The Fosen case in Norway highlights the challenges and conflicts that can arise when establishing wind power plants in reindeer herding areas. Despite the difficulties, it is unlikely that wind power development will come to a complete halt in such regions. There must be a substantive, negative impact on the possibility of cultural enjoyment for a project to be considered unacceptable.
The Fosen case saw the construction of a wind power plant that had severe negative consequences on the indigenous Sami people’s ability to practice their culture. The Supreme Court deemed this a breach of human rights. However, one of the major issues in the case was that the wind power plant had already been built before the court reached this conclusion.
When establishing wind power plants in reindeer herding areas, involved parties should first seek agreement. If the affected reindeer herders do not consent, the developer must obtain permission from the state to intervene in the reindeer herding rights by force (expropriation). In the Fosen case, the developer received such permission.
By law, courts should first clarify whether the expropriation violates human rights before permitting the construction of the wind power plant. There is an exception to this rule: if the Ministry of Petroleum and Energy deems it unlikely that the Sami people would win their claim that the project violates human rights, they can permit the developer to build before the courts have decided. This exception was granted in the Fosen case, allowing the wind power plant to be built before the Supreme Court ruled on the issue.
The Fosen case demonstrates that courts may disagree with the ministry’s assessments. Consequently, it may be worth considering changes to the rule of preliminary permission, ensuring that courts always clarify the relationship to human rights before establishing wind power plants in central herding areas.
As for the Fosen case, further investigations should not be limited. Although the state benefits from the continued operation of the wind turbines, short-circuiting processes and bypassing legal requirements is not advisable.
In future processes, it is essential to allow courts to clarify the relationship to human rights before establishing wind power plants in central herding areas. This will help protect the rights of the indigenous population while balancing the need for sustainable energy solutions.
Read the original op-eds authored by Gullik-André Fjordbo (in Norwegian):