by Ramadan Metalia
This blog is part of the ‘Environmental Justice and the Law – A Student Blog Symposium.’
Introduction
When you think of environmental justice, you may picture battles over dirty industries and pollution. However, even green energy projects like the ambitious Fosen Vind onshore wind farm in Norway can raise an array of significant issues of justice, especially for Indigenous communities. The Fosen Vind Project, despite all the positive externalities it sows for the environment, encapsulates a struggle between the drive for renewable energy and the preservation of Indigenous rights. The legal saga between the Sami people and the state of Norway, addressing the contradiction of rights the Fosen Vind project has brought about, is still ongoing. However, throughout the last few years, there has been a range of judicial decisions displaying a mixed correlation of attitudes towards environmental justice regarding Indigenous people in Norway, of which we will delve into each of them.
Fosen Vind v Sami People Background
The rising trend in pursuit of renewable energy has seen a rise in ‘green grabbing’ and ‘sacrifice zones,’ where land is seized for the use of environmental purposes. The notion of sacrifice is emphasised here when considering the consequences the Fosen Vind project has posed for the Sami People in the region. In August, 2016, the construction of the Fosen Vind began and upon its completion, it marked itself as Europe’s largest onshore wind power project in Central Norway, comprising a total of six wind farms. As aforementioned, whilst this was a renewable energy project that promoted significant sustainable benefits, the externalities, such as noise pollution, indirectly affected factors pertaining to Indigenous people’s traditional practices. By this, we refer to the noise of the wind turbines scaring away local reindeer from continuing their habitation in the area. As well as this, the wind farms occupy critical grazing lands and migration routes, subtracting from the available pasture and increasing stress on reindeer. The Sami people, Indigenous to the Arctic regions of Norway, Sweden, Finland, and Russia, have practiced reindeer herding for millennia, disrupting a significant facet of their herding experience. This tradition is not merely an economic activity but a cornerstone of their cultural identity and is consequently a legally protected right in Norway. For this reason, many Sami people were outraged by the decision from the state of Norway to grant Statkraft permission to continue with the plans for the windfarms, asserting it was a discrimination of their legal rights.
Environmental Justice – Procedural and Distributive Injustice
Ironically, this project that aimed to find a solution to address climate justice issues became a problem of environmental justice. By environmental justice, we refer to the just treatment of all people regardless of race, income, tribal affiliation, and other characteristics in agency decision making that affect human health and the environment. In particular, many studies have demonstrated a solid correlative pattern linking inequitable exposure and risks with the poorest and most marginalised communities. It seems in the case of the Sami people versus the Norwegian state, history repeats itself, as the Indigenous population, which stands as a marginalised community, sees an array of their rights violated for economic gain. In particular, history hits a little closer to home for the Sami people, who have historically fought to maintain their sovereign identity and seen forced assimilation imposed upon them by the Norwegian government. A large reason for this is due to procedural injustice the Norwegian State displayed by ignoring the pleas of the Sami people and opting to permit the construction of the Fosen Vind project. Procedural injustice is evident in this case due to the inadequate consultation and participation of the Sami people throughout the planning and approval processes for the Fosen Vind project. The lack of cooperation with the marginalised group regarding a matter so vital to their rights and needs almost repeats the kind of attitude the Norwegian state showed the Sami people during their forced assimilation. Essentially, the state is again imposing some form of undesired regime onto the Sami people that would otherwise have been non-clashing with the average Norwegian citizen and the state’s wishes. The ignorance of the Sami people’s consultation rings familiarity with the notion that the Norwegian state could again impose its will on the marginalised community as they wished.
This procedural injustice was acknowledged by the United Nations, who publicly advised Norway against the continuation of the wind farms. This is because Norway’s actions directly opposed the articles listed in the United Nations Declaration on the Rights of Indigenous Peoples (‘UNDRIP’). In particular, Article 18 states that “Indigenous peoples have the right to participate in decision-making in matters which would affect their rights, through representatives chosen by themselves in accordance with their own procedures, as well as to maintain and develop their own indigenous decision-making institutions.” This demonstrates legislative guidance that completely contradicts the actions of the Norwegian state, who clearly did not satisfy the necessary consultation needed with the Sami people before the construction of the wind farms. As well as this, it “mandates that states shall consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions to obtain their free, prior, and informed consent (FPIC) before adopting and implementing legislative or administrative measures that may affect them’’ under Article 19. Again, as seen through the adamant protesting against the project by the Sami people, the idea that the Norwegian state had any form of ‘free, prior, and informed consent’ prior to proceeding with the project is evidently fictitious. Despite this warning against the continuation of the project from the UN directly, combined with the fact that Norway was one of the founding members of the United Nations, they still opted to ignore the calls for suspension of the project.
Circulating back to the impeded procedure of reindeer herding for the Sami people, another form of environmental justice owed to the Sami people is compromised through the form of distributive injustice. By this, we refer to the disproportionate impact of the environmental decision to implement the wind farm on the Sami people. In particular, the diversion of reindeer away from the area due to noise pollution disrupts not only their traditional way of life, but the economic distribution they galvanised from the meat and fur functions associated with the labour of their herding. The UNDRIP also has provisions protecting this form of justice for indigenous people. Article 3 states, “Indigenous peoples have the right to self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.” Whilst the Norwegian government has not directly infringed the Sami peoples’ rights to freely pursue their economic, social and cultural development, their placement of wind farms on their land has impacted their ability to continue reindeer herding. Consequently, this is another example of a legislative provision from the United Nations that the state of Norway has chosen to ignore. While the UNDRIP addresses explicitly the rights of Indigenous people, its inability to impose any legal action on Norway relies on the fact that it is not legally binding.
What this demonstrates is that Norway’s decision to permit the Fosen Vind project actively and knowingly disregarded the human rights of the Sami people in favour of economic gain. The state exercised an option that will always stick with the Sami people, who will have to confer with the same government on potential issues in the future. Although, considering the ever-growing scarcity of land and the need for resource extraction development, it may make sense that the Norwegian state did face a dilemma of complex proportions. The pursuit of renewable energy generates not only substantial economic gain for the country but simultaneously ensures a sustainable solution for the nation in a world already experiencing the vast impacts of climate change as a result of careless pollutive generation of energy. Nonetheless, it cannot be expected that one environmental need trumps the justice of the other, especially to the complete detriment of the Sami people. The Supreme Court of Norway addressed this.
Supreme Court Judgement – A reversal of fortunes?
On October 11, 2021, the Supreme Court ruled that two wind farms were harming reindeer herders from the Sami people.In particular, the Supreme Court analysed Article 27 of the International Covenant on Civil and Political Rights (‘ICCPR’), which states that “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.” The Supreme Court found that the Fosen Vind project violated this article, and that traditional Sami reindeer herding is a form of protected cultural practice. The role of the ICCPR was demonstrated in imposing change compared to the legal framework of the UNDRIP, mainly because the ICCPR is legally binding. It acknowledged and enacted the reality that Sami people were subject to both procedural and disruptive justice due to the Fosen Vind project. This, combined with the fact Norway is a signatory of the Indigenous and Tribal Peoples Convention, 1989 (No. 169) (ILO 169), which is also a legally binding legislative framework, served as a narrowing device for the Supreme Court when deciding the environmental injustices the Sami people had faced.
Nonetheless, this should have sparked the end of the long legal battle with Fosen Vind and the Norwegian State for the Sami people, right? Wrong. Despite the initial optimism associated with the Supreme Court ruling, the operation of the two Fosen Vind windfarms, which were instructed to be taken down, were still operating up to three years after the decision. This understandably provoked mass disappointment amongst the Sami people, who had appealed to the courts for help, only to see the environmental justices continue. It is arguably more disheartening due to the fact the courts, who are thought to have the power to inflict these kinds of decisions, showed an inability to impose change even following the ruling. The delay in ability to impose any change represents the overpowering economic shadow that lurks over environmental justice matters. The prime minister of Norway, Gahr Støre, has acknowledged “ongoing human rights violations” and all the government could do was apologise for failing to act on the issue despite the Supreme Court ruling. The energy minister went a step further by ensuring the demolition of the wind turbines was not a possibility. Only recently, on March 6th, did Norway reach an agreement with the Sami people to ensure the country’s wind farms could stay in operation. Under the agreement, Norway addressed areas of distributive justice that may have caused the Sami people to suffer previously. In particular, the agreement allocated a percentage of the “energy produced by the windfarms to the Sami people for local use, a new area for winter grazing and a grant of 5 million kroner to strengthen Sami culture.’’
This provides a somewhat proactive solution to the “green grabbing” tendencies of the government in their pursuit to galvanise as much renewable energy as they can from the environment whilst balancing the rights of the Indigenous people it affects in the process. However, the sheer duration it took for the government to compensate the Sami people demonstrated a colossal display of disregard for their rights even despite the pitiful ‘apologies’ made by the ministers. Moving forward, what could Norway do to ensure the government cannot bypass the laws and evade its duty of environmental justice?
Moving Forward: Recommendations for action
The pursuit of sustainable energy is likely only to grow, and the rising trend of ‘green grabbing’ is not expected to stop. Consequently, it is essential that we first analyse the current legal framework available and its effectiveness regarding environmental justice. While the law ultimately achieved its goal of addressing environmental justice, and eventually aided the Sami people, the time it took to impose this was far too long. Whilst, understandably, legal cases can take time to address, especially when they involve powerful corporations and governments, the time allowed for said parties to deal with the consequences of their convicted injustices is, again, far too long. The courts could attempt a penalty system to ensure higher compensation toward the affected parties and simultaneously punish corporations for taking longer to resolve disputes. This would not only increase the urgency and willingness of corporations and the government to commit to dispute resolution with Indigenous groups, but it would also increase the likelihood of consultation before projects to avoid future inconveniences. Clearly, there has not been enough economic incentive for these corporations and the government to deal with marginalised groups, and not just in Norway.
Consequently, the imposition of said economic consequences would spur the interest of these parties, whether through genuine interest or not. The knock-on effect of an increase in the requirement to consult could be improved by “affecting simple improvements when visiting communities.” This would encourage more of a partner orientated relationship between corporations, the government, and Indigenous people, removing some of the aforementioned hostility associated with the history of assimilation. This, combined with comprehensive impact assessments of new green energy projects, could ensure the harmonious existence of Indigenous rights and the impacts of renewable energy implementation.
Conclusion
The Fosen Vind Project serves as poignant example of the complex interplay between environmental justice and the pursuit of renewable energy. Despite the project’s positive contributions through sustainable energy, it has resulted in significant distributive and procedural injustices against the Sami people, whose cultural and economic practices have been disrupted. The Supreme Court’s judgment in favour of the Sami highlighted these injustices and affirmed the importance of upholding Indigenous rights. However, the continued operation of the wind farms despite this ruling points to a significant gap between legal victories and their practical enforcement. Moving forward, it is pivotal to strengthen legal protections that ensure FPIC is genuinely obtained from Indigenous communities. Enhancing consultation processes to include Indigenous voices meaningfully, leveraging international advocacy, and conducting comprehensive impact assessments are all necessary steps. Additionally, the adoption of collaborative approaches that provide palpable benefits to these communities while simultaneously respecting their traditions can help balance the imperatives of climate action with the protection of Indigenous rights.