11 October 2021 marked an important day for the indigenous Sámi in Norway: the Norwegian Supreme Court ruled that traditional reindeer grazing grounds on the Fosen Peninsula in Central Norway cannot be used as a site for wind turbines, operated by Fosen Vind. This means that two large wind farms, Roan and Storheia, may have to shut down.
The legal basis for this ruling is Article 27 of the 1966 International Covenant for Civil and Political Rights (ICCPR). This article reads:
“In those States in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practise their own religion, or to use their own language.”
Since the indigenous Sámi are a minority in Norway while being strongly dependent on reindeer herding, this practice is protected as an element of Sámi culture. The Sámi thus have a right to herd reindeer without interference. Despite this right, in 2010 the Norwegian Water Resources and Energy Directorate granted licences to Fosen Vind for the construction wind parks on grounds that had been identified as important reindeer herding sites. Not surprisingly, reindeer herders strongly opposed this construction.
Nevertheless, Fosen Vind finished the construction of the Roan and Storheia wind parks in 2019 and 2020 respectively, sparking outrage amongst the Sámi. Since the herders’ claim that the wind park infringes upon their right to exercise their culture was rejected by the Directorate, the issue was taken before the court.
In this blog post I consider this case in light of the expanding ‘green economy’ in Norway, exemplified by wind farms, paying special attention to indigenous rights. One remark needs to be made beforehand, however: the issue of Sámi rights in northern Scandinavia is a highly contentious issue and I touch upon it in this post very superficially. In order to gain a better understanding, I will add a ‘Further reading’-section to this post, leading to literature that deals with Sámi rights and land use in much more depth.
Indigenous rights in Norway
Norway is one of the few Arctic Council member states having ratified the Indigenous and Tribal Peoples Convention No. 169 of the International Labor Organization (ILO) from 1989. This convention is the only international legally-binding convention on the rights of indigenous peoples, but has a mere membership of 24 countries with Germany being the latest member having ratified it in June 2021 (thus entering into force in June 2022). Based on its commitments arising out of the ratification of ILO 169, Norway has put in place the Finnmark Act in 2005, which placed 96% of the country of Finnmark in northern Norway under the control of the Finnmark Estate, comprising equally of Sámi and non-Sámi members.
Norway has furthermore endorsed the adoption of the UN Declaration on the Rights of Indigenous Peoples (UNDRIP) in 2007. On paper, therefore, Sámi rights should be rather well protected in Norway. Reality, however, paints a different picture and for years the Norwegian Sámi, especially those not engaging in reindeer herding (Sea Sámi) have struggled with the recognition of their rights. Land use conflicts persist in which reindeer herders, mining companies, tourism operators or forestry compete over the same stretches of land (here). Also the Norwegian Supreme Court has been criticised as issuing judgements that are neither just or fair while neither being rooted in an understanding of the Sámi culture (here).
Norway’s economy and its climate change commitments
Currently, the petroleum sector comprises the largest economic pillar in Norway, amounting to 9% of jobs, 12% of the country’s GDP, 13% of its revenue and 37% of exports. This makes Norway one of the world’s leading petroleum exporters (here). However, oil was only discovered and first produced in the 1960s. Before and as of today, the country also has a vibrant fishing and forestry industry while tourism and other private sector companies have established a solid middle class. The claim that Norway was a poor country prior to oil discovery and that it would be a poor country with out the oil today cannot be held up (here).
Norway is a party to the Paris Agreement on climate change, the UN Framework Convention on Climate Change and the Kyoto Protocol. It therefore has placed strong commitments onto combatting climate change and reaching the below-1,5°C goal. While that may be so, the Climate Action Tracker ascribes Norway insufficient policies and actions and notes that if “all countries were to follow Norway’s approach, warming would reach over 2°C and up to 3°C” (here). This is quite surprising since Norway has produced its domestic energy almost exclusively from renewable energies such as hydropower. Yet, it has failed to develop efficient policies for the phasing out of a carbon-based transportation sector.
In how far the ongoing COP26 of the UNFCCC will have an impact on Norway’s climate change policies remains to be seen.
While most of Norway’s energy is being produced through renewables, this situation was slightly different in the early 2000s when national energy production could not keep up with energy consumption. This forced the Norwegian government to import energy from its neighbours. In order to maintain its energy independence, however, the construction of wind farms was announced to be completed by 2010 (here). The expansion of the wind energy sector was completed by 2019 and 2020 with the finalisation of the Roan and Storheia wind parks – the two wind parks now possibly being forced to be un-built due to the Supreme Court’s judgement. If that were the case, Norway would lose its largest wind park, Roan, with 71 wind mills, producing 900 GWh (here).
All in all, there are 63 offshore wind park projects in Norway of which 4 are operational. It is unclear how many wind farms are located onshore since they are operated by numerous operators and companies, nationally and internationally.
A growing ‘green economy’ as a cause for conflict?
Wind farms, and in particular offshore wind farms in the North Sea are frequently criticised as disrupting ecosystems and threatening birds (e.g. here). In conservative circles, this is even politically used as an argument against renewable energies as such. While there are certainly disadvantages of wind energy, such as cost, noise pollution and aesthetics, it cannot be denied that this is a clean and renewable resource.
The conflict in Norway and the judgement of the Supreme Court should, in my view, not be considered as an argument against renewable energies and not as a precedent judgement against wind farms. Instead, the judgement and the preceding discussions are a classic conflict over land use. If it had not been wind farms, but solar panels or a mine instead, the conflict would have presumably been very similar. After all, reindeer are easily disturbed by infrastructure (e.g. here). Moreover, in times of a changing climate, reindeer pastures experience a high degree of change, making it more difficult for the animals to find food (here).
When there are different actors/stakeholders wishing to make use of the same region, it is particularly the Sámi who are often placed at a disadvantage, particularly in Finland or Sweden (here or here). This is also because neither Finland nor Sweden have ratified the ILO Convention No. 169.
The question thus remains whether wind farm expansion in the Sámi homeland inevitably leads to more conflict. This does not seem unlikely. Not because it is wind farms, but because land tenure issues have not been resolved in such a way that places all stakeholders on equal footing. This is to say that despite proven land ownership of the Sámi prior to colonisation, it is oftentimes the state government that decides on the way land is to be used or whether Sámi rights are considered sufficiently.
While it is laudable that countries commit themselves to the goals of the climate regime, this cannot happen at the expense of traditional land users. In order to really implement new ways of thinking into the way energy is being produced, proper consultations are the key aspect. This is to say that before selling licences to companies for the generation of wind power, proper environmental and social impact assessments need to be conducted while the principle of free, prior and informed consent (FPIC), a key right for indigenous peoples, needs to be respected. Governments need to take the protests of land users/owners seriously, because otherwise, more cases like the present one could occur. And this, it seems fair to say, would lead to financial damages of both wind farm operators and reindeer herders.
Some further reading
- Åhren, M. (2016). Indigenous Peoples’ Status in the International Legal System. Oxford: Oxford University Press.
- Allard, C. & M. Brännström (2021). Girjas Reindeer Herding Community v. Sweden: Analysing the Merits of the Girjas Case. Arctic Review, 12, 56-79. https://doi.org/10.23865/arctic.v12.2678
- Koivurova, T. & A. Pétretei (2014). Enacting a new mining act in Finland: how were sami rights and interests taken into account? Nordisk miljörättslig tidskrift 1, 119-133. https://nordiskmiljoratt.se/onewebmedia/NMT%202014-1.pdf
- Nystén-Haarala, S., T. Joona & I. Hovila. (2021). Wind Energy Projects and Reindeer Herders´ Rights in Finnish Lapland: A Legal Framework. Elementa 9 (1), 1-17. https://online.ucpress.edu/elementa/article/9/1/00037/118041/Wind-energy-projects-and-reindeer-herders-rights