By Medes Malaihollo
In times of climate change, Norway is aware of the need for an efficient energy transition from greenhouse gases to green energy sources. A good example is onshore wind power development. Norwegian policies and legislation highlight this need, as recent research shows that Norway’s current licensing system allows wind power developers to get an onshore wind power project off the ground as fast as possible.
By now, one of the biggest onshore wind power projects in Europe has been constructed by Fosen Vind on the Fosen peninsula in Norway. At first sight, one could commend the project as it contributes to the realisation of an efficient energy transition in times of climate change. However, onshore wind power development can have a negative impact on wildlife, for instance bats and birds. A particular cause for concern has arisen from the construction of wind turbines on the lands used by the Sámi, the Indigenous people living in Norway. The wind turbines have been constructed on lands where reindeers graze, and according to Sámi reindeer herders, the sight and sound of these wind turbines frighten the animals, affecting their age-old migration movement patterns (for recent research on the effect of wind power development on reindeers, see here). Unsurprisingly, this formed the basis for demonstrations already taking place during the construction of the wind turbines and eventual legal action up to the Norwegian Supreme Court.
Violations of Article 27 ICCPR
In October 2021, Norway’s Supreme Court unanimously decided on the legality of the license for exploration of the land used for the Fosen wind turbines. Importantly, the Norwegian Supreme Court decided that ‘the wind power development will have a substantive negative effect on the reindeer herders’ possibility to enjoy their own culture on Fosen’ , which led to a violation of the rights of the Sámi protected under Article 27 of the International Covenant on Political and Civil Rights (ICCPR). According to Article 27 ICCPR, persons belonging to a minority shall not be denied their right to enjoy their own culture and traditions, practice their own religion, and speak their own language. This provision protects the traditional livelihoods of persons belonging to a minority and is of particular relevance for the Sámi. After all, the Sámi form a minority in Norway and persons belonging to this minority practice traditional reindeer herding as a form of their traditional livelihood as an Indigenous people. According to the Supreme Court, the wind turbines have affected the migration pattern of reindeers which have led to a breach of the Sámi reindeer herders’ rights to culture under Article 27 ICCPR. By providing a license for these wind turbines, the state violated Article 27 of the ICCPR and, therefore, the Norwegian Supreme Court declared the licenses of the Storheia and Roan wind parks invalid.
After the judgement, the Norwegian government did not implement the decision. According to the government, the ruling did not precisely prescribe that the wind turbines had to be removed. Only after demonstrations in February 2023, the Norwegian government formally apologised to the Sámi reindeer herders on the Fosen peninsula. Meanwhile, the Norwegian government has yet to implement the Fosen judgement after more than two years now. That said, it comes as no surprise that demonstrations took place again in October 2023. While the wind turbines are still operative, in December 2023 it was announced that mediation between the Sámi of the Sør-Fosen siida and Fosen Vind ended in an agreement between the parties. However, no agreement was reached concerning the Sámi of the Nord-Fosen siida.
Truth and reconciliation, and possible aggravation of the crisis
Important to note is that the Fosen decision cannot be understood in a vacuum. Instead, the decision needs to be seen against the backdrop of the use of alternative transitional justice mechanisms, namely a Truth and Reconciliation Commission that was established in 2018 and mandated by the government to investigate the Norwegianisation policy and injustice against the Sámi and Kvens/Norwegian Finns. Truth and reconciliation commissions are established on a temporary or permanent basis with a view to gather information about past conflicts and human rights violations, aiming to provide an accurate portrayal of events and promote understanding as a ground for justice. In the Norwegian context this method of assessing potential human rights violations is particularly pertinent because the Sámi have been subjected to Norweginisation policies and only since the end of the 20th century the recognition of Sámi rights in Norway started to improve.
In June 2023, the Commission published its 800+ page report (only the summary is currently available in English, but for a clear analysis of the report see here). As noted by Sønneland and Lingaas, the implementation of the Fosen judgement is relevant for the contemporary truth and reconciliation process in Norway. The reason for this is that such process aims to establish a healthy relationship based on positive attitudes, and mutual trust and respect between the Norwegian government and the Sámi. However, the current situation is arguably not in line with this, but rather the opposite. It has led to a crisis of trust due to the wind turbines still being operative on lands used by the Sámi, while the Norwegian Supreme Court declared the licence for these wind turbines invalid already two years ago. It remains problematic that the judgement is yet to be implemented after Sámi reindeer herders had to litigate all the way up to the Norwegian Supreme Court. But the non-implementation has not only affected the relationship between the reindeer herding Sámi and the Norwegian government. Arguably, it has also negatively impacted the trust of all Sámi – a matter inherently essential to a well-functioning democracy.
Currently, there is even a danger of the situation worsening. The reason for this has to do with plans to construct new wind farms on lands where the Sámi have their reindeer. It should be noted here that one of these is the Davvi wind farm, which has a planned area of 63 square kilometres and is located about 5 kilometres from Rásttigáisá– a sacred mountain for the Sámi. Their strong spiritual, cultural, and emotional bond with the sacred mountain is a clear example of the cultural rights protected under Article 27 ICCPR in that such deep connection with the land is important for the preservation of their religious, cultural and spiritual practices as an Indigenous people. Moreover, the Human Rights Committee (HRC) has paid close attention to the protection of sacred areas of Indigenous peoples from damage caused by various types of projects. The planning, potential licensing, and potential construction of yet another wind power project affecting the Sámi will certainly further impede a meaningful reconciliation process in Norway post-Fosen.
Final remarks
The Fosen case and the contemporary situation regarding onshore wind power development in Norway clearly illustrates a tension between two interests. On the one hand, we can find the interest of realising an efficient energy transition in times of climate change. On the other hand, there is human rights protection of an Indigenous people. The discourse related to this tension, however, should not be limited to a domestic jurisdiction only. Since the tension is clearly a matter of international human rights law, it follows that discussions related to this should also be held amongst international lawyers who highlight community values and human rights. In times of climate change, it is essential for international lawyers to maintain active discussions, with the goal of looking beyond state-centric perspectives in the 21st century and focusing on the bigger picture. The newly established Working Group on Climate Change and Human Rights of the Netherlands Network for Human Rights Research would certainly be a fruitful place for this.
Bio:
Medes Malaihollo is a PhD candidate at the Department of Transboundary Legal Studies, University of Groningen. His research focuses on public international law in general, with a particular interest in due diligence obligations of states and the right to self-determination of Indigenous peoples. Before starting with his PhD research, Medes worked as a junior lecturer in International Law at the University of Groningen. Between 2020-2023, he was the Publishing Director of the Groningen Journal of International Law. Many thanks to Aila Naysmith for research assistance and Carola Lingaas for helpful comments and suggestions on earlier drafts of this blog post.