7. The Way Forward

ICCPR Article 27 applies as Norwegian law and it has precedence in conflict with other laws, but the assessment topics in this provision should have a clearer footprint in national law. For both the Sami and the developers, a more detailed regulation would provide a greater degree of due process and predictability in this important area of law.

7.1 Introduction

This report deals with how the international law rules on indigenous peoples’ protection against interferences in nature have been interpreted and applied by the UN Human Rights Committee, and by Norwegian courts and administrative bodies. Regulating interferences in nature and indigenous peoples’ rights to cultural practice, is however, a dynamic field. Several developments are worth noting. Recently, the right to consultation has been included in the Sami Act.³⁶¹Sami Act, Chapter 4 on consultations, adopted on 11 July 2021. The Minerals Act Committee’s ongoing work and the Wind Power Report to Parliament from 2020 also provide important guidelines for how indigenous peoples’ rights should be taken into account. The new Transparency Act (discussed in Chapter 6) will also be significant.³⁶²See Chapter 6.4. Last, but not least, the Fosen judgment, by the Supreme Court in the autumn of 2021, provides important legal clarifications on indigenous peoples’ rights in Norway.³⁶³See Chapter 4.

At the same time, new knowledge is constantly being generated, both concerning the actual consequences of interferences and the need for protection of indigenous peoples’ cultural and business practices, as well as about the need for intervention. The climate crisis will also increasingly affect the rights of indigenous peoples.

7.2 Developments

7.2.1 Enactment of rights to consultations

An important recent development has been the statutory addition to the Sami Act on the right to consultation. All the cases mentioned in the chapter on administrative practice (Chapter 5) were dealt with before this right was enacted. In interference relating to ICCPR Article 27 and/or ILO 169, consultations are important, not only for the quality and legitimacy of the decisions, but also as part of the legality assessments pursuant to Article 27. There has been a development towards more focus on assessments of Sami conditions in these processes, including on consultations, cumulative effects and remedial measures. It is often difficult, however, based on the administrative decisions discussed in this report, to assess whether the consultations have started early enough, and whether they have provided the opportunity for effective participation and how far one has gone to reach agreement. As mentioned in Chapter 5.3.3, the Norwegian NHRI’s own limited examination of the scope, topics and outcome of consultations between the Sami Parliament and state authorities in the period 2005–2017 shows that consultations are seldom sufficient to achieve agreement between the Sami Parliament and state authorities, and that particularly in land-use interference and land management matters, agreement is not reached.³⁶⁴The survey is discussed in more detail in NHRI’s annual report for 2018, as well as in NHRI’s letter to the Ministry of Local Government and Regional Development (KDD) of 26 June 2019 on state authorities and the Sami Parliament’s experiences with indigenous law consultations. In the Sami Parliament’s annual report for 2020, there is an overview of selected consultations with the authorities in 2020. Of the cases that were closed, the vast majority ended with agreement or partial agreement. In two cases concerning the environment and area, however, no agreement was reached, the Sami Parliament’s annual report 2020.

7.2.2 The Report to Parliament on land-based wind power

In its Wind Power Report from 2020, the Government proposed a number of updates to the licensing processes in wind power cases.³⁶⁵Meld. St. (Report to Parliament) 28 (2019–2020) Vindkraft på land – Endringer i konsesjonsbehandlingen (Wind power on land – Changes in the licensing process). These include:

• A shorter and stricter time period for the licensing process.
• Possibility to reject the plans early in the process.
• Clearer terms in the framework for the licence.
• Better connection between assessment, license and detailed plans.
• Strengthened supervision of the licensee’s responsibility for ensuring compliance with the licence conditions during construction and in the operational phase.³⁶⁶Meld. St. (Report to Parliament) 28 (2019–2020) Vindkraft på land (Wind power on land), p. 31 onwards, 38 and 42 onwards.

In the Report to Parliament, significant changes are proposed to the roles of the various actors, as well as changes in the licensing process and supervision. This includes, among other things, better and earlier involvement of reindeer husbandry, increased participation in impact assessments, updated requirements for the impact assessments, greater emphasis on cumulative effects, clearer conditions for remedial measures, coordination of objections and consultation.³⁶⁷Meld. St. (Report to Parliament) 28 (2019–2020) Vindkraft på land (Wind power on land), p. 40 onwards.

Conditions for prioritisation in the licensing process are emphasised in the report:

Licencing applications containing documentation of participation from reindeer husbandry in the studies and an agreement on remedial and compensatory measures will be given priority in the licensing process over applications that do not have good documentation of these conditions.³⁶⁸Meld. St. (Report to Parliament) 28 (2019–2020) Vindkraft på land – Endringer i konsesjonsbehandlingen (Wind power on land – Changes in the licensing process), p. 40.

The Wind Power Report also warns that the developers’ choice of who will carry out the impact assessment should be discussed in more detail with those involved in reindeer husbandry in advance, in order to ensure confidence in the processes.³⁶⁹Report. St. 28 (2019–2020) Vindkraft på land – Endringer i konsesjonsbehandlingen (Wind power on land – Changes in the licensing process), p. 40. In light of the impact assessment’s often key importance in ICCPR Article 27 assessments, questions may be raised as to whether this is sufficient to ensure that impact assessments are carried out by independent professional bodies, as implied in the Human Rights Committee’s view on impact assessments, see Chapter 5.3.1. It may also be questioned whether the overall amendments of the procedural measures will be sufficient to meet the requirements for impact assessments pursuant to ILO 169.³⁷⁰See Chapter 3.6.2.

A question for the future is whether the procedural measures announced in the Wind Power Report will also apply to other parts of the energy sector and other sectors of society where similar licensing processes may be relevant.³⁷¹For example, hydropower developments, roads, railways, power lines, military firing and training ranges and larger mineral activities. It is currently unclear at what normative level several of the measures will be followed up, whether it will be through guidelines, regulatory changes or legislative changes.

The announced measures in the Wind Power Report do not include the question of how the authorities should proceed in their assessments of the threshold pursuant to ICCPR Article 27. Also, there is no mention of possible changes in the practice of pre-accession to developments (permission to start construction before the validity of the licence is final).

7.2.3 The Minerals Act

The Minerals Act Committee, which was appointed in 2020, will present its proposal for amendments to the Minerals Act by 1 July 2022.

It follows from the mandate that the Committee shall especially consider Sami interests, including reindeer husbandry, and base its work on Norwegian obligations under international law. Among other things, the Committee’s purpose is to “ensure that regulatory processes within the framework of the Minerals Act meet international legal obligations, clarify how the obligations are to be complied with and streamline them”.³⁷²See the Minerals Act Committee’s mandate Section 3.5, see the Ministry of Trade, Industry and Fisheries, “Mandat for lovutvalg som skal utarbeide forslag til revidert lov om erverv og utvinning av mineralressurser (mineralloven)” (“Mandate for a law committee to prepare a proposal for a revised act relating to the acquisition and extraction of mineral resources [the Minerals Act]”). The Committee shall submit its recommendation in the form of a Norwegian public report by 1 July 2022.

The mandate also states that “The Committee shall assess how the Act can better facilitate necessary clarifications with rights holders, including reindeer husbandry”. The Committee shall also propose a solution that gives the Sami a share of the utility value related to mineral activities in the traditional Sami area.

The Commission has also been tasked with “proposing how Norway’s obligations to the Sami under international law can be operationalised in the Minerals Act through specific procedural rules”.³⁷³Ministry of Trade, Industry and Fisheries, “Mandat for lovutvalg som skal utarbeide forslag til revidert lov om erverv og utvinning av mineralressurser (mineralloven)” (“Mandate for a law committee to prepare a proposal for a revised act relating to the acquisition and extraction of mineral resources [the Minerals Act]”), p. 4. The Committee has been given a postponed deadline of 1 July 2022, see https://www.regjeringen.no/no/dokumentarkiv/regjeringen-solberg/aktuelt-regjeringen-solberg/nfd/nyheter/nyheter-2020/vil-ha-lonnsom-og-barekraftig-mineralvirksomhet/id2715431/. This part of the assignment may contribute to clarifications with regard to requirements for impact assessments, consultations and other procedural frameworks regarding interference cases in the mineral field.

7.2.4 Climate, environment, and indigenous peoples’ human rights

Indigenous peoples will often, because their cultural practice is linked to the nature in which they live, be hard hit by climate change. The loss of natural areas and ecosystems also affects indigenous peoples to a great extent. Biodiversity is being lost at an alarming rate.³⁷⁴CBD Global Biodiversity Outlook 5, https://www.cbd.int/gbo/gbo5/publication/gbo-5-en.pdf. The reason is primarily the decommissioning of natural areas through land use and other interferences.³⁷⁵Simon Jakobsson, Bård Pedersen (ed.), NINA p. 10 Naturindeks for Norge 2020, Tilstand og utvikling for biologisk mangfold (Nature index for Norway 2020, Condition and development for biological diversity), p. 10, NINA 2020, https://www.miljodirektoratet.no/globalassets/publikasjoner/m1800/naturindeksfornorge2020_m1800.pdf. As concerns reindeer husbandry, increased temperatures will lead to overgrowth and elevation of tree boundaries, as well as uncertain winters, with an increased likelihood of more frequent freezing and thawing with subsequent “locking” of pastures. Competing land use and other interferences reduce the flexibility and ability of reindeer herders to adapt to the changing conditions.³⁷⁶Jan Åge Riseth, Hans Tømmervik, Klimautfordringer og arealforvaltning for reindrifta i Norge (Climate challenges and land management for reindeer husbandry in Norway), NORUT-Northern Research Institute, Report 6/2017, p. 9. In the Solberg Government’s Report to Parliament on reindeer husbandry, Meld. St. (Report to Parliament) 32 (2016–2017) p. 50, states that “Endringer i klimaet har de siste årene økt risikoen for ulykker. Innsjøer og elver som tidligere har vært trygge å passere, er ikke lenger like trygge. Tilsvarende er områder blitt mer skredutsatt” (“Climate change has in recent years increased the risk of accidents. Lakes and rivers that were previously safe to cross are no longer as safe. Similarly, areas have become more prone to landslides”). Not only interventions intended to counter climate change, but also interventions that cause greenhouse gas emissions and environmental damage must be seen in the context of indigenous peoples’ human rights protection.

The discussion concerning the relationship between climate and human rights in general is now undergoing rapid development, including in the form of proceedings before national and international courts and monitoring bodies.³⁷⁷The ECtHR communicated its first climate case in November 2020, Duarte Agostinho and Others v Portugal and 32 other states (39371/20), 2020. The second case, Verein Klimaseniorinnen Schweiz and Others v Switzerland, was communicated in April 2021.

Issues concerning climate change and indigenous peoples’ human rights are also on the agenda. A case concerning this has been communicated to the Human Rights Committee by an indigenous peoples group in Australia.³⁷⁸Billy et al. v Australia, Communication No. 3624/2019 (pending). For a summary of the case, see 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”. http://climatecasechart.com/climate-change-litigation/non-us-case/petition-of-torres-strait-islanders-to-the-united-nations-human-rights-committee-alleging-violations-stemming-from-australias-inaction-on-climate-change/ A group of Torres Strait Islanders claim that their right to cultural practice under ICCPR Article 27 (as well as ICCPR 6 on the right to life and ICCPR 17 on the right to privacy) has been violated because the Australian Government does not have adequate plans and measures to reduce greenhouse gases, while at the same time not taking adequate measures to prevent damage due to rising water levels. The case was submitted in 2019 and is still under consideration by the Human Rights Committee.

Also in other international monitoring bodies, issues concerning climate and human rights are on the agenda, but without being directly linked to indigenous peoples.³⁷⁹These questions, including practice from the ECtHR, are discussed in more detail in NHRI’s report Climate and Human Rights, see p. 85 onwards. The ECtHR has (per April 2022) three cases concerning climate and human rights under consideration,³⁸⁰Duarte Agostinho et al. v Portugal and 32 other states (39371/20), Verein Klimaseniorinnen Schweiz et al. v Switzerland (53600/20), and Greenpeace Nordic and Others v. Norway (34068/21). but has not yet decided whether the right to protection against harmful climate change is covered by the Convention. Among the issues considered by ECtHR are whether Article 2 (the right to life) and 8 (the right to privacy) contain an obligation for states to prevent the risk of dangerous climate change. The outcome of these cases in ECtHR may have an impact on indigenous peoples’ right to protection against harmful climate change.

7.3 Increased knowledge

New knowledge is constantly being generated about actual conditions that are of importance for the rights of indigenous peoples in interference cases.³⁸¹NHRI has pointed out that systematised data is important for the implementation of indigenous peoples’ human rights in a number of areas in society. See NHRI’s report A human rights approach to Sami statistics in Norway. In 2020, Statistics Norway (SSB) published an analysis on the consequences of development for reindeer husbandry.³⁸²Erik Engelien, Iulie Aslaksen, and Jørn Kristian Undelstvedt, “Utbygging får konsekvenser for reinbeiteområder” (“Development has consequences for reindeer grazing areas”), 16 (SSB, 2020), https://www.ssb.no/natur-og-miljo/artikler-og-publikasjoner/utbygging-father-consequences-for-reindeer grazing areas. The analysis showed how large areas are affected by development and what consequences this will have for reindeer’s use of these areas.

It shows that knowledge about interferences in Sami traditional areas is a good example of knowledge that, when updated on a regular basis, can contribute to overall land management and an overall safeguard of the natural basis for Sami culture.

In the work on the development of the Regional Plan for Reindeer Husbandry in Troms, a comprehensive regional intervention analysis for reindeer husbandry has been prepared.³⁸³Information and the plan for this work can be read here: https://www.tffk.no/tjenester/plan-og-horinger/ pagaende-planarbeid/regional-plan-for-reindrift/. This provides important knowledge about the overall regional impact on reindeer husbandry, which appears to be a good tool in future planning for utilisation of natural resources.³⁸⁴Jan Åge Riseth and Bernt Johansen, “Inngrepskartlegging for reindrifta i Troms fylke. På oppdrag fra Troms Fylkeskommune” (“Intervention survey for reindeer husbandry in Troms County. On behalf of Troms County Municipality”) (Norut, 2019), https://www.tffk.no/_f/p1/ib5af7653-5341-4032-bc07-078f719dc5e5/ inngrepsanalyse.pdf.

In 2017, the Norwegian Institute for Nature Research published a report on wind power and reindeer.³⁸⁵Olav Strand et al., “Vindkraft og reinsdyr – En kunnskapssyntese” (“Wind power and reindeer – A knowledge synthesis”) (Trondheim: Nina, 2017). This report points to the need for more research on the overall effects of wind power plants and other pressures in relation to reindeer, including remedial measures, and more integration of experience-based knowledge in the research. This type of research may be key to future impact analyses and may contribute to laying important premises for decisions.

New research from Sweden shows that reindeer and reindeer husbandry are negatively affected by wind power developments. The cumulative negative effects of wind power in addition to other interventions for reindeer husbandry are considerable. On top of this come other influencing factors such as predator populations and climate change. This entail complex connections between these various influencing factors, which should be considered by the authorities in the planning of wind power.³⁸⁶Anna Skarin, Per Sandström, Bernardo Brandão Niebuhr, Moudud Alam and Sven Adler, “Renar, renskötsel och vindkraft” (“Reindeer, reindeer husbandry and wind power”), (Naturvårdsverket 2021) pp. 7 onwards, 111 onwards. The research was carried out by the Swedish University of Agricultural Sciences and Dalarna University, in the research program Vindval which is a collaboration between the Swedish Energy Agency and the Swedish Environmental Protection Agency, in collaboration with representatives from Mittådalen, Tåssåsen and Malå Sami villages. The number of wind turbines in the reindeer husbandry area in northern Sweden has increased from 43 in 2003, to 1557 in 2021. https://www.naturvardsverket.se/globalassets/media/publikationer-pdf/7000/978-91-620-7011-3.pdf.

Another interesting development is the emergence of reindeer husbandry studies in interference cases, carried out by persons with academic and Sami reindeer husbandry expertise in cooperation with the affected reindeer herders. These studies, which to a large extent are based on traditional knowledge about reindeer, reindeer husbandry, snow, weather, grazing conditions and previous interferences, often come to different conclusions concerning the negative effects than the regular impact assessments.³⁸⁷Tim Valio, Anders Johansen Eira and Svein Ole Granefjell, “Inngrepskartlegging og reindriftsfaglig utredning i forhold til Øyfjellet vindkraftverk (“Intervention surveying and reindeer husbandry assessment in relation to the Øyfjellet wind farm”), (Foundation Protect Sápmi 2019), p. 83 onwards. http://protectsapmi.com/assets/Documents/Ojfjellet-Vindpark /Utredning-endelig-juni-2019.pdf. Anders Johansen Eira, Svein Ole Granefjell, Isak Henrik Eira and Elli-Ristin Tuorda, “Analyse av virkningen for reindriften ved planlagt gruvedrift i Nussir og Ulveryggen i Kvalsund kommune” (“Analysis of the impact on reindeer husbandry at planned mining in Nussir and Ulveryggen in Kvalsund municipality”), (Foundation Protect Sápmi, 2020), p. 107 onwards. https://sametinget.no/_f/p1/i34eef697-e763-4735-8ab6-8390038be43b/analyze-av-virkningen-for-reindriften-ved-planlagt-gruvedrift-i-nussir-og-ulveryggen-i-kvalsund-kommune.pdf.

There is a great need for more knowledge and research on the impact of developments on reindeer husbandry and Sami conditions, particularly on cumulative effects and what may be appropriate remedial measures. The research from Sweden, as mentioned above, is an example where the traditional knowledge of reindeer herders is included in the research. As shown in Chapter 5 on administrative practice, the knowledge base is of central and often decisive importance in interference cases.

There is also no knowledge of the cumulative effects of interferences in relation to how quickly the areas within the overall Sami reindeer herding area are being reduced, and what impact this will have on Sami culture. There is a “bit by bit” reduction, without there being an overall view that says what this actually means for Sami culture in general. This is serious, and must be seen in relation to the Constitution’s overarching obligation to facilitate the development of Sami culture. It is also serious that this type of knowledge is lacking for the entire Sami reindeer herding area in Norway, Sweden and Finland. There is not enough knowledge of how the increased rate of interferences will affect Sami cultural practice as a whole.

7.4 Need for further regulation?

An overarching legislative development seems to be a strengthening of the consideration of Sami culture and a strengthening of the procedural rules for Sami participation in decision-making processes. The enactment of the right to consultation, and provisions on assessments of, among other things, cumulative effects and remedial measures in the Impact Assessment Regulations, as well as measures to improve involvement in the licensing processes, are examples of this.³⁸⁸Meld. St. (Report to Parliament) 28 (2019–2020) Wind power on land – Changes in the licensing process, p. 39. Another example is the Minerals Act, which contains procedural rights for the Sami Parliament and reindeer husbandry, and where the study by the Minerals Act Committee is likely to strengthen these. The same applies to the Nature Diversity Act.³⁸⁹Nature Diversity Act, lov-2009-06-19-100. In this context, it should be considered that the Energy Act, which regulates wind power developments, has not been part of this development, despite the fact that wind power accounts for the largest share of interferences in Sami areas of use in recent times.

Strengthening procedural rights is an important contribution to the implementation of ICCPR Article 27 and ILO 169, but this does not provide guidance on how the authorities should proceed in the actual assessment of the material content of Article 27. In its White Paper on the enactment of the obligation to consult, the Ministry signalled that in the follow-up of the Sami Rights Committee’s report, there are no plans to introduce common procedural rules for Sami cases for the administration.³⁹⁰Prop. (Law Proposal to Parliament) 86 L (2020–2021), p. 103. It will be up to each ministry to individually consider the processing of ICCPR Article 27 cases in their sector. At the same time, the White Paper states that the proposal for overall regulation of the material threshold in Article 27 will be considered in the further follow-up of the Sami Rights Committee’s proposal.³⁹¹Prop. (Law Proposal to Parliament) 86 L (2020–2021), p. 104.

There may be good reasons for considering this. The threshold for violation of ICCPR Article 27 in interference cases is not only high, it is also unclear. It may therefore be asked whether it is now time for the assessment topics in Article 27 to get a clearer footprint nationally, either in law or other regulations, even if the provision itself applies directly as Norwegian law. For legal practitioners, a more detailed instruction on assessment topics and weighting between them would have provided better guidance. For both rights holders and developers, a more detailed regulation would provide a greater degree of predictability. This threshold is of great importance for persons and groups covered by the protection of the provision, as well as for licence-seeking enterprises. There is much at stake both for the affected Sami and for the developers in a licensing process. The case concerning wind power at Fosen shows with all possible emphasis that there is a need to clarify which factors must be included in an overall assessment of whether a measure is approaching the limit for violation of ICCPR Article 27, and how these factors should be weighted.

The Fosen case also shows that issues concerning impact assessments should be considered in more detail, including the question of the independence of the investigator, which the Human Rights Committee has emphasised.³⁹²HRC, Poma Poma, para. 7.7. It is important that the public sector contributes at all times in ensuring the necessary factual basis for assessing the cumulative effect of various measures, so that the ongoing assessments are based on solid, objective factual bases.

The question of whether the practice of allowing the actual development in accordance with the licence to proceed before the question of the validity of the licence has legally been decided, will also be a topic that should be considered further after the Fosen judgment.

One challenge in interference cases is that there is often a considerable lack of “equality of arms” in the balance of strength between the parties. There will typically be reindeer grazing districts on the one hand, and large companies or the state on the other, that stand against each other in interference cases, in processes that can often become lengthy and costly. It is important to consider how this can be compensated through legal aid and the distribution of legal costs.

The practices of the Ministry of Petroleum and Energy (MPE) and the Ministry of Trade, Industry and Fisheries (MTIF) show that the requirements in ICCPR Article 27, according to the Human Rights Committees’ interpretations, are being considered in licensing processes, but the Fosen judgment shows that the weighting of the factors in Article 27 came out askew. The MPE’s licensing decision in the case shows that the state here emphasised a balancing of interests, which the Ministry itself abandoned in its later decisions, and for which there proved to be no support in the Supreme Court.

Although the threshold for ICCPR Article 27 will ultimately have to be considered specifically in each individual case, further clarification and possible regulation may contribute to increasing legal protection and predictability in this important area of law.