The issue for determination in the case is whether Sami reindeer herders have right to hunt and fish in the mountainous area of land now under private co-management in Brekken and an area in the east of Roros.
Although the co-landowners in this case did not challenge that Sami reindeer herders have exercised centuries long hunting and fishing practices in the areas, and that the centuries long practice by the Sami herders predates the time they (co-managers) acquired the property but the co-managers contend that they have acquired private property rights from the state. Hence, Sami reindeer herders do not have any right whatsoever to hunt or fish on privately-owned lands. The co-managers were successful at the trial…show more content… The Brekken case radically departed from the Dergafjeld and Marsfjell decisions.
Legal basis and evidence
Customary use or the use of land and or natural resources within an area from time immemorial create the basis for an established legal right that cannot be taken away by law. From the evidence perspective, the court position is that Sami rights in the disputed area are not extinguished and create an easement on the co-managers’ title. Also, since the co-managers did not dispute the fact that the Sami reindeer herders have established age-long use of land and resources in the area, the decision is understood on the basis of the court’s reasoning and admitted facts by the defendants.
Altevann Case 1968
The construction of a hydro-power dam in Norway resulted in the direct expropriation of summer grazing land and fishing rights of Swedish reindeer herders. The Sami herders have used the land around the lake Altevann area as summer grazing land from time immemorial and exercised historically fished in the lake…show more content… It is the first case in Norway and within a South Sami area that delves into sedentary Sami title to land and Sami user right against the Norwegian state. The issue for determination was whether the Sami population of Manndalen having been exercising physical control and customary use of the Svartskogen area (with exception of reindeer husbandry) and the resources thereon without Norwegian state intervention, are the rightful owner of the Svartskogen area?
The case was settled in favour of the Sami people of Manndalen, the court held that the customary use of the Svartskogen by Sami people of Manndalen from time immemorial and with exclusive possession without state intervention was equivalent to ‘exclusive possession’ of the Svartskogen in favour of the Sami people of Manndalen against the Norwegian state.
Legal basis and evidence
Sedentary Sami use, extensive use and exclusive possession of land and resources are sufficient basis for a title claim by adverse possession against the state. The case went a step beyond the usual usufructuary rights that Sami people are entitled to in areas where prescriptive Sami usage can be established and proved. Although the onus of proof of adverse title as was settled in this case seems to apply the Norwegian principle of cultivation and extensive use with the fact of Sami exclusive possession (adverse possession) against the title claims of the Norwegian
