A/HRC/18/35/Add.2
County. The act establishes the Finnmark Commission, which has a mandate to identify
rights to lands and water that have not yet been recognized.30 After its investigation, the
Commission is to issue a report containing information concerning: “(a) who, in the view of
the Commission, are owners of the land; (b) what rights of use exist in the Commission’s
view; and (c) the circumstances on which the Commission bases its conclusions.”31 The act
also establishes the Uncultivated Land Tribunal for Finnmark, which is a special land rights
court mandated to consider disputes about land rights related to the conclusions of the
Finnmark Commission.32
49.
Given that the process for identifying rights to land under the Finnmark Act is
currently under way, the adequacy of the established procedure is not yet known.
Nonetheless, the Finnmark Act is undeniably an important development and is potentially a
good practice for securing indigenous land rights. However, while rights to ownership and
rights to use for Sami individuals and groups on occasion have been identified and
recognized in the regular court system in Norway, there are currently no specialized
mechanisms in place to identify Sami land and resource rights outside Finnmark County,
which remains an outstanding concern.
50.
The Special Rapporteur heard particular concerns about the land rights situation in
Sweden. The Swedish Supreme Court has recognized in principle that Sami traditional land
use and occupation can give rise to property rights.33 However specific reindeer grazing
areas have not been officially demarcated in Sweden. Importantly, the Government created
a Boundary Commission to identify lands traditionally used by the Sami people, which
issued its report in 2006, although the Government has not yet moved forward to implement
the findings of the Commission.34 In this connection, the Committee on the Elimination of
Racial Discrimination expressed “concern about the limited progress achieved in resolving
Sami rights issues” and recommended that Sweden “take effective measures to ensure that
studies conducted in the area of Sami rights result in concrete action, including the adoption
of new legislation.”35
51.
Compounding the difficulty faced by Sami in securing rights over lands and
resources is the fact that Swedish courts place the burden of proof on Sami claimants to
demonstrate land ownership. In order to prove rights based on traditional use and
occupation through judicial procedures, Sami must document a minimum of 90 consecutive
years of use of the area claimed. This requirement is especially difficult to fulfil given that
Sami tradition is to leave no physical marks on the land that is used for grazing and other
purposes. The Human Rights Committee has recommended that Sweden “introduce
legislation providing for a flexible burden of proof in cases regarding Sami land and
grazing rights, especially where other parties possess relevant information.”36 The high
burden of proof requirements result in costly court processes, and Sami people in Sweden
often lack the financial resources necessary to pursue land claims. The legal aid system in
Sweden does not provide financial support for Sami people towards this end, a concern also
previously raised by United Nations treaty bodies.37
30
31
32
33
34
35
36
37
14
Finnmark Act, sections 5, 29.
Ibid., section 33.
Ibid., section 36.
Taxed Lapp Mountain Case (1981).
Boundary Delimitation Committee Report SOU: 2006:14.
CERD/C/SWE/CO/18, para. 19; see also CCPR/C/SWE/CO/6, para. 20.
CCPR/C/SWE/CO/6, para. 21.
Idem.; CERD/C/SWE/CO/18, para. 20.