10. Business responsibility to respect Sámi rights in the context of climate change

In Norway, many of the cases pertaining to corporate human rights responsibility concern Indigenous Peoples’ rights. While only governments have direct human rights responsibilities under international law, corporations are normally responsible for the development and utilisation of natural resources. Over the past couple of decades, increasing attention has been paid to companies’ responsibilities for human rights in connection with their operations and business relationships.

Several guidelines and principles (particularly within the UN and the OECD frameworks) seek to “build bridges” across the gap that exists between the legal human rights obligations of States and the responsibilities of companies. These guidelines indicate what companies should do to ensure that they do not cause or contribute to human rights violations and address such violations when they occur. To this end, companies are expected to carry out due diligence of their own activities as well as their business relationships. In addition, national legislation in several countries and forthcoming in the EU requires due diligence of companies, and in some cases, provides for accountability where companies have caused or contributed to human rights violations.

The Norwegian Transparency Act requires larger enterprises to carry out due diligence. This obligation covers the human rights requirements in the UN Guiding Principles on Business and Human Rights (UNGP) and the OECD Guidelines for Responsible Business Conduct. The enterprises shall “identify and assess actual and potential adverse impacts on fundamental human rights and decent working conditions” resulting from their operations.²¹³Act relating to enterprises’ transparency and work on fundamental human rights and decent working conditions (Transparency Act), LOV-2021-06-18-99, Section 4(b).

The Norwegian NHRI and the OECD National Contact Point for Norway have published a guide with examples of how business can impact human rights.²¹⁴https://www.nhri.no/wp-content/uploads/2023/10/Tabell-MR-eksempler.pdf  See this link for English version: https://www.ungpreporting.org/wp-content/uploads/UNGPReportingFramework_withguidance2017.pdf The reference to basic human rights includes, among other things, ICCPR Articles 17 and 27 and ILO Convention 169. The obligations under the Act apply to the enterprise itself and to activities directly related to the business through supply chains or business partners both inside and outside Norway. The obligation to carry out due diligence pertains to larger companies; both private companies and enterprises with state ownership. This obligation will therefore be relevant to enterprises whose operations or supply chains have actual or potential adverse human rights impacts for the Sámi people.

The point of departure is that the obligations for States discussed in this report are also relevant for enterprises to consider and report on under the Transparency Act. The obligation to carry out due diligence also entails that the relevant enterprises, when planning a development in Sámi areas, make assessments in line with ICCPR Article 27, and refrain from implementing projects that will have a substantive negative impact on Sámi cultural practices and livelihoods. The due diligence will therefore need to include, among other things, evaluations of how impact assessments can be carried out in a responsible manner, securing inclusion of Sámi traditional knowledges, assessments of cumulative effects over time, remedial measures and how consultations can be carried out in accordance with the rules in the Sámi Act.

The Transparency Act specifies that the enterprises shall carry out due diligence in accordance with the OECD Guidelines for Multinational Enterprises and specific guidelines for different sectors.²¹⁵Section 4 and Prop.150L (2020-2021) Lov om virksomheters åpenhet og arbeid med grunnleggende menneskerettigheter og anstendige arbeidsforhold (åpenhetsloven) p. 64, 107. The 2023 OECD Guidelines for Multinational Enterprises specifies for the first time that enterprises should pay special attention to the potential adverse impacts for Indigenous Peoples, and refers to further guidance on the principle of Free, Prior and Informed Consent and the UNDRIP in the OECD Due Diligence Guidance on Meaningful Stakeholder Engagement in the Extractive Sector.²¹⁶OECD (2023), OECD Guidelines for Multinational Enterprises on Responsible Business Conduct, Paris: OECD Publishing, https://doi.org/10.1787/81f923 para 45. The latter has an Annex B on how to engage with Indigenous Peoples, which recommends that enterprises (i) understand context, (ii) ensure that Indigenous Peoples are appropriately identified and prioritised, (iii) establish the necessary support system for meaningful engagement with Indigenous Peoples, and (iv) design appropriate and effective activities and processes for engagement with Indigenous Peoples.²¹⁷OECD (2017), OECD Due Diligence Guidance for Meaningful Stakeholder Engagement in the Extractive Sector, Paris: OECD Publishing.  Annex B pp. 92-99.

Under the Transparency Act Section 5, the enterprise shall also publish an account of the due diligence assessments, which shall at least include inter alia information regarding measures the enterprise has implemented or plans to implement to cease actual adverse impacts or mitigate significant risks of adverse impacts, and the results or expected results of these measures. According to the preparatory work, relevant information could include whether stakeholder dialogue with particularly vulnerable groups, typically Indigenous groups, has been carried out.²¹⁸Prop.150L (2020-2021) p. 112 (our translation). Under Section 6, any person can also have a right to information from an enterprise regarding how it addresses actual and potential adverse impacts for Indigenous Peoples.²¹⁹Ibid p. 113.

Regarding the climate impacts of enterprises, the Ministry of Children and Families stated in the preparatory work for the Transparency Act, that a company’s impact on the environment is covered by the Act “if the environmental impact results in a negative impact on human rights”.²²⁰Prop.150L (2020-2021) p. 44 (our translation). This may entail that companies should conduct due diligence and report on how GHG emissions under their effective control affect, among other things, the right to life, physical integrity, property and the Sámi people’s right to cultural practice.²²¹Forbrukertilsynet, Klima, miljø og menneskerettigheter, updated 7.11.2023, avaliable here https://www.forbrukertilsynet.no/vi-jobber-med/apenhetsloven/klima-miljo-og-menneskerettigheter.

Under a section on the environment, the 2023 OECD Guidelines for Multinational Enterprises also include a detailed section on climate change mitigation and adaptation, underlining that enterprises should ensure that their GHG emissions are consistent with internationally agreed global temperature goals based on best available science. This includes “introduction and implementation of science-based policies, strategies and transition plans on climate change mitigation and adaptation as well as adopting, implementing, monitoring and reporting on short, medium and long-term mitigation targets”. Mitigation targets “should be science-based, include absolute and also, where relevant, intensity-based GHG reduction targets and take into account scope 1, 2, and, to the extent possible based on best available information, scope 3 GHG emissions”.²²²OECD Guidelines for Multinational Enterprises on Responsible Business Conduct paras. 76, 77.

In December 2023, the European Council and Parliament reached a provisional agreement on the Corporate Sustainability Due Diligence Directive (CSDDD).²²³https://www.consilium.europa.eu/en/press/press-releases/2023/12/14/corporate-sustainability-due-diligence-council-and-parliament-strike-deal-to-protect-environment-and-human-rights/ It is likely to be formally adopted by the EU in 2024 and enter into force in 2025. The CSDDD will set due diligence obligations for large companies regarding actual and potential adverse impacts on human rights and the environment, The Directive will apply to companies in Norway to the extent that they fall within its scope.²²⁴In the preparatory works for the Transparency Act, the Ministry stated that the Act will be evaluated in light of the CSDDD and may have to be amended to incorporate additional obligations, see Prop.150L (2020-2021) p. 44.

The final text of the CSDDD was, per February 2024, not yet adopted, but the original proposal from the European Commission in February 2022 contained several obligations not currently covered by the Norwegian Transparency Act.²²⁵Proposal for a DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL on Corporate Sustainability Due Diligence and amending Directive (EU) 2019/1937: https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A52022PC0071. One example is that the actual and potential adverse impact of companies on the environment and climate will be covered by the draft CSDDD, regardless of whether it results in a negative impact on human rights. Both the Norwegian Transparency Act and the draft CSDDD list ICCPR Articles 17 and 27 as relevant to companies’ due diligence obligations, but the draft CSDDD also lists Indigenous Peoples’ right to their lands, territories and resources under UNDRIP Articles 25, 26(1) and (2), 27 and 29(2).