Fosen: Wind power and reindeer herding - now what?

The Norwegian Supreme Court’s Grand Chamber decision dated 11 October 2021 in the Fosen case has received a lot of attention.

Wind power investors and license authorities have made cautious and reserved comments, opponents of wind power development have made fiery and triumphant remarks, reindeer herders and representatives of the indigenous Sámi people have celebrated the Court’s recognition of their rights, and legal scholars have dubbed the case historical. None of this is surprising. The decision will have significant importance in future wind power and other development projects in reindeer herding areas.

The decision overturned a ruling from Borgarting Court of Appeal in which two groups of reindeer herders were awarded around NOK 90 million in compensation for negative consequences of Roan and Storheia wind farms. A significant portion of the amount was to compensate for mitigating measures related to winter feeding of reindeer, due to loss of winter pastures caused by the wind farms. The Supreme Court threw the whole appraisement dispute out from the courts, because it found the license decisions for the wind farms to be invalid. 

The Court found the license decisions to be invalid because the wind farms represented, in the Court’s opinion, a violation of the reindeer herders’ rights pursuant to the International Covenant on Civil and Political Rights (CCPR) Article 27. This article protects ethnic, religious or linguistic minorities from being “denied the right, in community with the other members of their group, to enjoy their own culture”. 

The Court found that the two wind farms would have a substantive negative impact on the Sámi reindeer herders’ ability to practice their traditional herding culture. The wind farms cover 60 square kilometers of land, and the Court considered that they cause a loss of winter pastures in areas which are important for the reindeer herding and the herders’ culture in late winter periods. In the long term, the Court found that the wind farms will cause a loss of grazing opportunities which cannot be compensated fully by using alternative pastures, and that the number of reindeer in the area will have to be reduced significantly. Without satisfactory mitigating measures, the Court concluded that this would lead to a violation of CCPR Article 27. Unlike the Court of Appeal, the Supreme Court did not consider a financial compensation for new winter feeding methods to be a sufficient mitigating measure. The Court points out that the use of such new feeding methods would deviate significantly from traditional herding practices, i.a. by restricting half the reindeer herd into a relatively small fenced enclosure for 90 days each winter.

The Supreme Court maintains that the State does not have a margin of appreciation in its interpretation and application of CCPR Article 27, and that there is no general opening for limiting the protection offered by Article 27 based on proportionality or a balancing of the interests of indigenous people against other interests which the state may legitimately pursue. 

On this very important point, however, the Supreme Court makes a reservation which may turn out to be significant in future renewable energy projects: The Court states that a balancing of interests may be necessary in situations where the rights protected by Article 27 come in conflict with other fundamental human rights. In such a case, the conflicting rights must be weighed against each other and harmonized. The right to a clean and healthy environment is used as an example of a fundamental right which in a given situation may be sufficiently important to mandate a balancing of interests. Climate interests and the interest of the public in a clean environment (more broadly referred to by the Court as considerations for the “green shift”) may in other words be relevant in assessing the reach of Article 27. In the Fosen case specifically, the Court held that such a balancing of interests was unnecessary, with reference to choices made early in the licensing process. The Court maintains that other development options were available, which would provide clean renewable energy without being as detrimental to the reindeer herding interests.  

The Supreme Court’s decision does not directly and immediately nullify the licenses held by the wind farm owner. The Court’s opinion that the license decisions are invalid does not form part of the judgment conclusion. The Supreme Court’s decision is that an appraisement dispute is dismissed from the courts. This means that the courts will not determine the level of compensation to be paid to the reindeer herders for expropriation of herding rights. The reason is that the project does not have a valid legal basis for expropriation.  

In our view, it is not obvious what the consequences will be for Storheia and Roan wind farms. We believe both the Ministry of Petroleum and Energy, the wind farm owners and reindeer herders will need some time – and should take the necessary time – to find a way out of the current difficult situation. Two levels of regulatory authorities have concluded that the projects provide benefits to society as a whole that clearly outweigh the negative impacts for reindeer herding interests, after considerable licensing processes which spanned many years and involved a great number of interested parties. Subsequently, two instances of the Norwegian courts have concluded that the licenses and expropriation permits are valid, and awarded compensation. During that court process, the wind farms were built, according to common practice in expropriation cases. 

We now know the final legal conclusion: The projects, such as they are, without satisfactory mitigating measures, violate the cultural rights of the Sámi reindeer herders. 

At the same time, we know that 151 wind turbines with an annual production of close to 2 TWh of renewable electricity, are in full operation. They are a presence in those Fosen mountains, among four other large wind farms. The impact they have on the natural environment and for the reindeer, is a fact of life, and not easily reversed. 

The judgment states that it is not for the courts to come up with mitigating measures; such measures must be decided by the license authorities or the developer. We will refrain from speculation, other than to state that a full dismantling of the two wind farms is only one alternative among a range of possible outcomes. 

Finally: Even if it is clear that the Fosen decision will be of great significance in other projects in reindeer herding areas in the future, it is inaccurate to state that it shuts the door for future wind power development in such areas. The decision is based on a thorough examination of facts pertaining to the Fosen development specifically, where the Court concluded that the two wind farms cause significant loss of important pasture areas and threaten the very existence of reindeer herding on the Fosen peninsula. The Court also refrained from a balancing of the interests of reindeer herders against the public’s interest in a clean and healthy environment, due to specific circumstances in the licensing process for Fosen. 

In future cases, the Fosen decision will be the go-to source for legal analysis. But the facts will need to be examined individually in all cases, and mitigating measures will be a key concept.