7. Protection of Indigenous rights under the ICCPR

7.1 Introduction

Several human rights conventions are relevant to Indigenous Peoples’ rights. However, Article 27 of the ICCPR is the most important provision pertaining to the protection of Indigenous Peoples’ cultural practices.¹²⁵ Article 17 of the ICCPR concerning the right to privacy, family and home is also relevant. These two rights are key for the discussions in this report.

The UN Human Rights Committee (HRC) is established to monitor State compliance with the ICCPR and to interpret the convention and can consider complaints alleging violations of the Convention from individuals in States that have ratified its First Optional Protocol. National courts may also interpret and enforce the rights set out in the ICCPR, depending on its legal status within the country’s domestic legal system.

The ICCPR is incorporated into the Norwegian Human Rights Act and has precedence over other domestic legislation in the event of a conflict.¹²⁶ General comments and findings in individual cases from the HRC are not in themselves legally binding on Convention States. Nonetheless, the HRC statements on the interpretation of the ICCPR generally carry “significant weight” in Norwegian courts, depending on how well the interpretations are anchored in the text of the Convention and on whether they express legally binding obligations, or whether they are only recommendations of best practices.¹²⁷ A recent decision by the HRC concerning the application of the ICCPR in the context of climate change and Indigenous Peoples (Daniel Billy et al. v. Australia) is thus relevant. The Norwegian Supreme Court often relies on the jurisprudence from the HRC when interpreting the ICCPR. One recent example of this is the use of cases from the HRC in the judgment from the Norwegian Supreme Court pertaining to ICCPR Article 27 in the Fosen case.

There are also other instruments that are important to protect the human rights of Indigenous Peoples. The UN Declaration on the Rights of Indigenous Peoples (UNDRIP), although not in itself legally binding, to a large extent reflects binding conventional and customary law and is thus of considerable legal significance. The Norwegian Supreme Court, in a judgment from 2018, asserts that the UNDRIP is a key Indigenous rights instrument, and that it reflects international law, including ILO Convention 169.¹²⁸ The UNDRIP may also shed light on the interpretation of the legal obligations under the ICCPR and is referred to by the HRC in its reasoning.¹²⁹

The Fosen Case, Supreme Court of Norway, 11 October 2021

Facts: In 2013, the operators received license and expropriation permission from the Ministry of Petroleum and Energy to construct four wind power plants, including Roan and Storheia, in an area used by the Sámi reindeer herders of the Sør-Fosen sijte and Nord-Fosen sijte. The Sámi reindeer herders claimed that the wind turbines limited their access to important winter grazing areas, interfering with their culture and traditional livelihoods. The two plants became operational in 2019 and 2020, respectively.

Key Issues: Whether the wind power development violated the reindeer herders’ right to enjoy their culture under ICCPR Article 27 and whether sufficient remedial measures had been implemented.

Decision: The Grand Chamber of the Supreme Court unanimously found that the construction of the wind power plants covering 60km² had a substantive negative effect on the reindeer herders’ possibility to enjoy their culture. This was particularly due to the loss of winter grazing areas and its negative effect on the reindeer herders’ economy, seen in conjunction with the vulnerability of the South Sámi culture. In the absence of satisfactory remedial measures, the Court held that the interference amounted to a violation of ICCPR Article 27. The wind power licence and the expropriation decision were deemed invalid.

In December 2023, a settlement containing remedial measures including access to alternative land areas and economic compensation was reached between the Sør-Fosen sijte and the wind power company. The settlement was considered by the parties to end the human rights violation for Sør-Fosen sitje. For Nord-Fosen sitje, the human rights violation was still ongoing per February 2024.

7.2 Positive and negative obligations

ICCPR Article 17 establishes both a negative obligation on States to refrain from disproportionate interference with private and family life, and a positive obligation to adopt measures to ensure the implementation of the right, inter alia “when environmental damage threatens disruption to privacy, family and the home”. ¹³⁰ For the purposes of ICCPR Article 17, private and family life encompasses both physical and psychological integrity.¹³¹

ICCPR Article 27 protects the cultural practices of minorities. Indigenous Peoples, including the Sámi people, are a minority within the meaning of ICCPR Article 27. Traditional use of land, and Sámi reindeer herding, fishing and hunting, are protected as cultural practices by this provision if they are an “essential element of the culture”.¹³² While Article 27 grants individual rights, it may also be invoked by groups of individuals, because individuals “depend in turn on the ability of the minority group to maintain” its culture.¹³³

ICCPR Article 27 entails a negative obligation on States to refrain from certain interferences in Indigenous areas and cultural practices. In line with the interpretations of the HRC, the Norwegian Supreme Court held in the Fosen case that Article 27 will be violated if “[an] interference has a substantive, negative impact on the possibility of cultural enjoyment”.¹³⁴

The cumulative effect of the interference in question combined with the effects of other interferences, both previous and planned, may together constitute a violation.¹³⁵ Remedial measures may nevertheless keep the interference below the threshold for violation by, for example, compensating for lost income or allocating other lands to the protected minority.¹³⁶

ICCPR Article 27 is negatively formulated, and states that the minorities covered by the provision “shall not be denied” their rights. However, it also speaks of “the right, in community with the other members of their group, to enjoy their own culture, to profess and practice their own religion, or to use their own language”. The wording of Article 27 thus covers not only the negative right, but also implicitly refers to a positive obligation for the State. The HRC has assumed that this right must be protected, also through active actions on the part of the State.¹³⁷ This means that States must not only refrain from interfering with the right but are also obliged to take positive measures to ensure it, including through legislative or administrative measures. According to the HRC, the positive obligation “is directed to ensure the survival and continued development of the cultural, religious and social identity of the minorities concerned”.¹³⁸

In the context of climate change, the HRC has considered positive measures necessary to protect Indigenous Peoples’ “collective ability to maintain their traditional way of life, to transmit to their children and future generations their culture and traditions and use of land”.¹³⁹ In practice, it can be difficult to distinguish between positive and negative human rights obligations as they often overlap.¹⁴⁰

7.3 Participation in decision-making and consultation

The ICCPR Article 27 also entails a right for minorities to effectively participate in decision-making processes that may affect them. According to the HRC and the Norwegian Supreme Court, the extent of effective participation is an element in the overall assessment of whether the authorities have violated Article 27.¹⁴¹ This right is further reflected in the provisions on consultation and effective participation and in the provisions on consultation and free, prior and informed consent (FPIC) in ILO Convention 169 and the UNDRIP.¹⁴² Consultation, effective participation and FPIC can provide important guidelines for the interpretation of provisions in the ICCPR.

One important backdrop for these rights is ICCPR Article 1 on self-determination. In several cases, the HRC has pointed out that this right can be relevant to the interpretation of other articles in the ICCPR, including Article 27.¹⁴³

Both ILO 169 and the UNDRIP contain several provisions that more explicitly impose an obligation on States to consult. ILO 169 Article 6 is the most specific and legally binding. Under Article 6, States shall “consult the peoples concerned, through appropriate procedures and in particular through their representative institutions, whenever consideration is being given to legislative or administrative measures which may affect them directly”. Moreover, “consultations shall be undertaken in good faith, and in a form appropriate to the circumstances, with the objective of achieving agreement or consent to the proposed measures.” The UNDRIP Article 19 has a similar content, “States shall consult and cooperate in good faith with the Indigenous Peoples concerned through their own representative institutions in order to obtain their free, prior and informed consent before adopting and implementing legislative or administrative measures that may affect them.”

ILO 169 Article 7 recognises Indigenous Peoples´ right to participate in decision-making processes and to adopt their own priorities in matters that directly concern them. Article 15 contains rules on the right of Indigenous Peoples to participate in the use and management of natural resources and to be consulted in connection with plans to exploit natural resources in their traditional areas.

These provisions specify that the consultations must be undertaken in good faith and hence organised in such a way that they may facilitate reaching agreement or consent. Indigenous Peoples must have an actual opportunity to influence the process. It is, however, not an absolute requirement that the Indigenous Peoples’ prior consent must be obtained before a project is implemented, except when a measure may lead to “relocation”.

ILO 169 Article 16 and UNDRIP Article 10 specify when free, prior and informed consent is required. ILO 169 Article 16 stipulates that Indigenous Peoples shall not be forcibly removed from their areas. The provision further states that if “relocation” (resettlement) of such persons is nevertheless deemed strictly necessary, this can only happen with the group’s free, prior and informed consent. Moreover, if consent cannot be obtained, such relocation “..shall take place only following appropriate procedures established by national laws and regulations, including public inquiries where appropriate, which provide the opportunity for effective representation of the peoples concerned”. Article 10 of the UNDRIP confirms that Indigenous Peoples shall not be forcibly removed from their lands or territories. No relocation shall take place without the free, prior and informed consent of the affected Indigenous Peoples, in accordance with a compensation agreement, and if possible, the group shall be allowed to return.¹⁴⁴

In Norway, the right to consultation is enshrined in the Sámi Act Chapter 4, which inter alia states that legislation, regulations and other decisions or measures that may affect Sámi interests directly must be subject to consultations, except for matters of a general character which can be assumed to affect the whole society in the same way. A duty to consult may also apply to laws, regulations, decisions and other measures concerning climate change.

Disagreements may arise regarding when the duty to consult takes effect. In the preparatory work for the Norwegian consultation provisions, it is stated that the threshold for the consultation obligation to take effect is low.¹⁴⁵ A key purpose of consultations is to assess the potential impact, and for that reason, a high entry threshold could counteract this purpose. It is therefore important to have early dialogue so that relevant issues are illuminated as early as possible.

Fotnoter:

¹Article 27 is also mirrored in the UN Convention on the Rights of the Child, ensuring the cultural rights of indigenous children, see CRC Article 30.
²As an international treaty, the ICCPR is interpreted in accordance with Articles 31-33 of the Vienna Convention on the Law of Treaties (VCLT). This means that the terms of the treaty are interpreted in accordance with their ordinary meaning, in their context and in the light of their object and purpose.
³Rt-2008-1764 para. 81, HR-2017-2428-A (Sara), para. 57, cf. HR-2017-2247-A (Reinøya), para. 119, and HR-2021-1975-S (Fosen), para. 102.
⁴HR-2018-456-P (Nesseby), para. 97.
⁵See for example Daniel Billy et al. v. Australia, (CCPR/C/135/D/3624/2019) para. 8.13. Articles 11, 12, 13, 25 and 29 of the UNDRIP, which recognise, among other things, Indigenous Peoples’ rights to practice and transmit to future generations their cultural and spiritual traditions, customs, histories, languages and their distinctive spiritual relationship with their lands, territories, waters and resources.
⁶Daniel Billy et al. v. Australia, paras 8.9, 8.10.
⁷Ibid; Portillo Cáceres v. Paraguay, (CCPR/C/126/D/2751/2016) para 7.8. See mutatis mutandis, Sacchi et al. v. Germany (dec.), 22.09.2021, CRC/C/88/D/107/2019 para 9.13 regarding the Optional Protocol to the Convention on the Rights of the Child on a communications procedure 19.11.2011 Article 5.
⁸E.g. HRC, General Comment No. 23 (CCPR/C/21/Rev.1/Add.5) para. 7; HRC, Kitok v Sweden, (CCPR/C/33/D/197/1985) paras. 9.6, 9.8. HRC Poma Poma v. Peru (CCPR/C/95/D/1457/2006) paras. 7.2–7.4; Aapirana Mahuika et al. v. New Zealand, (CCPR/C/70/D/547/1993).
⁹Daniel Billy et al. v. Australia, para. 8.14; HR-2021-1975-S paras. 103–110. Further, see Norwegian National Human Rights Institution (NIM). Human Rights Protection against Interference in Traditional Sámi Areas, 2022 pp. 25-26.
¹⁰HR-2021-1975-S para 129. Article 27 may nevertheless be subject to derogation, see ICCPR Article 4.
¹¹HR-2021-1975-S, para 119.
¹²Lubicon Lake Band v. Canada (No. 167/1984) paras. 33, 24.1, 29.10.
¹³HRC, General Comment no. 23, para. 6.1. See also the Norwegian Supreme Court, HR-2017-2428-A (Sara), para. 58 cf. 59.
¹⁴HRC, General Comment No. 23, para 9.
¹⁵Daniel Billy et al. v. Australia, para. 8.14. This element also forms a central part of the corresponding right to culture for children under the Convention on the Rights of the Child Article 30 and UNDRIP Articles 13 and 25.
¹⁶See for example, Wibye, “Beyond Acts and Omissions — Distinguishing Positive and Negative Duties at the European Court of Human Rights” Human rights Review 23 (2022).
¹⁷HRC, Apirana Mahuika et al.. v New Zealand (CCPR/C/70/D/547/1993) para 9.8; HRC, Poma Poma v. Peru (CCPR/C/95/D/1457/2006), para. 7; HR-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
¹⁸ILO Convention 169 Articles 6, 7, 15, 16 and UNDRIP Article 10, 19.
¹⁹HRC, Apirana Mahuika et al. v New Zealand (Communication No. 547/1993), para. 9.2, HRC, Diergaardt et al. v Namibia (Communication No. 760/1997), para. 10.3. The HRC has observed that ICCPR Article 27, interpreted in the light of the UNDRIP and ICCPR Article 1 on self-determination, gives indigenous peoples a fundamental right to “freely determine their political status and freely pursue their economic, social and cultural development”. HRC, Sanila-Aikio v Finland (Communication No. 2668/2015), para. 6.8 cf. and HRC, Klemetti Näkkäläjärvi et al. v Finland (Communication No. 2950/2017), para. 9.8. The Committee also referred to its General Comment 12 on Article 1.
²⁰The main reason for this is the fact that ILO 169 (art. 1 (3)) does not take a position on indigenous peoples right to self-determination, whereas UNDRIP (art. 3 and 4) does.
²¹Prop.86 L (2020-2021) Endringer i sameloven, p. 71.