The land claims issue and the Sámi : reflections on contemporary legal struggle

In modern times we can observe a general process towards increasing culture-political awareness among peoples belonging to the Fourth World. In this process the question of land rights plays a superordinate role, as land rights constituted one of the fundamental elements embodied in the more in¬ clusive legal comprehension of aboriginal rights. Closely connected to ecology, rights to land and water imply a primary condition for cultural viability and continuity. Areas of land traditionally occupied and long used, relatively undisturbed, by minorities with aboriginal Status, such as the Sämi, are today subject to growing encroachments from the outside. The strongly contrasting interests of in¬ dustrial societies frequently clash with the gentle, more cautious exploitation of renewable resources carried out by indigenous peoples within the same area. The issue of land rights is not actualized until such a collision makes it more difficult, or even im¬ possible, for the indigenous people to continue their resource development in a traditional way. Without exaggeration it can be stated that the ethnic minority group will gradually experience conditions of ecological crisis, it will be more and more difficult


Introduction
In modern times we can observe a general process towards increasing culture-political awareness among peoples belonging to the Fourth World.In this process the question of land rights plays a superordinate role, as land rights constituted one of the fundamental elements embodied in the more in¬ clusive legal comprehension of aboriginal rights.Closely connected to ecology, rights to land and water imply a primary condition for cultural viability and continuity.Areas of land traditionally oc- cupied and long used, relatively undisturbed, by minorities with aboriginal Status, such as the Sämi, are today subject to growing encroachments from the outside.The strongly contrasting interests of in¬ dustrial societies frequently clash with the gentle, more cautious exploitation of renewable resources carried out by indigenous peoples within the same area.The issue of land rights is not actualized until such a collision makes it more difficult, or even im¬ possible, for the indigenous people to continue their resource development in a traditional way.Without exaggeration it can be stated that the ethnic minority group will gradually experience conditions of ecological crisis, it will be more and more difficult to maintain resource development well-adjusted to seasonal changes of the year.Some occupational Segments of the Sämi popula¬ tion which are of vital importance to the cultural self-identification of the total ethnic group, are dis- tinguished by fairly extensive land use patterns.Large, unobstructed territories are required regard- less of whether the ecological adaptation is to reindeer pastoralism with some supplementary means of livehood or to varying forms of hunting and trapping, including fishing.The idea of land rights not only refers to definite areas of land one wishes to protect and transfer to future generations; it has just as much to do with rights to a specific way of life, an objective which is steadily more difficult to realize in the strained Situation these people are facing at present.Under these circumstances the question of land rights has developed into a central ethnopolitical theme.The Claim to land rights concerns the right to sur¬ vive culturally in spite of numerical weakness; thus making it possible for minority groups to resist an appreciable pressure towards assimilation.It is only recently that such Claims have been formulated more explicitly by native peoples; in terms of legal history the concept of land rights, however, is a rather old phenomenon.In the foUowing account I wish to examine diverse aspects of land rights, thereby pointing out the importance as well as the complexity of the phenomenon.The Taxed Mountains Case, forming the core mate- rial on which my general argument is built, needs further explanation.This case was a legal contest be¬ tween the Sämi and the Swedish State focusing on the issue of ownership rights to land and water in the South Sämi region of Swedish Lapland, County Jämtland.The controversy dealt with rights in principle and lasted for 15 years concluded when the Swedish Supreme Court handed down its final deci¬ sion in 1981 (HD 1981).In the main, the outcome was unfavorable to the Sämi, all their Claims were denied on legal grounds, which means that State ownership rights are confirmed.On the other hand, the verdict has great documentary value, the pri¬ mary point of which refers to the affirmation in court of the actual strength of Sämi usufructuary rights and that they are founded on rights of immemorial usage.For the majority of Sämi, however, such juridical subtleties can in no way erase the con¬ ception that after such an extremely long litigation the Sämi remain losers of the dispute.

Different aspects of land rights
The Nation-State and the indigenous minority group regard the question of land rights rather differently.To the State in its role as adversary the problem refers exclusively to law, and it is a matter of finding which section in the existing System of law will open for a legal interpretation on which a court Tom G. Svensson, Ethnographie Museum, University of Oslo, Fredriksgate 2. Oslo 1, Norway decision later on could be based.In two recent court cases, the Taxed Mountains Case in Sweden and the Alta Case in Norway, the courts, as well as the State carrying out the law suit, have chosen such a narrow definition of the Situation in order to bring about a legal settlement in principle.On the other hand, the Sämi have endeavored to in¬ troduce their views on land rights, which are far more comprehensive in comparison with narrow law of property, for instance.Certainly the concept of land rights has definite legal contents; con- sequently, the juridical aspects of this complicated matter cannot be neglected.Neither is it possible to attain a legal examination in court if these funda¬ mental rules of the game are not obeyed.The legal arena is, however, constrained to be an instrument through which a more profound and extensive ar¬ ticulation about the subject matter "land rights" can occur.Once having entered the legal arena, there¬ fore, it is vital to utilize the opportunity as much as possible to achieve a more Sämi-specific argumentation, i.e. in a skilled manner to manage the contents of ideas in the plea for legitimate Claims, thereby ex- tending the definition of the Situation in the geatest possible way.In this extension it is necessary to move with great caution to avoid negative sanctions both from the court and the powerful Opponent; the purpose is primarily to have all the actors accept a general conception of what is relevant for the legal contest in question.
To the Sämi it is crucial to emphasize the close connection between land rights and ecology.Improved land rights constitute for the Sämi a basic pre-requisite which makes it possible for them to continue developing natural resources in a way characteristic for their vary ing forms of life style.This necessitates attaining equilibrium in the ecosystem of which the Sämi are a part.Furthermore, land rights have to do with politics.The acquisition of self-determination, i.e. real power concerning their own affairs, is based on the possession of firm land rights.With such rights the development of resources can be controlled and at the same time the political and cultural autonomy will be strengthened.Without extremely strong land rights such autonomy will remain a chimera.Finally, the question of land rights could be considered a critical cultural issue.Effective land rights are essential for land-based indigenous people in order to maintain their cultural viability.In any legal confrontation the above aspects are sub- ordinate to the strict juridical argumentation.Therefore, they must be woven into the "juridical text" in covert terms, although they must be sufficiently explicit, to communicate the complete mes¬ sage.
Apart from the legal arena, the means of negotiation and of legislation represent two supplementary arenas in which the land rights issue can be exposed.
Real negotiations can hardly occur unless both par¬ ties involved.i.e. even the minority group, possess an adequate amount of power.So far the Sämi have not reached such a position.In this case comparison could be made with the Cree and the Inuit of North¬ ern Quebec and their negotiations with the au¬ thorities in connection with the James Bay Hydro Power Project in 1975.The final agreement which was reached then was entirely conditioned by a pre¬ vious court decision in favor ofthe Cree, the Malouf Case of 1973.
To bring about changes giving certain positive re¬ sults, through the procedure of legislation is a pro¬ cess almost as demanding of time and effort as the one utilizing the legal apparatus.In Norway as well as in Sweden we are presently experiencing large.comprehensive investigations, assigned by Parliament, which are to examine all available materials dealing with the legal complexity of Sämi rights in order to work out proposals for new legislation.Ideally speaking these proposals are expected to meet the long-standing demands of the Sämi, among other things their claim to improved rights to land and water, demands so far repudiated by our courts.(TheTaxed Mountains Case, The Swedish Supreme Court Decision 1981.) 2. Diverse legal foundations related to land rights The legal frame of reference connected to land rights ought to be expressed more precisely.First, land rights have to do with customary law, which pro¬ vides a weighty basis for legal argumentation.Codification through legislation presents another specification, whereas principles founded on inter¬ national law completes the juridical platform on which land rights must be modelled.With its links back to ancient times customary law is obviously the specification of land rights having the dosest relation to aboriginal rights.Consequently, it is natural to introduce the foUowing discussion with Sämi customary rights to land.Customary right reflects the people's own theory about terri¬ tory as well as their conception of land rights.Cus¬ tomary right, therefore, is the legal aspect offering the most evident legitimacy for alleging native land Claims.
The Sämi did not have to assert special territorial rights until they made the transition to reindeer pas- toralism in a highly specialized form.It was not until this form of ecological adaptation was established that the Sämi began to exercise a more intensive use of the land which they occupied.In time this culture transformation coincided with increasing pressure from the outside, i.e. from the middle of the 16th Century on.Among the Sämi, as well as many schol- ars, a general view is maintained that the Sämi formerly possessed absolute rights concerning manage- ment of land and water, characterized by collective ownership of land in contrast to the individual own¬ ership rights prevailing in the larger society.It is the cooperative herding unit, sii'da, that is considered the proper owner ofthe sii'da territory, whereas indi¬ vidual members have strong usufruetuary rights within its boundaries.This right of land manage- ment became problematic from the moment the larger society started to exert demands for exploita¬ tion of alternative non-renewable resources within the same territory.The authority of the sii'da Council decreased at the same pace as the dominant society with its structural strength began to assert itself more and more on the original sii'da territories.
Later the local courts, häradsrätten, rather than the sii'da Council became the authority officially as- signed to solve legal contests, though still with Sämi participation.Not infrequently these court deci- sions rested on Sämi customary rights and original conception of territory based on oral tradition.
Especially for the Taxed Mountains Case the Sämi party had an expert in legal history engaged to examine a most extensive body of court records concerning the period 1645-1848.(prawitz, 1966-67).This material clearly indicates that prin¬ ciples related to rights of inheritance and birth rights, or rights of decendency, as a rule constituted the foundation on which internal conflicts concerning land rights Claims on the taxed mountains were resolved.This agrees with Sämi legal views and sociocultural norms as we know them from North- Compare also the recent study by K korpijaakko, 1985: 1-2).
The question of land rights for the reindeer pas- toralist Sämi must also be viewed in relation to the interdependency between the three component parts, pasturereindeerpersonnel, an ecological perspective for analysis introduced by Robert Paine (Paine, 1972).The more in balance this interdepen¬ dency becomes, the greater are the opportunities to develop supplementary resources contained within the sii'da territory.Pasture is the most critical factor, and it is absolute rights to pasture, i.e. land in a broad sense necessary to maintain an optimal pas- toralist adaptation, that facilitate the recurring modifications of number of reindeer in relation to personnel, considering seasonal variations as well as variations over longer periods of time due to changing climatic conditions.Even such a view is determined by custom; the sii'da Council reconsidered at regulär intervals the special requirement for each separate family group in con- nection to the personnel of the household unit.
Thereby it was possible at all times to distribute all resources available within the sii'da territory among its members in an equitable way.
According to customary law, natural barriers, such as mountain Valleys, water courses ete, separated one sii'da territory from another.In their own ecological adaptation the Sämi both respected these boundaries and acted in aecordance with them.The members of a sii'da had sovereign rights to all natu¬ ral resources they utilized within its boundaries.In this respect the Sämi possessed stronger rights than others who might also be living in the sii'da territory.
In some areas, such as Kemi in Finland e.g., hunting of wild reindeer and beaver was reserved for the Sämi.(tegengren, 1978).This legal order oi sii'da territory is based on custom and ancient usage.And, as Erik Solem has maintained, the control of territory need not be identical with ownership right.
(solem, 1933).To the Sämi it has always been essen- tial to claim sovereign, unassailable rights to pas¬ ture reindeer, to hunt and to fish, ete; by compari¬ son, ownership rights to a delimited area of land contains little meaning for them.Compare the de¬ mands actualized by the Cree and the Inuit in the James Bay negotiations.In a most exaeting negotiation vis-a-vis the authorities, hunting and trapping rights, which are regarded as necessary requirements to maintain a particular way of life, not own¬ ership rights to definite areas of land, represented on this occasion, the ultimate political goal for the native people.
However, the rights of usage are so qualified that they come close to ownership rights as legal entity.
In order to gain rights of usage, which are sufficiently strong, their primary interest, the Sämi may even be compelled to obtain a form of ownership rights for the group.According to Otto Jebens it is moreover possible to argue that long-term utiliza¬ tion and actual oecupation of the land, showing cul¬ tural continuity, will eventually establish ownership rights for the group as a whole vis-a-vis any other contending party. (jebens, 1983).This transforma¬ tion of the legal order of territorial rights becomes more urgent to the Sämi as they experience a growing conflict of interests resulting from intensified contact with various levels of the larger society.
When it comes to Sämi usufruetuary rights, the Su- preme Court maintains that its verdict in the Taxed Mountains Case affirms the right of usage the Sämi already possess, and that this right is equally strong as is ownership right (HD, 1981).There is only one objeetion to this Statement, and that is that such a right does not protect against expropriation by the State; thereby the right of usage does not offer the Sämi any "plus-rights" qua aboriginal people, re- gardless of how qualified this right may be.In order for Sämi to acquire a real position of negotiation, properly codified land rights must be ascribed to them, rights which go far beyond the strong usufrue¬ tuary right previously defined according to the Reindeer Management Laws (See e.g.RNL, 1971).If this were not the case it would have been com¬ pletely unwarranted for the Sämi to carry out the lengthy Taxed Mountains Case.It is also for this reason that the land rights issue has such a central place in the on-going work of the Sämi Rights Committees.These Claims for land rights emanate from the Sämi core areas.If the Sämi want to pursue a claim for aboriginal rights on this sensitive point, the claim cannot be restricted in legal terms to certain sec¬ tions in the System of laws of the nation, for exam¬ ple Sveriges Rikes Lag or Norges Lover, and it is exactly in this perspective that the significance of Sämi customary right should be viewed.
The preliminaries to the Sämi Codicil from the 1740's, as well as the very text regarding this impor¬ tant document of 1751 (Codicil to the Border Treaty between Sweden and Denmark/Norway), point in the same direction.To a great extent the Codicil confirms for the first time that Sämi have customary right to land and water and that this right is ascribed as a collective right.A Community in one form or another, preferably sii'da although this term is not used in the text, is considered the owner of the rights at stake.This connection between the Codicil, as one instrument for legal codification, and Sämi customary right constituted a vital point for the Sämi in their tactics for the Taxed Mountains Case.
Pursuant to principles of customary law this right implies in part the attainment of sovereign right to land, in part title to land.Thereby it is understood that the sovereignty the Nation-State successively acquired also in Lapland could not lead automatically to a transfer of title to land from the Sämi to the State, nor to State ownership rights over ter¬ ritories conceived of as Sämi core areas.On the con- trary, the implication is that the land ought to re- main in the hands of the people who traditionally had made use of it and that this "ownership right" should be retained jointly by the group, not individually (Cf.sundberg, 1979).The very demands of the State for sovereignty leading to self-ascribed ownership right to land implied what properly could be named internal colonialism (hechter, 1975), i.e. an act reflecting use of power which to a large extent neglected customary right, a legal con¬ ception which long had been established and incorporated in international law (This argument is also supported by korpijaakko, 1985).
The Sämi Codicil of 1751 and the rights closely specified therein represent a sort of intermediate phase in the transient process from customary right to a legal Situation which is more and more constrained to legislative measures.The Codicil Stands as the first codification of Sämi rights chartered by the State authorities.That which should be guaran- teed by this document was unbroken continuity of Sämi rights based on ancient usage and old custom; these were rights to use of land and water to rein¬ deer pasture, hunting and fishing.Moreover, the Codicil states clearly that the local Community is bearer of the rights in question which were to be exercised in both countries.Obviously, the Codicil did not refer to newly estab¬ lished rights but instead confirmed ancient Sämi rights which were not to be curtailed or extinguished as a result of the border treaty between Sweden and Denmark/Norway.Because of that the Codicil is a legal document which is rather unique, both in historical perspective and in reference to our own time, compared to most other documents of legal nature regarding the Sämi.Under provision of this document a national border became irrelevant to a specific ethnic group, who since time immemorial had carried on a distinct way of life in the two na¬ tions included in the treaty.Therefore, the Codicil actually gives an example of a most foreseeing pol¬ icy anchored to older legal conceptions in which cus¬ tomary law had a far greater place than it has today.The process of legislation appearing later on in his- toric time has occasioned special laws and regulations which in no way codify any land rights.By these laws the Sämi are granted monopoly rights to herding reindeer and qualified usufructuary rights to land and water, but only to a limited extent are their land rights protected against external intrusion and pressure.And it was primarily such incon- gruities concerning rights in principle that the Sämi wanted to remedy by means of a court case of such magnitude as the Taxed Mountains Case.Consequently, in the legislation there is very little basis for clarification of the Sämi land rights issue.
Because the courts recently have proved unwilling to give guide lines for binding legal codification of land rights, the Sämi have every reason to express particularly high expectations for the Sämi Rights Committee presently at work.By means of the re¬ cent process of litigation the legal foundations on which the relatively strong Sämi usufructuary rights are based have been made clear; they rest on rights of immemorial usage, urminnes hävd, not on any dif¬ fuse idea of some kind of Sämi privilege (HD, 1981, HR, 1968, The Alvevatn Case).For a more elaborate argumentation in terms of legal history on this point see especially korpijaakko, 1985 and cramer, 1986.
Finally, international law constitutes a formal link between customary right and the nation's official System of laws.
Principal legal views deriving from customary right are here clothed in a juridical polish which is fully acceptable and respected in contemporary legal contexts, for they form an integrated part of the entire body of laws.
International law proposes protection of the mate- rial basis of each distinct ethnic group, enabling it to uphold its special way of life.FoUowing these princi¬ ples a sufficient amount of land which is used in a traditional manner must be preserved intact; other- wisethe ethnic minority group cannot continue to exist as a particular people.International docu¬ ments such as the UN Declaration Against Racial Discrimination 1966 and the European Convention concerning Human Rights 1950 both Support these ways of thinking.In all cases where aboriginal people are stating Claims for improved land rights, these two central documents are now cited.
The material basis for cultural perpetuation is wholly dependent on firm land rights.Most aborigi¬ nal peoples around the world do not presently possess such land rights; for this reason their ethnopolitical position remains rather weak in all conflicts of interest.The question of reinforced right of self-determination with respect to the utilization of resources is crucial in this connection.
*/ t* * n l Fig. 2 Many decisive questions concerning Sämi rights have lately been actualized by means of litigation.The picture was taken during the hearing of the Taxed Mountains Case in the Court of Appeal in Sundsvall 1976.From left to right we see the Sämiombudsman, one South Sämi who attended as spectator, a key expert witness, himself a Sämi and professor in Sämi linguistics, and the legal counsel representing the Crown. (Photo: Tom G. Svensson) In conclusion we may point out that the Sämi codicil of 1751, unlike other legal documents, unites princi¬ ples related to international law with those based on Sämi customary law.This connection makes the Codicil unique in our time; thereby it is constantly topical, being useful in the most diverse confrontations of interest.
Ownership rights to land are founded primarily on the use of land and occupation.John Cave has defined three minimum criteria for obtaining title to land.(cave, 1982): The remaining land has to be secured for future gen- erations of Sämi; at the same time efficient control of current utilization of resources is required.
To aboriginal peoples land has never constituted a market commodity, right to alienate, therefore, is ir¬ relevant.On the other hand, cultural viability is de- pendent on firm land rights, so that the Sämi are able to develop a versatile and differentiated eco¬ nomy in the core areas of Sämi habitation.
1. right to use land 2. right to exclude others from land 3. right to dispose of land Transferred to the Sämi case we may State that the right to use is adequately strong as it is today, whereas the right to exclude others is constrained to reindeer herding.The right to dispose of land seems less interesting, as it is far more important to secure all the land still available.For the future it is vital that the right to exclude others, including the State, is strengthened considerably.

Aboriginal rights
At this point it may be useful to delineate the con¬ cept of aboriginal rights more precisely.The eco¬ nomy of aboriginal people is, as a rule, charac- terized by different forms of landbased subsistence activities.As encapsulated entities within the struc¬ tural framework of the Nation-State, it is necessary for native peoples 1. to be able to refer to a landbase and 2. to exercise Jurisdiction over their own territories (cf.asch, 1984).
Based on these two prerequisites the contents of aboriginal rights becomes culturally meaningful and not only a juridical phraseology.To establish and maintain a land base implies that native people either have a kind of ownership right to land or that they can plead a right to hunt, fish and trap.Right of self-determination, i.e. the ethnic minority's ability to manage this land base without external Interven¬ tion by means of its own Council is considered equally important in acquiring aboriginal rights.By this means people can control the access to their own natural resources.
The close connection between a land base and selfdetermination, however, points to certain barriers inhibiting progress in the struggle towards establish- ing aboriginal rights.Without acknowledgement of aboriginal rights, it is impossible to demand firm land rights, for claims are not seen as legitimate.
On the other hand it seems impossible to have the Status as an aboriginal people clarified and confirmed un¬ less it is based on firm land rights.One precondition for the ethnic minority in its struggle to prevent as- similation is recognition of its more or less seifevi¬ dent aboriginal rights.In Scandinavia the Sämi have so far had no breakthrough in their presistent ef¬ forts; neither do the very restricted guiding princi¬ ples for the Sämi Rights Committees give much reason for optimism.
4. The question of subsistence Among many aboriginal peoples subsistence is the predominant form of economy; for this reason this phenomenon deserves special notice.Lately subsis¬ tence has gained special attention as an increasing number of native peoples are presently pleading for their ancient right to a subsistence economy as one decisive factor in their continuous struggle to sur¬ vive culturally.Commissioned by the Inuit Circumpolar Conference the renowned judge Tomas Berger has recently presented a penetrating review of the Alaska Native Land Claims Settlement Act from 1971.In his report Berger makes the idea of subsistence one of the main points in his proposal for changes he deems necessary if the native people in Alaska are to be given a fair chance to continued cultural existence (berger, 1985).
To be able to pursue a subsistence economy certain cash income is required; in other words subsistence should not be viewed as a form of economy entirely without money.The cash eiement is not em- phasized, however, but often it is reduced to a requisite asset in maintaining a particular way of life based on subsistence activities.This condition applies to several Inuit groups as well as the rein¬ deer pastoralist Sämi and many other aboriginal peoples.Primarily it is the use of modern technol-ogy in their ecological adaptation which makes it necessary for them toobtain a constant flow of cash.
In order to cover the costs of production of the sub¬ sistence economy a sufficient amount of cash must be secured.Such a clarification of subsistence eco¬ nomy is important, because a great deal of misun- derstanding is flourishing: for instance, the au¬ thorities tend to question whether people actually carry on subsistence economy or not when cash is present.
In Alaska substantial research which Supports the general argument above has recently been carried out.There, many local communities have de¬ veloped what is called "mixed, subsistencebased socioeconomic Systems", the main objective of which is to sustain subsistence hunting and fishing (e.g.wolfe and ellanna, 1983; fall, 1985).The re- markable increase in the number of those actively taking part in traditional wildlife harvesting among the Cree, as one of the consequences derived from the Cree Hydro-Quebec Agreement of 1975, is also worth noting (feit, 1982a.1982b).
The question remains though, does subsistence has anything to do with land rights?Certainly subsis¬ tence has an impact on land rights in the sense that the latter means very little if an ethnic minority is not able to continue to exercise traditional resource development on its land.Prohibition against seal hunting for the Inuit, for example, renders their land rights fairly devoid of content (wenzel, 1985).
One prevalent problem for the native peoples is that the System of laws of the larger society has not provided adequate protection either of their land or of their subsistence economy.In consequence, for each separate indigenous people the primary ethnopolitical goal will be geared towards the at¬ tainment of improved land rights, an indispensable development if the economic base of the minority is to be satisfactorily strengthened.Cultural viability is sustained by an economic base which is well-entrenched as well as adaptive to changing conditions.The extremely vulnerable subsistence economy presupposes empowered control of territory; in differ¬ ent circumstances the economic base of the native people as well as its way of life will be undermined (See also berger, 1985 who gives a more penetrat¬ ing analysis of the connection between land rights and subsistence).
5. Definition ofthe Claims and the problems of communication To people recognizing a new and extended affinity within the frame of the Fourth World the right to their ancestor's land emerges as a superordinate issue.For aboriginal minorities this right appears as self-explanatory, whereas the position of the major-ity societies is more ambivalent.The right itself can certainly be acknowledged by the larger society on a formal basis; how the actual contents of this right is conceived, however, may differ strikingly between the larger society and the ethnic minority.In order to arouse enough attention and understanding for its demands, the relatively powerless minority must politicize these demands.This means, among other things, that the minority will act unpredictably, thereby markedly offending against set rules of con- duct appropriate to certain situations governed by the authorities and in this manner attempting to accentuate the legitimacy of its land rights Claims.
When the Sämi put a tent, Idwo, directly in front of the House of Parliament, Stortinget, in Oslo and began a hunger strike in protest against the Alta de¬ velopment in 1979, this action was both quite unex- pected and extremely effective.By this action the Sämi demonstrated a new form of articulation aim- ing at constrasting effect; i.e. they chose to communicate cultural diversity at the same time as they alluded to a moral right to their own land (paine, 1984).Marking of the ethnic boundary Stands as a particularly important factor in the constant strug¬ gle for strong, indispensable land rights by aborigi¬ nal people.It is only by virtue of the weight laid on cultural difference that the land rights claim be¬ comes legitimate; the minority is, as a rule, solely responsible for this marking of diversity.
As is usually the case at dividing lines between cul¬ tures, there are problems of communication which have to be overcome.In ethnic minority situations where the two interacting parties in no way appear as equals, this remains an appreciable dilemma.For instance, in the very comprehensive Taxed Moun¬ tains Case the Sämi encountered great difficulties in their attempts to communicate well-founded argu- ments for land rights based on both legal history and culture history.Similarly, the Sämi culture specific actions and unequivocal marking of their cultural distinctiveness seemed to fall into a social vacuum; quite simply they did not reach all the way to the intended receiver, i.e. primarily the members of the court.Certainly, the Sämi game was allowed to con¬ tinue as a kindof interethnic relation without any in- terference to speak of.However, vis-a-vis the courts the Sämi had limited success in trying to convert the court case into a cultural discourse.The court deci¬ sions on all levels give clear evidence of that.
Even if the non-legal argumentation lacks direct power to influence, the same idea reinforces the Sämi legitimate right to their land.In a land rights contest as comprehensive as the Taxed Mountains Case it would be completely pointless to pursue a plea which is based only on narrow juridical prem- ises, in this case rights of landed property.Consequently, in this type of confrontation the meaning of a comprehensive, culture specific form of com¬ munication ought not to be underestimated.
A final remark Land rights is a relative concept.The meaning and value of these rights may be annihilated by external circumstances, beyond the control of the individual State, irrespective of how firmly the Nation-State is prepared to ascribe land rights to an indigenous minority group.Most land based ethnic minorities are seriously concemed about this predicament, al¬ though the problem as such does not only refer to them.Banishment of seal hunting together with es- tablishment of a quota for hunting large sea mammals, such as whale and walrus, which is too narrow, will drastically reduce the import of hard-won land rights.This new form of conflict of interest is gener- ated by growing pressure on the State governments exerted by supra-national wildlife and environmen¬ tal movements.The frequently quoted expression: "Our land is our life" emphasizes very clearly and with exemplary concentration what this is all about.
As far as the Sämi are concemed, their crucial rein¬ deer pasture, especially winter pasture based on liehen, is now threatened by complete devastation as a result of radioactive fall-out from the nuclear power plant disaster in Chernobyl.Without over- reacting we may State that the Sämi with reindeer pastoralist adaptation hereby are facing their most demanding problem so far.Their way of life is par¬ ticularly vulnerable; it is maintained by experts that reindeer-lichen absorbs and Stores radioactive wastes in especially high doses compared to other ground Vegetation.In large parts of the reindeer pasture area prohibition against reindeer meat was immediately decreed.The implication of such a de¬ cision is that the economic base of very many rein¬ deer Sämi will be eliminated; it is still uncertain for how long they will be unable to get any revenue from their primary means of production.This new problem is especially feit in the southern region of reindeer Sämi habitation in both Norway and Swe¬ den.Furthermore, for reasons of health the Sämi must abstain from consumption of all sorts of rein¬ deer meat for an indefinite period of time, a severe interference with ancient Sämi food culture, in which reindeer meat prepared in endless varieties constitutes their every day staple food.To large groups of Sämi, therefore, the future seems ex¬ tremely gloomy, because it is so far uncertain as to how many years it will take before a prohibition against reindeer meat can be nullified.A feeling of optimism for the future expressed by many young Sämi in the years preeeeding the Chernobyl disaster has also suffered a serious blow.Should several more nuclear power plant disasters occur, which by unfavorable conditions respecting wind and preeipitation may affect Northern Scandinavia, the implications would be devastating, not the least from a point of view of cultural survival.
In no way do firm land rights imply any guarantees against such ecological catastrophes which have far reaching consequences for the culture.Naturally this does not mean that the Sämi and other commensurable ethnic groups should not henceforth carry the issue for improved land rights further.In order to strengthen the culture and make it more viable generaUy speaking, such policy is both obvious and imperative.However, it should be quite clear that the question itself is so complex that all problems are far from being resolved by means of land rights.But in order to negotiate just and füll compensation regarding disasters of this magnitude improved land rights are indispensable.The Sämi engagement in the land rights issue was further manifested at the National Meeting held by the Swedish Sämi in June 1986.During that meeting the significance of strong land rights was stressed emphatically: "The new sur¬ vival of the Sämi both as a people and as a culture is intimately connected to Sämi rights to land and water to the ways in which the natural resources in Säpmi are utilized (SSR/XL II National Meeting Resolution A).
In the last National Meeting in June 1988 one of the Chief Justices of the Swedish Supreme Court gave a most welcome speech from a Sämi point of view.
Based on a thorough rethinking of the comprehen¬ sive Taxed Mountains Decision (HD, 1981) he urged firmly the Sämi Rights Committee to suggest fundamental revisions of the legal position of the Sämi concerning their rights to land and water.According to his conviction the Sämi should be provided with a limited right to veto, or at least a right to prevent planned exploitation temporarily in order to bring about extensive pre-studies examining socio-cultural consequences as a minimum strengthening of their legitimate rights.These new headways pointing to new legislation prove that the time exhaustive legal strategy the Sämi have been engaged in in later years has not been to no purpose.
Moreover, in their most significant resolution from the same meeting (Resolution A, SSR 1988) the Sämi conclude by stating that they must be assured rights of decision making in their own affairs, rights which are based on immemorial usage to their land and on international law, and, most importantly, these comprehensive rights must be constitutionally protected.