4. Human Rights Protection against Interference – The Supreme Court

Supreme Court judgments where ICCPR Article 27 is a factor, largely follow the practice of the Human Rights Committee. The Fosen judgment, from October 2021, constitutes the most thorough interpretation and application of Article 27 in Norwegian law to date. The judgment is based on previous Supreme Court decisions, but also provides a number of further clarifications on ICCPR Article 27.¹⁷⁸

4.1 Introduction

Human rights have gained increased importance in Norwegian legal practice since the Human Rights Act entered into force in 1999. This is also reflected in cases concerning Sami affairs where one can see an increased emphasis and application of human rights.

This chapter gives an account of relevant cases from the Supreme Court that provide guidelines for how indigenous peoples’ rights are dealt with in interference cases.¹⁷⁹ It is mainly the Fosen judgment from 2021 and the Reinøya judgment from 2017 that provide guidance on the interpretation of ICCPR Article 27 in cases relating to interference in Sami areas.¹⁸⁰ The Sara judgment also provides important legal clarifications on Article 27 that will be of significance for interference cases, although the judgment is not about interferences in nature.¹⁸¹ The Nesseby judgment from 2018, the Stonglandshalvøya judgment from 2004, and the Alta judgment from 1982 provide briefer overall assessments of ICCPR Article 27 and give limited guidance on interpretations of the provision’s significance in interference cases.¹⁸²

4.2 Assessments of ICCPR Article 27 in the Supreme Court’s jurisprudence

Supreme Court judgments where ICCPR Article 27 is a factor, largely follow the assessment themes that have been developed through the practice of the Human Rights Committee. In all recent Supreme Court judgments dealing with Article 27, the Supreme Court has noted that a “convention interpretation undertaken by the UN Committee on Human Rights, must have significant weight as a source of law”.¹⁸³

The Fosen judgment, from October 2021, constitutes the Courts’most thorough treatment of ICCPR Article 27 to date. The judgment is based on the Supreme Court’s previous rulings in the Reinøya judgment and in the Sara judgment, but also provides a number of further clarifications on Article 27. The Fosen judgment 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.¹⁸⁴ The central question was whether the licence was valid, (by the Court formulated as to whether the appraisal should be inadmissible) as a result of the development being contrary to the protection of the reindeer husbandry activities according to ICCPR Article 27.¹⁸⁵

In the Fosen judgment, the Supreme Court takes as its point of departure that ICCPR Article 27 must be viewed in the context of Article 108 of the Constitution, and that this constitutional provision “may be an independent legal basis where other sources of law do not provide an answer”.¹⁸⁶ Another important point of departure in the judgment is that the ICCPR applies directly as Norwegian law pursuant to the Human Rights Act, and shall, in case of a conflict of norms, take precedence over any other legislative provisions.¹⁸⁷ The Supreme Court therefore ruled that ICCPR constitutes a limitation on administrative discretion, which means that the licensing decision was invalid if ICCPR Article 27 were violated.¹⁸⁸

An important procedural question in the Fosen judgment was whether the Supreme Court, in its examination of the administrative discretion, could only decide whether the administration’s forecasts had been sound at the time of the decision, as Fosen Vind had argued.¹⁸⁹ This could have resulted in strong restrictions on the Court’s right to make an independent fact assessment. The Supreme Court concluded that such a limitation on the assessment of facts could not “apply in a case such as this, where there are questions as to whether ICCPR Article 27 prevents the appraisal” and that the courts could not limit their review to “the adequacy of administrative forecasts”.¹⁹⁰

4.2.1 The material basis for culture

The Alta judgment of 1982 reflects the early discussion of the concept of culture in ICCPR Article 27. The plaintiffs stated that the concept of culture in Article 27 included nature as “the material basis of culture”, and that this was a “necessary prerequisite for the group to maintain a way of life in which culture constitutes an integral part”.¹⁹¹ The state, on the other hand, stated that “a protection of the material preconditions of culture clearly lies outside the wording”.¹⁹² In this case, no direct position was taken as to whether Article 27 protects the material preconditions of culture, i.e. the traditional business practice of the indigenous peoples.¹⁹³

The Sami Rights Committee (I) stated in 1984 that ICCPR Article 27 includes the material basis for culture.¹⁹⁴ The UN Human Rights Committee has also explicitly stated this in a number of statements.¹⁹⁵ The Supreme Court has, 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 Reinøya judgment, it was stated that “It is undoubted, and undisputed, that the reindeer husbandry of the Sami is protected according to the provision.”¹⁹⁶ The Sara judgment states that “the Sami are a minority in the sense of the provision, and that reindeer husbandry is a form of protected cultural practice”.¹⁹⁷ It was also emphasised here that the concept of culture in ICCPR Article 27, as specified by the Human Rights Committee in General Comment 23, “also comprises ways of living and traditional activities such as fishing and hunting.”¹⁹⁸ In the Fosen judgment, the Supreme Court summed up: “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.”¹⁹⁹

This point of departure has also been recognised by both the Government and Parliament in legislative preparatory work.

4.2.2 Individual or collective rights – who can claim violation of ICCPR Article 27?

The question of who may be covered by the protection under ICCPR Article 27, largely relates to whether the provision protects individuals or groups. This again is linked to the cultural lifestyles of the minorities the provision protects.

The issue of individual or collective protection was thoroughly addressed in the Fosen judgment because the state, through the Attorney General as a third-party intervention to Fosen Vind, argued that ICCPR Article 27 applies only to individuals and therefore could not be invoked by Siidas.²⁰⁰ Among other things, the state believed that the Siidas could not complain to the UN Human Rights Committee. The state argued, on this basis that the case should be rejected by the Supreme Court.

In the verdict, the Supreme Court initially noted that ICCPR Article 27 protects individuals, but “has a certain collective character”. Furthermore, it is stated that because reindeer husbandry is conducted jointly, in Siida, in areas where the collective grazing rights of reindeer herders lie with the Siida, it will be difficult to draw a sharp distinction between the individuals and the group.²⁰¹

The Supreme Court then considered the question of whether groups can invoke this protection. The Supreme Court held that although the Human Rights Committee deals with individual complaints, the Committee does not always clearly distinguish between the protection of individuals in a minority group and the group as such.²⁰² Furthermore, the Supreme Court noted that it is not “doubtful that a Siida may have limited party capacity”. Reference was made to Section 44 second paragraph of the Reindeer Husbandry Act, which stipulates that the Siida can safeguard their own special interests, among other things, in litigation.²⁰³

The Supreme Court concluded:

In a case dealing with such rights, a Siida must then have the capacity to act as a party and invoke individual reindeer herders’ rights under Article 27 on their behalf. Article 108 of the Constitution, which requires the public authorities to create conditions enabling the Sami people to preserve and develop its culture, supports this interpretation.²⁰⁴

The state’s main point had been that the Siida did not have rights under the convention and that the case before the Supreme Court therefore should be rejected.²⁰⁵ One might ask why the state argued that the Siida did not have party rights before the Human Rights Committee, when ICCPR Article 27 is part of Norwegian law. It was thus not decisive whether the procedural prerequisites for complaining to the Committee were met. In light of the Attorney General’s intervention on the part of the developer, the state’s understanding of its role in the case of Fosen wind power plant has been questioned.²⁰⁶ As a party to the ICCPR and pursuant to its obligations under the Human Rights Act and the Constitution, the state has an obligation to ensure that both public and private actors act in a manner which does not violate Article 27.

Also in the Sara judgment, the Supreme Court pointed out that ICCPR Article 27, according to the wording, protects the individual, but that the protection nevertheless has a certain collective character – it must be possible for the culture to be practiced jointly with other members of the group.²⁰⁷ But in this case, which concerned reduction in reindeer numbers which mainly concerned internal matters in the group, the validity of the measure in relation to Article 27 should be assessed specifically on the basis of its impact on the individual.²⁰⁸ In the Nesseby judgment, the Supreme Court pointed out that “Section 5 of the Finnmark Act first paragraph states that the Sami have collectively and individually acquired rights to land in Finnmark”.

In summary, it is no longer doubtful that ICCPR Article 27 involves the protection of both individuals and groups of individuals. Both individuals and groups can also invoke the rights. The Supreme Court confirmed that both individuals and collective groupings, such as Siida, will have party capacity and legal interest, including under the Reindeer Husbandry Act.

4.2.3 Effective participation in decision-making processes

The Supreme Court has, in several cases, emphasised the importance of consultations.²⁰⁹ In the Reinøya judgment, it was assumed that it matters if, and to what extent, “the minority has been allowed to speak out and been included in the process”.²¹⁰

This was also central to the Sara judgment, in which the Supreme Court stated that there was a requirement for effective participation in the decision-making process, but found, on the basis of the Human Rights Committee’s practice, that in a case of internal burden sharing within an indigenous group, there was no unconditional requirement that such participation actually influenced the decision. It was sufficient that the minority had been consulted with a view of finding a unified solution.²¹¹

The significance of consultations during the process was also discussed in the Fosen judgment. Based on the above-mentioned judgments, as well as the Human Rights Committee’s views, including in the Poma Poma case, the Supreme Court ruled that it is not only “decisive if and to what extent the minority has been consulted”, but that this is one of several factors “that are included in the assessment of whether the cultural protection has been violated”.²¹²

Following this, the Supreme Court emphasised that consultations cannot reduce the material protection provided by the provision:

If the consequences of the interference are sufficiently serious, consultation does not prevent violation. On the other hand, it is not an absolute requirement under the Convention that the minority’s participation has contributed to the decision, although that, too, may be essential in the overall assessment.²¹³

In its interpretation of what lies in the obligation of consultation, the Court of Appeal had in its ruling on the Sara case, in the opinion of the Supreme Court, gone too far when, on the basis of the Poma Poma case, it indicated an obligation for the authorities to obtain informed prior consent. In this regard, the Supreme Court stated:

The Poma Poma case concerned interference by the authorities that completely ripped off the basis of existence of the appellant and the other members of the minority community to which she belonged. In such a case, it is clear that violation has taken place if no prior consent had been obtained from the minority. But this is not analogous to the case at hand.²¹⁴

In the Sara judgment, the Supreme Court further referred to the Mahuika case, in which the Human Rights Committee had stated that the relevant members of the minority must have had “the opportunity to participate”. The Supreme Court further stated that in the Lovelace case and the Kitok case, the issue of consultations was not addressed, which in their view implied “at least, that it cannot be an unconditional requirement that the participation of the minority has influenced the decision”.²¹⁵ The Supreme Court therefore seems to be taking the line of the Human Rights Committee in the Poma Poma case, which states that the indigenous peoples have the right to participate in decision-making processes in interference cases, and that their free and informed prior consent should have been obtained in a case where the livelihood was destroyed.

4.2.4 Overall effect or cumulative effects

In the Reinøya judgment, a central theme was whether the overall effects, or cumulative effects, were of such a magnitude that the complainants were denied the right to practice their culture.²¹⁶ The Supreme Court ruled that the effect must be looked at over time, and referred, among other things, to the Human Rights Committee’s views that one must consider “the effects of past, present and planned future logging”.²¹⁷ In this case, however, no “ information has been provided on any future measures that might constitute a violation of the Sami rights under Article 27”.²¹⁸

The statements in the Reinøya judgment on cumulative effects were repeated in the Supreme Court ruling in the Fosen judgment, where it was concluded that the interference must be “seen in context of other measures, both previous and planned. It is the different activities taken together that may constitute a violation.”²¹⁹ The Supreme Court did not discuss this issue specifically in the Fosen judgment. Neither did the Supreme Court clarify how far back in time one must assess the cumulative effects.

4.2.5 Remedial measures

Remedial measures concern limiting the negative effects of interferences. The obligation to mitigate negative effects of interferences can be said to follow directly from the obligations of states pursuant to ICCPR Article 27 to ensure the right of minorities to cultural practice. In the Sara judgment, the Supreme Court stated that states “[…] have an obligation to implement positive measures when deemed necessary to protect the minority.”²²⁰

In the Reinøya judgment, the Supreme Court emphasised that remedial measures had been taken. This was part of the assessment which lead to the conclusion that Article 27 had not been violated. Among other things, it was decided in the appraisal conditions that there should be routines for having discussions between the Sami and the developer, and that the construction activity should be stopped when reindeer were landed from a boat, and that the construction activity should be stopped during the calving period.²²¹

In the Fosen judgment, the question of remedial measures was central. The Court of Appeal had, although hesitantly, come to the conclusion that there was no violation of ICCPR Article 27. This was mainly due to the remedial measures that the Court of Appeal decided, including a very costly scheme of winter grazing in fenced-in areas. The Supreme Court agreed that remedial measures by the authorities or the expropriator (developer) that reduce the disadvantages of an interference, could, depending on the circumstances “keep the interference below the threshold for violation.”²²² Economic subsidies for a slaughter facility and electronic reindeer marking and barrier fences were examples of measures that were relevant to the Supreme Court’s “violation assessment”.²²³ Nevertheless, remedial measures in the form of winter feeding of reindeer in enclosures, were not sufficient according to the Supreme Court.²²⁴ It was in any event uncertain whether extensive winter feeding in enclosures was in line with the reindeer owners’ right to exercise their culture according to Article 27.²²⁵ According to the Supreme Court, remedial measures could not be seen as part of the expropriator’s (reindeer husbandry) adaptation obligation: “Measures of this nature must alternatively be presented by the public administration as a condition for expropriation, or provisions on this may be included in the conditions for appraisal proceedings.”²²⁶

In contrast to the Court of Appeal, the Supreme Court in the Fosen judgment thus ruled that the proposed remedial measures were not sufficient to prevent a violation of ICCPR Article 27.

4.2.6 The threshold for violation of ICCPR Article 27 and proportionality assessments

4.2.6.1 Substantive negative impact

In addition to the above specific assessment topics, an overall assessment must be made of the interference’s negative impact on cultural practice. As mentioned above, remedial measures could mean that an interference that as a point of departure constitutes a violation, nevertheless may fall below the threshold. Whether the threshold is reached will thus be a kind of “net assessment”.

The question of the meaning of the term “denied” in ICCPR Article 27, and how the actual threshold for violation of Article 27 is assessed, is discussed in particular in the Fosen judgment, but also in the Reinøya judgment and the Sara judgment.

In the Reinøya judgment, the Supreme Court reviewed four decisions of the Human Rights Committee, the three Länsman cases and the Poma Poma case.²²⁷ The Supreme Court noted that the Human Rights Committee in the Poma Poma case formulated the decisive question as follows: “The question is whether the consequences […] are such as to have a substantive negative impact on the author’s enjoyment of her right to enjoy the cultural life of the community to which she belongs.” (our emphasis).²²⁸ The first voting justice concluded after this review that “Overall, the case law of the Human Rights Committee shows that it takes a great deal for a measure to become so serious that it constitutes a violation of Article 27.”²²⁹

Both in the Reinøya judgment and in the Sara judgment, the Supreme Court referred to the Human Rights Committee General Comment 23, which specifies that indigenous peoples’ rights should be protected from both “denial” and “violation” – i.e. that a total denial of cultural practice is not required, but at the same time that there is a fairly high threshold for breaching the provision.²³⁰

Fosen Vind argued before the Supreme Court that the threshold for violation is very high and that “the interference must be so intrusive that it equals a total denial”.²³¹ The Supreme Court did not agree with this, citing the assessments in the Sara judgment and the Reinøya judgment.²³² The Court said that the consequences of an interference do not have to be as serious as in the Poma Poma case, “where thousands of livestock animals were dead as a result of the measure, and the author had been forced to leave her area”.²³³ Based on the Human Rights Committee’s statements, the Supreme Court concluded, regarding the threshold, that “the question must be whether the measure has ‘a substantive negative impact’ on the author’s enjoyment of her culture” and that “there will be a violation of the rights in Article 27 of ICCPR if the interference has a substantive negative impact on the possibility of cultural enjoyment”.²³⁴ It appears that the threshold in the Fosen judgment has been placed at approximately the same level as in the Reinøya judgment. Both here and in the Fosen judgment, the Supreme Court refers to the term “substantive negative impact”.

In the specific assessment of the threshold in Article 27, the main question in the Fosen judgment was “whether Storheia and Roan windfarms have a substantive negative impact on the Sami people’s possibility to enjoy their own culture”.²³⁵ The Supreme Court ruled that the development had completely changed the nature of important winter grazing areas over 60 square kilometres, which in the long term would likely lead to a significant reduction in reindeer numbers and pose a serious threat to the business activities and thus to cultural practice.²³⁶ The particular vulnerability of the South Sami culture, and the importance of the reindeer husbandry industry to this culture and the South Sami language, also appear to be an important factor in the assessment.²³⁷

4.2.6.2 Proportionality assessment

Because the Ministry of Petroleum and Energy (MPE) had assumed, in its 2013 licence decision, that pursuant to ICCPR Article 27 a balance could be struck between the interests of society and the interests of reindeer husbandry,²³⁸ this very question was also central in the Fosen judgment.

Unlike the MPE, the Supreme Court concluded that Article 27 does not as a point of departure allow for proportionality assessments: “the wording of Article 27 does not allow the States to strike a balance between the rights of indigenous peoples and other legitimate purposes”.²³⁹ The Supreme Court noted that this follows from the wording of Article 27 which, contrary to many other human rights provisions, does not allow for limitation in the right with a view to secure other interests. They also pointed out that Article 27, in accordance with ICCPR Article 4 on derogation, can only be derogated from in emergency situations. The court also referred to the Human Rights Committee’s statement in the first Länsman case:

A State may understandably wish to encourage development or allow economic activity by enterprises. The scope of its freedom to do so is not to be assessed by reference to a margin of appreciation, but by reference to the obligations it has undertaken in article 27.²⁴⁰

The Supreme Court stated, however, that if fundamental rights – such as the right to the environment – conflict with indigenous peoples’ rights, a balance may still have to be struck.²⁴¹

The right to the environment is protected, among other things, by Article 112 of the Constitution, and is also protected by several human rights, such as the right to life and the right to property.²⁴² According to the Supreme Court, however, the wind power development at Fosen did not represent a collision between two fundamental rights. The right to the environment and the consideration for a “green shift” could have been safeguarded in other ways, partly because before the development started there had been other, and for reindeer herders less intrusive, development alternatives.²⁴³

In the Fosen judgment, the Supreme Court concluded that the licensing decision and the expropriation decision, as far as Storheia and Roan are concerned, contradicted the rights of the reindeer herders pursuant to ICCPR Article 27 and that the decision was therefore invalid.²⁴⁴

As discussed below (in Chapter 5), the Fosen case was decided by the MPE before the Ministry seemed to change their view on the question of whether Article 27 provides for proportionality assessments. It is not unlikely that this assessment on the part of the Ministry in the Fosen case has contributed to the state losing the case in the Supreme Court. This emphasises the importance of making thorough human rights assessments in the public administration.

Fotnoter:

¹The judgement can be found in English translation here: https://www.domstol.no/en/supremecourt/rulings/2021/supreme-court-civil-cases/hr-2021-1975-s/
²Several judgments of more limited transfer value in relation to interference cases are therefore not discussed in more detail, e.g. Rt. 2006 p. 1382 (Utsi) on transfer of operating unit, Rt. 2008 p. 1789 (Hjertestikk) on customary law, HR-2016-2030-A (Stjernøya) on property rights, HR-2018-872-A (Femund sitje) on grazing damage.
³HR-2021-1975-S (Fosen) and HR-2017-2247-A (Reinøya). The ICCPR Article 27 assessments are most comprehensive in the Fosen judgment.
⁴HR-2017-2428-A (Sara). The case has been appealed to the Human Rights Committee, who as of February 2022 has not published a decision in the case.
⁵See respectively Rt. 1982 p. 241 (Alta), HR-2004-1128-A, Rt. 2004 p. 1092 (Stonglandshalvøya) and HR-2018-456-P (Nesseby). The Alta judgment must be read i.a. in view of the fact that at that time, there was very little practice by the Human Rights Committee on the interpretation of ICCPR Article 27, and the Committee had not yet made any general comment on ICCPR Article 27.
⁶HR-2017-2428-A (Sara), para. 57, cf. HR-2017-2247-A (Reinøya), para. 119, and HR-2021-1975-S (Fosen), para. 102.
⁷This is referred to in the judgment as the licensing decision.
⁸HR-2021-1975-S (Fosen), para. 2, 11. For the Ministry’s decisions, see Chapter 5.
⁹See Chapter 2.2. See also HR-2021-1975-S (Fosen), para. 99.
¹⁰Human Rights Act Section 2 no. 3, cf. Section 3.
¹¹HR-2021-1975-S (Fosen), para. 100.
¹²HR-2021-1975-S (Fosen), para. 66.
¹³HR-2021-1975-S (Fosen), para. 71.
¹⁴Rt. 1982 p. 241 (Alta), p. 292.
¹⁵Rt. 1982 p. 241 (Alta), p. 297.
¹⁶Rt. 1982 p. 241 (Alta), p. 299 onwards. The Supreme Court’s discussion of ICCPR Article 27 must be seen in the light of the right to self-determination in ICCPR Article 1, where the question was whether Norwegian exercise of sovereignty was restricted due to this provision. The effects of the development of the Alta-Kautokeino watercourse - which meant that an area of approximately 2.8 km2 was dammed up and lost as grazing land - were not so extensive that ICCPR Article 27 was violated.
¹⁷NOU 1984:18, On the legal position of the Sami, p. 24.
¹⁸See Chapter 3.4.1.
¹⁹HR-2017-2247-A (Reinøya), para. 120.
²⁰HR-2017-2428-A (Sara), para. 55.
²¹HR-2017-2428-A (Sara), para. 60, where it is stated that “It is clear that the Sami are a minority in the sense of the provision, and that reindeer husbandry is a form of protected cultural practice”, cf. HR-2017-2247-A (Reinøya), para. 120.
²²HR-2021-1975, (Fosen) para. 101.
²³In the case, South Fosen Siida and North Fosen Siida were parties, HR-2021-1975-S (Fosen), paras. 57 and 103.
²⁴HR-2021-1975-S (Fosen), para. 106.
²⁵HR-2021-1975-S (Fosen), paras. 105 and 106.
²⁶HR-2021-1975-S (Fosen), paras. 108 and 109.
²⁷HR-2021-1975-S (Fosen), para. 110. The basis for the conclusion was i.a. the wording of ICCPR Article 27,the practice of the Human Rights Committee, the Reindeer Husbandry Act’s organisation of reindeer husbandry and the Supreme Court’s statements in the judgments Rt. 2000 p. 1578 (Seiland), HR-2017-2428-A (Sara), HR-2019-2395-A (Reindeer numbers reduction II). Article 108 of the Constitution also supported such an understanding. It can be added here that the Ministry of Petroleum and Energy has an extensive government practice with ICCPR Article 27 assessments in relation to Siida and reindeer grazing districts, see Chapter 5.3.1.
²⁸HR-2021-1975-S (Fosen), para. 57.
²⁹This has later been criticised, i.a. by Professor Emeritus Inge Lorange Backer, who in an interview pointed out that the state also has an interest in protecting minorities. Retrieved 29 October 2021 from nrk.no: Ingrid Lindgaard Stranden, “The state only helped one side in the lawsuit, now criticism is flowing in the Fosen case”, NRK, 2021, https://www.nrk.no/trondelag/staten-hjalp-bare-den-ene-parten-i-fosen-rettssaken_-na-strommer-kritikken-pa-1.15705617.
³⁰HR-2017-2428-A (Sara), para. 55.
³¹HR-2017-2428-A (Sara), para. 76.
³²See Kirsti Strøm Bull, “En kommentar til Høyesteretts forståelse av SP artikkel 27 og konsultasjonsplikten”
³³HR-2017-2247-A (Reinøya), para. 121, cf. HR-2017-2428-A (Sara), paras. 72 and 89, see also HR-2021-1975-S (Fosen), paras. 120-123.
³⁴HR-2017-2428-A (Sara), para. 75. The Supreme Court referred here to HRC General Comment No. 23, para. 7, as well as to the Committee’s decision in the Mahuika case and to NOU 2007:13 A, p. 207.
³⁵HR-2021-1975-S (Fosen), para. 121. The Supreme Court referred here to both the Human Rights Committee’s and the Supreme Court’s practices, as well as NOU 2008:5, p. 272.
³⁶HR-2021-1975-S (Fosen), para. 121.
³⁷HR-2017-2428-A (Sara), para. 74.
³⁸HR-2017-2428-A (Sara), para. 74. It should be noted that both of these decisions of the Human Rights Committee came before ILO 169 and UNDRIP were adopted, and that less attention was paid to consultations.
³⁹HR-2017-2247-A (Reinøya), para. 125.
⁴⁰HR-2017-2247-A (Reinøya), para. 126. Regarding the cumulative effect, the Supreme Court referred in particular to the Human Rights Committee’s assessments of the cases Jouni E. Länsman et al. v Finland of 22 November 1996 (ICCPR-1995-671), para. 10.3 and Jouni E. Länsman et al. v Finland from 15 April 2005 (ICCPR-2001-1023) para. 10.2, see Chapter 3.4.5.
⁴¹HR-2017-2247-A (Reinøya), para. 133.
⁴²HR-2021-1975-S (Fosen), para. 119.
⁴³HR-2017-2428-A (Sara), para. 58 cf. 59 which states that such “measures for protection of the minority must respect the Covenant’s provisions on protection against discrimination. As long as the measures aim to improve the minority’s possibilities of enjoying its culture, etc., they may be deemed legitimate, as long as they are based on reasonable and objective criteria.”
⁴⁴HR-2017-2247-A (Reinøya), para. 130.
⁴⁵HR-2021-1975-S (Fosen), para. 147.
⁴⁶HR-2021-1975-S (Fosen), para. 147.
⁴⁷HR-2021-1975-S (Fosen), para. 151.
⁴⁸HR-2021-1975-S (Fosen), para. 149.
⁴⁹HR-2021-1975-S (Fosen), para. 152.
⁵⁰HR-2017-2247-A (Reinøya), paras. 124–127.
⁵¹HR-2017-2247-A (Reinøya), para. 127.
⁵²HR-2017-2247-A (Reinøya), para. 128.
⁵³HR-2017-2428-A (Sara), para. 55. HR-2021-1975-S (Fosen), paras. 111, 113. The Supreme Court also referred to statements from the Human Rights Committee in the three Länsman cases, and that the Sami Rights Committee stated that “denial” in the sense of ICCPR Article 27 will not only include “total denials” but also “violations”, cf. NOU 2007:13 A, p. 203. Cf. HR-2017-2247-A (Reinøya), para. 124-127. See also HR-2017-2428-A (Sara), para. 55.
⁵⁴HR-2021-1975-S (Fosen), para. 52.
⁵⁵HR-2021-1975-S (Fosen), paras. 111–114.
⁵⁶HR-2021-1975-S (Fosen), para. 119.
⁵⁷HR-2021-1975-S (Fosen), para. 118, 119. Following these statements in the Fosen judgment, any ambiguities about the meaning of the term “denied” after the Nesseby judgment, HR-2018-456-P (Nesseby), para. 164, is considered clarified.
⁵⁸HR-2021-1975-S (Fosen), para. 135.
⁵⁹HR-2021-1975-S (Fosen), paras. 136 and 137.
⁶⁰HR-2021-1975-S (Fosen), para. 141.
⁶¹Ministry of Petroleum and Energy decision of 26 August 2013 - The Fosen cases, pp. 88 and 108. See also Chapter 5.3.6.
⁶²HR-2021-1975-S (Fosen), para. 124.
⁶³239 HR-2021-1975-S (Fosen), para. 125, cf. para. 124.
⁶⁴HR-2021-1975-S (Fosen), paras. 131 and 143.
⁶⁵See NHRI’s report Climate and Human Rights, https://www.nhri.no/Climate and Human Rights
⁶⁶HR-2021-1975-S (Fosen), para. 143.
⁶⁷HR-2021-1975-S (Fosen), para. 11, cf. 151 and 153.