Environmental legislation meets primordial custom

Christina Allard’s dissertation, Two sides of the coin: Rights and duties. The interface between environmental law and Saami law based on a comparison with Aoteoaroa/New Zealand and Canada is the first Swedish law dissertation on the subject.

In brief, the study addresses the relationship between environmental legislation and traditional Saami rights based on custom from time immemorial. The thesis also analyzes and discusses the issue of how legislation can contribute to the sustainable use of land and water within the Saami core livelihood, reindeer husbandry.

Thus, there is a dual perspective: law and environmental protection.

The focus of the project shifted over the years, with the environmental law aspect initially being greater.

“I soon understood that it was necessary to analyze in greater depth the legal foundation for the common law rights of the Saami, since it is unclear and a key aspect of the problem complex. As is well known, the reindeer-raising territory is characterized by several players, each with their own interests that typically conflict with each other. This includes interests stressing both exploitation and conservation, and the legislation is by no means clear when it comes to balancing these interests. The dissertation highlights the areas where reindeer are raised, which means that I have also analyzed the environmental demands placed on the reindeer industry,” says Christina Allard.

The thesis includes a comprehensive comparison with legislation in New Zealand and Canada, and this has been fruitful for the research project. Similar land-use conflicts are very much in evidence in those two countries, but differing legal solutions have been developed.

“In all three countries it has been difficult to delineate the rights of the indigenous peoples. All three legislative systems use old concepts of property rights that are not adapted to the indigenous populations’ traditional uses of land. Sweden primarily uses customary law from primeval times, but this legal concept grew out of agrarian culture and involves several contradictory factors. This led me to the conclusion that some adaptation is necessary,” says Christina Allard.

The comparison crystallized that fact that the process of colonization is not legally relevant in the Swedish legal system, as opposed to the situation in the other two countries. In other words, Swedish law does not recognize that the Saami have a special position in relation to other groups in society, and this entails important consequences for the structure of legislation, such as requiring consultation ahead of exploitation.

“Under Canadian law it is clear that the state has a special responsibility to maintain ‘the honour of the Crown’ in all questions regarding the indigenous peoples,” Christina Allard explains.

Christina Allard maintains that there are major faults in the physical planning of the Swedish reindeer-raising territories.

There is no good strategic environmental planning in which interacting environmental factors can be judged. The binding plans comprise only minor land areas and assume a connection with settlement.

The overarching municipal survey plan is not legally binding and covers only one municipality, whereas the Saami’s grazing lands often cover several municipalities, and the lack of adequate planning also has negative effects on the possibility of exercising the right to raise reindeer, which includes hunting and fishing rights. In other words, the legislation is not adequately designed for these wide-spread territories with little settlement and vast, relatively untouched areas.

Christina Allard started her research in the autumn of 1999 and has also managed to give birth to a son in the meantime. Her thesis director is Professor Gabriel Michanek, and Professor Bertil Bengtsson, a former justice of the Supreme Court and the judge in the so-called Skattejäll case, has served as his assistant.