This particular case concerned an area on the Fosen peninsula which is used as grazing land by Sámi reindeer herders. In 2010, the Norwegian authorities had issued wind power licences for the land, on the basis of which the construction of wind turbines was completed in 2019 and 2020 as part of the largest onshore wind power project in Europe. The court has now ruled that the use of the land as a winter grazing area has been significantly impaired by the erected wind turbines and declared the construction licence to be invalid, as it breaches the right of minorities to practice their culture as set out in art. 27 of the International Covenant on Civil and Political Rights ("ICCPR").
Art. 27 ICCPR, which is generally not well-known – even in legal circles – states that persons belonging to an ethnic, religious or linguistic minority must not be denied the right, in community with the other members of their group, to practice their own culture. The ICCPR is an international covenant, signed by 173 of the 193 UN member states, which sets out civil and political rights but does not contain a binding supranational instrument for enforcing them. This is left to the respective member states.
The implementation of the ICCPR differs from member state to member state and should therefore be considered individually for every future project. In 1999, Norway passed a law granting the provisions of the ICCPR priority over national law in the event of a conflict. In Germany, the ICCPR is deemed international law and pursuant to art. 25 of the German Basic Law (Grundgesetz) forms part of federal law. Thus, in the event of a breach, an administrative act could be deemed unlawful. In Sweden, another Scandinavian country, on the other hand, there has been no implementation into national legislation, but courts are expected to interpret national law in the light of the ICCPR. Overall, to date the ICCPR has played almost no role in court decisions in the member states, with one reason quite possibly being a lack of general awareness of its provisions. However, this could now change as a result of the Norwegian judgment, which has received significant media attention.
Direct consequences which could also be applied in judgments in other countries are not evident from the Norwegian decision. The actual obligations to act that result from the illegality of the wind farm construction must first be determined by the competent Norwegian ministry. What is certain is that, at least in Norway, the granting of a final and unconditional construction licence does not constitute a guarantee for the legality and continued validity of the future project.
Banks and investors, however, must now ensure that both in the early project development phase and during the due diligence process particular attention is paid to the rights of minorities who may potentially be affected. This is crucial in particular because, under certain circumstances, neither monetary compensation nor the provision of alternative land would constitute an adequate means of minimising risk.
Cultural impacts must already be taken into account in the project planning phase as part of the environmental impact assessment ("EIA"). In Europe, the 1991 Convention on Environmental Impact Assessment in a Transboundary Context stipulates that the EIA must also include effects on cultural heritage or socio-economic conditions in the project area. The EU directive on environmental assessments published in 2001 likewise includes the protection of the population and cultural heritage in the environmental effects. In its proposals for the impacts to be evaluated as part of an EIA, the UN explicitly mentions socio-cultural aspects such as the habits of local ethnic groups. Against this background, it is imperative in future projects to interpret the stipulations concerning the environmental assessment more broadly than was previously the case.
For banks, the Equator Principles – voluntary principles for adhering to environmental and social standards in the area of project financing – provide direction. The fifth principle states that all projects which impact indigenous peoples must conduct a consultation and participation process and appoint a qualified independent consultant to do so. The consultant evaluates whether the proposed project complies with the rights and protections of the indigenous peoples pursuant to the relevant national laws, including the international obligations under the ICCPR. It is certain that more attention must be paid to this issue in the future.
Authored by Tobias Faber and Kristina Laewen.