1. Introduction

The subject of this report is the legal protection of indigenous peoples and minorities against interference (in the form of for example development projects) in their traditional areas, as enshrined in international human rights law and Norwegian law. While existing legal protection is not always strong enough to prevent traditional Sami areas in Norway from being affected by development, even larger parts of these areas would have been lost had the legal protection not been in place.^*This report is written by Johan Strömgren, Gro Nystuen and Petter Wille.

1.1 Issues and limitations

Worldwide, indigenous peoples are under pressure. Their traditional lands are often among the last untouched areas of the world. People living in such areas are threatened by exploitations of nature such as mining, dam construction, deforestation, the use of pesticides, agricultural expansion, water privatisation and other industrial activities.¹UN Department of Economic and Social Affairs, https://www.un.org/development/desa/indigenouspeoples/ mandated-areas1/environment.html. Andrea Carmen, “Corporations and the Rights of Indigenous Peoples: Advancing the Struggle for Protection, Recognition, and Redress at the Third UN Forum on Business and Human Rights”, Cultural Survival Quarterly Magazine, 2015, http://www.culturalsurvival.org/publications/ cultural-survival-quarterly/corporations-and-rights-indigenous-peoples-advancing   Increased demand for raw materials, energy and the transition to “green energy”, together with new technologies, have led to increased development of wind power and the need for increased extraction of minerals, which in many places threaten indigenous peoples’ traditional livelihoods and economic bases.

In Norway, wind power in particular has had a major expansion in the last 20 years. Renewable energy is very important in counteracting harmful climate change. Increased utilisation of natural resources can also contribute to economic development and jobs in local communities. At the same time, developments in indigenous peoples’ areas often result in indigenous peoples losing access to land and water areas that they have traditionally used for their own cultural practices and business activities.

A characteristic of indigenous peoples’ cultures and ways of life is their close connection to nature and to the use of natural resources. The natural basis is therefore a particularly important precondition for indigenous peoples to be able to practice and further develop their traditional trades and cultures. It is a paradox that the green shift in many contexts has major consequences for indigenous peoples, as they do not contribute much to greenhouse gas emissions globally, but they will be hit particularly hard by climate change – both in the short and long term.²UN Department of Economic and Social Affairs, Policy Brief #101: Challenges and Opportunities for Indigenous Peoples’ Sustainability, https://www.un.org/development/desa/dpad/publication/un-desa-policy-brief-101- challenges-and-opportunities-for-indigenous-peoples-sustainability/. One issue that has been submitted to the UN Human Rights Committee concerns indigenous peoples and climate change. The complainants belong to the Torres Strait Islands in Australia and have stated that it is a violation of their rights to cultural practice that the islands they live on will soon be under water. See Ch. 7.2.4. Climate Change Litigation Databases, “Petition of Torres Strait Islanders to the United Nations Human Rights Committee Alleging Violations Stemming from Australia’s Inaction on Climate Change”, Climate Change Litigation, 2019.

Over time, questions concerning use and exploitation of nature and the impact on indigenous traditional lands have been central to the relationship between indigenous peoples and states. There are several international rules for the protection of indigenous peoples’ rights, as well as a fairly comprehensive practice on the further implementation of this protection.³See Chapters 3, 4 and 5 in this report. See also e.g. NHRI and Norway’s OECD Contact Point Report Natural Resource Development, Business and the Rights of Indigenous Peoples, 2019.

Article 27 of the UN International Covenant on Civil and Political Rights (ICCPR Article 27) has through practice become the most important international provision on the protection of indigenous peoples against interference and on their rights to safeguard and further develop their culture. Other international instruments, such as ILO Convention 169 on Indigenous and Tribal Peoples in Independent States (ILO 169) and the UN International Convention on the Elimination of All Forms of Racial Discrimination (ICERD), are also important instruments in this field. The UN Declaration on the Rights of Indigenous Peoples (UNDRIP) largely reflects current law in these areas.

ICCPR Article 27 was central to the Norwegian Supreme Court’s consideration of the case concerning wind power plants on the Fosen peninsula in October 2021. This was a historic decision because it was the first time that affected Sami parties, in a case concerning a development project in their traditional areas, won in the Supreme Court through reference to human rights. This judgment is central in this report because it clarified several key issues regarding indigenous peoples’ protection against interference in their traditional reindeer grazing areas.

One question that is particularly relevant in the aftermath of the Fosen judgment, is the question of which consequences and remedies such violations may lead to. The UN Human Rights Committee has stated, among other things, that the state is obliged to ensure the complainant “an effective remedy and reparation measures” that are in a balanced relationship with the damaged suffered.⁴ICCPR Article 2, third paragraph (a). The state also has an obligation to take measures to ensure that similar violations do not occur again.⁵HRC, Angela Poma Poma v Peru, (Communication No. 1457/2006), para. 9. See also HRC, Tiina Sanila-Aikio What this entails concretely depends on the facts and circumstances of a given case, and states will have considerable leeway or a “margin of appreciation” to resolve this within their own national legal systems. This report does not go into further detail on the issue of legal consequences of violations of provisions on indigenous peoples’ rights in international law.

The report uses the terminology minorities and indigenous peoples. There are no precise legal definitions of the two terms. The term minority often means ethnic, religious or linguistic groups that are in the minority relative to the majority in a country’s population.⁶See United Nations, Minority rights: International standards and guidance for implementation (HR/PUB/10/3) (United Nations, 2010). In Europe, there is also a framework convention for national minorities. By national minorities, it is meant ethnic, religious or linguistic minorities who have been in the state for many years. Indigenous peoples is defined as peoples who often have a special connection to their traditional lands, often from before the state’s borders were established, and who are not the dominant people in the state of which they are a part.⁷https://www.regjeringen.no/no/tema/urfolk-og-minoriteter/samepolitikk/midtspalte/hvem-er-urfolk/id451320/. In this connection, reference is often made to the definition used in ILO 169 Art. 1.1 letter b), which states that the convention applies to “peoples in independent countries who are regarded as indigenous on account of their descent from the populations which inhabited the country, or a geographical region to which the country belongs, at the time of conquest or colonization or the establishment of present State boundaries and who, irrespective of their legal status, retain some or all of their own social, economic, cultural and political institutions”.

In other words, the provisions of international law on minorities include indigenous peoples’ conditions and their particular histories, which are also often reflected in cases concerning minority protection that have been raised before international treaty bodies. It is evident from Article 27’s reference to “ethnic, religious or linguistic minorities” that the provision covers indigenous peoples. Since the adoption of the Sami Act in 1987 and the constitutional provision about the Sami from 1988 (and 2014), successive Norwegian governments and parliaments have had policies based on the fact that the Sami are a people and indigenous peoples.⁸See the Norwegian Human Rights Committee’s report to Parliament in Document 16 (2011–2012), p. 214 onwards and the Supreme Court plenary judgment Rt. 2001 p. 769 (Selbu). On page 791, concerning ILO 169, it is stated: “There is no doubt that according to this definition the Sami have the status of an indigenous people in Norway, and that our obligations towards them under international law in pursuance of Article 14 of the Convention also apply in Sør-Trøndelag.” See also Supreme Court plenary judgment HR-2018-456-P (Nesseby) para. 89, which states that “The Sami indigenous rights are protected both through provisions of the Constitution and various provisions of international law.”

The purpose of this report is to contribute knowledge about the human rights protection against interference in Sami areas of use, with the main emphasis on ICCPR Article 27. The report shows that there has been a development towards a stronger emphasis on Sami conditions in cases of interference in the form of development projects. At the same time, pressure is generally increasing on Sami areas. The legal protection against interference, which follows from international law and Norwegian law, is not strong enough to prevent new areas from becoming subject to interference and developments. Without the existing protection, however, even larger parts of traditionally Sami lands would have been lost. Although many development projects have been allowed, a number of applications for such projects have also been rejected by the authorities due to the negative effects on indigenous peoples’ cultural practices.

In cases concerning interference in Sami areas, the public administration and the courts are increasingly assessing how the protection of indigenous peoples’ substantive and procedural rights under international law affects each individual case. This legal protection is somewhat complex and is based on a number of different international sources. An important purpose of the report has therefore been to draw up a broad legal picture, which shows how the international provisions are interpreted in international bodies, in Norwegian courts and in the public administration.

In this report, the Norwegian National Human Rights Institution (NHRI) has highlighted some areas where we believe that steps can be taken to strengthen human rights compliance. This relates, among other things, to:

• Ensuring thorough, sufficiently early and independent impact assessments.
• Ensuring sufficient knowledge through research and mapping, on the gradual reduction of reindeer grazing areas and on the overall consequences of development projects, so that the cumulative effect of several different projects in reindeer herding areas is taken into account.
• Assessing the system of allowing the commencement of development projects before the validity of a permit has been subject to a final legal determination.
• Clarifying, through legislation or other regulations, the relevant elements contained in ICCPR Article 27, in order to contribute to good human rights assessments in public administration.
• We hope that this report can contribute to strengthening the implementation of this important human rights protection.

1.2 Overview of the chapters

Chapter 2 provides an overview of the international framework for the protection of indigenous peoples’ rights to traditional livelihoods and business practices. How states’ implementation of human rights conventions is monitored by international bodies and the impact of the practice of various monitoring bodies in Norwegian law is also discussed. ICCPR Article 27 is incorporated into the Human Rights Act and applies directly as Norwegian law with precedence over other laws. This act is significant for the protection against interference in Sami areas.

There is a close link between the Sami section of the Constitution, Article 108, and ICCPR Article 27. This provides a strong overall protection of Sami culture that sets the framework for the administration’s and courts’ application of law. Nevertheless, Article 27 has a relatively modest footprint in the sectoral laws that regulate major developments. National legislation concerning Sami matters is extensive, and it is beyond the scope of this report to thoroughly review this.

Chapter 3 discusses the international law protection of indigenous peoples and their culture and way of life. This includes traditional business practices related to nature, which forms the material basis for the culture. It discusses the human rights conventions that are particularly relevant for the protection of indigenous peoples against interferences with traditional business practices and culture, and practices by the international monitoring bodies.

Through the Human Rights Committee’s interpretations of ICCPR Article 27, guidelines have emerged that more concretely define the protection against interference in traditional areas. The Committee has dealt with the question of when the threshold for violation of Article 27 has been reached, and which elements are emphasised in this context. The Human Rights Committee has, among other things, interpreted requirements for the processes surrounding such interference (effective participation and the right to consultations). Furthermore, the Committee has assumed that even modest development projects can lead to a violation if viewed in the context of previous, future and overall interferences over time. The Committee has likewise assessed remedial measures that can prevent violations. These factors, together with the assessment of the negative effects of the interference on indigenous peoples’ possibility for continued cultural practices, are central to the Committee’s jurisprudence.

ILO 169 has important provisions on indigenous peoples’ protection against interference. The most important provisions concern indigenous peoples’ right to land and water as well as the right to consultations and effective participation in plans and decisions that concern them. ICERD moreover has provisions that are of importance to indigenous peoples’ cultural protection.

Chapter 4 provides an overview of the practice from the Norwegian Supreme Court in cases where ICCPR Article 27, in particular, as interpreted by the Human Rights Committee, have been discussed. The Fosen judgment (2021) is the latest and most important judgment, but also the Sara judgment (2017) and the Reinøy judgment (2017) provide important guidelines. The Nesseby judgment (2018), the Stongland’s Peninsula judgment (2004) and the Alta judgment (1982) are also mentioned. The judgments discuss the same elements of Article 27 that the Human Rights Committee has emphasised in its decisions, such as the importance of consultations, the overall effects of several interferences over time, remedial measures and the threshold for what should be considered violations of Article 27. An important question here is the extent to which a balancing of interests can be made between indigenous peoples’ rights and the interests of society.

In the Fosen case, the ministry that granted the permission to build the power plant had carried out such a proportionality assessment, but the Supreme Court rejected this, significantly narrowing the possibility of such balancing of interests. The Supreme Court unanimously concluded that the developments at Storheia and Roan were a violation of Article 27.

Chapter 5 provides an overview of the use of ICCPR Article 27 in Norwegian administrative practice. Practice from the Ministry of Petroleum and Energy (MPE) and the Ministry of Trade, Industry and Fisheries (MTIF) shows that Article 27 is used in the administration’s assessments in interference cases, and that the Human Rights Committee’s guidelines are emphasised. The impact assessments are a key knowledge base in the assessments. Reindeer herders often disagree with the findings contained in impact assessments concerning the precise consequences of the development. The licensing processes are very long, and there is no “equality of arms” between the parties. The chapter reviews administrative practice from the last decade in which the Government has dealt with appeals against development decisions, mainly in wind power developments. The chapter discusses the administration’s treatment of key topics such as the importance of consultations, the importance of the overall effects of several development projects over time, the importance of remedial measures and the negative effects of the interferences on cultural practices. It is noted here that the administration changed its practice regarding the balancing of interests between indigenous peoples’ rights and the interests of society, after the Fosen case in 2013.

Chapter 6 deals with business and human rights from an indigenous peoples’ perspective. In Norway, almost all cases of interference in indigenous peoples’ areas can be discussed in this perspective. The chapter describes various guidelines and principles that exist within various international forums, where the UN Guiding Principles on Business and Human Rights (UNGP) and the OECD Guidelines for Multinational Enterprises constitute the leading international standards for corporate human rights responsibility. It is the responsibility of states to have laws that protect the rights of indigenous peoples, but it is largely private and publicly owned companies that are actually responsible for the development and exploitation of natural resources. The Transparency Act, which enters into force in the summer of 2022, stipulates that larger enterprises must carry out due diligence and “identify and assess actual and potential adverse impacts on fundamental human rights”. This obligation includes assessments of, among other things, ICCPR Article 27 and ILO 169.⁹Act Relating to Enterprises’ Transparency and Work on Fundamental Human Rights and Decent Working Conditions (Transparency Act) of 18 June 2021.

Chapter 7 comments on certain developments and ongoing and planned measures that will have an impact on indigenous peoples’ rights to culture and business practices. Among other things, reference is made to the enactment of the right to consultation, the Wind Power Report to Parliament from 2020 and the work that takes place in the Mineral Acts Committee.

Ongoing cases concerning human rights protection against harmful climate change from an indigenous peoples’ perspective are also discussed. Among other things, an Australian indigenous peoples’ group has complained to the Human Rights Committee about Australia’s alleged violation of ICCPR Article 27 due to the state’s lack of climate action.

It is questioned whether such a brief and general provision as Article 27, even though it has been thoroughly interpreted by both the Human Rights Committee and the Supreme Court, ought to have been subject to a more detailed regulation that clarifies the various elements that should be assessed, in order to determine when the threshold is reached. A clarification of the content of Article 27, would contribute to more thorough human rights assessments of the administration as well as enhance due process and provide more predictability.