9. Obligations to protect Indigenous Peoples’ territories from intrusive interferences

Renewable energy developments and the extraction of certain minerals are an important aspect of mitigating climate change and thus protecting Indigenous Peoples from climate harm.²⁰¹These may include for example, wind and solar power projects or the mining of minerals used in the construction of wind turbines, solar panels and batteries, such as lithium, cobalt, copper, graphite and nickel, see International Energy Agency, The role of critical minerals in clean energy transitions, 2021, executive summary. Other minerals may also be important in renewable energy technologies, such as iron ore which is used to make steel for wind turbines. However, such industrial developments may also result in violations of the human rights of Indigenous Peoples, inter alia through their loss of access to the lands and waters they have traditionally used for cultural practices and business activities. To avoid Indigenous Peoples being disproportionately impacted by both climate harm and climate solutions, mitigation and adaptation measures must be implemented in a way that respects the rights of Indigenous Peoples.

ICCPR Article 27 not only protects Indigenous Peoples from the impacts of climate change, but also from commercial or industrial developments that interfere with their right to maintain and develop their cultures (see Chapter 7). If an interference results in a substantive negative impact on Sámi culture, and thus violates ICCPR Article 27, there can be no proportionality assessment between the interests of society at large and the interests of the minority, because Article 27 does not provide for limitations.²⁰²The only exception, pursuant to Article 4 of the ICCPR, is that several human rights, including Article 27, can be derogated from in cases of emergency that threaten the life of the nation. The Norwegian Supreme Court noted in the Fosen case that “the protection of the minority population would be ineffective, if the majority population were able to limit it based on its legitimate needs”.²⁰³HR-2021-1975-S, para. 129.

However, the Norwegian Supreme Court also noted that if Article 27 conflicts with other fundamental rights, such as the right to a healthy environment, the two rights may be “balanced against each other and harmonised”.²⁰⁴Ibid, para. 130. In the Fosen case, there was no such conflict because the renewable energy transition “could also have been taken into account by choosing other – and for the reindeer herders less intrusive – development alternatives”.²⁰⁵Ibid, para. 143. It was not specified where such alternative developments could have been located, but the the affected reindeer herders had suggested alternative locations in the Fosen area, not elsewhere in Norway. These suggestions had not been taken into account by the wind power companies. The Supreme Court did not discuss the circumstances in which a renewable energy development would be considered necessary to secure the right to a healthy environment.

In another case, the Supreme Court of Norway found that the climate is covered by Article 112 of the Constitution. It held that courts may only review acts of Parliament where the Parliament has failed to address an environmental problem, or where it has grossly neglected its duty to protect the right to a healthy environment under Article 112(3),²⁰⁶Greenpeace Nordic et al. v. Norway (HR-2020-2472-P) para 142. For a closer analysis of the judgement in English, see Christina Voigt, «The Climate Judgment of the Norwegian Supreme Court: Aligning the Law with Politics», Journal of Environmental Law, Vol. 33(3) 2021 pp. 697-710. but did not specify the threshold for judicial review of administrative decisions in which the Parliament has not been involved. Moreover, the Supreme Court found that combustion of Norwegian-produced oil and gas abroad can be relevant to consider when it causes harm in Norway, and that this constitutional provision may contain an obligation for the State to deny oil exploration permissions.²⁰⁷HR-2020-2472-P paras. 149, 155, 222, 223.

If a renewable energy project does not in practice reduce overall emissions, it is difficult to see how interference could be considered necessary to protect the right to a healthy environment in a potential conflict with Indigenous people’s rights. For example, if a wind park is used to electrify Norwegian oil platforms, the exported combustion emissions as relevant under Article 112 may outweigh any domestic emission reductions associated with electrifying production (see Chapter 5).

Furthermore, there may also be alternative mitigation measures available that would provide an equivalent level of protection for the right to a healthy environment without substantially interfering with Sámi rights. For example, locating a proposed wind power development in another area, developing solar or offshore wind, improving the efficiency of existing renewable energy infrastructure or reducing fossil fuel production.

In general, courts will strive to avoid conflicts between different human rights by harmonising them through interpretation. If this is not possible, balancing and harmonising these rights in the event of a conflict would be a complex and unprecedented legal exercise in a Norwegian context, because both the right to a healthy environment in Article 112 and the rights of Indigenous Peoples in Article 108 (closely linked with ICCPR Article 27)²⁰⁸According to the Norwegian Supreme Court, “Article 27 ICCPR must be viewed in context with Article 108 of the Constitution, which imposes a duty on the state authorities «to create conditions enabling the Sámi people to preserve and develop its language, culture and way of life». The provision is based on Article 27 ICCPR and may constitute an independent legal basis where other sources of law give no answer”, HR-2021-1975-S para 99. There is thus a close link between Article 108 of the Constitution and ICCPR Article 27, see see NOU 2007:13 p. 190 onwards, as well as NOU 2008:5 p. 259 onwards. are on the same constitutional level.

Rather than having a larger theoretical discussion on how these rights might be balanced in the event of a potential conflict, which must ultimately be decided on a case-by-case basis by the courts, we will present some recommendations on how to avoid conflicts in the first place.

Conflicts between these two rights may firstly be avoided by locating renewable energy developments or similar interferences outside the Sámi reindeer herding area.

As a point of departure, the Sámi reindeer herding area is estimated to cover approximately 40% of the Norwegian mainland.²⁰⁹Statistics Norway, «Utbygging får konsekvenser for reinbeiteområder. SSB analyse 2020/16, https://www.ssb.no/natur-og-miljo/artikler-og-publikasjoner/utbygging-far-konsekvenser-for-reinbeiteomrader. However, this seemingly large area includes inter alia cities, villages, roads, railroads, wind power plants, mining sites, rivers, lakes, and steep mountains – in other words, areas where reindeer herding cannot be carried out. Such obstacles also divide and delimit the available reindeer herding areas. According to Statistics Norway, approximately 22% of the Sámi reindeer herding areas in Norway are within 500 meters from buildings and infrastructure, 37 % within 1 kilometre and 89% within five kilometres. The most impacted areas are south of Finnmark.²¹⁰Ibid. A 2022 study suggests that only 4% of Sámi reindeer grazing areas in Norway, Sweden and Finland are untouched by human activities such as forestry mining, tourism, roads and railways.²¹¹Stoessel et al., “Mapping cumulative pressures on the grazing lands of northern Fennoscandia”,in Scientific Reports Vol. 12, 30.9.2022.

It is the cumulative effects of all interferences in an area that together may constitute a substantive negative effect on Sámi culture. The government has a duty not only to consider the effect of the measure in question, but also how it relates to other previous and planned interferences in an area. The State as well as municipalities therefore, in their development and planning of new projects, should prioritise which developments they allow. Renewable energy developments in Sámi areas would inevitably require restrictive approaches to other interferences, such as for example roads, holiday homes or other industrial developments.

An approach that balances the need for more wind power and avoids further strain on Sámi reindeer herding areas can be found in the Norwegian Government’s draft national wind power plan from 2019. It identified 13 suitable areas for development, mostly in Southern Norway, after excluding most of the Sámi reindeer herding areas and other areas of high environmental, social or cultural value.²¹²Jakobsen, S.B, et al., Forslag til nasjonal ramme for vindkraft. p. vii. While the plan was not adopted, it still provides a useful evidence base for identifying suitable areas for wind-development that are less intrusive for Sámi culture.

Conflicts may further be avoided if the affected Sámi right holders are meaningfully consulted on any proposed interference in Sámi areas, with the aim of obtaining their free, prior and informed consent. If consultation is done early and in good faith, it may be possible to ensure that the proposed interference is located and designed in a way that does not entail a substantive negative effect on the Sámi people’s right to culture.