On October 11, 2021, the Norwegian Supreme Court, in a unanimous decision, held that the concession for a wind turbine park in the Fosen-halvøya (Fosen peninsula) area of Norway violated the indigenous Sami people’s right to exercise its cultural rights because the windmills prevented them from herding reindeer in the area.
Background to the Decision
In 2010, the Norwegian Water Resources and Energy Directorate (part of the Norwegian Ministry of Petroleum and Energy) granted a concession to government-owned Statkraft AS to erect wind turbines in the Fosen peninsula, an area where South Sami groups herd their reindeer. Following a reorganization of the project, the concession was transferred to Fosen Vind AD in 2016. The affected Sami groups objected in court that the concession violated their indigenous rights under article 27 of the United Nations (U.N.) International Covenant on Civil and Political Rights of 1966 (ICCPR), arguing that the erection of wind turbines would interfere with the winter grazing of their reindeer. In addition, the United Nations Committee on the Elimination of Racial Discrimination (CERD) asked the Norwegian government to suspend the concession until the matter had been properly reviewed. However, the project went ahead over those objections and, in 2019, the windmills were put into operation.
The Sami people are recognized as indigenous to Norway, and the Norwegian Constitution protects their right to “preserve and develop their language, culture and way of life.” (Constitution art. 108.)
The ICCPR is incorporated into Norwegian law in the Human Rights Act (Menneskerettsloven (LOV 19999-05-21-30)). Article 27 of the ICCPR provides that “[i]n those States in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practise their own religion, or to use their own language.”
The Supreme Court heard the case on appeal to determine whether the original concession permit to build wind turbines in Fosen peninsula was lawful or not. (Decision ¶ 2.)
The court first determined that reindeer husbandry is both a cultural expression and a traditional economy for the Sami people in Norway. The court went on to hold that, consequently, the Sami people have a cultural right to reindeer husbandry under article 27 of the ICCPR that could not be outweighed by climate interests, because the protection of their indigenous cultural rights under Norwegian and international law was absolute. The court in particular noted that the political and civil rights of a minority indigenous population would be of limited value if the majority population could supersede these rights in deference to the majority’s public interests. (¶ 129.) Thus, the court held, the fact that the windmills were intended to support Norway’s environmental goals with greener energy was not relevant to the determination of whether the plans to install them violated indigenous rights. In addition, the court found that there was no real conflict between environmental interests and indigenous rights in the present case because there are other areas in Norway where wind turbines can be installed without violating the rights of the Sami people. (¶ 143.) The court thus found that the original concession violated the Sami indigenous rights under article 27 of the ICCPR and was therefore void. (¶ 153.)
Future Impact of the Decision
While the case addressed only this specific wind turbine park concession, it will have bearing on future concessions as well. The case determined only that the wind turbine park in this specific case prevented Sami groups from exercising their cultural rights, but the court also argued that a weighing of interests cannot be made in relation to indigenous rights. Thus, any installation of a wind turbine park that prevents or limits the Sami’s exercise of reindeer husbandry violates their indigenous rights, and the fact that the wind turbines are installed to address a compelling public interest — the creation of green energy — does not make the installation permissible.
Therefore, in accordance with the Supreme Court’s reasoning, concessions for windmills can be issued only when the windmills do not prevent indigenous groups from exercising their cultural rights, including herding reindeer.