15 Dec Wind Farms in Indigenous Areas: The Fosen (Norway) and the Lake Turkana Wind Project (Kenya) Cases
[Carola Lingaas is an associate professor of law at VID Specialized University in Oslo (Norway).]
Around the same time in October 2021, 10,000 kilometers apart, two cases were litigated before domestic courts that dealt with indigenous rights to use of land: one before the Kenyan Environment and Land Court in Meru, the other one before the Supreme Court of Norway. Both judgments were hailed as historic and groundbreaking. This post will discuss some of the international legal aspects of the cases.
Background Fosen Case
The Storheia and Roan wind farm park on the Fosen peninsula is the largest wind farm in Norway and the largest onshore wind power project in Europe. The park counts 151 windmills of 87 meters height and with rotors of 117 meters in diameter. It cost 6 billion Norwegian kroner (approximately 660 million USD) to build.
In the Fosen case, on 11 October 2021, the Supreme Court of Norway ruled the license for wind power developments invalid. The case was heard in Grand Chamber, reflecting its importance and precedential value. The wind park infringed reindeer grazing lands and therefore violated, in the view of the Court, the right to culture of the Sámi indigenous people in the Fosen area. The nomadic, seasonal movement of reindeer is a cultural right of the herders under Art. 27 of the International Covenant on Civil and Political Rights (ICCPR).
Background LTWP Case
In the Lake Turkana Wind Project (LTWP), on 19 October 2021, the Kenyan Environment and Land Court ruled that the title deeds of the land, on which the windmills were built, were unlawful. The LTWP had acquired a lease of 33 years for 150,000 acres (approximately 600 km2) to develop a wind power farm with 365 wind power turbines at the cost of 75 billion Kenyan shilling (approximately 667 million USD).
The plaintiffs represented the pastoralist El Molo, Turkana, Samburu and Rendille communities. They asserted that the land upon which the wind park was built is central to their survival and livelihood as cultural, ancestral, and grazing land held under an intergenerational trust (para. 3). Nomadism is their way of life, and the privatisation of the land led to a loss of cultural sites and of access for livestock and camels to the waters of Lake Turkana. Unlike Fosen, the Court did not find a violation of the cultural and social rights of the affected communities as protected by the Constitution of Kenya (para. 130).
Both cases deal with the construction of large wind parks in relatively remote areas, which traditionally are used by local nomadic tribes or indigenous peoples who migrate with their animals. Both wind parks were huge investments into clean energy (LTWP, para. 147) and therefore considered a public good of interest to the entire society. The Kenyan Court was, however, clear in that “[n]o amount of public interest or public good (…) can sanitize illegality, unconstitutionality and unlawfulness” (para. 142), if the clean energy source was constructed on faulty legal grounds.
Earlier reports by human rights organisations on the Kenyan matter concluded that the green transition can only succeed if it puts human rights at its core and if indigenous peoples are equal partners. Although the LTWP wind park is expected to supply 17% of the national power (para. 10), the local tribes in the Lake Turkana area are not even connected to the national grid yet. Paradoxically, while the investment into wind energy was deemed a public good of interest to the entire Kenyan society – and a step to combat climate change – the local population of Marsabit county continues to obtain its power from diesel fuelled generators. The price that the local tribes in the area around the LTWP wind park paid is even higher and includes relocation of entire villages, lack of free, prior, and informed consent, and lack of compensation for loss of land, among other.
Similarly, the Fosen judgment noted that the transition to a ‘green shift’ and increased renewable energy production were important considerations. However, in the view of the Supreme Court, they could have been met by choosing other, for the reindeer husbandry less intrusive, development alternatives (para. 143).
Two remarkable differences appear in the Courts’ approaches: the use of legal sources and the classification of the plaintiffs.
The Kenyan case was litigated exclusively on domestic law, especially the Trust Land Act, which in Section 69 refers to tribal rights to land by virtue of African customary law (para. 100). The plaintiffs, who are nomadic pastoralists, claimed ancestral and customary rights (para. 101) that were conferred to the community as a whole to be enjoyed severally or individually. The Court confirmed their locus standi as affected tribes based on these rights (para. 105). The Court did notably not revert to international legal sources, although the plaintiffs referred to them. More specifically, the plaintiffs mentioned the Banjul Charter, the ICCPR, International Covenant on Economic, Social and Cultural Rights (ICESCR), and the ILO Convention No. 169 and averred that “they are entitled to protection as indigenous inhabitants of Marsabit” (para. 5).
Kenya is not State Party to the ILO Convention No. 169, and the Court had no obligation to assess the compliance of the State authorities with this treaty. The question if whole or parts of the ILO Convention are customary law and therefore binding on Kenya goes beyond the scope of this post. Since the facts of the case resemble the Kenyan Endorois case before the African Commission on Human and Peoples’ Rights that found several violations of the Banjul Charter, one might have expected the LTWP case to engage with this legal instrument. Human and peoples’ rights were, however, not part of the proceedings.
The Norwegian case was remarkable for being the first – and unanimous – judgment, in which an interference into reindeer grazing areas was found to be in breach of Art. 27 ICCPR. Reindeer husbandry is not only an occupation, but also a central part of Sámi culture. The legal protection of the Sámi culture includes the protection of its material basis, namely the reindeer grazing areas. The wind park was built in an area where the reindeer in late winter find lichen (para. 77). After the construction, GPS tracking showed that the animals avoided the area (para. 90). The Supreme Court therefore considered the area lost for traditional reindeer husbandry. The direct consequence of the loss is the reduction of reindeer numbers, which is a threat to the continued existence of the Fosen Sámi’s reindeer husbandry (paras. 79-97).
In its discussion of the threshold for a violation of Art. 27 ICCPR, the Supreme Court referred to several cases before the Human Rights Committee, which it considered of high interpretational value (para. 102). Apart from Lubicon Lake Band vs Canada, the Court held Ilmari Länsman et al. vs Finland, Jouni Länsman et al. vs Finland I, Jouni Länsman et al. vs Finland II and Ángela Poma Poma vs Peru relevant. It concluded that a violation of the rights is given if the interference has significant negative consequences for the possibility of cultural practice (para. 119).
The Supreme Court concluded that Art. 27 ICCPR is a threshold provision, where the interests of the minority shall not be weighed against other societal or economic considerations. The provision does not open to a proportionality assessment, however, a balance must be struck if the rights under Art. 27 ICCPR collide with other fundamental rights, like the right to the environment (Section 112 of the Constitution) (para. 131). In Fosen, there was no such collision because other alternatives were available. The Supreme Court considered the reindeer husbandry a backbone of Southern Sámi culture, which was particularly vulnerable. The interference was not a complete denial of their right to practice their culture, but nevertheless had a substantive negative effect on it (para. 141).
Classification of the Plaintiffs
The Kenyan Environment and Land Court did not discuss the indigeneity of the plaintiffs nor the difference between indigenous and tribal peoples. Legally speaking it was not obliged to do so, given that it relied fully on domestic law. The Court considered tribes other than the plaintiffs affected by the wind park entitled to file suit on account of their ancestral and rights and interests over the land (para. 105). The reference to ancestral rights to land is an indication of the long-term use, passed down from ancestors. It is, however, not the same as indigenous or tribal rights. Note that the ILO Convention applies equally to indigenous and tribal peoples (Art. 1), affording both the same protection.
The Fosen judgment does not further define the Sámi, although it confirmed earlier jurisprudence that they are a minority in Norway and therefore protected under Art. 27 ICCPR.
The Kenyan Court concurred that the only effective remedy would be an order for demolition or removal. It was not satisfied that the project was capable of being cancelled, since it was complete and already producing energy (para. 153). Although it was producing a substantial amount of the national electricity needs, “national exigencies cannot cure blatant illegalities” (para. 157). The defendants were given one year to make the required corrections (para. 158).
In Norway, the discussions on remedies have not subdued: some demand the demolition of the windmills, others require “an effective remedy and reparation measures that are commensurate with the harm sustained” (Poma Poma case, paras. 9-10). Fosen Vind was relieved that it until further notice could continue to operate the wind park, while the Ministry of Petroleum and Energy is considering what consequences the ruling will have.
In both cases, the invalidity of the construction of the wind parks was established after the facilities were already completed and in operation. Hopefully, the judgments will prevent future constructions that are built prior to a full legal evaluation of their harm to indigenous people and their cultural right to the use of land. Yet, only three weeks after the Fosen judgment, plans for the construction of a new wind park in the summer grazing areas of Čorgaš in Northern Norway were presented, and the local Sámi fear that no lessons were learnt.
State Responsibility for Human Rights Violations
In the Fosen case, the Norwegian State was part of the legal proceeding on behalf of the defendants. The State’s role in the process is ambiguous: Statkraft is the majority owner (52,1%) of the joint venture company Fosen Vind that runs the Storheia and Roan wind farms. Statkraft is owned by the Norwegian Ministry of Trade, Industry and Fisheries. The State was thus interested in a judgment favourable to the defendants, which was apparent by the third-party intervention of the Ministry of Petroleum and Energy on behalf of Fosen Vind. At the same time, the State of Norway also has the legal responsibility to uphold and protect the human rights of the plaintiffs, the Sámi indigenous people. The balance in the present case seemed, however, to clearly tip in favour of economic interests from the operation of the wind farm. Put bluntly: the State chose money over people.
After the judgment was rendered, the government concurred that
“International law is a state responsibility. The government will ensure that the state’s international law obligations towards the Sámi as indigenous peoples are met at Fosen. This is the undisputed starting point for further follow-up of the Fosen case”.
Critical voices deplore the ignorance of Norway regarding human rights. It is indeed astonishing that this ‘undisputed’ concession comes after the plaintiffs had to litigate the case all the way up to the Supreme Court. It is also noteworthy the violation of the Sámi’s cultural rights had to be established by judgment, considering that the Constitution of the Kingdom of Norway imposes an obligation on the State authorities to “create conditions enabling the Sámi people to preserve and develop its language, culture and way of life” (Section 108). This constitutional protection of the Sámi culture undoubtedly extends to partially or fully State-owned companies.
Also in the LTWP case, economic interests were central. The judgment and reports indicate that the project was approved solely due to connections at the highest levels of government, thereby bypassing the local authorities and communities.
In view of the increasing focus on climate change and the requirement for drastic, accelerated, and rapid measures to limit global warming, there is an urgency to find sustainable, solidaric, and inclusive solutions. These solutions cannot be achieved by setting aside the rights of indigenous peoples. Rather, the recent acknowledgment in the Glasgow Climate Pact that “climate change is a common concern of humankind”, which has to “respect, promote and consider (…) the rights of indigenous peoples” has to be implemented by all States with indigenous and tribal peoples. The important role that indigenous and tribal peoples play in addressing and responding to climate change was highlighted in the preamble of the Climate Pact.
The judgments are a testimony for the legal protection that the Courts afforded to the indigenous and tribal people, even though heavy economic investments and political interests were at stake. Despite the fragility of the rule of law and recent attacks against it, the judgments provide hope for its continued importance, for democracy, and the rights of indigenous peoples.