scholarly journals The Girijas case and its implications for the Sámi hunting and fishing rights in Sweden

2021 ◽  
Vol 23 (2) ◽  
pp. 169-175
Author(s):  
Sakshi
Keyword(s):  
Supreme Court ◽  
Indigenous Rights ◽  
Self Determination ◽  
Social Rights ◽  
Fishing Rights ◽  
Indigenous Autonomy ◽  
The Supreme Court ◽  
Indigenous Voice ◽  
Exclusive Right ◽  
Hunting And Fishing

The recent case by Girija Sámeby against the Swedish State, asserting its exclusive right to hunt and fish, has ignited many conversations. While the favourable treatment of the Sámi claim by the Supreme Court has elicited celebratory responses, the case has been considered a moment of reckoning for the broader Indigenous rights framework in Sweden. The initial claim by the Girija reindeer herding community that it had the exclusive right not only to hunt and fish but also to lease such a right to others has made its way to the Supreme Court and is now affirmed. Unsurprisingly, the court, faced with an unprecedented challenge of determining the remit of rights in the commercial realm, has fallen back on known doctrines, such as ‘immemorial prescription’, to resolve the case. Nonetheless, the underlying concerns for Indigenous rights over land, self-determination, sovereignty, and the postcolonial reconciliation process remain to be examined within and outside juridical spaces. Although recognition of Indigenous voice has witnessed some progress in the realm of the executive and the legislature, the judiciary is yet to develop a progressive jurisprudence concerning Indigenous culture, economic, and social rights. The Girija Sámeby case may well be the first of its kind where the judiciary is proactive in recognising the changing nature of Indigenous autonomy, self-determination, and economy.

scholarly journals Girjas Reindeer Herding Community v. Sweden: Analysing the Merits of the Girjas Case

2021 ◽  
Vol 12 (0) ◽  
pp. 56
Author(s):  
Christina Allard ◽  
Malin Brännström
Keyword(s):  
Supreme Court ◽  
Burden Of Proof ◽  
Indigenous Rights ◽  
The State ◽  
International Standards ◽  
Reindeer Herding ◽  
Fishing Rights ◽  
Small Game ◽  
Game Hunting ◽  
Hunting And Fishing

For the first time in the Swedish Supreme Court, a small Sami reindeer herding community has won an important victory affirming the community’s small game hunting and fishing rights. Because of protracted use and the concept of immemorial prescription, the Court recognised the community’s exclusive hunting and fishing rights, including the right to lease these rights to others. Such leases have long been prohibited by legislation and the State has retained its powers to administer such leases. This case signifies a considerable development in the area of Sami law. In its decision, the Supreme Court made some adjustments to the age-old doctrine of immemorial prescription, and provided insights into how historic evidence should be evaluated when the claimant is an Indigenous people. A common motivator for these adjustments is an enhanced awareness of international standards protecting Indigenous peoples and minorities. Even ILO Convention No. 169 – the only legally binding convention concerning Indigenous rights, but which Sweden has not yet ratified – is relevant when it comes to evaluating Sami customary uses. The Court addressed the problem of gaps in the historical material and used evidence from other parts of Swedish Lapland and adjacent time-periods, making reasonable assumptions to fill in these gaps. The Court imposes on the State the burden of proof regarding the extinguishment of already established Sami rights, as well as proof that extinguishment by legislation or expropriation, is “clear and definitive”. These conditions were not met in this case.

scholarly journals A Sámi Community Wins Case against the Swedish State in the Supreme Court

2020 ◽  
Vol 11 (0) ◽  
pp. 19
Author(s):  
Øyvind Ravna
Keyword(s):  
Supreme Court ◽  
Indigenous Peoples ◽  
Land Management ◽  
The Other ◽  
Customary Law ◽  
Fishing Rights ◽  
The Supreme Court ◽  
Management Area ◽  
The Right ◽  
Hunting And Fishing

On 23 January 2020, the Supreme Court of Sweden delivered an historic verdict in favour of the Girjas sameby in a lawsuit against the Swedish State over a long-standing dispute over the right to administer hunting and fishing rights in the Girjas land management area. Rooted in Sámi customary law, ILO Convention 169 and the UN Declaration of Indigenous Peoples, the verdict is a milestone in the development of Sámi law in Sweden. It may also have an impact on the other Nordic countries, in particular Norway.

The Israeli Unfinished Constitutional Revolution: Has the Time Come for Protecting Economic and Social Rights?

2004 ◽  
Vol 37 (2-3) ◽  
pp. 299-345 ◽  
Author(s):  
Yoram Rabin ◽  
Yuval Shany
Keyword(s):  
Supreme Court ◽  
Constitutional Law ◽  
Hard Core ◽  
Social Rights ◽  
Cultural Rights ◽  
Basic Law ◽  
The Supreme Court ◽  
The Status ◽  
Interpretive Strategies ◽  
The Right

AbstractThis article addresses the constitutional discourse surrounding the status of economic and social rights in Israel. It examines the principal interpretive strategies adopted by the Supreme Court with regard to the 1992 basic laws (in particular, with respect to the right to human dignity) and criticizes the Court's reluctance to apply analogous strategies to incorporate economic and social rights into Israeli constitutional law. Potential explanations for this biased approach are also critically discussed. The ensuing outcome is a constitutional imbalance in Israeli law, which perpetuates the unjustified view that economic and social rights are inherently inferior to their civil and political counterparts, and puts in question Israel's compliance with its obligations under the International Covenant of Economic, Social and Cultural Rights. At the same time, encouraging recent Supreme Court decisions, particularly the YATED and Marciano judgments, indicate growing acceptance on the part of the Court of the role of economic and social rights in Israeli constitutional law, and raise hopes for a belated judicial change of heart concerning the need to protect at least a ‘hard core’ of economic and social rights. Still, the article posits that the possibilities of promoting the constitutional status of economic and social rights through case-to-case litigation are limited and calls for the renewal of the legislation procedures of draft Basic Law: Social Rights in the Knesset.

scholarly journals Indigenous sovereignty and the new developmentalism in plurinational Bolivia

2019 ◽  
Vol 19 (1) ◽  
pp. 95-119 ◽  
Author(s):  
Nancy Postero ◽  
Nicole Fabricant
Keyword(s):  
Indigenous Rights ◽  
Self Determination ◽  
Alternative Form ◽  
Indigenous Autonomy ◽  
Political Actors ◽  
Indigenous Groups ◽  
Political Struggles ◽  
Emancipatory Politics ◽  
State And Local ◽  
United Nations Declaration

Across Latin America indigenous groups are asserting an alternative form of sovereignty they are calling indigenous autonomy. They have found support in international documents such as the 2007 United Nations Declaration of Indigenous Rights, as well as some Left-leaning governments such as those in Bolivia and Ecuador. Yet, there is a fundamental paradox at play in these demands: indigenous actors must negotiate their self-determination with the states whose essential characteristic is exerting territorial sovereignty. In this paper, we consider the politics entailed in managing these difficult political struggles. We examine one lowland indigenous community, the Guaraní of Charagua, Bolivia, which has articulated a vision of indigenous self-determination based in ñandereku, or ‘our way of being’ in the world. Rather than a liberal notion of territorial administration, this understanding of autonomy implies reciprocal relations between people and the land. We show how the Guaraní must negotiate the ‘spaces in-between’ competing notions of state and local sovereignty to approach their vision of self-determination. We argue that their efforts to assert indigenous autonomy can act as a form of emancipatory ‘politics,’ but that they are entangled with the ‘policing’ of the state, requiring skillful negotiations. Thus, their alternative notions of sovereignty must, at times, be smuggled in under the cover of other seemingly shared agendas such as economic development or liberalism. Here, we dispute Rancière’s notion of politics as the result of radical disagreement. We show instead how political actors negotiate ambiguities inherent in the multiple meanings of sovereignty to promote their own indigenous visions of self-governance. Thus, we posit that politics does not always require radical ruptures, but instead can emerge from productive entanglements in the ‘third spaces’ between neighbors, government entities, and worldviews. We conclude that this sort of balancing act might best be understood through the indigenous idea of ch’ixi, the holding in tension of competing but complementary elements.

scholarly journals Settling the Fisheries: Pre-Confederation Crown Policy in Upper Canada and the Supreme Court's decisions in R. v. NIKAL and LEWIS

2014 ◽  
Vol 31 (1) ◽  
pp. 87-172
Author(s):  
Peggy J. Blair
Keyword(s):  
British Columbia ◽  
Supreme Court ◽  
Supreme Court Of Canada ◽  
Upper Canada ◽  
Aboriginal Rights ◽  
Fishing Rights ◽  
The Supreme Court ◽  
The Subject

Although a casual reading of the Supreme Court of Canada's decisions in R. v. Nikal and R. v. Lewis might suggest otherwise, this article will argue that Court's decisions in two recent British Columbia aboriginal fishing cases do not apply in Ontario. In doing so, it will be shown that the Supreme Court of Canada relied on evidence of historic Crown policies towards aboriginal fishing rights in Upper Canada in the absence of appropriate context as to when, how and why those policies evolved. As a result, the Court wrongly concluded that fisheries could not be the subject of exclusive aboriginal rights.

Historian and Courts:R. v. Marshall and Mi'kmaqTreaties on Trial

2003 ◽  
Vol 18 (2) ◽  
pp. 123-131 ◽  
Author(s):  
Douglas C. Harris
Keyword(s):  
Eighteenth Century ◽  
Supreme Court Of Canada ◽  
Treaty Rights ◽  
Fishing Rights ◽  
Canadian Law ◽  
The Supreme Court ◽  
Hunting And Fishing ◽  
Court Of Appeal ◽  
Fisheries Act ◽  
Commercial Hunting

In September, 1999, the Supreme Court of Canada (SCC) released its decision inR v. Marshall. Donald Marshall Jr., no stranger to Canadian law, had been convicted of catching eels out of season, without a licence, and selling them, contrary to the federalFisheries Act. He admitted the offences, but appealed his conviction to the Nova Scotia Court of Appeal and then to the SCC on the grounds that the 1760–61 treaties between the Mi'kmaq and the British recognized his right, as a Mi'kmaq, to catch and sell fish, and that this right was protected under the guarantee of Aboriginal and treaty rights in the Canadian constitution. Justice Binnie, writing for the majority of the SCC, overturned the convictions. The Mi'kmaq, he held, did have treaty rights based on the 1760–61 treaties to catch and sell fish, including eels.The Mi'kmaq were delighted. After many years and many appearances before Canadian judges (R. v. Syliboy, R. v. Issac, andR. v. Simon), it appeared that the courts were finally prepared to recognize what the Mi'kmaq had long believed: that the eighteenth century treaties were the foundation of their relationship with Canada, that the treaties were still in force, and that they guaranteed commercial hunting and fishing rights in their traditional territories.

Disengagement from the Gaza Strip and Post-Occupation Duties

2009 ◽  
Vol 42 (3) ◽  
pp. 528-563 ◽  
Author(s):  
Benjamin Rubin
Keyword(s):  
Human Rights ◽  
Supreme Court ◽  
Prime Minister ◽  
Gaza Strip ◽  
Self Determination ◽  
Humanitarian Law ◽  
Human Rights Organizations ◽  
The Supreme Court ◽  
The Gaza Strip ◽  
Israeli Occupation

Israel's disengagement from the Gaza Strip has created a situation in which this territory is dependent on the supply of various necessities by Israel, in particular the supply of electricity, In 2008 Israel decided to withhold 5% of the supply of electricity to the Gaza Strip, prompting several Gaza residents as well as human rights organizations to petition the Supreme Court of Israel against this decision. In Jaber Al-Bassiouni Ahmed v. The Prime Minister the Court assumed that the Israeli occupation of the Gaza Strip had ended with the disengagement and treated this issue on the basis of general humanitarian law. The basic questions of whether the occupation had ended, and whether certain duties remained with Israel, even assuming that Gaza is no longer occupied, have not been explored. This Article addresses these two questions.It is the conclusion of this Article that regardless of the terms imposed by Israel after disengagement and other reservations that have been raised in this regard, occupation ended following the complete withdrawal of any Israeli presence in the Gaza Strip. Israel's disengagement raised difficulties that are not only unique to the Gaza Strip; these difficulties emerge in most cases when occupation is replaced by a process of self-determination rather than the return of the former sovereign. The contention presented herein is that Israel continues to have certain post-occupation duties even after the occupation of Gaza. These duties correspond to the occupant's duties to care for order and civil life in the territory during the occupation. These obligations will end once the new regime in the area is able to perform the duties that fell upon the shoulders of the occupant during the occupation, or until the non-performance of the new regime is attributable to its own failures and not to the ending of the occupation. In light of these contentions, Israel is still under certain obligations regarding the Gaza Strip, among them the regular supply of electricity to that area.

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