5. Human Rights Protection against Interference – Administrative Practice

Human rights have become increasingly important in Norwegian administrative practice in recent decades. This is also reflected in cases of interference in Sami areas of use. The rights pursuant to ICCPR Article 27 are relevant in many types of interferences in Sami areas.

5.1 Introduction

This chapter sheds light on how the administration assesses the relevant criteria in ICCPR Article 27 in cases concerning licences for developments in Sami areas of use. Some of these administrative decisions have come before the courts or may come before the courts in the future.

As a source of law, these administrative decisions are of minor importance, but they demonstrate how the ministries have carried out Article 27 assessments. The Sami Rights Committee (II) proposed a joint overall regulation of special procedural rules to ensure that the requirements for assessments of indigenous peoples’ rights could be implemented in the same manner in different sectors of the administration. The Ministry of Local Government and Regional Development did not agree with this, and as of today, each ministry is responsible for assessing how the consideration of Sami interests should be weighted in their respective sector.²⁴⁵Prop. (Law Proposal to Parliament) 86 L (2020-2021), pp. 103–104. The fact that there are no guidelines for the administration’s interpretation of international legal obligations may have contributed to the MPE making a balancing of interests between the needs of society and the rights of indigenous peoples in the interpretation of Article 27, which the Supreme Court later disagreed with. This demonstrates, in our view, a need to clarify the assessment criteria and their practical and procedural aspects.

5.2 Administrative practice on wind power and mining

5.2.1 Introduction

Human rights have also become increasingly important in administrative practice since the Human Rights Act came into force in 1999, which is also reflected in cases concerning Sami issues.²⁴⁶As discussed in more detail in Chapter 2.1, ICCPR Article 27 is incorporated into Norwegian law through the Human Rights Act and thus takes precedence in the event of any legal conflicts. Public authorities are obliged by human rights, cf. Article 92 of the Constitution. This applies to the exercise of public authority at all levels, and without regard to the distribution of power and competence between different state powers and administrative levels. The rights under ICCPR Article 27 will typically be relevant in interferences in the form of plans and measures in Sami areas. This may apply to new roads, railways, military training fields, cabin areas, hydropower dams, wind power and mines, or other interferences that may affect Sami reindeer husbandry.

The assessments of ICCPR Article 27 in relation to interference will be relevant for several types of interferences and for several authorities, including municipal authorities. This applies to licences not only pursuant to the Planning and Building Act, but also pursuant to, for example, the Energy Act, the Minerals Act and other special areas of legislation. It will be too extensive to review administrative practices in all areas that may be of significance for Sami issues. This report focuses mainly on wind power development, as well as the establishment of mining industry. The report emphasises relevant examples of government practice from the Ministry of Petroleum and Energy (MPE) and the Ministry of Trade, Industry and Fisheries (MTIF).²⁴⁷These are appeal bodies for decisions in licensing cases by the Norwegian Water Resources and Energy Directorate (NVE) and the Directorate for Mineral Management with the Commissioner of Mines at Svalbard (DMF), respectively.

Wind power is a relatively new type of industry in Norway, established mainly during the 2000s. The Sami traditional reindeer herding areas are in the counties of Troms and Finnmark, Nordland, large parts of Trøndelag and parts of Innlandet. Figures from the Norwegian Water Resources and Energy Directorate (NVE) for these counties show that they have received 129 applications for a licence, of which 37 are for plans in Troms and Finnmark, 28 in Nordland and 64 in Trøndelag.²⁴⁸NVE, “Konsesjonssaker – NVE” (“Licensing cases – NVE”) https://www.nve.no/konsession/konsesjonssaker/?ref=mainmenu. This gives an indication of the amount of cases that reindeer husbandry and other Sami interests have faced. Mining, on the other hand, is one of Norway’s oldest industries. Since the 2000s, there have been a modest number of new cases concerning mining licences for processing by MTIF.²⁴⁹And for the Directorate for Mineral Management with the Commissioner of Mines at Svalbard (DMF).
All of the decisions discussed in this chapter contain assessments of, among other things, environmental considerations and other considerations. In the following, however, the focus is only on the assessment factors that appear to be important under indigenous peoples’ human rights protection, especially according to ICCPR Article 27 and ILO 169.

5.2.2 Facts in the cases

Decisions concerning licences for wind power pursuant to the Energy Act are made by the Norwegian Energy Directorate (NVE) and can be appealed to the MPE. The report focuses on the MPE’s practice in appeal decisions on licence applications from the last ten years. These involved decisions from Sami reindeer herding areas: Fosen, Hammerfest, Fálesrášša, Kalvvatnan, Øyfjellet and Mosjøen, Kopperaa and Stokkfjell.²⁵⁰The Ministry’s decisions in the Kvitfjell case and the Raudfjell case on Kvaløya in Tromsø municipality, respectively, are not included since they are based on agreements with reindeer husbandry, and ICCPR Article 27 has thus not been used in those cases. In connection with the applications for Hammerfest and Fálesrášša, NVE 11/1-2013 also rejected an application from Aurora Vindkraft for the Kvalsund wind farm, following a balance of interests between the societal benefits and the overall effects on reindeer husbandry and biodiversity. All these cases concerned the establishment of wind power plants in reindeer herding areas. The MPE’s decision in the Fosen case was appealed to the courts, and was decided in the Supreme Court in 2021. This case is therefore also dealt with in Chapter 4 on Supreme Court case law.

Mining activities are regulated by the Minerals Act. According to its purpose, this Act shall “[…] promote and ensure socially responsible administration and use of mineral resources in accordance with the principle of sustainable development”. Within this framework, administration and use of mineral resources shall take into account, inter alia, value creation and business development, as well as the natural basis for Sami culture, business and society.²⁵¹The Minerals Act paras. 1 and 2. Cf. Chapter 3.6.4 on provisions in the Minerals Act that contribute to the implementation of ICCPR Article 27 and ILO 169. The Energy Act, which regulates wind power, does not have corresponding provisions. In light of the fact that few plans for mining has been made, this report only considers the Ministry of Trade, Industry and Fisheries’ (MTIF)’s decision in the appeal concerning a licence for the Nussir mine.²⁵²A license application from ELKEM for a license for the Nasafjell mine (open pit) is being considered by the Ministry. The case will affect reindeer grazing districts, but as of 1 December 2021 is still being processed.

The table on the next page shows, in addition to the name of the case, who was applying for a licence, the date of notifications/applications and decisions, what NVE²⁵³Norwegian Water Resources and Energy Directorate. (or MTIF) concluded, respectively, the indication of relevant complainants, and what the MPE²⁵⁴Ministry of Petroleum and Energy. (or MTIF) concluded after the appeal round.

5.3 Central elements in administrative practice

The facts in these cases are quite extensive and complicated, and a number of bodies have appealed against various aspects of the decisions. The assessment topics that the Human Rights Committee and the Supreme Court have used as a basis in their discussions on the scope and significance of ICCPR Article 27 are repeated in the administrative decisions discussed in this chapter. The discussions of administrative practice are systematised around the assessment topics in Article 27 that were discussed in chapters 3 and 4.

First, however, we discuss the importance of impact assessments for the administration’s decisions.

5.3.1 Impact assessments

In order to determine whether an interference in nature could conflict with the protection given in ICCPR Article 27, it is necessary to obtain a thorough knowledge base on the effects of the interference in question. The impact assessments constitute the most central knowledge base for the authorities’ assessments of the planned interferences’ future significance for reindeer husbandry.²⁶⁵Provisions on impact assessments have been discussed in the literature, see e.g. Øyvind Ravna, “Same- og reindriftsrett” (“Sami and reindeer husbandry law”), Gyldendal 2019 p. 432 onwards, and Nikolai K. Winge, “Konsekvensutredning i reindriftsområder” (“Impact assessment in reindeer husbandry areas”), Tidsskrift for eiendomsrett 12, no. 02 (2016).

Impact assessments are carried out by consulting companies, and are ordered and paid for by the developer.²⁶⁶The Impact Assessment Regulations, Section. 4. In the Poma Poma case, the Human Rights Committee stressed that no impact assessment had been carried out in the case which was “undertaken by a competent independent body” (our emphasis). This could be an argument for reconsidering the current system where impact assessments are being carried out by the developer.²⁶⁷HRC, Poma Poma v Peru, para. 7.7.

The decisions discussed in this report do not state the extent to which the impact assessments have been carried out in cooperation with those affected by the interference, as prescribed by ILO 169.²⁶⁸ILO 169 Article 7 no. 3 states that such studies shall be carried out “in co-operation with the peoples concerned”.

Impact assessments must be based, among other things, on available research. In 2013 (the Fosen case), there was little research on the impact of the turbines on the reindeer, and it was assumed that sound and movement from the turbines would not to any great extent affect the reindeer’s behaviour in nearby areas. It was also assumed that the wind turbines would have “little impact” and would enable “rapid adaptation” for the reindeer. The research basis for these conclusions in the Fosen case was weak. The precautionary principle pursuant to Section 9 of the Nature Diversity Act was not applied.²⁶⁹MPE, “Vindkraft og kraftledninger på Fosen – klagesak” (“Wind power and power lines at Fosen – complaint case”), 2013, 761649 (nve.no). The Ministry does not either appear to have further assessed the Sami’s traditional knowledge of the reindeer’s behaviour, cf. the Natural Diversity Act Section. 8.

In the Hammerfest case, however, the Ministry, in line with the Nature Diversity Act, assumed that when “[…] in the case of uncertainty concerning the extent of damages and inconveniences, the Ministry finds that in the absence of concrete knowledge, a certain precautionary approach must be taken”.²⁷⁰Ministry of Petroleum and Energy (MPE) decision of 2 March 2015 – Hammerfest, p. 3.

New research was also assessed in the Kalvvatnan case from 2016, and in line with this and with the precautionary principle, the MPE used indications of reduced grazing and reduced conditions for reindeer grazing at a distance of 3-4 kilometres from the turbines, even after several years of operation. The disturbances were considered to have been even greater during the construction period.²⁷¹Ministry of Petroleum and Energy (MPE) decision of 11 November 2016 – Kalvvatnan, p. 7. NVE had concluded that reindeer herding’s use of the planned area would not cease, but that the use of the area could be reduced in the short term.²⁷²Ministry of Petroleum and Energy (MPE) decision of 11 November 2016 – Kalvvatnan. The Ministry pointed out that the actual effects from the establishment of wind power in a reindeer grazing area were uncertain and that there were no unambiguous research results.²⁷³Previous studies at the Kjøllefjord wind farm had indicated that the reindeer were to a small extent affected by wind farms in the operational phase. This previous knowledge base was used as a basis by NVE and the MPE in the Fosen decision, where the Ministry assumed that wind turbines and power lines do not in principle prevent an area from being used for grazing even after the development, see the Fosen decision p. 99. It is worth noting that the Ministry in this case stated that “the principles of Section 7 of the Nature Diversity Act cf. Sections 8-12²⁷⁴It is noted that the Nature Diversity Act Section 8, second paragraph on the emphasis on traditional knowledge, implements the Convention on Biological Diversity (CBD) Article 8 (j) on traditional knowledge. The Nature Diversity Act contains i.a. provisions on the knowledge base, the precautionary principle, ecosystem approach and overall impact, that the costs of environmental degradation shall be borne by the developer as well as environmentally sound techniques and operating methods. are used as guidelines for decisions pursuant to the Energy Act”.²⁷⁵Ministry of Petroleum and Energy (MPE) decision of 11 November 2016 – Kalvvatnan, p. 2. Furthermore, it appears from the Ministry’s decision that the Minerals Act Section 2 on the management and use of mineral resources shall take into account the natural basis for Sami culture, business and society. The Ministry referred to Section 6 of the Minerals Act, which states that the Act shall be applied in accordance with the rules of international law on indigenous peoples and minorities and refers in this connection to the fact that the preparatory work refers specifically to ICCPR Article 27 and ILO 169, the Ministry of Petroleum and Energy decision of 11 November 2016 – Kalvvatnan, p. 15.

One objection that may be raised against the system for impact assessments is that the developer’s duty to investigate alternative solutions in accordance with the impact assessment regulations is limited to what the Act describes as “relevant and realistic” alternatives.²⁷⁶The Impact Assessment Regulations Section 14 1st paragraph (c). It has been pointed out that it is “by and large the developers themselves who determine which alternatives meet these criteria”.²⁷⁷Nikolai K. Winge, “Konsekvensutredning i reindriftsområder” (“Impact assessment in reindeer husbandry areas”), Tidsskrift for eiendomsrett 12, no. 02 (2016): pp. 118. This means that the developer will be able to rule out alternatives at an early stage as unrealistic if the alternative is not considered cost-effective. In the Fosen case, one might ask whether alternative solutions that would have had a lesser impact on reindeer husbandry were assessed to a sufficient degree.

As mentioned earlier in this chapter, it appears that the Human Rights Committee believes that impact assessments should be carried out by independent bodies. It is outside the scope of this report to discuss the content of such a requirement for independence. It is important that the independence is genuine, so that the motivation of the consulting companies to disseminate information that could make the implementation of the plan difficult, cannot be questioned.

5.3.2 Individual or collective rights

According to its wording, ICCPR Article 27 protects individuals, but according to the practice of the Human Rights Committee, also groups of individuals.²⁷⁸See more about this in Chapter 3.4.2. The ministries have in cases referred to in this report assessed Article 27 in relation to reindeer grazing districts, and where applicable, also siidas. The question has thus not come to the fore in administrative practice, but in the Hammerfest case, the Ministry specified that although alternative locations of the wind power plants could benefit reindeer husbandry as a whole, Article 27 also protects each reindeer herder individually.²⁷⁹Ministry of Petroleum and Energy (MPE) decision of 2 March 2015 – Hammerfest, p. 4. It can, however, be difficult to individualise the harm to individuals in reindeer husbandry, since reindeer husbandry is to a great extent treated as a collective activity.²⁸⁰In the Fosen judgment, it was established that the protection under ICCPR Article 27 has a collective character in addition to providing individual protection. HR 2021-1975, para. 106. This question was thoroughly addressed by the Supreme Court in the Fosen judgment.²⁸¹See Chapter 4.2.2.

5.3.3 Effective participation in decision-making processes

In all of the cases concerning wind power, affected districts and the Sami Parliament have been consulted, often through several rounds of consultation.²⁸²In the decision on the Fosen cases, the Ministry emphasised that two consultation meetings had been held between NVE and the reindeer grazing district represented by the Northern Group and between NVE and the Sami Parliament, and that a thorough assessment of reindeer husbandry had been made. The decision also stated that consultations had been held between NVE and the reindeer grazing district represented by the Southern Group in 2009, and between the Ministry and the Southern Group in May 2013, as well as between the Ministry and the Sami Parliament in August 2013, Ministry of Petroleum and Energy decision of 26 August 2013 – Fosen cases, p. 112. Due to a lack of available documentation, however, it is difficult to know when the involvement in decision-making processes have begun, how often consultation meetings have been held, and to what extent there has been a process with a view to reaching agreement in line with the requirements of ILO 169.

In 2005, a separate agreement was entered into between the Ministry of Local Government and Regional Development and the Sami Parliament on procedures for consultations between state authorities and the Sami Parliament. Here it is stated that minutes shall be written down from all consultation meetings between the state authorities and the Sami Parliament.²⁸³Agreement on procedures for consultations between state authorities and the Sami Parliament, 11 May 2005, para. 7.

The Norwegian NHRI’s own limited study of the scope, topics and outcomes of consultations between the Sami Parliament and state authorities in the period 2005–2017, shows that several measures have been taken to ensure the effective implementation of the state’s consultation obligations, but that there are different consultation practices in different ministries.²⁸⁴The survey is discussed in more detail in NHRI’s annual report for 2018, as well as in NHRI’s letter to the Ministry for Local Government and Regional Development of 26.06.2019 on “State authorities’ and the Sami Parliament’s experiences with indigenous law consultations”. In the Sami Parliament’s annual report for 2020, there is an overview of selected consultations with the authorities in 2020. Of the cases that were closed, the vast majority ended with agreement or partial agreement. In two cases concerning the environment and area, however, no agreement was reached, the Sami Parliament’s annual report 2020. It also shows that consultations are rarely sufficient to achieve an agreement between the Sami Parliament and state authorities, and that it is particularly in land-use interference and land management matters that agreement is not reached.

In its appeal against the decision on Nussir, the Sami Parliament, emphasised, among other things,  that the consultations between the Ministry and affected reindeer grazing districts were not genuine consultations, but only input meetings, because the reindeer grazing districts were not presented with assessments to which they could respond.²⁸⁵Royal Decree 29 November 2019 – Nussir, p. 4. The Sami Parliament and the reindeer grazing district pointed out that there were violations of the rules on consultation obligations pursuant to ILO Conventions 169 Articles 6 and 7 in the consideration of this matter.²⁸⁶Royal Decree 29 November 2019 – Nussir, p. 20.

In the Fosen case, the reindeer owners did not claim that the obligation of consultation had been violated, even though they claimed that their rights to cultural practice had been violated.²⁸⁷In this connection, it is worth noting that the Court of Appeal in the Fosen case ruled that one cannot “consult away from the material protection that the provision provides”. LF-2018-150314 – LF-2018-150323 – LF-2018-150327, p. 16. The Supreme Court repeated this in the Fosen judgment. See Chapter 4.2.3.

The new chapter of the Sami Act on consultations which was adopted in 2021 clarifies to a greater extent both the content of consultations and how they are to take place.²⁸⁸The Sami Act, Section 4-7. It was, among other things, legislated in Section 4-7 of the Sami Act that minutes shall be kept from the consultations.

5.3.4 Overall effect or cumulative effects

Assessments of the cumulative effects have been made in all administrative cases, and have contributed to the rejection or reduction of the development plans in several of the cases. The cumulative effects of previous and planned interferences appear decisive for rejection of the developments in Hammerfest, Fálesrášša and Kalvvatnan.

In the Hammerfest case, the Ministry noted that there was agreement between the reindeer herders and the professional assessor that the reindeer grazing district was already affected by interferences in the region.²⁸⁹Among other things, a decision in 2011 on spatial planning had referred to the cumulative effects of the interferences for reindeer husbandry, but at the same time emphasised that Hammerfest municipality had no other available areas for business development. Ministry of Petroleum and Energy (MPE) decision of 2 March 2015 – Hammerfest, p. 4. NVE had stated in its decision that “[…] the sum of established and planned other interferences in the area is so large that it is uncertain whether reindeer herding can be maintained in the district if the wind power plant is also established”. In the Fálesrášša case, in the Ministry’s view, there was “a risk that the sum of the wind power plant and the pipeline system could prevent reindeer herding in the district from being maintained to the extent it has today”.²⁹⁰Ministry of Petroleum and Energy (MPE) decision of 2 March 2015 – Fálesrášša, p. 6. Also in the Kalvvatnan case, where NVE’s permit was overturned, the Ministry said that the cumulative effects of the interference “in conjunction with previous measures and other adopted measures” appeared to be an important factor.²⁹¹Ministry of Petroleum and Energy (MPE) decision of 11 November 2016 – Kalvvatnan, p. 3, cf. the MPE’s decisions in the cases Hammerfest and Fálesrášša. In assessing Øyfjellet, however, the Ministry concluded after an assessment of the cumulative effects, that “[…] the basis for cost-effective reindeer herding will also be present after the establishment of Øyfjellet wind power plant.”²⁹²See report from Protect Sápmi on cumulative effects and Øyfjellet, Protect Sápmi, “Inngrepskartlegging og reindriftsfaglig utredning” (“Interference mapping and reindeer husbandry study”), 2019. https://protectsapmi.com/assets/Dokuments/Ojfjellet-Vindpark/Utredning- end-June-2019.pdf. The establishment was therefore not considered to be in conflict with Article 27.²⁹³Ministry of Petroleum and Energy (MPE) decision of 16 November 2016 – Øyfjellet and Mosjøen, p. 8.

In the Fosen case, the Ministry stated that the “relevant assessment theme must be whether the measure applied for in combination with previous measures and other adopted measures will result in the reindeer herder being denied his right to cultural practice”.²⁹⁴Ministry of Petroleum and Energy decision of 26 August 2013 – the Fosen cases, p. 89. The Ministry did not agree, however, that all types of interference after the year 1900 had to be quantified and form the basis for the assessment of the cumulative effects of several interferences over time.²⁹⁵This was claimed by one of the reindeer grazing districts, the Southern Group.

In the Nussir case, the Sami Parliament had argued that the cumulative effects of previous and planned interferences in the area were inadequately studied. The Ministry said that it must look at “the impact over time and the effect of past, current and future measures”,²⁹⁶Royal Decree 29 November 2019 – Nussir, p. 16. but concluded after a concrete assessment “that the project will not prevent or significantly narrow the possibilities for reindeer herding and thus Sami cultural practice in the area”.²⁹⁷Royal Decree 29 November 2019 – Nussir, p. 2 onwards. See also the Government’s press release: Ministry of Trade, Industry and Fisheries, “Gir Nussir ASA driftskonsesjon” (“Gives Nussir ASA operating license”), (Ministry of Trade, Industry and Fisheries, 2019), https:// www.regjeringen.no/no/dokumentarkiv/regjeringen-solberg/aktuelt-regjeringen-solberg/nfd/pressemeldinger/2019/nussir/id2629241/.

It seems that cumulative effects are often a key factor in interference cases where licence applications have been rejected by the administration. The concrete assessment is whether the cultural practice is “denied” by the relevant measure, either alone or in the context of previous measures. A key question, however, is how far back one must consider cumulative effects. On this question, there do not appear to be any clear-cut sources.

5.3.5 Remedial measures

Remedial measures can be used to reduce the negative effects of interferences. In cases where the interference could have constituted a violation of ICCPR Article 27, remedial measures may result in this threshold nonetheless not being overstepped. In administrative practice, it appears that both measures to reduce the negative effects of the interference (such as shutdowns in periods, etc.), as well as rejection of other licence applications in the same area, have been considered remedial measures.

In the Fosen case, the MPE considered remedial measures decisive in the assessment that the areas could still be used for winter grazing “even if the value of the areas is reduced”.²⁹⁸Ministry of Petroleum and Energy decision of 26 August 2013 – the Fosen cases, p. 107. The Ministry assumed that reindeer husbandry would be reimbursed for its losses such as expenses connected to increased workload, either through agreement with the developer or in the appraisal case.²⁹⁹For example, the Ministry believed that barriers were appropriate, but this question was The Ministry also emphasised that several licence applications had been rejected to protect reindeer husbandry.³⁰⁰The various alternatives for NVE’s priorities were not dealt with by the MPE in the complaints in the Fosen cases, but they appear from the impact assessment. Based on the impact assessment compared with NVE’s decision, it is not obvious that NVE chose the alternatives for wind power plants that would have caused the reindeer husbandry the least damage, ASK Rådgivning AS and SWECO Norge AS, “Fagrapport reindrift. Konsekvenser av vindkraft- og kraftledningsprosjekter på Fosen” (“Technical report on reindeer herding. Consequences of wind power and power line projects at Fosen”), 2008, chapter 8. The Ministry noted that a number of wind power projects had been applied for within the reindeer grazing district’s area, but that the NVE had rejected or requested the developer to withdraw all other wind power projects.³⁰¹In the Ministry’s overall assessment and decision, it was assumed that Haraheia was a very important area for reindeer husbandry, and that a change in the location of the turbines and a reduction in the power plant’s power was considered a suitable remedial measure, Ministry of Petroleum and Energy decision of 26 August 2013 – the Fosen cases, pp. 108 and 118. The scope of the planned area had been reduced from 314 square kilometres to 80 square kilometres.³⁰²Other remedial measures included assistance with 75 per cent financing for clearing of migratory routes and electronic marking of 200 reindeer for easier monitoring, smaller barrier fences in critical areas and two power generators for two of the Southern Group’s shepherd huts. The developers also had to compensate for other negative effects for the Southern Group, the Ministry of Petroleum and Energy’s decision of 26 August 2013 – the Fosen cases, p. 121, cf. p. 129. This appears to have been considered a remedial measure, even though the capacity and size of the turbines were subsequently increased.³⁰³Ministry of Petroleum and Energy (MPE) decision of 15 February 2016 – appeal against decision on effect changes.

In the case of Mosjøen and Øyfjellet, it also seems that not granting permits to both applicants, but only to one of them (Øyfjellet), was seen as a remedial measure. It was also, in granting the licence to Øyfjellet, emphasized that the developer must implement remedial measures to help ensure that reindeers’ movement to and from the winter grazing areas was secured.³⁰⁴Ministry of Petroleum and Energy (MPE) decision of 16 November 2016 – Øyfjellet and Mosjøen, p. 11. The Ministry therefore confirmed NVE’s decision concerning a licence, but with changes to the licence conditions. The developer had to ensure that an agreement was entered into with the reindeer grazing district for remedial measures in both the construction and operational phases. Access to winter pastures should, among other things, be ensured by remedial measures related to the the reindeers’ trails through the planning area. Here, it may be noted that criticism has since been raised because these terms were not fully implemented.³⁰⁵The developer applied for a dispensation from the additional condition that NVE had stipulated for deferred implementation of construction activities during the reindeer herding. In April 2020, the MPE granted Øyfjellet Vind a temporary exemption (deferred implementation) from this requirement, so that they did not have to stop the construction work in the days during the reindeer’s movement past the construction area anyway. The reindeer grazing district complained to the Ministry about this, but did not succeed. See NVE decision 19 December 2019: “Øyfjellet Wind AS – Godkjenning av detaljplan, miljø-, transport- og anleggsplan og andre konsesjonsvilkår for Øyfjellet vindkraftverk, Vefsn kommune” (“Øyfjellet Wind AS – Approval of detailed plan, environmental, transport and construction plan and other license conditions for Øyfjellet wind farm, Vefsn municipality”), 2019, p. 2 onwards, https://webfileservice.nve.no/API/PublishedFiles/Download/201707386/2937071. See also NVE’s letter to the MPE on 19 May 2020: “Øyfjellet vindkraftverk- Oversendelse av seks klager på tre vedtak av 18.12.2019 og en klage på vedtak av 08.04.2020, samt begjæring om omgjøring og utsatt iverksettelse” (“Øyfjellet wind power plant – Transmission of six appeals against three decisions of 18.12.2019 and one appeal against decisions of 08.04.2020, as well as a request for conversion and deferred implementation”), 2020, p. 2 onwards, and John Christian Nygaard, “Vil ikke kreve byggestans i Øyfjellet: – Vi mener at det ikke er grunnlag for å stanse driften nå” (“Will not demand construction stoppage in Øyfjellet: – We believe that there is no basis for stopping operations now”), Helgelendingen, 2020, https://www.helg.no/5-24-548136.

In the Stokkfjell case, it was emphasised that negative consequences of the interference could be compensated through remedial measures.³⁰⁶Ministry of Petroleum and Energy (MPE) decision of 19 September 2017 – Stokkfjellet, p. 21. The Ministry reinforced NVE’s wording, creating stronger obligations for the developer and including provision for the involvement of the reindeer husbandry.³⁰⁷Ministry of Petroleum and Energy (MPE) decision of 19 September 2017 – Stokkfjellet, p. 25. The complainants had stated that using larger turbines than originally planned was relevant, as it would cause greater damage and inconvenience. The Ministry noted that technological developments means larger and more efficient turbine types, and considered that the increase in turbine size was offset by the fact that the number of turbines in this case would be halved.³⁰⁸Ministry of Petroleum and Energy (MPE) decision of 19 September 2017 – Stokkfjellet, p. 8.

In the Nussir case, remedial measures constituting downtime and reduced operation during critical periods for the reindeer, were set as conditions for the permit. The actual content of the condition for reduced operation, however, was not stipulated, but was to be defined and approved afterwards, in the more detailed operating plans. The fact that the Ministry set up a number of remedial measures to benefit reindeer husbandry as a condition for a licence appears to be an important factor in the Ministry’s overall assessment and weighting of Sami culture pursuant to both the Minerals Act Section 17 and ICCPR Article 27.³⁰⁹Special conditions for downtime for the Ulverygg deposit in the period 1 May to 15 June and reduced operation from 15 April to 1 October is stated to be important in order to be in line with the protection in the Reindeer Husbandry Act Section 22 against the closure of the reindeer’s migratory routes, Royal Decree 29 November 2019 – Nussir, pp. 17–19 and pp. 22–23. For a list of remedial measures, see: https://www.regjeringen.no/globalassets/departementene/nfd/dokumenter/liste-over-avbotende-tiltak.pdf. The Ministry concluded that the interference, with the remedial measures as conditions, would not constitute an increase in the overall burden in a way that prevented further reindeer husbandry activity or significantly narrowed the possibilities for this, and therefore was not in violation of Article 27.³¹⁰It was also stated by some of the complainants that development would be contrary to several articles in ILO 169, in particular Article 15, as well as ECHR Additional Protocol 1, Article 1 (on property rights), ICERD Article 5 (d) (i) and (v) and the UN Declaration on the Rights of Indigenous Peoples. The Ministry did not find that these allegations were sufficiently substantiated and added that they also did not provide legal guidance that had not been duly assessed either in this decision or in other relevant national legislation, Royal Decree 29 November 2019 – Nussir, pp. 22–23.

Once remedial measures have been decided, it will be an obligation for the administration to ensure that these are implemented. Failure to do so could lead to questions about violation of Article 27.

One might question whether rejecting a certain number of applications in an area can be regarded as remedial measures. The Human Rights Committee has not considered remedial measures in this way.³¹¹See Chapter 3.4.6. Such a practice will make it easy for the developers to plan for this event by submitting more applications than they actually expect to proceed with.

5.3.6 Threshold for violation of ICCPR Article 27 and proportionality assessments

5.3.6.1 Requirements for substantive negative impact

In assessing whether the threshold for violation of ICCPR Article 27 has been reached, the negative impact of the interference on cultural practice will be important. In the Fosen case, the Ministry pointed out that for an interference to constitute a violation, “the interferences must be so comprehensive that the possibility of benefitting from reindeer hearding is lost”. The Ministry assumed that “special restrictions on the possibility to conduct reindeer husbandry may also be regarded as a violation of Article 27, even though the measure does not imply a total denial”.³¹²With reference to the Länsman I case, the Ministry of Petroleum and Energy’s decision of 26 August 2013 – the Fosen cases, p. 88. In the subsequent cases, the MPE made it even clearer that not only complete denials, but also interferences which constitute violations that considerably narrow the Sami’s opportunity to practice cultural activities, would be a breach of Article 27.³¹³Ministry of Petroleum and Energy (MPE) decision of 2 March 2015 – Hammerfest, p. 3, Ministry of Petroleum and Energy (MPE) decision of 2 March 2015 – Fálesrášša, p. 6, Ministry of Petroleum and Energy (MPE) decision of 16 November 2016 – Kalvvatnan, p. 3, Ministry of Petroleum and Energy (MPE) decision of 16 November 2016 – Øyfjellet and Mosjøen, p. 3, Ministry of Petroleum and Energy (MPE) decision of 19 September 2017 – Stokkfjellet, p. 12. The question in these cases was whether the reindeer herder still had the opportunity to conduct reindeer husbandry in a “manner that is economically sustainable”. ³¹⁴Cf. Ministry of Petroleum and Energy (MPE) decision of 2 March 2015 – Hammerfest, p. 13, Ministry of Petroleum and Energy (MPE) decision of 2 March 2015 – Fálesrášša, p. 16, Ministry of Petroleum and Energy (MPE) decision of 16 November 2016 – Kalvvatnan, p. 23, Ministry of Petroleum and Energy (MPE) decision of 16 November 2016 – Øyfjellet and Mosjøen, p. 21, Ministry of Petroleum and Energy (MPE) decision of 19 September 2017 – Stokkfjellet, p. 23.

In the Nussir case, the Ministry emphasised, among other things, that the extraction of the Nussir deposit would not “deprive the affected reindeer herders of the opportunity to make a financial profit”.³¹⁵Royal Decree 29 November 2019 – Nussir, p. 16. The Ministry stated here that the “planned mining operations do not occupy land to such an extent that this denies the practice of reindeer husbandry in the area in violation of ICCPR Article 27” (our emphasis). The Ministry concluded that the development would not “prevent or limit the right to cultural practice to such an extent that there are violations of ICCPR Article 27”.³¹⁶Royal Decree 29 November 2019 – Nussir, p. 17.

Whether the threshold for violation of Article 27 will be considered to be overstepped depends on an overall assessment of the negative effects of the interference on cultural practice, seen together with factors such as effective participation, cumulative effects and remedial measures. It is a type of “net consideration” that is used as a basis. It seems that the MPE’s understanding of the concept “substantive negative impact” is quite similar to the understanding that the Supreme Court assumes in the Reinøya judgment and in the Fosen judgment. Both the MPE and the Supreme Court assume that there does not have to be a total denial of cultural practice, but that violations are sufficient.

5.3.6.2 Proportionality assessment

The question of whether ICCPR Article 27 provides for a proportionality assessment – where the interests of indigenous peoples are weighed against the interests of society or the interests of others – was finally clarified by the Supreme Court in the Fosen judgment.³¹⁷HR-2021-1975-S (Fosen), paras. 123–131 and 143, see Chapter 4.2.6. In the administrative decision on the licence to Fosen Vind, the MPE had assumed that the benefits of renewable energy production had to weigh heavily against the disadvantages of reindeer husbandry. For an assessment of whether the threshold had been reached, according to the Ministry, it would “be relevant to assess the proportionality of the interference”.³¹⁸Ministry of Petroleum and Energy decision of 26 August 2013 – the Fosen cases, p. 88. In assessing the overall effects on reindeer husbandry at Fosen, the conclusion was that

the Ministry believes that a development offers great advantages in the form of new renewable energy, and that this must weigh heavily in the balancing against the disadvantages for reindeer husbandry. On this background, the Ministry believes that the threshold in ICCPR Article 27 is not exceeded.³¹⁹Ministry of Petroleum and Energy decision of 26 August 2013 – the Fosen cases p. 108, cf. p. 114 onwards.

In this context, the Ministry referred to a legal opinion which had been obtained in connection with the case, where it was pointed out that it would “be relevant to assess the proportionality of the interferences so that the interference is made as insignificant as possible, and that there is proportionality between the need for the measure and the scope of the interference”.³²⁰Ministry of Petroleum and Energy decision of 26 August 2013 p. 88, cf. p. 81, cf. Geir Ulfstein, 16.6.2013, Samiske folkerettslige rettigheter ved naturinngrep – Utredning for Olje- og energidepartementet i forbindelse med utbygging av kraftledninger og vindkraftverk (Sami rights according to international law in the event of interference on nature – Study for the Ministry of Petroleum and Energy in connection with development of power lines and wind turbines), p. 5. The view appeared to be based on a statement in the Poma Poma case, in which the Human Rights Committee had stated that measures had to be proportionate so that they did not threaten the survival of the minority. The Committee, however, did not strike a balance of interests here between the need for the measure and the disadvantages for indigenous peoples.³²¹HRC, Poma Poma v Peru, (Communication No. 1457/2006), para. 7.6.

On the basis of this, among other things, the Ministry believed that the threshold in Article 27 had not been exceeded,³²²Ministry of Petroleum and Energy decision of 26 August 2013 – the Fosen cases, p. 108. and concluded that “it will also be relevant to assess […] whether the benefits of the interference are proportional to the disadvantages inflicted on reindeer herding”.³²³Ministry of Petroleum and Energy decision of 26 August 2013 – the Fosen cases, p. 88.

The Supreme Court did not share this understanding of ICCPR Article 27.³²⁴See Chapter 4.2.6. See also HR-2021-1975-S (Fosen), paras. 123–131 and 143.

In subsequent decisions by the administration, such a proportionality assessment or balancing of interests between the interests of indigenous peoples and the interests of society has not been made when assessing whether the threshold for violation of Article 27 has been reached. The Ministry’s decision in the Hammerfest case specifies, for example:

Although a principle of proportionality applies under international law, socio-economic considerations of advantages and disadvantages alone cannot be used as a basis for the assessment of whether a licence can be granted, when international law sets a limit to what interferences may be permissible.³²⁵Ministry of Petroleum and Energy (MPE) decision of 2 March 2015 – Hammerfest, p. 4.

Also in the decision on Fálesrášša, the Ministry emphasised that the protection of minorities in ICCPR Article 27 does not operate with a principle of proportionality that simply puts the interests of the minority against the interests of society. The Ministry states that “disadvantages and damages to Sami interests shall be assessed in the light of international law’s minority protection, which limits the scope for socio-economic cost-benefit calculations”.³²⁶Ministry of Petroleum and Energy (MPE) decision of 2 March 2015 – Fálesrášša, p. 5. The same was assumed in the case of Kalvvatnan. Here, the Ministry stated that the “ordinary societal balancing” could not be applied as a basis and that “international law can thus result in no licence being granted for an interference that otherwise would have a positive value in a socio-economic sense”.³²⁷Ministry of Petroleum and Energy (MPE) decision of 11 November 2016 – Kalvvatnan p. 13.

The review of the MPE’s practice in these interference cases thus shows that the Ministry seemed to move away from a general proportionality assessment in its assessments of the threshold question after its consideration of the Fosen case in 2013.

5.4 Summary

This review shows how ICCPR Article 27 has been applied in the administration’s decisions on interferences in Sami areas. In most of the cases reviewed here, consultations with Sami reindeer grazing districts and with the Sami Parliament had been carried out, but the consultation processes are often poorly documented. Cumulative effects of several interferences in the same area were used in some of the cases as the reason for rejection of licence applications. Remedial measures have taken the form of both rejection of applications for licences and decisions on special measures to reduce adverse effects.

The threshold for violations of Article 27 is high, and the harmful effects must be clearly negative for cultural practice. In the Fosen case in 2013, the Ministry emphasised a balancing of interests between the utility value for society and the rights of indigenous peoples. This practice changed after the Fosen case, and it seems that no such balancing of interests was made in cases after 2013.

The Ministry’s decision in the Fosen case has had serious human and economic consequences for the reindeer owners and could prove to have major economic consequences for the developer and/or the state. This shows that there is a need to highlight to a greater extent the assessment topics in ICCPR Article 27, as set out by the Human Rights Committee and the Supreme Court, in order to minimise this risk and ensure that thorough assessments are made by the administration in cases concerning indigenous peoples’ rights.