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Statnett SF v. Sør-Fosen Sijte (Sup. Ct. Nor.)

Published online by Cambridge University Press:  03 October 2022

Tom Syring
Tom Syring*
Affiliation:
Tom Syring is Chairman of the Human Rights Research League and a Visiting Scholar at the Max Planck Institute for Comparative Public Law and International Law in Heidelberg, Germany. He held the 2020 American-Scandinavian Foundation Visiting Lectureship in the Rule of Law and Forced Migration and served as Adjunct Professor of Law at Ohio Northern University, United States.
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Extract

On October 11, 2021, the Supreme Court of Norway, sitting as a Grand Chamber, had to decide in three interconnected cases (HR-2021-1975-S) whether the construction of certain wind power plants, which will form part of the largest onshore wind power project in Europe, in a particular rural area interfered with (Sami) reindeer herders’ rights to enjoy their own culture according to Article 27 of the International Covenant on Civil and Political Rights (ICCPR). The case, which had been initiated long before Russia's war of aggression against Ukraine and concomitant spiking energy prices—which might have added an extra dimension to the underlying, countervailing issues—pits efforts to increasingly produce “green,” renewable energy and the minority rights of a particular cultural group against each other. Taking the peculiar requirements of reindeer husbandry, the need for safe winter pastures, and the specific geographical conditions of the locus delicti into account, the Court concluded that the windfarms would have a substantial negative effect on the reindeer herders’ possibility to enjoy their own culture, which, in the absence of satisfactory remedy measures, threatened the very existence of reindeer husbandry on Fosen, and therefore found a violation of Article 27, ICCPR.

Type
International Legal Documents
Information
International Legal Materials , Volume 61 , Issue 6 , December 2022 , pp. 991 - 1017
Copyright
Copyright © The Author(s), 2022. Published by Cambridge University Press on behalf of The American Society of International Law

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References

ENDNOTES

1 Supreme Court of Norway, Judgment of 11 October 2021, HR-2021-1975-S (Case No. 20-143891SIV-HRET, Case No. 20-143892-SIV-HRET, and Case No. 20-143893SIV-HRET), https://www.domstol.no/globalassets/upload/hret/decisions-in-english-translation/hr-2021-1975-s.pdf [hereinafter Judgment].

2 Fosen is a peninsula in Trøndelag County, and thus one of the southernmost parts of Norway where Sami people live and exercise reindeer husbandry, the majority of Sami people living in the northern Norwegian counties (and northern regions of Norway's neighbors to the east—Sweden, Finland, and Russia).

3 A siida—or “sijte” in the South Sami language—is, according to section 51 of the Reindeer Husbandry Act, a group of reindeer owners practicing reindeer husbandry jointly in specific areas.

4 Judgment, supra note 2, ¶¶ 9, 11.

5 Id. ¶ 13.

6 Id. ¶ 15.

7 Id. ¶ 16.

8 Id. ¶ 19.

9 Id. ¶¶ 21–23.

10 Id. ¶ 78.

11 Id. ¶ 90.

12 Id. ¶ 86.

13 International Covenant on Civil and Political Rights, Dec. 16, 1966, 999 U.N.T.S. 171, art. 27. Emphasis added.

14 Judgment, supra note 2, ¶ 145.

15 The Constitution of the Kingdom of Norway (May 17, 1814), https://lovdata.no/dokument/NLE/lov/1814-05-17.

16 Judgment, supra note 2, ¶¶ 124, 129.

17 Id. ¶ 131.

18 Id. ¶ 143.

19 Id. ¶ 111.

20 Id. ¶ 77.

21 Id. ¶ 149.

22 Id. ¶ 151.

23 As, for example, Øyvind Ravna points out, it appears to be both arrogant and a high-risk exercise that another, similar, and comparably disputed development project near Mosjøen (in Nordland County, Norway) has still not been put on hold, neither by the developer, nor by the responsible Ministry of Petroleum and Energy, where it seems they rather gamble on the courts coming to a different conclusion than in the Fosen case. See Øyvind Ravna, Sameretten etter Fosen-dommen [Sami Law after the Fosen Judgment], Juridika (Feb. 6, 2022), https://juridika.no/innsikt/sameretten-etter-fosen-dommen.

24 Cf. Pål Velo and Christian Belgaux, Skal Senja velge stein eller rein? [Shall Senja Choose Stone or Reindeer?], Morgenbladet (June 24–30, 2022), pp. 6–11. A recent report by Geological Survey of Norway (NGU) estimates that the total in-situ value of such minerals thus far mapped and hidden in Norwegian soil and mountains amounts to 3696 billion NOK (more than 360 billion USD), see https://www.ngu.no/upload/Publikasjoner/Rapporter/2022/2022_009.pdf (available only in Norwegian). Cf. also for a Nordic perspective (and available in English), a report by Nordic Innovation on The Nordic Supply Potential of Critical Metals and Minerals for a Green Energy Transition, https://www.nordicinnovation.org/critical-metals-and-minerals.

25 As conveyed by Miguel de Cervantes in the first part of his epic novel, The Ingenious Gentleman Don Quixote of La Mancha (1605).

26 Each of the 151 turbines comprising the Roan and Storheia part of the Fosen Wind project has a tower height of 87 meters (more than 95 yards), https://www.statkraft.com/about-statkraft/where-we-operate/norway/fosen-vind.