Canary in the Coal MineSámi Rights and Climate Change in Norway

1. Summary

The escalating climate crisis raises complex questions at the intersection of law, policy and science. Climate change threatens the effective enjoyment of a wide range of human rights, including the rights to life, private and family life and home, health, and culture. The purpose of this report is to examine the human rights protection of the Sámi people in Norway from the effects of climate change, who in many ways are the “canaries in the coalmine” of the climate crisis.¹This report is authored by the Norwegian NHRI (National Human Rights Institution), which is an independent public body established by Parliament to protect and promote the implementation of human rights in Norway. Providing advice to State authorities on their human rights obligations as well as monitoring emerging human rights challenges are important aspects of this work. This includes identifying any deficiencies in legislation, policies or practices that increase the risk of human rights violations. The main authors of the report are Peter Dawson, Hannah Brænden and Lars-Johan Strømgren, in close collaboration with Adele Matheson Mestad, Gro Nystuen, John Bernhard Henriksen, Anders Broderstad, Mina Haugen and Petter Wille. The report is designed by Magnus Eide. Thanks to everyone else who has contributed to the report.

The report is written in English given its relevance in an international context. It provides an overview of the factual and legal framework pertaining to Sámi rights and climate change in Norway. It is not intended to provide a comprehensive analysis of the issue, nor is it exhaustive of all relevant sources. We thank all the stakeholders and scientists we consulted for their valuable input and feedback.

Based on the findings in the report, Chapter 2 provides some recommendations to the Norwegian government and business. We hope the report will contribute to further discussion and dialogue on this important topic and to better realisation of human rights.

Chapter 4 of the report provides an overview of global efforts to limit warming to 1.5°C in accordance with the Paris Agreement. Already at 1.2°C of global warming, greenhouse gas emissions, particularly from the burning of fossil fuels, have caused widespread adverse impacts to nature and people, threatening the effective enjoyment of a whole range of human rights. These impacts are projected to worsen with every additional tonne of CO₂ emissions and every incremental increase in warming.

Approximately 150 billion tonnes of additional CO₂ emissions can be released into the atmosphere before the critical 1.5°C threshold is crossed. At the current rate of emissions, this will happen within 2 to 7 years. States’ existing policies to reduce emissions will still lead to a 3°C temperature rise by 2100. Only a rapid global transition from fossil fuels to renewable energy can deliver the emission cuts needed to avoid climate disaster.

Chapter 5 of the report discusses Norway’s greenhouse gas emissions and climate policies. Norway emits approximately 50 million tonnes of CO₂ from within its borders every year, with a quarter of these emissions coming from the production of oil and gas. Once exported and burned abroad, this oil and gas is responsible for a further 500 million tonnes of CO₂ emissions every year. Norway has reduced its domestic emissions by 4.6% since 1990 and has significantly increased fossil fuel production and export. Norway was central in the negotiations that led to the agreement at the 2023 climate conference in Dubai to “transition away from fossil fuels”. However, at the domestic level, Norway currently plans to increase fossil fuel production and export, while using a large proportion of available renewable energy to power offshore oil and gas platforms.

In Chapter 6, we summarise existing scientific research concerning current and future impacts of climate change which may be relevant for the Sámi people in Norway. Climate change is already causing significant negative effects in the Arctic, including higher temperatures and precipitation, permafrost thaw, loss of sea and land ice, changes in snow cover, extreme weather events and northward shifts of species. These changes are occurring at an unprecedented magnitude and pace because the Arctic warms much faster than the rest of the world.

In Finnmarksvidda for example, annual average temperatures have already increased by 1.9°C, autumn temperatures have increased by 2.9°C, rainfall has increased by 25% and snow cover duration has decreased by three weeks since 1971. Sea surface temperature in the Norwegian Sea increased by approximately 1.2°C between 1980 and 2020. These changes pose several human rights challenges for the Sámi people, threatening important cultural practices and livelihoods such as reindeer herding and fishing, with associated impacts on Sámi health.

If global warming exceeds 1.5°C, many of the changes that negatively impact Sámi reindeer husbandry, fishing and health are projected to worsen by the end of the century. Under the highest emissions scenario (RCP8.5) for example, the annual average temperature in Finnmarksvidda will increase by 6.7°C, precipitation will increase by 22% and snow cover duration will decrease by 2-3 months. There will be a significant increase in the frequency of rain-on-snow events and freeze-thaw cycles which create an ice barrier making it difficult for the reindeer to access food, and 20-40 more days where the temperature fluctuates above and below 0°C. Sea surface temperature is projected to increase, by a further 2.2°C in the coastal parts of the Barents Sea and a further 1.2°C in the coastal parts of the Norwegian Sea in March from 2015 to 2100.

The options for the Sámi people to adapt to such drastic changes are limited, particularly in relation to reindeer herding. For example, the increasing use of supplementary feeding during grazing crises can nega­tively affect reindeer health, and add a sig­nificant burden to Sámi reindeer herders through increased workload, costs, stress and concern for loss of traditional practices and culture. Land use policy may also restrict access to alternative pastures or emergency support during grazing crises.

Chapter 7 provides an overview of the relevant legal framework for the protection of Indigenous Peoples’ rights. The report mainly focuses on the protection of Indigenous people under the International Covenant on Civil and Political Rights (ICCPR) Articles 17 and 27. The chapter analyses positive and negative obligations to protect Sámi rights, as well as Indigenous Peoples’ right to effectively participate in relevant decision-making processes.

Chapter 8 discusses the State’s human rights obligation to protect the Sámi people from the impacts of climate change. While climate change threatens the effective enjoyment of a whole range of human rights for all, Indigenous Peoples’ rights may be disproportionately impacted by climate change under ICCPR Articles 17 and 27. We analyse environmental and climate decisions from the UN Human Rights Committee (HRC) to establish existing human rights law in this field, and conclude that the Norwegian authorities have a positive obligation to protect the Sámi people from the real, serious, and reasonably foreseeable threat that climate change poses to their culture and livelihoods.

Furthermore, we discuss what the authorities must do to comply with this positive obligation. Firstly, we analyse a potential obligation for States to reduce their GHG emissions through mitigation measures to protect the Sámi. While the HRC has neither rejected nor affirmed such a duty, the best available climate science suggests that it will likely not be possible to effectively protect the Sámi people’s rights under ICCPR Articles 17 and 27 in the long term if States do not reduce the GHG emissions within their effective control in line with the remaining carbon budget for 1.5°C.  While reduced emissions from one State alone will not determine the future course of climate change, several national courts have concluded that every State must do its part to combat climate change and protect human rights by reducing its own emissions. The chapter also analyses the authorities’ obligation to protect Sámi culture by adapting to existing or unpreventable impacts of climate change. State authorities must adopt and implement timely and adequate adaptation measures to protect Sami culture, the choice of which should be informed by traditional Indigenous knowledge. However, mitigation and adaptation measures themselves must not be detrimental to Sámi cultural practices or livelihoods.

Chapter 9 underlines the State’s human rights obligation to protect traditional Sámi areas from interferences with substantive negative impact under ICCPR Article 27. The Fosen case from the Norwegian Supreme Court Plenary serves as an important precedent for this legal analysis. The Chapter also addresses the statement from the Supreme Court 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”. However, this harmonization must ultimately be done on a case-by-case basis if a conflict arises. To avoid this situation in the first place, we present some recommendations on how to avoid conflicts between the right to a healthy environment and Indigenous Peoples’ rights.

Lastly, Chapter 10 briefly discuss the responsibility of businesses to respect Sámi rights in the context of climate change. For larger Norwegian companies, an obligation to identify and assess actual and potential adverse impacts on fundamental human rights follows from the Norwegian Transparency Act. This includes ICCPR Articles 17 and 27 and environmental impacts with a negative impact on human rights. With the upcoming adoption and entry into force of the EU Corporate Sustainability Due Diligence Directive, similar and further obligations will be applicable for larger companies in the EU.

2. Recommendations

Sámi rights are threatened by both the effects of climate change and by resource and energy developments aimed at addressing climate change. This double burden places the Sámi people in a vulnerable position. Research indicates that perceived fairness is one of the most important determinants for public acceptance of policies aimed at mitigating climate change.²Bergquist, M. et al. “Meta-analyses of fifteen determinants of public opinion about climate change taxes and laws”, Nature Climate Change, 21 (2022), p. 235-240. A human rights-based approach, with broad and inclusive public participation in decision-making from affected communities, can contribute to legitimacy and democratic support for a rapid and comprehensive green transition.

There are many steps the authorities can take to ensure a human-rights based and timely transition to a low emissions society by 2050, in accordance with both the Norwegian Climate Act and the rights of the Sámi people under the Norwegian Human Rights Act and international conventions. Some of the measures proposed by the Norwegian Government in 2023 for reindeer husbandry and renewable energy are a promising start to achieve this objective.³The Norwegian Government, Tiltakspakke for reindrift og energi, 20.12.2023. The following recommendations are based on the findings in this report, and are aimed at strengthening the human rights protection of the Sámi people in the context of climate change.

3. Introduction

Climate change threatens the effective enjoyment of a wide range of human rights, including the rights to life, private life and home, property, health, and culture.⁴Norwegian National Human Rights Institution (NIM). Climate and Human Rights. (2021). Available at: https://www.nhri.no/en/report/climate-and-human-rights/; European Network of National Human Rights Institutions (ENNHRI). Climate Change and Human Rights in the European Context. (2021). Available at: https://ennhri.org/wp-content/uploads/2021/05/ENNHRI-Paper-Climate-Change-and-Human-Rights-in-the-European-Context_06.05.2020.pdf. Already at the current level of warming, climate change is increasing the frequency and severity of extreme weather events and slow-onset impacts, with devastating consequences for nature and people. In addition, the Arctic warms at a faster rate than the global average, which affects all people living in Arctic areas, especially the Sámi people whose cultures and livelihoods depend on climate-sensitive ecosystems.

Although climate change affects all regions and populations in different ways, certain vulnerable groups are disproportionately impacted, including women, children, older people, people with disabilities and Indigenous Peoples.⁵Intergovernmental Panel on Climate Change (IPCC). AR6 WGII Climate Change 2022: Impacts, Adaptation and Vulnerability: Summary for Policymakers (2022) para. B.1; Nicholas Tyler et al., “The Shrinking Resource Base of Pastoralism: Saami Reindeer Husbandry in a Climate of Change” Frontiers in Sustainable Food Systems Vol. 4 (2021); Islam, S.N & Winkel, J. “Climate Change and Social Inequality”. UN Department of Economic & Social Affairs (UNDESA). Working Paper No. 152; Jerez, M.M., Challenges and Opportunities for Indigenous’ Peoples’ Sustainability (UNDESA, Policy Brief no. 101, 2021). In this report, we focus primarily on how climate change affects the rights of the Sámi people in Norway, who in many ways are the “canaries in the coalmine” of the climate crisis.⁶The expression “canary in the coal mine” refers to an early warning of danger or harm. In the past, canaries were used by coal miners to detect carbon monoxide because they were more sensitive than humans to dangerous gases and would therefore react earlier.  

There are four main reasons why Indigenous Peoples, including the Sámi people, are disproportionately affected by climate change:

• Indigenous Peoples have a deep connection to their traditional lands, waters and resources, which are crucial for the continued survival of their cultures, languages, livelihoods and knowledges.⁷IPCC. Climate Change 2022: Impacts, Adaptation and Vulnerability: Summary for Policymakers para. B.2.1; UN Office of the United Nations High Commissioner for Human Rights (OHCHR), Report of the Special Rapporteur on the rights of Indigenous Peoples, 2017, UN Doc. A/HRC,36/46, p. 4; UNDESA, 2021, p. 1; Tyler et.al., “The Shrinking Resource Base of Pastoralism: Saami Reindeer Husbandry in a Climate Change”.
• Indigenous Peoples often experience discrimination and marginalisation, at the personal and structural and institutional levels. This is exacerbated by climate change and affects Indigenous Peoples’ ability to adapt to climate change.⁸IPCC. Climate Change 2022: Impacts, Adaptation and Vulnerability: Summary for Policymakers paras. B.2.1, B.2.4; OHCHR, 2017, p. 4; Johnsen, K.I et al., “Leaving no one behind – sustainable development of Sámi reindeer husbandry in Norway” In Reindeer Husbandry: Adaptation and Resilience to a Changing Arctic, Svein D. Mathiesen et al. (eds.) (Springer Polar Sciences, 2022).
• Indigenous Peoples’ traditional lands, waters and resources have historically been, and remain vulnerable to commercial and industrial developments. Climate change further exacerbates this vulnerability by increasing the demand for land, including for renewable energy developments, mining of critical minerals, carbon sequestration and adaptation measures.⁹See for example, UN Permanent Forum on Indigenous Issues (UNPFII), Report on the twenty-first session, 25 April–6 May 2022, para. 5; Norwegian National Human Rights Institution (NIM). Human Rights Protection against Interference in Traditional Sámi Areas, 2022. Available at: https://www.nhri.no/en/report/human-rights-protection-against-interference-in-traditional-Sámi-areas/.
• On a global level, indigenous Peoples manage or have tenure rights over at least 40% of the Earth’s remaining ecologically intact landscapes, and their traditional territories are estimated to represent 80% of the Earth’s biodiversity.¹⁰Stephen Garnett et al., “A spatial overview of the global importance of Indigenous lands for conservation” Nature Sustainability 1 (2018); OHCHR, 2017, p. 3. These areas often include climate-sensitive ecosystems that are particularly vulnerable to the effects of climate change.

Rapid and drastic changes in the Arctic climate are having increasingly negative effects on Sámi cultures, health and livelihoods, including reindeer herding and fishing practices. Climate change is exacerbating an already challenging situation for the Sámi people, adding to the cumulative negative impacts of historical assimilation policies and industrial developments in Sámi areas.¹¹Jouni Jaakkola et al., “The Holistic Effects of Climate Change on the Culture, Well Being, and Health of the Saami” Current Environmental Health Reports 5, nr. 4 (2018) p. 413; Norwegian National Human Rights Institution (NIM). Human Rights Protection against Interference in Traditional Sámi Areas; UNDESA, 2021, p. 3   The ongoing climate crisis adds to various forms of government and corporate land interventions, with the negative consequences this has for reindeer husbandry.¹²The Truth and Reconciliation Commission report Sannhet og forsoning, Dok 19 (2022-2023) p. 554. The negative effects of climate change for the Sámi people are projected to worsen if warming exceeds the critical 1.5°C threshold in the Paris Agreement.

The factual section of the report focuses mostly on the impacts of climate change that are relevant to Sámi reindeer husbandry, fishing and health, although other aspects of Sámi culture and industries may also be relevant. The legal section of the report focuses mostly on States’ obligation to effectively protect Indigenous Peoples’ rights under Articles 17 and 27 of the International Covenant on Civil and Political Rights (ICCPR).

This report is authored by the Norwegian National Human Rights Institution (NHRI), which is an independent public body established by Parliament to protect and promote the implementation of human rights in Norway. ¹³The Norwegian NHRI Act §§ 1,3.  Providing advice to State authorities on their human rights obligations as well as monitoring emerging human rights challenges are important aspects of this work. This includes identifying any deficiencies in legislation, policies or practices that increase the risk of human rights violations.

With a view to assuring the quality of this report, the Norwegian NHRI has asked for feedback from relevant experts from a range of institutions and organisations, such as the Sámi Parliament, the Saami Council, the International Centre for Reindeer Husbandry, the Arctic Monitoring & Assessment Programme (AMAP), the Norwegian Meteorological Institute, the Institute of Marine Research, the Norwegian Institute for Nature Research (NINA), the Norwegian Institute of Bioeconomy Research (NIBIO), the Norwegian Institute for Water Research (NIVA), the Bjerknes Centre for Climate Research, UiT The Arctic University of Norway and the Norwegian University of Life Sciences, among others. We thank all stakeholders for their valuable input and feedback. An earlier version of the report was also used as the basis for input at a side event at the UN Permanent Forum on Indigenous Issues 22^nd Session in April 2023.

The escalating climate crisis raises complex questions at the intersection of law, policy and science. The purpose of this report is not to answer all these questions, but to provide a human rights perspective on the impacts of climate change for the Sámi people. We hope the report will contribute to further dialogue on this important topic and to better realisation of human rights.

4. The rapidly closing window to prevent dangerous climate change

According to the UN’s Intergovernmental Panel on Climate Change (IPCC), any further delay in reducing greenhouse gas emissions will miss a brief and rapidly closing window of opportunity to secure a liveable future for all.¹⁴IPCC, AR6 Synthesis Report: Summary for Policymakers, 2023, para. C.1.

Already at the current level of 1.2°C of global warming, climate change has caused widespread adverse impacts to nature and people, which are projected to increase exponentially if global warming exceeds the critical 1.5°C threshold. The remaining amount of CO₂ that can be emitted to remain within 1.5°C (the remaining carbon budget) is set to be exhausted between 2025-2030. Exceeding 1.5°C also risks triggering tipping points and feedback loops, which may greatly accelerate global warming and lead to abrupt and irreversible changes in the Earth’s climate system.¹⁵IPCC, AR6 WGI The Physical Science Basis, 2021, p. 21; IPCC, Special Report on Global Warming of 1.5°C, 2018, pp. 262-264; IPCC, AR6 WGI The Physical Science Basis: Summary for Policymakers, 2021, para. C.3.2 and table SPM.1 at p.18; David Armstrong McKay et al., “Exceeding 1.5°C global warming could trigger multiple climate tipping points” Science 377, nr. 6611 (2022); Will Steffen et al., “Trajectories of the Earth System in the Anthropocene” PNAS 115, no. 33 (2018); Nico Wunderling, et al., “Global warming overshoots increase risks of climate tipping cascades in a network model.” Nature Climate Change 13 (2023).

In Article 2.1a of the Paris Agreement, State Parties agree to “pursue efforts to limit” the global temperature increase to 1.5°C above pre-industrial levels, with a maximum increase to “well below 2°C”. New insights in the IPCC’s 2018 report, confirmed in 2021 and 2022, have shifted the scientific, political and legal consensus towards limiting the temperature increase to 1.5°C instead of 2°C, as this would “substantially reduce” the risks for humans.¹⁶IPCC, Special Report on Global Warming of 1.5°C, 2018, pp. 177–181; IPCC, AR6 WGI The Physical Science Basis: Summary for Policymakers, 2021, pp. 19–24; IPCC. Climate Change 2022: Impacts, Adaptation and Vulnerability: Summary for Policymakers para. B.3.

Hence, at the last three UN climate conferences, the State Parties to the Paris Agreement have resolved “to pursue efforts to limit the temperature increase to 1.5°C”.¹⁷UNFCCC Conference of the Parties, Glasgow Climate Pact, 08.03.22, UN Doc. FCCC/PA/CMA/2021/10/Add.1, paras. 20–22; UNFCCC Conference of the Parties, Sharm el-Sheikh Implementation Plan, 20.11.2022, UN Doc. FCCC/PA/CMA/2022/L.21, para 28; UNFCCC Conference of the Parties, Outcome of the First Global Stocktake, 13.12.2023, UN Doc. FCCC/PA/CMA/2023/L.17, para. 4. At the most recent climate conference in Dubai, State Parties also recognised the need for “deep, rapid and sustained reductions in GHG emissions in line with 1.5 °C pathways” and agreed to “transition away from fossil fuels in energy systems, in a just, orderly and equitable manner, accelerating action in this critical decade, so as to achieve net zero by 2050 in keeping with the science”.¹⁸Ibid, para. 28(d). In Europe, the EU Climate Act states that climate change is an “existential threat” and that global temperature increase must be “limited to 1.5°C”.¹⁹Regulation (EU) 2021/1119 (European Climate Law) preamble rec. 1 and 3.

According to the IPCC, limiting warming to 1.5°C requires a 48% global reduction in CO₂ emissions from 2019 levels by 2030 and net zero emissions by 2050.²⁰IPCC, AR6 WGIII Mitigation of Climate Change: Summary for Policymakers, 2022, paras. C.2 and C.1.2. However, as States have “common but differentiated responsibilities and respective capabilities”, developed countries must cut at a higher rate.²¹UNFCCC, Art 3.1, Art 4.1; Paris Agreement, Preamble, Art 2.1, 4.1, 4.2, 4.3 and 4.4. While opinions on how to assess a country’s fair share of the remaining carbon budget differs, one study from legal scholars and climate scientists suggests that, when adjusting for historic responsibility for climate change and GDP per capita, developed States should reach net zero emissions by 2030 in order to stay within their fair share of the remaining 1.5°C global carbon budget.²²Lavanya Rajamani et al., “National ‘fair shares’ in reducing greenhouse gas emissions within the principled framework of international environmental law” Climate Policy 21, no. 8 (2021) p. 17.

In 2023, the remaining global carbon budget for limiting warming to 1.5°C was approximately 150 billion tonnes of carbon dioxide, which will be exhausted within 2025-2030 under the current rate of global emissions.²³Piers M. Forster et al., “Indicators of Global Climate Change 2022” Earth System Science Data 15, no. 6 (2023) ch. 8; Zhu Liu et al., “Monitoring global carbon emissions in 2022” Nature Reviews Earth & Environment 4 (2023). An earlier estimate put the remaining carbon budget in 2020 at 400 GtCO₂, see IPCC, AR6 WGI The Physical Science Basis: Summary for Policymakers, 2021, p. 29. New evidence and additional observational data indicate that the remaining carbon budget is now much lower. These carbon budgets are based on a 67% probability of limiting global warming to 1.5°C.

As of November 2023, States’ current policies to reduce emissions will still lead to a 3°C temperature rise by 2100 (see Figure 1 below).²⁴Matthew Jones et al., “National contributions to climate change due to historical emissions” Scientific Data 10, no. 1 (2023); UNEP, Emissions Gap Report: The Closing Window (2022), p. 35, figure 4.3; UNFCCC Subsidiary Body for Scientific and Technological Advice, Technical Dialogue of the First Global Stocktake, 8.09.2023, UN Doc. FCCC/SB/2023/9, p. 17, figure 1; CarbonBrief, “UNEP: Meeting global climate goals now requires rapid transformation of societies”, 27.10.2022; UNEP, Emissions Gap Report: Broken Record (2023), p. 31, table 4.4. Implementation of States’ emission reduction targets which are achievable using domestic resources, known as unconditional NDCs, will only reduce this to 2.9°C. Implementation of States’ targets which are dependent on external financial support, known as conditional NDCs, will reduce warming to 2.5°C.²⁵UN Environment Program (UNEP), Emissions Gap Report: Broken Record (2023), p. XXII and 30-31.

Only an urgent system-wide transformation can deliver the enormous emission cuts needed to limit warming to 1.5°C and avoid climate disaster. This requires actions and changes across all sectors and systems, including in energy, industry, transport, buildings, agriculture, forestry and the food and financial systems, while also ensuring a just transition.²⁶United Nations Environment Programme, Emissions Gap Report 2023: Broken Record – Temperatures hit new highs, yet world fails to cut emissions (again), 2023.

The energy sector is the most critical as it accounts for two-thirds of global GHG emissions.²⁷International Energy Agency (IEA), “Energy sector is central to efforts to combat climate change”, 2023, https://www.iea.org/topics/climate-change. Over 80% of all CO₂ emissions since 1751 have come from the burning of fossil fuels and more than half have been emitted in the last 33 years.²⁸IPCC, AR6 Climate Change 2021 The Physical Science Basis, 2021, pp. 676, 687, 688; Stainforth et al., “More than half of all CO2 emissions since 1751 emitted in the last 30 years”, Institute for European Environmental Policy, 29.04.2020.

Estimated future emissions from existing fossil fuel infrastructure already exhaust the remaining 1.5°C global carbon budget, and the additional emissions from planned fossil fuel infrastructure exhaust even the 2°C budget.²⁹IPCC, AR6 WGIII Mitigation of Climate Change, 2022, Technical Summary p. 26 and Chapter 2 p. 72. According to a “large consensus” across multiple climate models, “developing any new oil and gas fields is incompatible with limiting warming to 1.5°C”.³⁰Conclusion of a meta-study from the International Institute for Sustainable Development (IISD), Navigating Energy Transitions: Mapping the road to 1.5°C, 21.10.2022 p. 14 ff., referring inter alia to reports from the IPCC and IEA, World Energy Outlook, 2021, p. 112; IEA, Net Zero by 2050, 2021, pp. 23, 99. Furthermore, the world must cut an additional 23 gigatonnes of CO₂ emissions and add 1020 gigawatts of solar and wind power every year until 2030 to remain within a 1.5°C pathway.³¹Ibid; IEA, Net Zero by 2050: A Roadmap for the Global Energy Sector: Summary for Policymakers, 2021, p.3. According to the modelling used by the International Energy Agency, renewable energy investment will need to triple by 2030 and wind and solar will need to increase from 10% of total electricity generation to 40% to remain within a 1.5°C pathway.³²IEA, World Energy Investment, 2023, p. 57; IEA, World Energy Outlook, 2022, pp. 97, 138 and 257.

Increases in renewable energy production must be accompanied by decreases in fossil fuel production. The Norwegian Environment Agency points out that, “increased production of renewable energy does not in itself result in reduced emissions, since climate gains are only achieved when the new energy replaces the use of fossil energy”.³³Norwegian Environment Agency, Veileder: Produksjon og distribusjon av fornybar energi, 15.09.2023, https://www.miljodirektoratet.no/ansvarsomrader/klima/for-myndigheter/kutte-utslipp-av-klimagasser/klima-og-energitiltak/fornybar-energi/produksjon-og-distribusjon-av-fornybar-energi/. While renewable energy production is increasing globally, so is fossil fuel production, despite the UN warning that governments plan to produce more than double the amount of fossil fuels than what is consistent with a 1.5°C pathway.³⁴UNEP et al. The Production Gap: Phasing down or phasing up? Top fossil fuel producers plan even more extraction despite climate promises, 2023. Between 2017 and 2022, renewable energy production met only half of the new demand for energy globally, and is far from replacing fossil fuels in absolute terms.³⁵DNV, Energy Transition Outlook 2023, 11 October 2023.

5. Norway’s GHG emissions and climate policies

In 2020, there were 48.9 million tonnes of CO₂-equivalents emitted domestically in Norway. The biggest emissions sources in Norway are oil and gas extraction (24.5%), other industry (23%), road traffic (17%), other transport (15%), and agriculture (10%).³⁶State of the Environment Norway: “Norske utslipp og opptak av klimagasser”, https://miljostatus.miljodirektoratet.no/tema/klima/norske-utslipp-av-klimagasser/

Norway has to a large degree achieved international obligations to reduce emissions by purchasing carbon credits based on emission cuts in other countries.³⁷NOU 2023:25 p. 40. Since 1990, Norway has only reduced its domestic emissions by 4.6%.³⁸State of the Environment Norway: “Norske utslipp og opptak av klimagasser”, https://miljostatus.miljodirektoratet.no/tema/klima/norske-utslipp-av-klimagasser/

Norwegian authorities have set several targets for reducing emissions. In the Norwegian Climate Act, the target for 2030 is that GHG emissions are reduced by at least 55% compared to 1990 levels.³⁹Climate Change Act. Act of 16 June 2017 no. 60 on climate targets. For 2050, the target is that Norway becomes “a low-emission society”, where GHG emissions are reduced by 90-95%. However, these targets may be fulfilled together with the EU through emissions trading. This means that there is no obligation under the climate law to reduce domestic emissions. The Government-appointed Climate Committee 2050 stated in 2023 that “[t]he question is not which emissions should be reduced, but which minor emissions remain in 2050”.⁴⁰The Norwegian Government: «Press release NOU 2023: 25 The transition to low emissions – climate policy choices towards 2050», https://files.nettsteder.regjeringen.no/wpuploads01/sites/479/2023/10/Pressemelding_engelsk.pdf

The agreement with the EU firstly relates to emissions that fall within the EU Emissions Trading System (ETS), mainly emissions from industrial activities. The Norwegian Climate Act explicitly states that participation in the EU ETS is relevant for assessing progress towards the targets. Norway also has agreements with the EU to reduce emissions that are not subject to the EU ETS by 40% by 2030, covering mainly emissions from transport and agriculture. The EFTA Surveillance Authority (ESA), responsible for monitoring implementation of this agreement, warned in 2023 that “Norway expects a significant gap towards its current targets,” and was therefore “strongly encouraged to consider additional measures to reduce their emissions”.⁴¹EFTA Surveillance Authority, Climate Progress Report 2023, 2023 p. 4.

In addition, the Government has committed to reducing domestic emissions by 55% by 2030 compared to 1990 levels.⁴²The Norwegian Government: “Hurdalsplattformen. For en regjering utgått fra Arbeiderpartiet og Senterpartiet 2021-2025”, https://www.regjeringen.no/contentassets/cb0adb6c6fee428caa81bd5b339501b0/no/pdfs/hurdalsplattformen.pdf p. 29. This means that 50% of Norwegian emissions must be reduced in the next six years. It is debated whether the Government has a sufficiently realistic plan to achieve this goal.

Norway is the world’s 8^th largest producer of natural gas, and the 12^th largest producer of crude oil.⁴³UNEP et al. The Production Gap: Phasing down or phasing up? Top fossil fuel producers plan even more extraction despite climate promises, 2023, p. 68. Annual emissions from the combustion of exported Norwegian oil and gas are approximately 500 million tons of CO₂, which is at least ten times higher than Norway’s annual domestic emissions.⁴⁴NOU 2023: 25 p. 211. In general, 95% of emissions relating to petroleum come from the ultimate combustion/burning of oil and gas, and only 5% from the production. Norway has plans to expand, not phase out, oil and gas production and export.

The Norwegian Petroleum Directorate estimates that Norway’s oil and gas production will continue to rise in 2024 and 2025, almost reaching the record-high production levels of 2004.⁴⁵Norwegian Petroleum Directorate, «Sokkelåret 2022», 9 January 2023, https://www.npd.no/aktuelt/publikasjoner/rapporter/sokkelaret/sokkelaret-2022/; Nerijus Adomaitis, “Norway’s oil production seen rising 5% in 2024”, Reuters, 6 October 2023, https://www.nasdaq.com/articles/norways-oil-production-seen-rising-5-in-2024-0. While the Directorate projects a gradual decline from 2026, UNEP and others, with reference to the Directorate’s reports, state that “the rate of decline is uncertain and depends heavily on possible new discoveries and thus on government policy for exploration”, where “official forecasts tend to underestimate resource growth”.⁴⁶UNEP et al. The Production Gap, 2023, p. 68; Norwegian Petroleum Directorate, Resource Report 2022, p. 58. Historically, projections of future oil and gas production have been lower than actual production.⁴⁷NOU 2023: 25 p. 229, 230.

The total amount of energy used in Norway in 2021 was 326 terawatt hours (TWh), 42% of which came from electricity and 50% from fossil fuels.⁴⁸NOU 2023: 3 p. 45. Unlike many other comparable countries, almost all electricity used by households and services in Norway comes from renewable sources, mostly hydropower (88%), followed by wind power (10%).⁴⁹Tilnull.no: “Hvor mye av energibruken er fornybar?” https://www.tilnull.no/energibruk; Statistics Norway: “Betydelig nedgang i strømforbruket», https://www.ssb.no/energi-og-industri/energi/statistikk/elektrisitet/artikler/betydelig-nedgang-i-stromforbruket-i-2022.

Norway will need more renewable energy as industries transition away from fossil fuels and overall energy consumption continues to grow, but the exact estimates of future demand vary. The Government-appointed Energy Commission estimates that an additional 21-35 TWh will be needed in 2030.⁵⁰NOU 2023: 3 p. 10. The commission’s majority recommended that Norway should have a goal of an increased capacity of at least 40 TWh from hydropower, solar energy and onshore and offshore wind, and free up at least 20 TWh from improving energy efficiency.⁵¹NOU 2023: 3 p. 24. The Norwegian Water Resources and Energy Directorate responded that it is unrealistic to get an additional 40 TWh from renewable energy sources by 2030, but considered it ambitious and possible to achieve 20 TWh in energy efficiency and 5-10 TWh in increased solar capacity.⁵²Norges vassdrags- og energidirektorat, Høringssvar fra NVE – NOU 2023:3 Mer av alt – Raskere – Olje- og energidepartementet, 27.4.2023.

Current government policy is to use a significant proportion of the available renewable energy to electrify the production of oil and gas. While this can reduce Norway’s domestic emissions, it is likely to increase Norway’s exported combustion emissions. It is debated whether electrification of production will reduce overall global GHG emissions.⁵³Faktisk, Åtte spørsmål og svar om elektrifisering av sokkelen question 6 17.1.2022; Thema; Elektrifisering av olje- og gassektoren – har det global klimaeffekt?,Rapport nr. 2022-23, 6.1.2023. In any case, it will tie up available renewable energy.⁵⁴NOU 2023: 25 pp. 252-254.

6. Effects of climate change for the Sámi people

The rapidly changing Arctic climate poses several human rights challenges for the Sámi people, negatively impacting their culture, livelihoods and health. This chapter will explore the effects of climate change on Sámi reindeer husbandry, fishing, and health. Both reindeer husbandry and fishing are central parts of the Sámi people’s identity and their social, cultural and economic wellbeing.

The chapter is based on observations and projections published by the IPCC, the Arctic Monitoring and Assessment Programme (AMAP) and the Norwegian Meteorological Institute, as well as the Saami Council’s recent report on “Climate Change in Sápmi” and academic research from Norway, Sweden and Finland. The chapter covers both observed effects and future risks, beginning with studies concerning the Arctic region as a whole, followed by studies concerning specific Sámi areas in Norway.

6.1 Observed effects

According to the IPCC and the Arctic Monitoring and Assessment Programme (AMAP), climate change is already causing significant negative effects in the Arctic, including higher temperatures and precipitation, permafrost thaw, loss of sea and land ice, changes in snow cover, extreme weather events, and northward shifts of species on land and in freshwater and marine ecosystems.⁵⁵IPCC, AR6 WGI The Physical Science Basis: Summary for Policymakers, 2021, p. 15, para. B.2.1; IPCC, AR6 WGII Impacts, Adaptation and Vulnerability, 2022, ch. 2, p. 200; IPCC, AR6 WGII Impacts, Adaptation and Vulnerability: Cross Chapter Paper 6, 2022, p. 2321; Arctic Monitoring and Assessment Programme (AMAP), Arctic Climate Change Update 2021: Key Trends and Impacts 2021, ch. 2. These changes are occurring at a “magnitude and pace unprecedented in recent history, and much faster than projected for other world regions”, with natural and human systems in the Arctic “approaching a level of change potentially irreversible for hundreds of years, if not millennia”.⁵⁶IPCC, AR6 WGII Impacts, Adaptation and Vulnerability: Cross Chapter Paper 6, 2022, p. 2321. This is largely because the Arctic warms more than three times faster than the global average due to a phenomenon known as “Arctic amplification”, which is driven largely by feedback loops such as Arctic sea ice loss and thawing permafrost.⁵⁷Earlier estimates indicated that Arctic temperatures have increased at twice the global rate, see IPCC, 2021 AR6 WG1, SPM p. 15, Atlas 11.2.2. Other studies indicate that Arctic temperatures have increased at three to four times the global rate, see Mika Rantanen et al., “The Arctic has warmed nearly four times faster than the globe since 1979” Communications Earth and Environment 3, no. 168 (2022).

6.1.1 Sámi Reindeer husbandry

Both the practice of reindeer herding and the health and welfare of the reindeer are dependent on a stable climate, functioning ecosystems and the annual cycle of reindeer ecology, including access to a diversity of quality pastures at different times of the year.⁵⁸Saami Council, Climate Change in Sápmi – an overview and a Path Forward, 2023, p. 84; Tim Horstkotte et al., “Pastures under pressure. Effects of other land users and the environment”; Svein D. Mathiesen et al., “Strategies to enhance the resilience of Sámi reindeer husbandry to rapid changes in the Arctic” In Arctic Resilience Interim Report (Stockholm Environment Institute, 2013). Climate change has severe negative impacts on the reindeer herding practices of the Sámi people, through both slow-onset changes and sudden-onset events.⁵⁹Inger Hansen, et al., Kartlegging av forskning på reindriftsområdet – kunnskapsgrunnlag og forskningsbehov (NIBIO, 2021, pp. 38-39);Tyler et.al., ““The Shrinking Resource Base of Pastoralism: Saami Reindeer Husbandry in a Climate Change”; Saami Council, 2023, p. 84. These impacts include:

• Changes to the timing and length of seasons;
• The spread of woody/shrubby vegetation across the tundra;
• Reduced pasture quality;
• Reduced access to ground lichen for reindeer due to high snow depth and rain-on-snow events;
• Increased parasite and insect harassment during summer;
• Unstable ice conditions on migration routes;
• Hazardous weather conditions and wildfires.⁶⁰IPCC, AR6 WGII Impacts, Adaptation and Vulnerability, 2022, pp. 761 and 1868; Conor D. Mallory and Mark S. Boyce, “Observed and predicted effects of climate change on Arctic caribou and reindeer” Environmental Reviews 26, no. 1 (2018); Brage Bremset Hansen et al., “Climate events synchronize the dynamics of a resident vertebrate community in the high Arctic” Science 339, no. 6117 (2013); Bruce C. Forbes et al., “Sea ice, rain-on-snow and tundra reindeer nomadism in Arctic Russia” Biology Letters 12, no. 11 (2016); Hansen, et al., 2021, p. 37; Jaakkola et al., 2018, p. 401; Jan Åge Riseth and Hans Tømmervik, Klimautfordringer og arealforvalting for reindrifta i Norge. Kunnskapsstatus og forslag til tiltak – eksempler fra Troms (NORUT, 2017) p. 3; Susan E. Lee et al., “Regional effects of climate change on reindeer: a case study of the Muotkatunturi region in Finnish Lapland” Polar Research 19, no. 1 (2000) p. 99; Jaakkola et al., 2018, p. 406.

One of the most significant challenges facing Sámi reindeer herders is more frequent and intense rain-on-snow events and freeze-thaw cycles during winter, which create an ice barrier, making it difficult for the reindeer to access food.⁶¹IPCC, AR6 WGII Impacts, Adaptation and Vulnerability, 2022, p. 761; Putkonen, J., & Roe, G. (2003). Rain-on-snow events impact soil temperatures and affect ungulate survival. Geophysical Research Letters 30(4), art-1188. This periodically prevents access to important grazing areas and migration routes, increasing the risk of starvation and death. Ice-locked pastures also disperse reindeer herds, increasing their exposure to predators, extreme weather and weaker ice cover on lakes and rivers.⁶²IPCC, AR6 WGII Impacts, Adaptation and Vulnerability, 2022, p. 1057; Anne Walkepää, Syntesrapport – En sammanställning av fyra samebyars pilotprojekt med klimat- och sårbarhetsanalys samt handlingsplan för klimatanpassning (Synthesis report – A compilation of four Sámi villages’ pilot projects with climate and vulnerability analysis and an action plan for climate adaptation) (SWECO, report no. 12602183, 2019); Alessia Uboni et al., “Can management buffer pasture loss and fragmentation for Sámi reindeer herding in Sweden?” Pastoralism Research, Policy and Practice 10, no. 23 (2020). One estimate is that ice-locked pastures have already increased “from once every 50-100 years to frequencies on decadal times”.⁶³Marina Tonkopeeva et al., “Framing Adaptation to Rapid Change in the Arctic” In Reindeer Husbandry: Adaptation and Resilience to a Changing Arctic, Svein D. Mathiesen et al. (eds.) (Springer Polar Sciences, 2022).  During the last three years alone, large areas of ice-locked pastures have occurred twice, in 2020 and 2022.⁶⁴Johnsen et al., “Leaving no one behind”, p. 3; Johnsen, et al., “Reindriften må tilpasse seg klimaendringer, men det er vanskelig med dagens forvaltning”, 16.01.23, forskersonen.no; Landbruksdirektoratet, “En styrket beredskap i reindriften”, Rapport nr. 43/2022, 15.10.2022. See also Saami Council, 2023, p. 102.

6.1.2 Sámi Fishing

Some fish species are closely related to Sámi culture, such as cod, saith, haddock, Atlantic salmon and Arctic char.⁶⁵Saami Council, 2023, pp. 74, 78, 79. Sámi fishing, at both the commercial and small-scale subsistence levels, is dependent on functioning marine and freshwater ecosystems and stable migration patterns for various species.⁶⁶Ibid, p. 72. While there is some research on how climate change affects these species and ecosystems, more research is needed on the consequences for Sámi culture and livelihoods.

Climate change has impacts on marine and freshwater ecosystems in the Arctic and the fish species which depend on them. Sea surface temperature in the Norwegian Sea increased by approximately 1.2°C between 1980 and 2020.⁶⁷Kessler et al., “Observation-based Sea surface temperature trends in Atlantic large marine ecosystems” Progress in Oceanography 208 (2022). See also, IPCC, AR6 WGI The Physical Science Basis, 2021, chapter 9.2.1.1. Increasing water temperatures can have a positive effect on the distribution and abundance of some fish species and a negative effect on others.⁶⁸Sturla F. Kvamsdal et al., “Multidisciplinary perspectives on living marine resources in the Arctic”, Polar Research 41 (2022). This depends on several interrelated factors, including the temperature tolerances of the species, food-web interactions and migration patterns between spawning, feeding and wintering areas.

In general, climate change is driving a northward expansion of temperate and subarctic fish species, which in some cases are displacing Arctic species.⁶⁹IPCC AR6 WGII Impacts, Adaptation and Vulnerability, 2022, ch. 2, p. 200; AMAP, Arctic Climate Change Update 2021: Key Trends and Impacts, 2021, p. 115, p. 118; IPCC, Special Report on the Ocean and Cryosphere in a Changing Climate, 2019, ch. 3; Saami Council, p. 78; Aslak Smalås et al., “Increased importance of cool-water fish at high latitudes emerges from individual-level responses to warming” Ecology and Evolution 13, no. 6 (2023). For example, warmer waters in Northern Norway have increased the geographic range of species such as walleye pollock, pink salmon and brown trout, while shifting the spawning sites of North-East Arctic cod northward and significantly reducing the abundance of the cold-water-adapted Arctic Char.⁷⁰Ibid; Martin Svenning et al.,”Temporal changes in the relative abundance of anadromous Arctic charr, brown trout, and Atlantic salmon in northern Europe: Do they reflect changing climates?” Freshwater Biology 67, no. 1 (2022); Kathleen M. Stafford et al., “Northward Range Expansion of Subarctic Upper Trophic Level Animals into the Pacific Arctic Region” Oceanography 35, no. 2 (2022); Sundby, S., and O. Nakken. 2008. Spatial shifts in spawning habitats of Arcto-Norwegian cod related to multidecadal climate oscillations and climate change. Ices Journal of Marine Science 65:953-962; Sandø, A. B., G. O. Johansen, A. Aglen, J. E. Stiansen, and A. H. H. Renner. 2020. Climate Change and New Potential Spawning Sites for Northeast Arctic cod. Frontiers in Marine Science 7. Marine heatwaves and other extreme events are also becoming more frequent and intense in the Arctic, contributing to large-scale displacement of fish communities as well as delayed effects on species life cycles.⁷¹Bérengère Husson et al., “Successive extreme climatic events lead to immediate, large-scale, and diverse responses from fish in the Arctic” Global Change Biology 28, no. 11 (2022). The nature and reversibility of marine ecosystem responses to such events is extremely complex and poorly understood.⁷²Ibid.

Higher water temperatures in Norway also increase the production of sea-lice and reduce the effectiveness of parasite control measures, leading to a significant increase in the infection pressure that is introduced from farmed to wild salmon.⁷³Sean C. Godwin et al., “Sea-louse abundance on salmon farms in relation to parasite-control policy and climate change” ICES Journal of Marine Science 78, no. 1 (2021); Anne D. Sandvik et al., “The effect of a warmer climate on the salmon lice infection pressure from Norwegian aquaculture” ICES Journal of Marine Science 78, no. 5 (2021). In addition, Atlantic salmon are threatened by invasive pink salmon, which is considered a “climate winner”, because it easily adapts to warmer waters.⁷⁴Kjetil Hindar et al., “Assessment of the risk to Norwegian biodiversity and aquaculture from pink salmon (Oncorhynchus gorbuscha)” (Norwegian Scientific Committee for Food and Environment – VKM, report no. 1, 2020) p. 39; Robert J. Lennox et al., “Prospects for the future of pink salmon in three oceans: From the native Pacific to the novel Arctic and Atlantic” Fish and Fisheries 24, no. 5, p. 769. These changes add to the cumulative effects of overfishing, pollution and habitat destruction, threatening Sámi fishing practices and traditional knowledge.⁷⁵Saami Council, 2023, p. 73.

6.1.3 Sámi Health

According to the World Health Organisation, climate change is the greatest threat to human health in the 21^st century.⁷⁶World Health Organisation, “COP26 special report on climate change and health: the health argument for climate action”, 2021. The adverse health impacts of climate change affect everyone. However, certain regions, populations and individuals bear a disproportionate burden.

While all those living in the Arctic are affected, groups that organise their lives and societies in close connection with nature could face earlier and more severe health impacts. This includes Indigenous Peoples since a large degree of their physical and mental health are dependent on climate-sensitive ecosystems, and they often already face health inequalities.⁷⁷IPCC. Climate Change 2022: Impacts, Adaptation and Vulnerability: Summary for Policymakers pp. SPM-12 and 4-54 (With additional references such as: Zentner, Kecinski, Letourneau, & Davidson, 2019, p. 534; IPCC, 2022, pp. 13-61; Markkula, Turunen, & Rasmus, 2019; Hansen, et al., 2021, p. 38). Compared to other Indigenous Peoples in the Arctic, there are fewer health inequalities between the Sámi population and the majority population in Norway. However, studies indicate that Sámi people respondents may have a higher risk of experiencing obesity, and chronic lifestyle diseases like diabetes, as well as discrimination angina pectoris, stroke and psychological distress.  Whether intergenerational historical trauma is the cause, is still uncertain, but climate change can be said to represent a new external pressure on top of the already experienced assimilation policies and disparities in healthcare. See Christina Storm Mienna et al., “Somatic health in the indigenous Sámi population – a systematic review” International Journal of Circumpolar Health 78, no. 1 (2019); Kirsti Kvaløy et al., “Weight underestimation linked to anxiety and depression in a cross- sectional study of overweight individuals in a Sámi and non- Sámi Norwegian population: the SÁMINOR Study” BMJ Open 9 (2019); Naseribafrouei, A. et al. (2019) “Estimated 8-year cumulative incidence of diabetes mellitus among Sami and non-Sami inhabitants of Northern Norway – The SAMINOR Study”. BMC Endocr Discord Vol 24, Issue 19. ; Hansen, K.L. et al. (2016). “Discrimination amongst Arctic Indigenous Sami and Non-Sami Populations in Norway: The SAMINOR 2 Questionnaire Study”. Journal of Northern studies Vol. 10, No 2, 45-84

Climate change has increased the risk of heavy snowfall, avalanches, blizzards, road destruction, weaker ice on lakes and rivers, spring flooding and landslides in the Arctic.⁷⁸AMAP, Arctic Climate Change Update 2021: Key Trends and Impacts, 2021, ch. 7; Inger Hanssen-Bauer et al., Climate in Norway 2100 (Norwegian Centre for Climate Services, 2017). Extreme events such as these can pose serious risks for all people in the Arctic, but especially Sámi reindeer herders who often travel long distances in remote areas and dangerous conditions.⁷⁹Sven Hassler et al., “Fatal Accidents and Suicide among Reindeer Herding Sámi in Sweden” International Journal of Circumpolar Health 63 (2004). Reindeer herding is a physically demanding and dangerous profession, with some risks and hazards exacerbated by climate change, including for example injuries associated with distributing feed during grazing crises.⁸⁰One study suggest that it is already one of the most dangerous professions, see Grete Helen Meisfjord Jørgensen et al., “Helse, miljø og sikkerhet i reindriften – en case studie. Sluttrapport” [Health, environment and safety in reindeer husbandry – a case study. Final report] (NIBIO, 2019), pp. 23 and 42.

There is a lack of research on the links between climate change, extreme weather, disease, injury and death in Sápmi. A survey of Sámi reindeer herders in Norway found that 43% of the respondents experienced one or more accidents causing injury during the past five years, often involving a snowmobile in autumn when weather conditions were shifting, and ice conditions were unpredictable.⁸¹Anna Kristine Sokki Bongo et al., “Helse, miljø og sikkerhet i reindrift. Funn fra kartlegging blant reindriftsutøvere.” (Ruralis Institutt for rural- og regionalforskning, rapport no. 11, 2022).  

In the Arctic region as a whole, warmer temperatures, reduced snow cover and higher precipitation have contributed to an increase in the transmission of illnesses such as Lyme disease and tick-borne encephalitis, as well as the release of toxins and contaminants stored in snow.⁸²Saami Council, p. 104; AMAP, Adaptation Actions for a Changing Arctic: Perspectives from the Barents Area, 2017; Terry V. Callaghan et al., “Multiple Effects of Changes in Arctic Snow Cover” AMBIO 40 (2011).

Globally, climate change is causing increased stress and anxiety in the general population and in other vulnerable groups such as older people, children and Indigenous Peoples.⁸³Marina Romanello et al., “The 2022 report of the Lancet Countdown on health and climate change: health at the mercy of fossil fuels” The Lancet 400, no. 10363 (2022) panel 4; Caroline Hickman et al., “Climate anxiety in children and young people and their beliefs about government responses to climate change: a global survey” Lancet Planet. Health 5, no. 12 (2021); Jacqueline Middleton et al., “Indigenous mental health in a changing climate: a systematic scoping review of the global literature” Environmental Research Letters 15, no. 053001 (2020); Ashlee Willox et al., “Examining relationships between climate change and mental health in the Circumpolar North” Regional Environmental Change 15 (2015). According to the IPCC, for Arctic Indigenous Peoples, climate change is increasing the risk of:

• Depression, post-traumatic stress disorder, anxiety and suicide ideation;
• Financial and family stress and domestic violence;
• Loss of cultural knowledge and continuity, disruptions to intergenerational knowledge transfer and loss of place-based identities and connections.⁸⁴IPCC, AR6 WGII Impacts, Adaptation and Vulnerability: Cross-Chapter Paper 6, 2022, p. 2340 (With additional references such as: Cunsolo Willox et al., 2013a; Cunsolo Willox et al., 2013b; Cunsolo Willox et al., 2014; Durkalec et al., 2015; Harper et al., 2015; Cunsolo and Ellis, 2018; Hayes et al., 2018; Jaakkola et al., 2018; Markon et al., 2018; Minor et al., 2019; Middleton et al., 2020a; Feodoroff, 2021).

These effects may also be relevant in a Norwegian context. For example, research indicates that climate change leads to fear for the “future of Sámi culture and way of life and disappearance of cultural knowledge and traditions”, with Sámi reindeer herders reporting “increased stress, anxiety, worrying, and depression”.⁸⁵Jaakkola et al., 2018, p. 410.

6.2 Future risks

According to the IPCC, Arctic Indigenous Peoples and cultures, as well as the ecosystems on which they depend, are exposed to significant future risks due to climate change.⁸⁶IPCC, AR6 WGII Impacts, Adaptation and Vulnerability: Cross-Chapter Paper 6, pp. 2344-2349. Under most emission scenarios, many of the changes that negatively impact Sámi reindeer husbandry, fishing and health are projected to worsen by the end of the century. This includes higher temperatures and precipitation, more frequent and severe rain-on-snow events, less snow and ice cover, more woody/shrubby vegetation replacing reindeer food sources, and increasing wildfires, parasites and diseases.⁸⁷Ibid, see Tables 5.10, CCP6.5, CCP6.5 and Figure CCP6.4 (With additional references such as:  Riseth and Tømmervik, 2017, p. 3; Hansen, et al., 2021, pp. 43-44; Hansen, et al., 2021, p. 38).

The Arctic climate in general will be “profoundly different” by 2050 under all warming scenarios, but the severity of the changes varies greatly depending on the course of States’ future Greenhouse Gas (GHG) emissions.⁸⁸IPCC, AR6 WGII Impacts, Adaptation and Vulnerability: Cross-Chapter Paper 6, 2022, p. 2321; AMAP 2021, Arctic Climate Change Update 2021: Key Trends and Impacts, 2021, p. 46.

Without adequate mitigation of GHG emissions to limit global warming to 1.5°C, there is an increasing risk of crossing irreversible tipping points in the Arctic where climate change impacts surpass the ability of both natural and human systems to adapt.⁸⁹Ibid, FAQ CCP6.4. This includes the risk of abrupt thaw of the Boreal permafrost, which together with the Arctic permafrost “contain 1460–1600 Gt organic carbon, almost twice the carbon in the atmosphere”.⁹⁰Mckay et al., 2022; IPCC, Special Report on the Ocean and Cryosphere in a Changing Climate: Summary for Policymakers, 2019, paras. A.1.3, B.1.4.

6.2.1 Sámi Reindeer husbandry

The cumulative effects of climate change, competing land use and limitations on adaptive capacity pose serious threats to the future viability of Sámi reindeer husbandry.⁹¹IPCC, AR6 WGII Impacts, Adaptation and Vulnerability, 2022, p. 1868 (Box 13.2). The box relates to reindeer herding in Sweden, but the threats discussed are also relevant in a Norwegian context.

If global warming exceeds the critical 1.5°C threshold, snow cover duration will decrease significantly in Sápmi. Snow cover is inextricably linked to the health of Arctic ecosystems, influencing ground temperature, length of the growing season, species composition, light conditions, meltwater, surface moisture and nutrient availability, among other things.⁹²Saami Council, 2023, p. 40-41; Christian Rixen et al., “Winters are changing: snow effects on Arctic and alpine tundra ecosystems” Arctic Science 8, no. 3 (2022); Pekka Niittynen and Miska Luoto, “The importance of snow in species distribution models of arctic vegetation” Ecography 41 (2018). Snow also plays a central role in Sámi language, culture, traditional knowledge and livelihoods.⁹³Jaakkola et al., 2018, p. 403; Inger Marie Gaup Eira et al., “Traditional Sámi snow terminology and physical snow classification—two ways of knowing” Cold Regions Science and Technology 85 (2013).

Under all future warming scenarios, declining snow cover in the Arctic will increase extinction rates for plants, mosses and lichens, especially where snow cover decreases by more than 20%.⁹⁴IPCC, AR6 WGII Impacts, Adaptation and Vulnerability, 2022, Cross-Chapter 6, p. 2331; Pekka Niittynen et al., “Snow cover is a neglected driver of Arctic biodiversity loss” Nature Climate Change 8 (2018). This will have varying consequences for reindeer husbandry, with studies indicating both positive and negative effects on forage access and quality.⁹⁵Christian Rixen et al., “Winters are changing: snow effects on Arctic and alpine tundra ecosystems” Arctic Science 8, no. 3 (2022); Minna Turunen et al., “Does climate change influence the availability and quality of reindeer forage plants?” Polar Biology 32, no. 6 (2009); SWECO, Syntesrapport: En sammanställning av fyra samebyars pilotprojekt med klimat- och sårbarhetsanalys samt handlingsplan för klimatanpassning (2019), p. 24; Jon Moen, “Climate change: effects on the ecological basis for reindeer husbandry in Sweden” Ambio 37, no. 4 (2008).

Future projections concerning the frequency and intensity of “rain-on-snow events” in Norway vary depending on the season, altitude and distance from the coast. Under the highest emissions scenario (RCP8.5) in 2050, coastal areas at lower elevations will experience fewer but more intense rain-on-snow events,⁹⁶Priscilla Mooney and L.Li, “Near future changes to rain-on-snow events in Norway” Environmental Research Letters 16, no. 6 (2021). whereas inland areas above 800 m.s.l. will experience a significant increase in both the frequency and intensity of rain-on-snow events, especially those in Finnmark, Troms and Nordland.

Future projections concerning the frequency of “freeze-thaw cycles” or “0°C crossings” show a similar pattern.⁹⁷Irene Brox Nilsen et al., “Projected changes in days with zero-crossings for Norway” International Journal of Climatology 41, no. 4 (2021). Under the highest emissions scenario (RCP8.5) in 2100, coastal areas at lower elevations will experience 40 fewer days with 0°C crossings per year. By contrast, there will be 20-40 more days with 0°C crossings per year in Finnmarksvidda. As already mentioned, this a serious development because it limits the reindeers’ access to food during winter.

Some of the future risks to Sámi reindeer husbandry resulting from climate change can be adapted to through supplementary feeding with pellets or bales and the use of trucks to transport reindeer. However, adaptive herding practices add a significant burden to Sámi reindeer herders through increased workload, costs, and concern for loss of traditional practices and culture.⁹⁸IPCC, AR6 WGII Impacts, Adaptation and Vulnerability, 2022, p. 1868 (With additional references such as: Furberg et al., 2011; Löf, 2013; Rosqvist et al., 2021; Lawrence and Kløcker Larsen, 2019; Tryland et al., 2019; Johnsen et al., “Leaving no one behind”. Supplementary feeding is also associated with changing animal behaviour, higher rates of disease and health issues among the reindeer due to higher animal density, stress, lower immune systems, poorer hygiene and digestive systems that have not adapted to artificial products.⁹⁹Svein Morten Eilertsen, “Fôring av reinsdyr – og fôringsrelaterte sykdommer [Feeding of reindeer and related diseases]” NIBIO POP 8, no. 4 (2022); Morten Tryland et al., “Infectious Disease Outbreak Associated With Supplementary Feeding of Semi-domesticated Reindeer” Frontiers in Veterinary Science 6 (2019); Johnsen et al., “Leaving no one behind”. Sámi reindeer herders and researchers have noted that supplementary feeding is not a long-term solution to increasingly difficult grazing conditions and threatens intergenerational transfer of culture and traditional knowledge.¹⁰⁰Tim Horstkotte et al., Supplementary feeding in reindeer husbandry: Results from a workshop with reindeer herders and researchers from Norway, Sweden and Finland (Umeå University, 2020); Johnsen et al., “Leaving no one behind”.

In some cases, adaptation to climate impacts can include the use of alternative grazing areas, but these are tightly regulated and are increasingly difficult to find due to competing land use related to infrastructure, extractive industries, farming, tourism and wind power developments.¹⁰¹Riseth and Tømmervik, 2017, p. 3; Johnsen et al. “Leaving no one behind”. Adaptation measures for reindeer herding will require greater flexibility in land use and more available land. Current land use policy does not appear to enable such a development.

Moreover, the IPCC notes that “adaptation limits are being approached” for reindeer herding in the Arctic due to the speed of climate change, the narrow resource base on which Indigenous Peoples rely and the risk of “maladaptation” involving loss of culture and livelihoods.¹⁰²IPCC, AR6 WGII Impacts, Adaptation and Vulnerability: Cross-Chapter Paper 6, 2022, p. 2348 and 2351, CCP6.3.2.3 and Table CCP6.6; IPCC. Climate Change 2022: Impacts, Adaptation and Vulnerability: Summary for Policymakers para. C.4 and C.4.3.para. C.4 and C.4. This is supported by research which indicates that the adaptation options for Sámi reindeer herding are increasingly limited, primarily due to accumulated pressure of predation and competing land-uses in combination with herders’ lack of influence in governance and decision-making.¹⁰³Jaakkola et al., 2018, p. 401 and 410; Saami Council, 2023, p. 96-98; Annette Löf, “Examining limits and barriers to climate change adaptation in an Indigenous reindeer herding community” Climate and Development 5, no. 4 (2013); Wilbert van Rooij et al., “Loss of Reindeer Grazing Land in Finnmark, Norway, and Effects on Biodiversity: GLOBIO3 as Decision Support Tool at Arctic Local Level” In Reindeer Husbandry: Adaptation and Resilience to a Changing Arctic, Svein D. Mathiesen et al. (eds.) (Springer Polar Sciences, 2022). Whether and how soon these limits are reached depends largely on the course of future GHG emissions and access to alternative grazing areas, but will likely vary between different regions in the Arctic.

6.2.2 Sámi Fishing

According to the IPCC, the cumulative effects of warming, sea ice loss, ocean acidification, habitat loss and species competition will lead to substantial range contraction and even extinction of several saltwater and freshwater fish species in the Arctic by the end of the century if global warming exceeds 1.5°C.¹⁰⁴IPCC, AR6 WGII Impacts, Adaptation and Vulnerability: Cross-Chapter Paper 6, 2022, p. 2321; IPCC, AR6 WGII Impacts, Adaptation and Vulnerability, 2022, p. 202; Saami Council, p. 55. The extent of these changes will vary across the Arctic region, and not all will be relevant to Sámi fishing in Norway.

In the Nordic seas and coastal areas, boreal/subarctic fish species are expected to continue their northward expansion, while Arctic fish species will continue retracting due to higher competition and predation, loss of spawning habitat and shelter, increased predatory pressure, reduced prey availability, and impaired growth and reproductive success.¹⁰⁵Geir Ottersen et al., “Observed and expected future impacts of climate change on marine environment and ecosystems in the Nordic region” (Institute of Marine Research, 2023), ch. 10.

While there may be some short-term benefits for fisheries from the northward expansion of species, the long-term viability of commercial and subsistence fishing faces significant threats.¹⁰⁶Saami Council, p. 57; IPCC, AR6 WGII Impacts, Adaptation and Vulnerability: Cross-Chapter Paper 6, 2022, ch. 2 and Table CCP6.2 (Arctic fish) at p. 2327; AMAP, Arctic Climate Change Update 2021: Key Trends and Impacts, 2021, p. 115, 117. According to the IPCC, while high latitude fisheries have historically been resilient to climate variability, “the future of commercial fisheries in Arctic regions is uncertain”.¹⁰⁷IPCC, Special Report on the Ocean and Cryosphere in a Changing Climate, 2019, ch. 3.2.4.1.1 Fisheries – Arctic.

Cold-adapted Arctic fish species such as Polar cod, Atlantic salmon, Arctic Grayling, whitefish and Arctic char are particularly threatened.¹⁰⁸Ibid; Saami Council, pp. 42 and 54. One study predicts that Arctic char will lose 73% of its range in Sweden by 2100.¹⁰⁹Catherine Hein et al., “Future Distribution of Arctic Char Salvelinus alpinus in Sweden under Climate Change: Effects of Temperature, Lake Size and Species Interactions” Ambio 41, no. 3 (2012). The IPCC notes that “cold-adapted Arctic fish species such as Polar cod are expected to decline further and lose spawning habitats at global warming levels over 1.5°C”, which may cause structural reorganisation of the Arctic food web in the future.¹¹⁰IPCC, AR6 WGII Impacts, Adaptation and Vulnerability: Cross-Chapter Paper 6, 2022, p. 2328 and 2330.

While a recent study suggests that increasing ocean temperatures alone are unlikely to make the Norwegian coastal zone an unsuitable habitat for Atlantic salmon, there are uncertainties concerning the effects of warming freshwater, competition from new species such as pink salmon and increased sea lice.¹¹¹Trond Kristiansen et al., Klimapåvirkning på viktige kystvannsarter [Climate impact on important coastal water species] (Norwegian Institute for Water Research – NIVA, 2022) p. 64. The Norwegian government has noted that larger quantities of pink salmon might have negative effects for Atlantic salmon in certain areas.¹¹²Meld. St. 26. (2022-2023), p. 21 box 3.6.

Overall, “Arctic marine ecosystems are facing cascading impacts and feedbacks from global warming”.¹¹³AMAP, Arctic Climate Change Update 2021: Key Trends and Impacts, 2021, p. 117. These impacts will have varying consequences for different populations and industries, but will particularly impact Arctic Indigenous Peoples, whose cultures and traditional livelihoods are closely connected to fishing.¹¹⁴Ibid.

6.2.3 Sámi Health

Climate change is also projected to increase both physical and mental health risks in the Arctic in the future,¹¹⁵IPCC, AR6 WGII Impacts, Adaptation and Vulnerability: Cross-Chapter Paper 6, 2022, p. 2340. particularly in relation to increased food insecurity, waterborne diseases, emerging pathogens, injury and death, and negative mental health outcomes.¹¹⁶Ibid, Table CCP6.6.

Globally, climate change is expected to increase rates of adverse mental health impacts.¹¹⁷IPCC, AR6 WGII Impacts, Adaptation and Vulnerability, 2022, p. 1098. This is concerning given that Sámi people are already at greater risk of experiencing psychological distress. As is the case for Sámi reindeer herding and fishing, the severity of future negative effects depends on the course of future GHG emissions. The IPCC notes that there are limited adaptation measures that effectively reduce climate-related health risks in the Arctic.¹¹⁸Ibid, AR6 WGII Impacts, Adaptation and Vulnerability: Cross-Chapter Paper 6, 2022, p. 2340 and 2350.

As climate change affects the timing of seasons and the geographic expansion of different species, there are increased opportunities for diseases to spread from wildlife to humans in the Arctic, including for example anthrax and tularaemia (rabbit fever).¹¹⁹Saami Council, p. 54; IPCC. Climate Change 2022: Impacts, Adaptation and Vulnerability: Summary for Policymakers TS.B.5.8; Yan Ma et al., “Potential for Hydroclimatically Driven Shifts in Infectious Disease Outbreaks: The Case of Tularemia in High-Latitude Regions” International Journal of Environmental Research and Public Health 16, no. 19 (2019). The increased risk of disease transmission applies to both traditional food sources and drinking water in the Arctic.¹²⁰Saami Council Report, p. 51; AMAP, Arctic Climate Change Update 2021: Key Trends and Impacts, 2021, Chapter 7;

The IPCC, along with the European Space Agency and NASA have expressed concern that “rapidly thawing permafrost in the Arctic has the potential to release antibiotic-resistant bacteria [and] undiscovered viruses”.¹²¹The European Space Agency, Permafrost thaw could release bacteria and viruses, 22 October 2021, https://www.esa.int/Applications/Observing_the_Earth/Permafrost_thaw_could_release_bacteria_and_viruses; Kimberley R. Miner et al., “Emergent biogeochemical risks from Arctic permafrost degradation” Nature Climate Change 11 (2021). In 2016 for example, extreme temperatures and thawing permafrost in Siberia led to the release of anthrax spores from frozen animal remains, hospitalising 72 nomadic herders, killing one child and over 2,300 reindeer.¹²²Alec Luhn, “Anthrax outbreak triggered by climate change kills boy in Arctic Circle”, The Guardian, 1 August 2016, https://www.theguardian.com/world/2016/aug/01/anthrax-outbreak-climate-change-arctic-circle-russia. Threats to human health from microbial pathogens in thawing permafrost are generally considered low, but are projected to increase with climate change.¹²³Ruonan Wu et al., “Permafrost as a potential pathogen reservoir” One Earth 5, no. 4 (2022). There is approximately 13000 km² of permafrost in the peatlands of Finnmarksvidda and the mountainous areas of Southern Norway, which is projected to thaw at an accelerated rate if global warming exceeds 1.5°C.¹²⁴Kjersti Gisnås et al., “Permafrost Map for Norway, Sweden and Finland”, Permafrost Periglacial Processes 28, no. 2 (2017); Norwegian Meteorological Institute, Cryo: Permafrost real-time monitoring, available at: https://cryo.met.no/en/permafrost; Inger Hanssen-Bauer, “Climate in Norway 2100 – a knowledge base for climate adaptation” (Norwegian Meteorological Institute, 2017), chapter 5; Kjersti Gisnås et al., “CryoGRID 1.0: Permafrost Distribution in Norway estimated by a Spatial Numerical Model” Permafrost Periglacial Processes 24, no. 1 (2013); JeSámine Bartlett et al., “Carbon storage in Norwegian ecosystems” (Norwegian Institute for Nature Research, Report 1774b, 2020), p. 23; Jan-Olof Selroos et al., “Permafrost Thaw with Thermokarst Wetland-Lake and Societal-Health Risks: Dependence on Local Soil Conditions under Large-Scale Warming” Water 11, no. 3 (2019); Gunn Kristin Tjoflot, “Permafrost in the Arctic can thaw faster than presumed”, Science Norway, 7 June 2020 https://partner.sciencenorway.no/climate-environment-geology/permafrost-in-the-arctic-can-thaw-faster-than-presumed/1692079. The associated threats to human health in Norway are unclear.

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.¹²⁵Article 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. 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.¹²⁶As 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. 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.¹²⁷Rt-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. 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 169.¹²⁸HR-2018-456-P (Nesseby), para. 97. 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.¹²⁹See 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.

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”. ¹³⁰Daniel Billy et al. v. Australia, paras 8.9, 8.10. For the purposes of ICCPR Article 17, private and family life encompasses both physical and psychological integrity.¹³¹Ibid; 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.

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”.¹³²E.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). 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.¹³³Daniel 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.

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”.¹³⁴HR-2021-1975-S para 129. Article 27 may nevertheless be subject to derogation, see ICCPR Article 4.

The cumulative effect of the interference in question combined with the effects of other interferences, both previous and planned, may together constitute a violation.¹³⁵HR-2021-1975-S, para 119. 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.¹³⁶Lubicon Lake Band v. Canada (No. 167/1984) paras. 33, 24.1, 29.10.

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.¹³⁷HRC, General Comment no. 23, para. 6.1. See also the Norwegian Supreme Court, HR-2017-2428-A (Sara), para. 58 cf. 59. 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”.¹³⁸HRC, General Comment No. 23, para 9.

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”.¹³⁹Daniel 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. In practice, it can be difficult to distinguish between positive and negative human rights obligations as they often overlap.¹⁴⁰See for example, Wibye, “Beyond Acts and Omissions — Distinguishing Positive and Negative Duties at the European Court of Human Rights” Human rights Review 23 (2022).

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 27.¹⁴¹HRC, 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 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.¹⁴²ILO Convention 169 Articles 6, 7, 15, 16 and UNDRIP Article 10, 19. 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 27.¹⁴³HRC, 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.

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.¹⁴⁴The 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.

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.¹⁴⁵Prop.86 L (2020-2021) Endringer i sameloven, p. 71. 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.

8. Obligations to protect Indigenous Peoples from the effects of climate change

Climate change threatens the effective enjoyment of a whole range of human rights for all, including the rights to life, private life and home, health, property and culture. Indigenous Peoples are among the groups whose human rights are particularly vulnerable to climate change.

There is internationally no legally binding right to a healthy environment as such under UN human rights treaties or the European Convention on Human Rights (ECHR). However, in 2022, 161 UN Member States acknowledged in a non-binding UN resolution that climate change “constitute [one] of the most pressing and serious threats to the ability of present and future generations to effectively enjoy all human rights”.¹⁴⁶A/76/L.75 preamble rec. 13. Over 110 States recognise a legally binding right to a safe, clean, healthy and sustainable environment in their domestic legislation.¹⁴⁷See Report of the Special Rapporteur on the issue of human rights obligations relating to the enjoyment of a safe, clean, healthy and sustainable environment, Right to a healthy environment: good practices, A/HRC/43/53 30.12.2019 para 10. In Norway, Article 112 of the Constitution grants the right to a healthy environment.

This report focuses on Indigenous Peoples’ rights that may be disproportionately impacted by climate change, particularly the right to private life and home under ICCPR Article 17 and the right to culture under ICCPR Article 27. The interpretation of ICCPR Article 17 may be relevant to the corresponding right under ECHR Article 8, which also protects against certain environmental threats, and arguably aspects of Indigenous Peoples’ cultures and traditional livelihoods.¹⁴⁸Council of Europe, Manual on Human Rights and the Environment (3^rd edition), February 2022. In a Sámi and climate change context, see for example discussions in Nordlander, Linnéa, “Litigating climate change in the Arctic: the potential of Sámi human rights claims” in Journal of Human Rights and the Environment, Vol. 13 no. 2 pp. 415-440.

In the following sections, we first discuss how the HRC has considered the applicability of, and positive obligations under, ICCPR Articles 17 and 27 in previous environmental and climate cases. Against this backdrop, we analyse whether the (Norwegian) State has a positive obligation to protect the Sámi people from climate change under Articles 17 and 27, and whether that might entail an obligation to reduce GHG emissions (mitigation) and facilitate adjustment to existing or unpreventable impacts (adaptation).

8.1 Existing HRC decisions on environmental harm

In its General Comment no. 36, the HRC defines environmental degradation and climate change as “some of the most pressing and serious threats to the ability of present and future generations to enjoy the right to life”.¹⁴⁹HRC, General comment No. 36 on article 6: right to life (CCPR/C/GC/36) paras. 26 and 62. Accordingly, States have an obligation to take “appropriate measures” to “preserve the environment and protect it against harm, pollution and climate change caused by public and private actors” and to “pay due regard to the precautionary approach”.¹⁵⁰Ibid. The Committee has also clarified that the right to life should be interpreted in light of international environmental law, which presumably includes the UN Framework Convention on Climate Change (UNFCCC) and the Paris Agreement.¹⁵¹Ibid. This is consistent with the approach of the European Court of Human Rights (ECtHR) and the Inter-American Court of Human Rights, which also interpret their conventions in light of inter aliathe precautionary principle.¹⁵²Under ECHR Article 8, see Tătar c. Roumanie (67021/01) 27.1.2009 §§ 109, 112, 120 and ECHR, Guide on case-law of the Convention – Environment, 31.8.2022 p. 85. Under the right to life and private life in the Inter-American Convention on Human Rights, see Advisory Opinion OC/17, 15.11.2017, para 180.

States’ human rights obligations concerning pollution and climate change both pertain to environmental harm. Both pollution and climate change are caused by activities which to a large extent are controlled by the State through domestic regulations, licensing and approval processes. The human rights impacts of pollution and climate change are therefore similar, including the impacts on Indigenous Peoples’ rights to life, health and culture.

In individual cases, the HRC has interpreted ICCPR Articles 6, 17 and 27 as requiring States to avoid “real” or “serious” and “reasonably foreseeable” threats to these rights from environmental harm.¹⁵³Daniel Billy et al. v. Australia para 8.3, 8.6, 8.9, 8.14; Portillo Cáceres v. Paraguay para. 7.5, 7.8; Benito Oliveira et al. v. Paraguay, (CCPR/C/132/D/2552/2015), 21 September 2022, para 8.8 (“the large-scale fumigation with toxic agrochemicals presents a threat which the State party could reasonably have foreseen»); General comment no. 16 on article 17 (1988), paras. 1 and 9. See also Teitiota v. New Zealand, (CCPR/C/127/D/2728/2016) 2019 para 9.4 with further references. This resembles the applicability test under ECHR Articles 2 and 8.¹⁵⁴ECHR, Guide on case-law of the Convention – Environment, 31.8.2022 pp. 7-8, pp. 24-29. With regard to the content of this obligation, the HRC has required States to adopt the “appropriate”, “adequate” or “necessary” positive measures to ensure the “effective exercise” of the right in question.¹⁵⁵­­ Portillo Cáceres v. Paraguay para. 7.3; Benito Oliveira et al. v. Paragua  para. 8.3, Daniel Billy et al. v. Australia paras. 8.12, 8.14.

The HRC has dealt with two cases concerning local pollution. In the first case, Portillo Cáceres v. Paraguay, the HRC found that pollution from toxic agrochemicals posed a reasonably foreseeable threat to the authors’ lives.¹⁵⁶Portillo Cáceres v. Paraguay (CCPR/C/126/D/2751/2016), 20 September 2019, paras. 2.3, 7.5. The Committee observed that States have an obligation under ICCPR Articles 6 and 17 to adopt positive measures to protect and ensure the effective exercise of these rights by properly supervising and avoiding dangerous pollution.¹⁵⁷Portillo Cáceres v. Paraguay, paras. 7.3, 7.8.

In the second case, Benito Oliveira et al. v. Paraguay, the HRC found that large-scale fumigation with toxic agrochemicals had contaminated waterways, food sources and natural resources, posing a reasonably foreseeable threat to the Campo Agua’e Indigenous community’s health, culture and means of subsistence. The State was aware of this threat, but still failed to monitor and take steps to provide protection, which constituted a violation of ICCPR Articles 17 and 27.¹⁵⁸Benito Oliveira et al. v. Paraguay, paras. 8.3, 8.4, 8.5, and 8.8

The HRC has also dealt with two cases concerning climate change. In the first case, Teitiota v. New Zealand, the Committee considered whether New Zealand’s decision to reject an asylum application from a citizen of Kiribati in the Pacific Ocean violated the non-refoulment obligation under Article 6. The individual applied for asylum because of rising sea levels in his home country, arguing, among other things, that sea level rise had led to a lack of clean drinking water and opportunities to obtain food. While the Committee did not find a violation in this case, it noted that “without robust national and international efforts, the effects of climate change in receiving States may expose individuals to a violation of their rights […] thereby triggering the non-refoulement obligations of sending States”.¹⁵⁹Teitiota v. New Zealand para 9.11.

In its second climate case, Daniel Billy et al. v Australia, the HRC found that Australia had violated its obligation under ICCPR Articles 17 and 27 to protect the Indigenous Torres Strait Islander people and their culture from the foreseeable threats of climate change. This was because rising sea levels, flooding and ocean acidification had already threatened homes and ancestral graveyards, eroded lands and resources used for traditional fishing, farming and cultural ceremonies, while also causing anxiety and distress.¹⁶⁰Daniel Billy et al. v. Australia, paras. 8.12, 8.13, 8.14. According to the Committee, Australia had failed to “adopt timely adequate adaptation measures to protect the [Indigenous Peoples’] collective ability to maintain their traditional way of life” and transmit it “to their children and future generations”, which amounted to a violation of ICCPR Articles 17 and 27.¹⁶¹Ibid, para. 9.

The Committee’s decision was based on Australia’s lack of adequate adaptation measures, primarily the delayed construction of seawalls.¹⁶²Ibid, para 8.14. While the Committee referenced different mitigation measures taken by Australia, it did not consider their adequacy or relevance in this case. However, the majority reaffirmed that without “robust national and international efforts”, climate change may expose individuals to violations of the right to life.¹⁶³Daniel Billy et al. v. Australia, para. 8.7 The Committee moreover required Australia to provide an effective remedy and to take steps to “prevent similar violations” (of Article 17 and 27) in the future.¹⁶⁴Daniel Billy et al. v. Australia, para. 11.

In a concurring individual opinion in Daniel Billy et al. v Australia, one member of the Committee¹⁶⁵Gentian Zyberi. noted that “it is mitigation actions which are aimed at addressing the root cause of the problem and not just remedying the effects. If no effective mitigation actions are undertaken in a timely manner, adaptation will eventually become impossible.”¹⁶⁶Daniel Billy et al. v. Australia, annex II. See also Individual opinion by Committee Member Duncan Laki Muhumuza (Annex I).

8.2 Positive obligations to protect the Sámi people from the effects of climate change

8.2.1 Applicability of Articles 17 and 27

Climate change, in combination with other cumulative negative effects, has already caused adverse effects on Sámi culture in Norway to the extent that the adaptive capacity in Sámi societies is strained (Chapter 6.1). Further warming poses a real, serious and reasonably foreseeable threat to the long-term sustainability of core elements of Sámi culture and identity, such as reindeer husbandry (Chapter 6.2). These risks are well-known to the Norwegian Government, which endorses the IPCC reports,¹⁶⁷IPCC, IPCC Factsheet – How does the IPCC approve reports?, revised July 2021. and has itself described the Sámi population as vulnerable to the effects of climate change.¹⁶⁸Meld. St. 26 (2022-2023) s. 30.

ICCPR Articles 17 and 27 are therefore applicable to the “real, serious and reasonably foreseeable” threat that climate change poses to the Sámi people. The question then becomes what measures are “appropriate”, “adequate” or “necessary” to protect the Sámi people from the risks arising from climate change.¹⁶⁹­­Paraguay Para 7.3, 7.; Benito para 8.3, Billy para 8.12, 8.14.

8.2.2 Mitigation of climate change through emission reductions in line with science

The HRC has neither rejected nor affirmed that States have a duty to reduce their GHG emissions through mitigation measures in order to protect Indigenous rights from the adverse effects of climate change. In the Daniel Billy decision, the HRC found that it had jurisdiction to consider both mitigation and adaptation measures, but it did not discuss mitigation measures further with respect to the articles that were found to be violated.¹⁷⁰Daniel Billy, para 7.7 and 7.8.

However, the Committee has on several occasions noted that States have an obligation to take “appropriate”, “adequate” or “necessary” measures to protect the rights recognised in ICCPR Articles 6, 17 and 27 from environmental harm. Any determination of what is necessary to effectively protect the Sámi people and culture from the effects of climate change should be based on updated best available science and Indigenous Peoples’ traditional knowledge.

The relevant question is therefore whether mitigation measures are necessary to adequately protect the rights of Indigenous Peoples under ICCPR Articles 17 and 27. The following discussion is without prejudice to States’ obligation to avoid interference aimed at reducing emissions that will threaten Indigenous Peoples rights under international human rights law (discussed further in Chapter 10).

It is well established in climate science that “deep, rapid and sustained GHG emissions reductions” and a “substantial reduction in overall fossil fuel use” are necessary to avert dangerous climate change above the critical 1.5°C threshold and to secure a liveable future for all.¹⁷¹IPCC, AR6 Synthesis Report: Summary for Policymakers, 2023, pp. 18 and 28.

It is also well established in climate science that with increasing global warming, “adaptation options that are feasible and effective today will become constrained” because “human and natural systems will reach adaptation limits”.¹⁷²Ibid, p. 19. For example, people living on low-lying islands face hard adaptation limits if warming exceeds 1.5°C. According to the IPCC, “seawalls effectively reduce impacts” in the short-term, but “can also result in lock-ins and increase exposure to climate risks in the long-term”. This can worsen “existing inequities especially for Indigenous Peoples”.¹⁷³IPCC, AR6 SYR (2023) SPM, paras. B.4.2, B.4.3. This is partly because exceeding 1.5°C risks activating tipping points such as abrupt loss of Barents Sea ice and collapse of the Greenland ice sheet, which would ultimately lead to several meters of sea level rise.¹⁷⁴Mckay et al., 2022; Boers et al., “Critical slowing down suggests that the western Greenland Ice Sheet is close to a tipping point,” Proc. Natl. Acad. Sci. 118, no. 21 (2021). It therefore follows from the IPCC’s reasoning that the culture of Indigenous Peoples on low-lying islands, such as the Torres Strait Islander people, cannot in practice be sufficiently protected in the long term unless emissions are mitigated in line with the 1.5°C target.¹⁷⁵There is a pending domestic case before the Federal Court of Australia concerning the impacts of climate change in the Torres Strait Islands, which deals with the question of mitigation, see Federal Court of Australia, Pabai Pabai v Commonwealth of Australia Online File, https://fedcourt.gov.au/services/access-to-files-and-transcripts/online-files/pabai-v-australia.

With regard to the Sámi people, there does not appear to exist any detailed projections on the temperature thresholds at which Sámi reindeer husbandry, fishing or other cultural practices become untenable. However, the best available science establishes that the risks greatly accelerate if warming exceeds the critical 1.5°C limit and worsen under higher emissions scenarios. Even under a best-case emissions scenario where global temperatures are kept within the 1.5°C limit, the average temperature in Finnmarksvidda will still increase by 2.8°C. Under a worst-case emissions scenario, by 2100 the average temperature in Finnmarksvidda will increase by 6.7°C, snow cover duration will decrease by 2-3 months, there will be up to 40 more days with 0°C crossings per year and sea surface temperature along the coast in Northern Norway will increase by 2.2°C. This would be devastating for reindeer husbandry, and for cold-water species traditionally used in Sámi fishing, with associated impacts on Sámi health. Thus, in line with the precautionary principle, lack of full scientific certainty of when Sámi cultural practices become untenable should not be used as a reason for not adopting mitigation measures.

The Supreme Court of Norway has acknowledged that climate change will seriously affect Indigenous Peoples and local communities, particularly in the Arctic and Northern Norway.¹⁷⁶HR-2020-2472-P paras. 52, 55. Moreover, in the Fosen case, a wind power development caused a substantive negative impact on the local Sámi reindeer herders’ possibility to enjoy their culture through loss of winter pastures used for reindeer herding.¹⁷⁷HR-2021-1975-S para 136. While this case concerned an industrial development, climate change also causes or exacerbates periodical losses of access to winter grazing areas due to inaccessible ice-locked pastures and insecure migration routes (see Chapter 6). As the projections above regarding snow cover loss illustrate, there will be a significant loss of winter pastures in the future if global warming exceeds 1.5°C, especially in Trøndelag, where the South-Sámi culture is already vulnerable.

In summary, based on the best available climate science, it will likely not be possible to effectively protect the Sámi people’s rights under ICCPR Articles 17 and 27 in the long term if States do not reduce the GHG emissions within their effective control in line with the remaining carbon budget for 1.5°C.¹⁷⁸For a discussion of which emissions that are within State’s effective control, see e.g. NIM, Grunnloven § 112 og plan for utbygging og drift av petroleumsforekomster, 18.3.2022 Chapter 3.2.5. with references to e.g. Greenpeace Nordic et al. v. Norway, HR-2020-2472-P (Supreme Court of Norway), 22.12.2020 para. 149 ref. para 155, see also paras 167 and 260; Royal Dutch Shell, ECLI:NL:RBDHA:2021:5339 (The Hague District Court), 26.05.2021, para. 4.4.19 (appealed), Sacchi (dec.), para 9.9. While the precise temperature limits for the viability of Sámi cultural practices are unclear, a precautionary approach favours that States stay within the 1.5°C limit to avoid possible significant and irreversible damage to Sámi culture. Although reduced emissions from one State alone will not determine the future course of climate change, it may be argued (as several national courts have done) that every State must do its part to combat climate change by reducing its own emissions,¹⁷⁹See e.g. Urgenda, paras. 5.7.1, 5.7.7-5.7.8; Neubauer, paras. 149, 202-204; Notre Affaire à Tous et al.  v. France, no. 1904967, 1904968, 1904972, 1904976/4-1 (Administrative Court of Paris), 3.2.2021, para 34; Commune de Grande-Synthe v. France (“Grande-Synthe I”), no. 427301, (Le Council d’Etat) 19.11.2020 para 12; Massachusetts v. EPA, 549 U.S. 497 (Supreme Court of the United States), 2.4.2007, p. 23. in line with the scientific fact that “every tonne of CO₂ emissions adds to global warming”.¹⁸⁰IPCC, AR6 WGI The Physical Science Basis: Summary for Policymakers (SPM), 2021, para. B.2.2, pp. 19–24, 35, 41. IPCC, AR6 WGI (2021) para. 11.3.5

An obligation to reduce emissions would be in line with several judgements from national courts, primarily based on the right to life and physical integrity under ECHR Articles 2 and 8 or equivalent constitutional rights.¹⁸¹Urgenda v. the Netherlands, ECLI:NL:HR:2019:2007 (Supreme Court of the Netherlands), 20.12.2019 para. 8.3.4-5; Neubauer paras. 137, 154-170, interpreting the right to life and physical integrity under the German Constitution art. 2(2) in light of the parallel rights under ECHR and ECtHR case-law as requiring emission cuts; VZW Klimaatzaak v. Belgium et al. 2021/AR/15gs, 2022/AR/737, 2022/AR/891, (Court of Appeal Brussels) 30.11.2023 (not final). Three cases based on the same rights under the ECHR are currently pending before the Grand Chamber of the ECtHR. Thus far, there have been few cases concerning Indigenous rights and mitigation obligations.¹⁸²But see e.g. Waratah Coal Pty Ltd v Youth Verdict et al. (No 6) [2022] QLC 21, 25.11.2022 paras 40-46, paras. 1521-1536, 1566-1568.  However, the International Court of Justice might clarify the question of a duty to mitigate emissions under the ICCPR in its pending advisory opinion on the obligation of States in respect of climate change.¹⁸³UN General Assembly, Resolution 77/276, 29 March 2023.

8.2.3 Adaptation to existing or unpreventable climate change impacts

ICCPR Articles 17 and 27 entail a positive obligation on States to take “timely and adequate adaptation measures” to protect these rights from the serious negative effects caused by already incurred or unpreventable climate change. ^{184Daniel Billy et al. v. Australia, paras. 8.12 and 8.14.} This has already been established by the HRC in Daniel Billy et al. v. Australia.

In Daniel Billy, the State had taken “numerous actions to address adverse impacts caused by climate change” through adaptation measures. This included, among other things, an adaptation plan where 58 of the actions had been initiated or completed. These encompassed direct involvement with regional authorities with Indigenous representation on adaptation, heat mapping, installation of monitoring sites relating to tides, sea level, temperature and rainfall and financing different adaptation projects worth billions of dollars.¹⁸⁵Daniel Billy, para. 8.11. The State, however, failed to explain a “delay in seawall construction” it had planned, which was crucial to protect against the damaging impacts from rising sea levels.¹⁸⁶Ibid, para. 8.12. The Australian Government and the Queensland State Government committed $24 million AUD in 2013/14 for the construction of seawalls on four islands in the Torres Strait. However, all this funding was used to construct a seawall on just one of the islands in 2017, leaving the other islands without protection. At the time of the Committee’s decision there had therefore been a ten-year construction delay for the remaining islands.¹⁸⁷Joanne Etherton et al., Communication to the UN Human Rights Committee in Daniel Billy et al. v. Australia, 13 May 2019, paras. 91-95, available at www.climatecasechart.com.

The UN Committee on the Rights of the Child, interpreting the right for indigenous children to culture under CRC Article 30,¹⁸⁸In General Comment no. 11, the UN CRC underlined the linkage between CRC art. 30 and art. 27 of the ICCPR and referred to interpretations from the Human Rights Committee, see CRC/C/GC/11 para 16 and 17. has also highlighted that States “must undertake measures to meaningfully engage with Indigenous children and their families in responding to environmental harm, including harm caused by climate change, taking due account of and integrating concepts from Indigenous cultures and traditional knowledge in mitigation and adaptation measures”.¹⁸⁹CRC/C/GC/26 para 58.

If the HRC’s reasoning in Daniel Billy is applied to the Sámi context, the relevant question is which “timely adequate adaptation measures” are necessary to protect the Sámi’s “collective ability to maintain their traditional way of life” and transmit it “to their children and future generations”.¹⁹⁰Ibid. The Sámi people should take an active part in such discussions, so that their knowledge of adaptation measures and their views on how to maintain their culture for future generations are taken into account.

According to the IPCC, the most important adaptation measures for Sámi reindeer husbandry include protecting grazing lands and ensuring flexibility in access to alternative winter pasture areas that might be less exposed to an unstable climate and snow-on-ice events.¹⁹¹IPCC AR6, Climate Change 2022: Impacts, Adaptation and Vulnerability, Tables CCP6.2 and CCP6.6, Box 13.2. See also the evidentiary assessment referred to in HR-2021-1975-S, para 83. This is supported by research which indicates that inflexible regulatory approaches to land-use planning and crisis responses, and a disregard for traditional knowledge in the management of reindeer husbandry, make it difficult for Sámi reindeer herders to adapt to climate change.¹⁹²Johnsen et al., “Leaving no one behind”, p. 57; Saami Council, “Climate Change in Sápmi – an overview and a Path Forward”, 2023, p. 121 Similarly, a lack of flexibility in fishing regulations, management policies and quota systems makes it difficult for Sámi fisheries to adapt to climate change.¹⁹³Ibid, p. 122.

According to the IPCC, “Indigenous knowledge and local knowledge can provide important understanding for acting effectively on climate risk and can help diversify knowledge that may enrich adaptation policy and practice.”¹⁹⁴IPCC. Climate Change 2022: Impacts, Adaptation and Vulnerability, ch. 1, Executive Summary and 1.3.2.3. This is supported by a vast body of research which indicates that Indigenous Peoples’ traditional knowledges increase the effectiveness, sustainability and equity of adaptation measures.¹⁹⁵Petzold, J., Andrews, N., Ford, J., Hedemann, C. & Postigo, J. Indigenous knowledge on climate change adaptation: a global evidence map of academic literature. Environ. Res. Lett. 15, 113007 (2020); Sawatzky, A. et al. “The best scientists are the people that’s out there”: Inuit-led integrated environment and health monitoring to respond to climate change in the Circumpolar North. Clim. Change 160, 45–66 (2020); Schlingmann, A. et al. Global patterns of adaptation to climate change by Indigenous Peoples and local communities. A systematic review. Curr. Opin. Environ. Sustain. 51, 55–64 (2021).

A more comprehensive discussion of adaptation for Sámi reindeer husbandry, fishing and health, and the role of traditional knowledge in adaptation measures, can be found in the Saami Council’s recent report on climate change.¹⁹⁶Saami Council, “Climate Change in Sápmi – an overview and a Path Forward”, 2023, pp. 119-130. The Norwegian authorities have also carried out adaptive measures related to ice-locked-pastures, and efforts to improve the system has commenced, but we will not further elaborate on this here.

In a 2023 white paper to Parliament on climate adaptation, the Norwegian Government discussed the impacts of climate change on Sámi culture, and the need to integrate Sámi interests and knowledge in climate adaptation.¹⁹⁷Meld. St. 26 (2022-2023) s. 57. In this context, the government expressly acknowledged that Norwegian authorities are obligated under the Constitution and ICCPR Article 27 to secure the natural basis for Sámi reindeer herding and carry out consultations in decisions that can affect Sámi interests directly. With reference to the report from the Saami Council, the Government expressed that it will:

• gather more knowledge on how climate change is affecting Sámi culture and business, traditions, lifestyle and health,
• consult with the Sámi Parliament and the Sámi Reindeer Herders’ Association of Norway on adaptation where relevant, even if it is not legally obliged to do so, and
• incorporate Sámi traditional knowledge in adaptation measures.

These measures, including the human rights-based approach, are promising. Yet, to be effective, actual adaptation measures must be adequate and be implemented in a timely manner. At present, there is not enough information to make a comprehensive assessment of whether existing or proposed adaptation measures are sufficiently timely and adequate to protect Sámi culture from the effects of climate change.

We will highlight two important points regarding limits to adaptation, underscoring that adaptation and mitigation must go hand in hand also for the protection of Sámi rights. Firstly, adaptation measures may be insufficient under ICCPR Article 27 if they deprive the cultural practice of its traditional elements. For example, a proposal for winter feeding of reindeer in enclosures, as a remedial measure, was rejected by the Norwegian Supreme Court in the Fosen case partly because the suggested model deviated “considerably from traditional, nomadic reindeer husbandry”.¹⁹⁸The Norwegian Supreme Court in HR-2021-1975-S para. 149, the Supreme Court concluding that “the information provided to the Supreme Court demonstrates uncertainty as to whether such a system is compatible with reindeer herders’ right to enjoy their own culture”.

Secondly, if global warming exceeds 1.5°C, certain harmful effects of climate change will be increasingly difficult to avoid through adaptation measures.¹⁹⁹World Climate Research Programme et al. 10 New Insights in Climate Science, 10.11.2022, pp. 13–17. See also IPCC, AR6 WGII, 2022 SPM para C.3 ff. For this reason, national courts have found in cases regarding states mitigation measures under human rights law and the right to a healthy environment that adaptation measures alone cannot adequately protect individuals’ rights to life, physical integrity and property.²⁰⁰The Dutch Supreme Court found that the Netherlands could not demonstrate that “the potentially disastrous consequences of excessive global warming can be adequately prevented by” adaptation measures (Urgenda, para. 7.5.2).  The German Constitutional Court held that it would be “completely inadequate” – and a violation of the right to life, physical integrity and property – to rely on adaption alone (Neubauer, para. 157). As noted above (Chapter 6.2), adaptation measures alone cannot protect Sámi rights from the long-term effects of climate change.

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.

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).

Reference list

Norwegian legal sources

Laws and regulations

Transparency Act: Act of 18 June 2021 no. 99 relating to enterprises’ transparency and work on fundamental human rights and decent working conditions.

Climate Change Act. Act of 16 June 2017 no. 60 on climate targets.

NIM Act: Act of 22 May 2015 no. 33 relating to the Norwegian National Human Rights Institution. (The Norwegian NHRI Act)

Nature Diversity Act: Act of 19 June 2009 no. 100 relating to the management of biological, geological and landscape diversity.

Constitution: The Constitution of the Kingdom of Norway of 17 May 1814.

Preparatory work for laws, public investigations and parliamentary documents

The Truth and Reconciliation Comission: Sannhet og forsoning – grunnlag for et oppgjør med fornorskingspolitikk og urett mot samer, kvener/norskfinner og skogfinner. (2023) Dok.nr.19 (2022-2023).

NOU 2023:23 Omstilling til lavutslipp — Veivalg for klimapolitikken mot 2050.

NOU 2023:3 Mer av alt – raskere.

NOU 2008:5 Retten til fiske i havet utenfor Finnmark.

NOU 2007:13 Den nye sameretten – Utredning fra Samerettsutvalget.

Meld. St. 26 (2022-2023) Klima i endring – sammen for et klimarobust samfunn.

Prop.150 L (2020-2021) Lov om virksomheters åpenhet og arbeid med grunnleggende menneskerettigheter og anstendige arbeidsforhold.

Prop.86 L (2020-2021) Endringer i sameloven.

Supreme Court decisions

HR-2021-1975-S

HR-2020-2472-P

HR-2018-456-P

HR-2017-2428-A

HR-2017-2247-A

Rt-2008-1764

International sources

Conventions and declarations

Directive (EU) 2021/1119 of the European Parliament and of the Council of 30 June 2021 establishing the framework for achieving climate neutrality and amending Regulations (EC) No 401/2009 and (EU) 2018/1999 (‘European Climate Law’).

The Paris Agreement of 12 December 2015.

The UN Declaration on the Rights of Indigenous Peoples (UNDRIP) of 13 September 2007.

The United Nations Framework Convention on Climate Change (UNFCCC) of 9 May 1992.

The International Labour Organisation’s Indigenous and Tribal Peoples Convention No. 169 of 27 June 1989.

The UN Convention on the Rights of the Child of 20 November 1989.

The Vienna Convention on the Law of Treaties of 23 May 1969.

The International Convention on Civil and Political Rights (ICCPR) of 16 December 1966.

Decisions of the UN Human Rights Committee

Daniel Billy et al. v. Australia (2022), CCPR/C/135/D/3624/2019.

Benito Oliveira et al. v. Paraguay (2021), CCPR/C/132/D/2552/2015.

Teitiota v. New Zealand (2020),   CCPR/C/127/D/2728/2016.

Portillo Cáceres v. Paraguay (2019), CCPR/C/126/D/2751/2016.

Sanila-Aikio v Finland (2018), CCPR/C/124/D/2668/2015.

Klemetti Näkkäläjärvi et al. v Finland (2018), CCPR/C/124/D/2950/2017.

Poma Poma v. Peru (2009), CCPR/C/95/D/1457/2006.

Aapirana Mahuika et al. v. New Zealand (2000), CCPR/C/70/D/547/1993.

Diergaardt et al. v Namibia (2000), CCPR/C/69/D/760/1996.

Lubicon Lake Band v. Canada (1990), CCPR/C/38/D/167/1984.

Kitok v Sweden (1988), CCPR/C/33/D/197/1985.

Decisions of the European Court of Human Rights

European Court of Human Rights (ECHR): Guide to the case-law of the European Court of Human Rights –  Environment. (2022)

Tătar c. Roumanie (67021/01), 27 January 2009.

Statements, reports and decisions from UN agencies

UN Committee on the Rights of the Child (CRC): General Comment nr. 11 on Indigenous children and their rights under the Convention. (2009), CRC/C/GC/11.

UN Committee on the Rights of the Child (CRC): General Comment nr. 26 on children’s rights and the environment, with a special focus on climate change. (2023), CRC/C/GC/26.

UN Department of Economic and Social Affairs (UNDESA): Challenges and Opportunities for Indigenous’ Peoples’ Sustainability. Policy Brief no. 101, Mirian Masaquiza Jerez (2021).

UN Environment Program (UNEP), Stockholm Environment Institute (SEI), Climate Analytics, E3G & International Institute for Sustainable Development (IISP): The Production Gap: Phasing down or phasing up? Top fossil fuel producers plan even more extraction despite climate promises. (2023).

UN Environment Program (UNEP): Emissions Gap Report: Broken Record – Temperatures hit new highs, yet world fails to cut emissions (again). (2023)

UN General Assembly, Human Rights Council: Right to a healthy environment: good practices. Report of the Special Rapporteur on the issue of human rights obligations relating to the enjoyment of a safe, clean, healthy and sustainable environment. (2019), A/HRC/43/53.

UN General Assembly: Resolution adopted by the General Assembly on 29 March 2023. Request for an advisory opinion of the International Court of Justice on the obligations of States in respect of climate change. (2023), A/RES/77/276.

UN General Assembly: Resolution on the human right to a clean, healthy and sustainable environment. (2022), A/76/L.75.

UN Human Rights Committee (HRC): General Comment no. 12 on article 1 of the International Convention on Civil and Political Rights. (1984),

UN Human Rights Committee (HRC): General Comment no. 16 on article 17 of the International Convention on Civil and Political Rights. (1988)

UN Human Rights Committee (HRC): General Comment no. 23 on article 27 of the International Convention on Civil and Political Rights. (1994), CCPR/C/21/Rev.1/Add.5.

UN Human Rights Committee (HRC): General Comment no. 36 on article 6 of the International Convention on Civil and Political Rights. (2019)., CCPR/C/GC/36.

UN Office of the United Nations High Commissioner for Human Rights (OHCHR): Report of the Special Rapporteur on the rights of indigenous peoples. (2017), A/HRC/36/46.

UN Permanent Forum on Indigenous Issues (UNPFII):  Report on the twenty-first session, 25 April–6 May 2022, (2022), E/2022/43-E/C.19/2022/11.

United Nations Framework Convention on Climate Change (UNFCCC): Outcome of the First Global Stocktake. (2023), FCCC/PA/CMA/2023/L.17.

United Nations Framework Convention on Climate Change (UNFCCC): Report of the Conference of the Parties serving as the meeting of the Parties to the Paris Agreement on its third session, held in Glasgow from 31 October to 13 November 2021. (2022), FCCC/PA/CMA/2021/10/Add.1.

United Nations Framework Convention on Climate Change (UNFCCC): Sharm el-Sheikh Implementation Plan. (2022), FCCC/PA/CMA/2022/L.21.

United Nations Framework Convention on Climate Change (UNFCCC): Subsidiary Body for Scientific and Technological Advice: Technical Dialogue of the First Global Stocktake. 2023, FCCC/SB/2023/9

Decisions from other national courts

Commune de Grande Synthe, Conseil d’Etat: décision no. 427301. Decision delivered 19 November 2020. Available on: https://climatecasechart.com/non-us-case/commune-de-grande-synthe-v-france/.

Massachusetts v. EPA, 549 U.S. 497 (Supreme Court of the United States), Judgement delivered 2 April 2007. Available on: https://supreme.justia.com/cases/federal/us/549/497/.

Neubauer v. Germany, 1 BvR 2656/18 (the Federal Constitutional Court of Germany). Judgment delivered 24 March 2021. Available on: 1 BvR 2656/18.

Notre Affaire à Tous et al.  v. France, no. 1904967, 1904968, 1904972, 1904976/4-1 (Administrative Court of Paris), Judgement delivered 3 February 2021. Available on: https://climatecasechart.com/non-us-case/notre-affaire-a-tous-and-others-v-france/.

Pabai Pabai v Commonwealth of Australia, VID622/2021. (Federal Court of Australia). Pending case. Information available on: https://fedcourt.gov.au/services/access-to-files-and-transcripts/online-files/pabai-v-australia.

Royal Dutch Shell, ECLI:N:RBDHA:2021:5339 (The Hague District Court), Judgement delivered 26 May 2021. Available on: https://www.foei.org/wp-content/uploads/2021/08/Verdict-climate-case-milieudefensie-shell-26-may-2021.pdf.

Urgenda Foundation v. the Netherlands, ECLI:NL:HR:2019:2007 (the Supreme Court of the Netherlands). Judgement delivered 20 December 2019. Available on: https://uitspraken.rechtspraak.nl/inziendocument?id=ECLI:NL:HR:2019:2007.

VZW Klimaatzaak v. Belgium et al., 2021/AR/15gs, 2022/AR/737, 2022/AR/891, (Court of Appeal Brussels) Pending case. Information available: https://climatecasechart.com/non-us-case/vzw-klimaatzaak-v-kingdom-of-belgium-et-al/.

Waratah Coal Pty Ltd v Youth Verdict et al., MRA050-20 (MLA 70454), EPA051-20 (EPML 00571313), /Land Court of Queensland). Judgement delivered on 25 November 2022. Available on: https://www.queenslandjudgments.com.au/caselaw/qlc/2022/21.

Books

Horstkotte, T. et al., “Pastures under pressure. Effects of other land users and the environment” in Reindeer Husbandry and Global Environmental Change, Horstkotte, T.  et al. (eds.) (Routledge, 2022).

Johnsen, Kathrine I. et al., “Leaving no one behind – sustainable development of Sámi reindeer husbandry in Norway” In Reindeer Husbandry: Adaptation and Resilience to a Changing Arctic, Svein D. Mathiesen et al. (eds.) (Springer Polar Sciences, 2022).

Marina Tonkopeeva et al., “Framing Adaptation to Rapid Change in the Arctic” In Reindeer Husbandry: Adaptation and Resilience to a Changing Arctic, Svein D. Mathiesen et al. (eds.) (Springer Polar Sciences, 2022).

Rooi, W.j et al., “Loss of Reindeer Grazing Land in Finnmark, Norway, and Effects on Biodiversity: GLOBIO3 as Decision Support Tool at Arctic Local Level” In Reindeer Husbandry: Adaptation and Resilience to a Changing Arctic, Svein D. Mathiesen et al. (eds.) (Springer Polar Sciences, 2022).

Sands, P., Peel, J., Fabra, A., & MacKenzie, R. Principles of International Environmental Law (4th ed.). (Cambridge University Press, 2018).

The Steering Committee for Human Rights (CDDH), Manual on Human Rights and the Environment, 3^rd edition. (Council of Europe, 2022).

Articles

Bergquist, M., Nilsson, A., Harring, N. & Jagers, S. C. (2022). Meta-analyses of fifteen determinants of public opinion about climate change taxes and laws. Nature climate change, 12(3).

Boers, N. & Rypdal, M. (2021), “Critical slowing down suggests that the western Greenland Ice Sheet is close to a tipping point,” Proc. Natl. Acad. Sci. Vol. 118, No. 21.

Callaghan, T.V. et al. (2011). «Multiple Effects of Changes in Arctic Snow Cover”. AMBIO Vol 40, p. 32-45.

Eilertsen, S.M. et al. (2022), “Fôring av reinsdyr – og fôringsrelaterte sykdommer”. NIBIO POP, Vol. 8, No. 4.

Eira, I.M.G. et al. (2013), “Traditional Sámi snow terminology and physical snow classification—two ways of knowing” Cold Regions Science and Technology. Vol 85.

Forbes, B.C. et al. (2016) «Sea ice, rain-on-snow and tundra reindeer nomadism in Arctic Russia”. Biology Letters Vol 12, Issue 11.

Forster, P.M. et al. (2023) “Indicators of Global Climate Change 2022: annual update of large-scale indicators of the state of the climate system and human influence”. Earth System Science Data. Vol. 15, Issue 6.

Garnett, S.T. et al. (2018) “A spatial overview of the global importance of indigenous lands for conservation”, Nature Sustainability. Vol 1, No. 7, p. 369-374.

Gisnås, K. et al. (2013), “CryoGRID 1.0: Permafrost Distribution in Norway estimated by a Spatial Numerical Model” Permafrost Periglacial Processes Vol 24, No. 1.

Gisnås, K. et al. (2016) “Permafrost Map for Norway, Sweden and Finland” Permafrost and Periglacial Processes Vol 28, Issue 2.

Godwin, S.C. et al. (2021) “Sea-louse abundance on salmon farms in relation to parasite-control policy and climate change” ICES Journal of Marine Science Vol 78, No. 1, p. 377-387.

Hansen, B.B. et al. (2013) “Climate Events Synchronize the Dynamics of a Resident Vertebrate Community in the High Arctic”. Science Vol 339, Issue 6117.

Hansen, K.L. et al. (2016). “Discrimination amongst Arctic Indigenous Sami and Non-Sami Populations in Norway: The SAMINOR 2 Questionnaire Study”. Journal of Northern studies Vol. 10, No 2.

Hasser, S. et al. (2004). “Fatal accidents and suicide among reindeer herding Sami in Sweden”. International Journal of Circumpolar Health 63.

Hein, C.L., Öhlund, G. & Englund, G. (2012) “Future Distribution of Arctic Char Salvelinus alpinus in Sweden under Climate Change: Effects of Temperature, Lake Size and Species Interactions”. AMBIO Vol 41, No. 3.

Hickman, C. et al. (2021). “Climate anxiety in children and young people and their beliefs about government responses to climate change: a global survey”. The Lancet. Vol 5, Issue 12.

Husson, B. et al. (2022), “Successive extreme climatic events lead to immediate, large-scale, and diverse responses from fish in the Arctic” Global Change Biology Vol 28, No. 11.

Islam, S.N & Winkel, J. (2017) “Climate Change and Social Inequality”. UN Department of Economic & Social Affairs (UNDESA). Working Paper No. 152.

Jaakkola, J.J.K., Juntunen, S. & Näkkäläjärvi, K. (2018) “The Holistic Effects of Climate Change on the Culture, Well-Being, and Health of the Saami, the Only Indigenous People in the European Union”. Current Environmental Health Reports 5.

Kessler, A., Goris, N. & Lauvset, S.K. (2022). “Observation-based Sea surface temperature trends in Atlantic large marine ecosystems” Progress in Oceanography. Vol 208.

Kvalø, K. et al. (2019) “Weight underestimation linked to anxiety and depression in a cross-sectional study of overweight individuals in a Sami and non-Sami Norwegian population: the SAMINOR Study”, BMJ Open 19.

Kvamsdal, S.F. et al. (2022). “Multidisciplinary perspectives on living marine resources in the Arctic”. Polar Research. Vol 41.

Lee, S.E. et al. (2000) “Regional effects of climate change on reindeer: a case study of the Muotkatunturi region in Finnish Lapland”. Polar Research. Vol 19, Issue 1, p. 99-105.

Lennox, R.J. et al. (2023) “Prospects for the future of pink salmon in three oceans: From the native Pacific to the novel Arctic and Atlantic” Fish and Fisheries Vol 24, No. 5, p. 759-776.

Liu, Z., Deng, Z., Davis, S & Ciais, P. (2023) “Monitoring global carbon emissions in 2022”. Nature Reviews Earth & Environment 4.

Löf, A. (2013). “Examining limits and barriers to climate change adaptation in an Indigenous reindeer herding community”. Climate and Development, Vol 5, No. 4, p. 328-339.

Ma, Y. et al. (2019), “Potential for Hydroclimatically Driven Shifts in Infectious Disease Outbreaks: The Case of Tularemia in High-Latitude Regions” International Journal of Environmental Research and Public Health Vol 16, No. 19.

Mallory, C.D., & Boyce, M.S. (2018). “Observed and predicted effects of climate change on Arctic caribou and reindeer.” Environmental Reviews 26.

McCrystall, M.R. et al. (2021) “New climate models reveal faster and larger increases in Arctic precipitation than previously projected.” Nature Communications. Vol 12.

McKay, D.I.A. et. al (2022). “Exceeding 1.5°C global warming could trigger multiple climate tipping points”. Science. Vol 377, Issue 6611.

Middelton, J. et al. (2020). “Indigenous mental health in a changing climate: a systematic scoping review of the global literature”. Environmental Research Letters. Vol 15, No 5.

Mienna, C.S. & Axelsson, P. (2019) “Somatic health in the Indigenous Sami population – a systematic review”, International Journal of Circumpolar Health, Vol 78, No. 1

Miner, K.R. et al. (2021), “Emergent biogeochemical risks from Arctic permafrost degradation” Nature Climate Change Vol 11, p. 808-819.

Moen J. (2008) “Climate change: effects on the ecological basis for reindeer husbandry in Sweden.” Ambio, Vol 37, No. 4.

Mooney, P.A. & Li, L. (2021) “Near future changes to rain-on-snow events in Norway”. Environmental Research Letters. Vol 16.

Naseribafrouei, A. et al. (2019) “Estimated 8-year cumulative incidence of diabetes mellitus among Sami and non-Sami inhabitants of Northern Norway – The SAMINOR Study”. BMC Endocr Discord Vol 24, Issue 19.

Niittynen, P. & Luoto, M. (2018), “The importance of snow in species distribution models of arctic vegetation”. Ecography, Vol 41.

Niittynen, P., Heikkinen, R.K. & Luoto, M. (2018), «Snow cover is a neglected driver of Arctic biodiversity loss». Nature Climate Change. Vol 8.

Nilsen, I.R. et al. (2021), “Projected changes in days with zero-crossings for Norway” International Journal of Climatology, Vol 41, No. 4.

Nordlander, L. (2022), “Litigating climate change in the Arctic: the potential of Sámi human rights claims”. Journal of Human Rights and the Environment, Vol. 13 No. 2, p. 416-440.

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Putkonen, J., & Roe, G. (2003). “Rain-on-snow events impact soil temperatures and affect ungulate survival.” Geophysical Research Letters. Vol 30, No. 4.

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Rantanen, M., Karpechko, A.Y., Lipponen, A. et al. (2022) “The Arctic has warmed nearly four times faster than the globe since 1979.” Communications Earth & Environment Vol 3, Issue 168.

Rixen, C. et al. (2022), “Winters are changing: snow effects on Arctic and alpine tundra ecosystems” Arctic Science, Vol 8, No. 3, p. 572-608.

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Sandø A.B. et al. (2020) “Climate Change and New Potential Spawning Sites for Northeast Arctic cod.” Frontiers in Marine Science. Vol 7, Issue 28.

Sandvik, A.D. et al. (2021) “The effect of a warmer climate on the salmon lice infection pressure from Norwegian aquaculture” ICES Journal of Marine Science Vol 78, No. 5, p. 1849-1859.

Sawatzky, A. et al. (2020), ““The best scientists are the people that’s out there”: Inuit-led integrated environment and health monitoring to respond to climate change in the Circumpolar North”. Climatic Change, Vol. 160.

Schlingmann, A. et al. (2021), “Global patterns of adaptation to climate change by Indigenous Peoples and local communities. A systematic review.” Current Opinion in Environmental Sustainability, Vol. 51.

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Stafford, K.M. et al. (2022). “Northward range expansion of subarctic upper trophic level animals into the Pacific Arctic region”. Oceanography Vol 35, No 2, p. 158-166.

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Sundby, S. & Nakken, O. (2008) “Spatial shifts in spawning habitats of Arcto-Norwegian cod related to multidecadal climate oscillations and climate change” ICES Journal of Marine Science Vol 65, Issue 6, p. 953-962.

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Tryland, M. et al. (2019). «Infectious Disease Outbreak Associated With Supplementary Feeding of Semi-domesticated Reindeer», Frontiers in Veterinary Science, Vol 6.

Turunen, M. et al. (2009), “Does climate change influence the availability and quality of reindeer forage plants?” Polar Biology, Vol 32, No. 6, p. 813-832.

Tyler, N.J.C. et al. (2021). “The Shrinking Resource Base of Pastoralism: Saami Reindeer Husbandry in a Climate Change”.  Frontiers in Sustainable Food Systems 4.

Uboni, A., Åhman, B. & Moen, J. (2020). «Can management buffer pasture loss and fragmentation for Sami reindeer herding in Sweden?” Pastoralism: Research, Policy and Practice. Vol 10, No 23.

Voigt, C. (2021), «The Climate Judgment of the Norwegian Supreme Court: Aligning the Law with Politics», Journal of Environmental Law, Vol. 33, Issue 3.

Wibye, J.V. (2022) “Beyond Acts and Omissions — Distinguishing Positive and Negative Duties at the European Court of Human Rights”. Human Rights Review. Vol 23, No. 4, p. 479-502.

Willox, A. et al. (2014). “Examining relationships between climate change and mental health in the Circumpolar North”. Reg Environ Change. Vol 15, p. 169-182.

Wu, E. et al. (2022), “Permafrost as a potential pathogen reservoir” One Earth Vol 5, No. 4.

Wunderling, N. et al. (2023) “Global warming overshoots increase risks of climate tipping cascades in a network model.” Nature Climate Change 13, p. 75-82.

Reports

Amnesty International Norge: Negative holdninger og stereotypier om samer på Facebook. (2023)

Arctic Monitoring and Assessment Programme (AMAP): Adaptation Actions for a Changing Arctic: Perspectives from the Barents Area. (2017).

Arctic Monitoring and Assessment Programme (AMAP): AMAP Arctic Climate Change Update 2021: Key Trends and Impacts. (2021).

Artic Council, Stockholm Environment Institute & Stockholm Resilience Centre: Resilience Interim Report 2013. (2013).

Bartlett, J. et al. Carbon storage in Norwegian ecosystems. Norwegian Institute for Nature Research (NINA), Rapport 1774b. (2020).

Bongo, A.K.S, Stenfjell, J.M. & Logstein, B. Helse, miljø og sikkerhet i reindrift. Funn fra kartlegging blant reindriftsutøvere. Institutt for rural- og regionalforskning (RURALIS), Rapport nr. 11/2022. (2022).

DNV: Energy Transition Outlook 2023. A global and regional forecast to 2050. (2023).

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