Norway Supreme Court determined Sámi people's right to enjoy their own culture in wind power case

On OCT 11, 2021 (Monday), the Supreme Court of Norway ruled that the right of Sámi reindeer herders "to enjoy own culture" is protected under Article 27 of the United Nations International Covenant on Civil and Political Rights (ICCPR) and found the concession for a wind turbine in the Fosen-halvøya (Fosen peninsula) in violation of that right.

The Sámi are recognized as indigenous inhabitants under the Norwegian Constitution. Article 108 of the constitution identifies "the responsibility of the authorities of the State to create conditions enabling the Sámi people to preserve and develop its language, culture and way of life". Acknowledging the duty of the States, Article 27 of the ICCPR states that “[i]n 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.” ICCPR is ratified in Norwegian law through the Human Rights Act.

Reindeer herding is considered to be an important culture of Sámi people. The Reindeer Husbandry Act was enacted to preserve reindeer husbandry as an important foundation for Sámi culture and social life (Section 1). The provisions of The Act are applied in accordance with the rules of international law relating to indigenous people and minorities (Section 3). Section 32 of the Act limits the occupation of reindeer herding to only those of Sámi descent who have a history of reindeer herding as a primary occupation. Persons who conduct reindeer husbandry are entitled to freely and unhindered drive and move along with their reindeer in the reindeer grazing areas where the reindeer may legally roam (Sec. 22). Sec. 63 prevents landowners in a reindeer grazing area from using their property in a way that can cause material harm or disadvantage to the conduct of reindeer husbandry. 

This particular case concerned the validity of decisions on licenses and expropriations for wind power. The Supreme Court heard the appeal to determine whether the concession was in violation of Article 27 of the ICCPR (Decision ¶ 2). The court highlighted that the Article 27 of ICCPR does not provide any margin of discretion to the States and it does not allow for a proportionality assessment where other societal interests are weighed against the interests of the minority. Court further stated that the minority protection would be ineffective if the majority population limit it for their legitimate needs. (Decision ¶ 129). The court unanimously held the concession invalid and in violation of the Article 27 of ICCPR. This court discretion is effective only to the wind power plants in Storheia and Roan, not to the Statnett's 420 kV power line (Decision ¶ 153).

The entire judgment is currently available only in Norwegian. Click here to download.

Here's the unofficial english version of the judgement provided by IPLP.