About the wind farms on Fosen and the Supreme Court judgment

Wind turbines at Storheia. Photo: Hanna Jhore

Article 27 of the UN International Covenant on Civil and Political Rights (ICCPR) has through practice become the most important international provision on the protection of indigenous peoples’ cultural practices in a broader sense. This is particularly so because the Committee has, through its extensive practice, recognized Article 27 as the key human rights provision protecting against interferences in indigenous peoples’ areas.

ICCPR Article 27 was central to the Norwegian Supreme Court’s consideration of the case concerning wind power plants on the Fosen peninsula in October 2021. This was a historic decision because it was the first time that affected Sami parties, in a case concerning a development project in their traditional areas, won in the Supreme Court through reference to human rights. This judgment is central because it clarified several key issues regarding indigenous peoples’ protection against interference in their traditional reindeer grazing areas.

This judgement (the Fosen judgment) from 2021 concerned the validity of the Ministry of Petroleum and Energy’s decision from 2013 on expropriation and granting a licence to the Storheia and Roan wind power plants on the Fosen Peninsula. The windfarms are located in an area where reindeer husbandry is practiced. The herders claimed that the construction interfered with their right to enjoy their own culture according to Article 27, but this was rejected by the Ministry of Petroleum and Energy in 2013. Although the issue was brought before the courts, the company was nevertheless permitted to start the construction, and the windfarms were ready in 2019 and 2020, respectively. They are part of the largest onshore wind power project in Europe.

The case before the Supreme Court concerned whether the construction of Storheia and Roan windfarms on Fosen peninsula amounts to a violation of the reindeer herders’ right to enjoy their own culture under Article 27 of the ICCPR. The ICCPR is incorporated into the Act Relating to the Strengthening of the Status of Human Rights in Norwegian law (the Human Rights Act) of 21 May 1999. ICCPR thus applies directly as Norwegian law. It also takes precedence over other Norwegian legislative provisions through Section 3 of the Act in the event of a conflict with them.

A grand chamber of the Supreme Court unanimously found a violation of Article 27 and stated that the licence and expropriation decisions were invalid.

As in previous Supreme Court judgments where ICCPR Article 27 has been invoked, the judgment in the Fosen case largely follows the practice of the Human Rights Committee.  As a point of departure, the Supreme Court, in accordance with statements from the Human Rights Committee, ruled that the Sami are protected under Article 27 and that the concept of culture in ICCPR Article 27 may include lifestyles and traditional activities such as reindeer husbandry, trapping and fishing. In the judgment, this is stated as follows in para. 101: “It is clear that the Sami people are a minority within the meaning of Article 27, and that reindeer husbandry is a form of protected cultural practice.”

Assessments of the threshold for violation of ICCPR Article 27 in the Supreme Court’s jurisprudence largely follow the assessment themes that have been developed through the practice of the Human Rights Committee. The factors considered in assessing whether the threshold for violating Article 27 is overstepped are i.a.: whether the participation of the affected minority in the decision on interference has been effective, whether the cumulative effects of the interference together with previous interferences constitute a violation of Article 27, or whether remedial measures have been implemented that may result in the threshold not being reached after all. After having concluded that the threshold for significant negative impact had been reached in the Fosen case, the Court established that the remedial measures taken were not sufficient.

With reference to jurisprudence from the Human Rights Committee, the Supreme Court also confirmed that Article 27 does not allow for a balancing of interests in the form of proportionality assessments, allowing the interests of the society at large to take precedence over the rights of indigenous peoples. However, the Supreme Court specified that it would be permissible to allow a balancing of other fundamental rights (such as the right to environment) against the cultural rights of a minority. This was, however, not relevant in this case, because the windmills could have been placed on other locations which would not have interfered with the reindeer herding.

The jurisprudence of the Human Rights Committee is described in more detail in the Norwegian NHRI’s thematic report “Human Rights Protection Against Interference in Traditional Sami Areas”.

Implementation of the judgment

One question that is particularly relevant in the aftermath of the Fosen judgment, is the question of which consequences and remedies such violations may lead to. The judgment does not address this question. The UN Human Rights Committee has in earlier cases stated, among other things, that the authorities are obliged to ensure the complainant “an effective remedy and reparation measures” that are in a balanced relationship with the damage that has been suffered.1ICCPR Article 2, third paragraph (a). The authorities also have an obligation to take measures to ensure that similar violations do not occur again.2HRC, Angela Poma Poma v Peru, (Communication No. 1457/2006), para. 9. See also HRC, Tiina Sanila-Aikio v Finland (Communication No. 2668/2015), para. 8, Klemetti Käkkäläjärvi et al. v Finland (misspelled by the Human Rights Committee, real name is Näkkäläjärvi) (Communication No. 2950/2017), para. 11. What this entails concretely depends on the facts and circumstances of a given case, and governments will have considerable leeway or a “margin of appreciation” to resolve this within their own national legal systems.

In December 2021, the Norwegian NHRI published an article on the obligation to ensure an effective remedy and reparation measures to the reindeer herders (in norwegian). On 1 April 2022, we sent a letter to the Ministry of Petroleum and Energy where we i.a. stated that, as a consequence of the Supreme Court judgment, there was an ongoing violation of the reindeer herders’ human rights (in norwegian). Furthermore, we stated that, although practice from the Human Rights Committee does not give detailed guidance on what is required in order to repair a violation, it seems clear that ongoing violations must cease as soon as possible, and that the Government must implement measures to bring the violations to an end and ensure that similar violations do not occur in the future.

Despite pressure and protests from several stakeholders, including the Sami Parliament, the affected reindeer herders and others, it took more than 500 days from the judgment was pronounced to the day the Government made an apology and recognized that there is an ongoing violation of the affected reindeer herders’ human rights. The Government has also promised to speed up the process in finding solutions to implement the judgment, with the active involvement of the reindeer herders in finding these solutions.