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. UTMA-2014-164739-E Page 1 av 53 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 UTMA-2014-164739-E Page 2 av 53 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 7.1 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? 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 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? 43 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 UTMA-2014-164739-E Page 3 av 53 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." UTMA-2014-164739-E Page 4 av 53 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).