Reindeer husbandry and wind power: The Fosen case

Agreement on an amicable settlement in Nord-Fosen

On Wednesday, March 6, 2024, an agreement was reached in the mediation between Nord-Fosen Siida and Roan Vind DA. The parties have entered into an agreement that safeguards the reindeer owners' right to cultural practice, both in the short and long term. The production of renewable energy will continue as it stands today.

Due diligence assessment for Roan Vind DA in the Fosen case

The Roan wind farm was planned before the Transparency Act entered into force, but assessments closely aligned with current legal requirements were conducted already before the development took place:

Comprehensive impact assessments concerning the effects of the Roan wind farm on reindeer herding were carried out in connection with the licensing process in 2008-2013. As part of this evaluation, the Ministry of Petroleum and Energy (MPE) assessed the consequences for reindeer herding in light of article 27 of the UN Convention on Civil and Political Rights (ICCPR), with the conclusion that Art. 27 ICCPR was not violated.

Roan Vind and its owners have assumed that the effects on reindeer herding in the area were thoroughly and well assessed in connection with the licensing process and have not observed anything to suggest that the assessments from that period are no longer viable. The company has maintained an ongoing and open dialogue with the affected reindeer herding group (the North Fosen siida) for many years about the effects of the company’s other power production projects in Fosen, and also in this extrajudicial dialogue, the company has not received information, input or demands to suggest that the assessments from the licensing process in 2008-2013 are no longer viable.

Before construction work started, at the latest in 2016, the reindeer owners in North Fosen consented in writing to the construction and operation of the Roan wind farm and signed an agreement stating that they would not initiate legal disputes about the validity of the licence and the expropriation permit for the wind farm in Roan. They agreed to the commencement of construction work, as only the compensation amount still had to be clarified.

On 11 October 2021, the Supreme Court ruled that the licence and expropriation decisions for the Roan and Storheia wind farms were invalid because the decisions did not include satisfactory remedy measures for the reindeer herders affected. The Supreme Court held that the decisions therefore constitute a violation of the rights of reindeer herders under Art. 27 ICCPR.

The Supreme Court judgment holds that new factual knowledge about the effects of the development of the Roan wind farm has emerged after 2013, the consequence of which is that the impact assessment from the licensing and appeal process in 2008-2013 is no longer complete. The Supreme Court judgment does not state that the wind farm has already caused actual negative consequences for the fundamental human rights of the reindeer herders, including Art. 27 ICCPR, but it establishes that the absence of adequate remedy measures will ultimately have the result that the wind farms will hinder the affected reindeer herders’ cultural enjoyment.

Toril Marie Øie, Chief Justice, pointed out on 10 January 2022 that the Supreme Court has not expressed any opinion about the consequences of the judgment, and has thus not expressed any view as to whether the wind turbines in Fosen must be dismantled.

The licence for the wind farm was not revoked as a result of the Supreme Court judgment, but the State is obliged to initiate a process to assess whether the breach can be repaired. Consequently, the MPE has announced a reversal process to make new decisions that do not violate the rights of reindeer herders under Art. 27 ICCPR.

Roan Vind and its owners are actively engaged in the MPE’s reversal process to map the potential negative consequences of the wind farm development, establish a good dialogue with the reindeer herders, and consider suitable measures to stop, prevent or limit negative consequences in accordance with section 4 1^st subsection c) of the Transparency Act.

The MPE has requested Roan Vind (and Fosen Vind) to propose an assessment programme to update the knowledge base regarding the actual situation in Fosen and the effect of possible remedy measures. The reindeer herders affected were asked to collaborate on the wording of this assessment programme but declined. Roan Vind submitted its proposal for an assessment programme to the Ministry on 31 January 2022. The MPE discussed the programme with the reindeer herders affected and based on this, Roan Vind proposed, by letter of 16 June 2022, further specifications of the programme. On 12 September 2022, the MPE sent a proposal for an assessment programme to the affected reindeer grazing districts, as a starting point for consultations. On 25 April 2023, the MPE forwarded the final draft assessment programme, which was brought up for concluding political consultations with the Sámi Parliament.

New assessments are necessary to provide a complete and updated factual basis for the case. Such assessments are crucial to be able to make a proper assessment of remedy measures that could repair the human rights violation.

In 2023, there have been extensive demonstrations against the State’s handling of the Fosen case. There have also been demonstrations outside and vandalism inside the wind farm. Roan Vind has reported the access blocking and vandalism to the police. Roan Vind was reported to Økokrim [the national authority for investigation and prosecution of economic and environmental crime] by Motvind [organisation opposing wind power development] and the North Fosen siida for unlawful use of grazing land, among other things. Økokrim decided not to initiate an investigation based on the reports.

Although the conflict level is high in this case, the company has had a dialogue with the siida throughout the year. Since May 2023, the company has participated loyally in mediation with the siida at the initiative of the MPE, in which the State also participates. The mediation is led by Mats Ruland, National Mediator, together with District Court Judge Hanne Sofie Bjelland and reindeer owner Tom Lifjell.

The company believes that a clarification through an amicable solution could provide a quicker clarification than through an administrative process and wishes to seek an amicable settlement if the siida is interested.

It is important for the company to pay close attention to the reindeer herding situation also during the period until the case has been finally resolved. The company is committed to doing its part to prevent the threat of negative effects from occurring along the way. The company has maintained an ongoing dialogue with the siida about its needs for possible temporary remedy measures, has offered compensation for this interim period, and has covered the costs of the siida’s legal assistance. The company will continue to monitor this closely in the time ahead and hopes for a prompt clarification of the case.