View source for Land and water rights

{{Artikkeli
|sivun nimi=Land and water rights
|kieli=englanti
|id=1327
|artikkeliteksti=<P align="justify"> In talking about the land and water rights of the Saami, it must be noted that the usufruct of the land and waters may depend on a number of different mutually independent legal bases. First of all it may be a matter of legal protection defined by agreements concerning minority and indigenous peoples (for example, the International Covenant on Civil and Political Rights and the {{Artikkelilinkki|05103|ILO Convention on Indigenous and Tribal Peoples in Independent Countries}}). Secondly it could be a question of special rights that are defined in national legislation. These latter rights can be subdivided into two types according to their origins: (historical) land and water rights based on the law of property and rights based on recent legislation (esp. regarding reindeer husbandry). Although legislation has developed independently in each of the Nordic countries, the laws concerning legal rights to land and water in them are nevertheless in many respects similar. This is true particularly with regard to historical land rights in Finland and Sweden, while the foundations of legislation relating to reindeer husbandry are similar in Sweden and Norway.</P> 
<P align="justify"> The question of the historical land rights of the Lapps (as they were called in the original documents) to lands and waters is connected to the region of the {{Artikkelilinkki|05116|old Lapp villages}} that lay north of the {{Artikkelilinkki|05141|former Lapp border}}. It goes back to the seventeenth and eighteenth centuries, a time when the area today constituted by northern Finland and northern Sweden was a single administrative unit: the Province of Västerbotten.</P> 
<P align="justify"> In Finland the question of historic land rights has not been widely debated until the last few decades, but in Sweden it arose in the early twentieth century. In the 1920s, the Swedish legal historian and expert on real property law, Åke Holmbäck, was given the task of elucidating the legal questions regarding the Lapp tax lands. Holmbäck's investigation focuses on the area that today is a part of Sweden, but he also uses Isak Fellman's collection of documents, in which the material regarding court records is mainly taken from local courts in Lapp villages that were located in the territory of present-day Finland. Holmbäck's findings were published in the form of a committee report (Committee reports) in 1922.</P> 
<P align="justify"> According to Holmbäck, if a Lapp held the tenure of tax land, his right against other Lapps was a strong one: he alone had the right to use it. On the other hand, he did not enjoy free power of disposal over the area, and in this respect his right was not a strong one in Holmbäck's opinion. In a situation where a Lapp obtained a Lapp tax land holding which had previously been uninhabited, and also in one where the tax land had been transferred to him by another Lapp, it would appear, according to Holmbäck, that right of the holder of the tax land was based on a transfer made by a court of law. On the other hand, Holmbäck thought, the court couldnot transfer the land completely freely because it was tied by regulations, in particular those pertaining to rights of inheritance. </P> 
<P align="justify"> Holmbäck considered that, although the Lapps had previously believed that they owned their tax lands, and despite the fact that this assumption was made in a number of individual statements, indeed in some Swedish court findings of the time, the misconception became obsolete in the seventeenth century. The reason for this lay in the right of abode assigned by the courts; because the right of abode was assigned in respect of tax lands which were inherited, it had easily become the prevailing view that the actual right to the tax lands depended on its assignment by a court of law rather than by the law of inheritance. Holmbäck considered that the courts of law could not have convey any real right of ownership, only lifelong tenure (mortmain) at best, which however included the prerogative of the heir to obtain for himself the same right. </P> 
<P align="justify"> Holmbäck approaches the question also from that standpoint that the existence of ownership rights would presuppose the view that the tax lands were real property. If the tax lands had been real property in the possession of the Lapps, they would necessarily have been the subject to registration of title to a property, mortage of a property, right of (family) redemption, etc. not just in connection with conveyance but also when the land became the property of the state on account of unpaid taxes or it was abandoned. This in fact was the case, according to Holmbäck; registrations of title could be found in the court records of the seventeenth century. The last cases in which registrations of title to tax lands that Holmbäck found dated from the 1730s and 1740s.</P> 
<P align="justify"> Nevertheless, according to Holmbäck, not even in the seventeenth century, when the Lapps right to the tax lands was strongest, did the courts accept these rights as rights of ownership. Nor did the Lapps subsequently receive rights of ownership; on the contrary, the Lapps rights to the lands in their possession began to weaken. He saw two factors that prevented them from obtaining rights of ownership: the Crown had seized the right of ownership of the Lapp tax lands, and the authorities began to make strong demands that these lands should be opened to settlement.</P> 
<P align="justify"> In Holmbäck's view, it was the Forest Statute of 1683 in particular that deprived the Lapps of the right to obtain ownership of the land and indeed made it out of the question. Because not even those peasants who possessed an indisputable right of ownership to their real property could, contrary to the royal right, obtain the right of ownership of areas that they nevertheless considered to be their own, it was naturally out of the question for the Lapps, whose right of ownership of the Lapp tax lands had never been generally recognized, and who used them only for hunting, fishing and reindeer herding, to obtain a right of ownership of them contrary to the royal right. </P> 
<P align="justify"> The question of the conditions for ownership was explicated in detail in the biggest case (the so-called Tax Fell Case: NJA 1981 p. 1) dealt with by the Supreme Court in Swedish legal history. The case concerned not only the legal basis for the state's right of ownership of the fell regions but also the question of whether in earlier times it was possible to obtain the right of ownership of unowned land on the basis of its being used only for reindeer husbandry, hunting and fishing, i.e. without its being farmed.</P> 
<P align="justify"> With regard to the question of right of ownership, the Supreme Court found that it could be obtained for unowned land purely on the basis of its being used for reindeer husbandry, hunting and fishing. The seventeenth century is the crucial period in this respect. According to the court, however, it was a condition of ownership that this use of the land had been intensive in nature, permanent and such that outsiders had not significantly impeded this use. Some kind of fixed borders were also required. The court found that in the fell region of North Jämtland that was under dispute these conditions had not been satisfied, and the action of the Saamis to obtain an enhancement of their rights was dismissed. </P> 
<P align="justify"> So far the most extensive study of ownership rights has been made by the Finnish scholar Kaisa Korpijaakko. The main source material for her 1989 doctoral dissertation in the field of legal history is the trial records of the district courts. Geographically, the material covers the area of those Lapp villages that for the most part today belong to Sweden or Finland, but the study is also considered to be relevant in Norway because some of the area dealt with in it today is part of Norway (the Inner Finnmark). Chronologically, she has examined the court records up till the 1740s. </P> 
<P align="justify"> Korpijaakko's findings differ particularly in the question of ownership rights from the view that had hitherto prevailed. According to her, the tax lands that had been used by individual families had been strictly demarcated from one another, and the same was also true of the Lapp villages; thus the reconstruction of the division of property within a village would not pose any particular problems. However, she thought that it was the Lapp tax lands to which the question of ownership rights was linked. In her opinion, the lands had been inherited, they could be gifted, pawned, leased out and ceded, and title to them had even been registered and deeds of title to them issued. </P> 
<P align="justify"> Korpijaakko states: It has been possible to note in the practice of the lower courts with regard to the ownership rights of the Lapps all the elements that constitute what we speak of as right of ownership today: the Lapps enjoyed the legal protection accorded by the law to an owner-occupier in relation to other groups using the land. With regard to competence, she notes: The rights of the Lapps corresponded in scope to the legal status of ownership, or rather with that of the holder of a privately owned hereditary estate In her opinion, the individual families also felt that they owned their tax land, and an outlook and system based on ownership had widely dominated the legal thinking that prevailed in the community. The Forest Statute of 1683 did not in her opinion create any noticeable change in the legal practice in Lapland; the courts arrived at their judgments in the same way as they had done before. She says: Those lands which according to the principles of civil law could be held to belong to the Lapps, continued to remain in their possession. </P> 
<P align="justify"> As was stated above, the question of the legal nature of the Lapps land ownership rights goes back a long way. The question of the nature of these rights was debated in the seventeenth and eighteenth centuries. In the early twentieth century, the significance of Holmbäck's study was central. Although many Swedish scholars have since studied questions pertaining to the use of land, they have taken as their premise the state's right of ownership of the land and waters. Nor was Holmbäck's interpretation disputed in Finland. The subject has not been studied in detail in Finland, but Professor Kyösti Haataja, an authority on land and water rights, referred to Holmbäck in claiming that the Lapps did not have any private right of ownership of the lands.</P> 
<P align="justify"> In fact, it was not until the Swedish Supreme Court passed its judgment in the early 1980s that the prevailing belief in the state's absolute right of ownership changed. Although in this case, the action was dismissed because of insufficient evidence, the essential point was above all the finding that the use of the land for the traditional sources of livelihood of the Lapps was sufficient to obtain right of ownership, and therefore the right of the state in this respect was not absolute or final. Although Korpijaakko does not deal with the Tax Fell Case in her study, the conclusions she draws can be easily reconciled with the criteria for obtaining right of ownership defined in the judgement of the Swedish Supreme Court. If the one wishes to reduce the problem of the rights to the lands and waters that have been in the possession of the Lapps to a question of ownership rights, one can say that the traditional view is based on the state's right of ownership, but that this view has also been justifiably disputed. Every study starts from the writer's own view of the matter, but the Finnish Parliamentary Committee for Constitutional Law has also noted that recent scholarly research has presented noteworthy considerations in support of the existence of the Saamis right of ownership of the land (3/1990, 3).</P> 
<P align="justify"> From perspective of the present, however, it must be remembered that the question of individual right of ownership is specifically linked to the situation in the seventeenth century and the early eighteenth century. The legal significance of these historic land and water rights is in many respects an open question today. And opinions about just who can now be regarded as the beneficiaries of those ancient rights have differed.</P>
|kirjoittaja=Juha Joona
|luokat=History
}}