The Finnmark Land Tribunal finds that the costs were necessary. The case concerns issues that have not previously been addressed by the courts. Extensive documentation has been presented by the plaintiffs. This material was largely relevant to the case. The Land Tribunal has particularly considered whether the replacement of counsel by the plaintiffs should result in any reduction in costs liability for the State, but finds that there is no basis for doing so. Mr Johan Chr Ravna, Solicitor, provided a not-insubstantial volume of documentation before and after the summons was filed, and the case was largely prepared for the Main Hearing before the plaintiff's counsel was replaced. The Land Tribunal finds that the replacement of counsel did not result in additional work of any significance, and has no objections to the costs schedule submitted. Mr Johan Chr Ravna has received a prepayment of NOK 411,187.50 inclusive VAT. Mr Brynjar Østgård has received a prepayment of NOK 877,876.46. Professor Øyvind Ravna has received a prepayment of NOK 671,085. The total paid in advances is thus NOK 1,960,148.90. Following this, the State must pay NOK 2,440,410.70 inclusive VAT to Unjárgga Gilisearvi/ Nesseby Rural Association to cover necessary expenses of the case. Prepayments to Mr Johan Chr Ravna, Solicitor, Mr Brynjar Østgård, Solicitor, and Professor Øyvind Ravna, Legal Assistant, totalling NOK 1,960,148.90 are deductible. The remainder is NOK 480,261.10 to be paid to the plaintiff care of Mr Brynjar Østgård, Solicitor.

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Legal costs for the Finnmark Estate Ms Kristin Bjella, Solicitor, has submitted costs for the Finnmark Estate totalling NOK 1,478,409.65 inclusive value added tax. The costs cover the solicitor's fees for Mr Håvard Sellæg Aagesen up to the Reply, with 50 hours of work, equal to NOK 93,750 inclusive VAT. The costs also include solicitor's fees for Mr Aagesen for 10 hours up to the Main Hearing equal to NOK 13,125, and for Ms Bjella up to the Main Hearing for 333.25 hours, equal to NOK 1,184,156.20, both sums inclusive of VAT. The costs also cover the solicitor's fees for Ms Bjella for 31 hours up to conclusion of the case, equal to NOK 116,250 inclusive VAT. The costs also cover outlays for the preparation and printing of facts bundles and legal bundles, travel expenses and accommodation etc totalling NOK 71,128.40. The Finnmark Land Tribunal has no objections to the costs schedule submitted. Accordingly, the Norwegian State shall pay NOK 1,478,409.65 inclusive VAT to the Finnmark Estate to cover necessary expenses of the case.

Legal costs for Reindeer Grazing Districts 6/5D Reindeer Grazing Districts 6/5 D have acted as party assistant in support of Finnmark Estate. As already noted, this case concerns a claim for rights that were opposed by the Finnmark Estate, and the State must therefore cover the parties' necessary expenses of the case, see Finnmark Act, Section 43, first paragraph. Neither the Finnmark Act nor the preliminary works for the Act deal with the situation where a party assistant acts on behalf of one of the parties. The Finnmark Act must be supplemented by the Dispute Act wherever the latter applies to the jurisdiction of the Finnmark Land Tribunal, see Finnmark Act, Section 46, second paragraph. The rules defining parties in the Dispute Act, Chapter 20, regarding legal costs will apply in the same way for party assistants, see Dispute Act, Section 20-1, third paragraph. Based on this, the Finnmark Land Tribunal finds that the State must also cover the Reindeer Grazing Districts' necessary expenses of the case. Mr John Jonassen, Solicitor, has reported the costs of Reindeer Grazing Districts 6/5D as NOK 244,279 inclusive value added tax. The costs include the solicitor's fees for Mr Jonassen totalling NOK 222,750 inclusive VAT. The other costs concern travel expenses. The Finnmark Land Tribunal has no objections to the costs schedule submitted. Following this, the Norwegian State must pay NOK 244,279 inclusive VAT to Reindeer Grazing Districts 6/5D to cover necessary expenses of the case. The decisions of the Finnmark Land Tribunal may be appealed directly to the Supreme Court of Norway provided the appeal is not blocked under the Finnmark Act, see Finnmark Act, Section 42. This judgement is unanimous.

CONCLUSION OF JUDGEMENT 1. With the exception of management of fishing in Suovvejohka/ Bergebyelva, the management authority of the Finnmark Estate under the Finnmark Act does not include management of hunting for big game, hunting and trapping of small game, fresh-water fishing, collection of eggs and down, cutting of peat for fuel and other household uses, picking of cloudberries, or management of livestock pasture in an area on the Finnmark Estate's land, from where Álddajohkka/ Meskelva meets Varangerfjorden, thence going north along Álddajohka/ Meskelva, and further north along Elijasjohka and Geađgejohka, thence to where the road from Nyborg crosses Geađgejohka. From there, the boundary follows the road in a northeasterly direction to a point northwest of Davitvárri/ contour 451. From there, the area is bounded along a straight line running northwest across Govdoaivi up to the border with Deanu gielda/ Tana Rural District. From there, the area is bounded along the boundary with Deanu gielda/ Tana Rural District in a northeasterly direction, and then follows the boundary between Unjárgga gielda/ Nesseby Rural District and Vadsø Rural District, along Ánnejohka/ Jakobselva to a point roughly 670 metres west of where the boundary for Varangerhalvøya National Park crosses Ánnejohka/ Jakobselva. From there, the area is bounded by a straight line running southeast to a point southwest of Suovvejávri/ Bergebyvannet roughly 460 metres west of the boundary for Varangerhalvøya National Park. From there, the area is bounded by a straight line running southwest to a point at Čoskajeaggi roughly 480 metres south of the boundary to Varangerhalvøya National Park. From there, the boundary follows a straight line east to Ánnejohka/ Jakobselva at Aldonneset. From there, the boundary follows the

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boundary between Unjárgga gielda/ Nesseby Rural District and Vadsø Rural District to Varangerfjorden. To the south, the area is bounded by the shorebreak in Varangerfjorden. 2. The permanent residents in the tract of land between Álddajohkka/ Meskelva and the boundary between Unjárgga gielda/ Nesseby Rural District and Vadsø Rural District enjoy the sole right to manage the usage rights mentioned in Conclusion of Judgement Count 1, and to dispose over the economic yield on those, until a determination is made by binding judgement, or other basis, that is recognised in Norwegian law, that also others enjoy equivalent rights in whole or in part. The rights do not include management of fishing in Suovvejohka/ Bergebyelva. 3. The Norwegian State shall pay NOK 2,440,410.70 (two million, four-hundred and forty thousand, four hundred and ten Norwegian kroner and 70 cents) to Unjárgga Gilisearvi/ Nesseby Rural Association to cover necessary legal expenses of the case. A deduction will be made for prepaid expenses of NOK 1,960,148.90 (one million, nine hundred and sixty thousand, one hundred and forty-eight Norwegian kroner, and 90 cents). The remainder, NOK 480,261.10 (four hundred and eighty thousand, two hundred and sixty-one Norwegian kroner and 10 cents) is payable to the Plaintiff, care of Mr Brynjar Østgård, Solicitor. 4. The Norwegian State shall pay NOK 1,478,409.65 (one million, four hundred and seventy-eight thousand, four hundred and nine Norwegian kroner, and 65 cents) to the Finnmark Estate to cover necessary expenses of the case. 5. The Norwegian State shall pay NOK 244,279.00 (two hundred and forty-four thousand, two hundred and seventy-nine Norwegian kroner, 00 cents) to Reindeer Grazing Districts 6/5D to cover necessary expenses of the case.

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