There are Fosen-cases all over the world – do they improve indigenous peoples’ rights?

Siri Gloppen (2024)

By Siri Gloppen  (Written as an op-ed in Panorama (in Norwegian) as part of the PluriLand project)

Despite the special protection given to indigenous peoples under international law, abuses against indigenous peoples and those who fight for their rights continue. What does it take for the courts to protect indigenous rights? And does winning in court help?

 In October 2021, the Supreme Court of Norway upheld the South Sámi reindeer herders’ claim that Norway violated their right to culture under the UN Covenant on Civil and Political Rights (article 27) when Fosen Vind was granted permission to build Europe’s largest land-based wind farm on the reindeer’s winter grazing lands.

The Fosen case has received a great deal of attention, but not primarily the verdict. What has attracted the greatest attention is the authorities’ actions against the young Sami activists who   – 500 days after the verdict was handed down – started non-violent actions together with the  Natur og Undom (nature and youth) organization.

They demanded that the authorities obey the Supreme Court orders and stop the ongoing human rights violations. But images circulating across the country and around the world showed the Sami youth, clad in their traditional gákti (worn inside-out to indicate protest) and environmental activists being carried away by uniformed police for protesting against the government’s disregard for the Supreme Court.

In January 2024,  20 of the young activists were charged with not accepting the fines imposed on them during the protests. They have to stand trial in February.

In the meantime, the state has reached an agreement with some of the reindeer herders at Fosen. While negotiations are ongoing with the remaining, Fosen Vind continues its activities.

Globalt problem

In a global perspective, it is not uncommon for authorities to react with a heavy hand against indigenous and environmental activists who protest against development projects.

In democratic and authoritarian states alike, the law, the police, and the judiciary are used to prevent and stop protests – often far more brutally than in Norway. Resistance is criminalized, including non-violent protests.

Some countries, such as the Philippines and Chile, apply anti-terrorism laws against indigenous activists.

In addition, many activists fall victim to paramilitary groups linked to powerful capital interests.  Half of all human rights activists documented killed worldwide in  2021 and 2022 fought to protect environmental, land, and indigenous rights. 22 percent were themselves indigenous.

Most of the documented killings are in Latin America, but African and Asian activists are also exposed and here there is reason to believe that the dark figures are large.

 Why is this happening in so many places?

Because there are “Fosen-conflicts” all over the world. Not least in the Global South.

Conflicts where developers (often transnational companies – and not infrequently with Norwegian ownership interests) want to exploit valuable natural resources. And where affected indigenous peoples feel that the developments threaten the foundations of their traditional way of living and doing business.

Research shows that indigenous peoples are affected in over one third of the conflicts in the world where development projects are opposed to environmental interests. Often it involves the extraction of oil, gas, coal and minerals, large dam projects, logging and commercial agriculture. These are projects where the stakes are high for all parties.

The authorities depend on these projects to implement their development strategies, including to meet growing energy needs.  As in the Fosen case, energy and climate change is often a justification. Green energy – especially hydropower, but also wind farms, solar energy and mining to obtain minerals for battery production – requires huge areas, both for the plants themselves and for roads, power lines and other infrastructure.

These projects are not only politically important, they also represent enormous opportunities for financial gain. Legitimate political interests and heavy business interests go hand in hand. They are often closely integrated, legally, through state investment or ownership, but also through various forms of corruption.

On the other side are environmental concerns and indigenous peoples’ rights. Developments lead to pollution, damage to vulnerable ecosystems, loss of biodiversity and landscapes of great religious, cultural and economic significance for indigenous peoples’ way of life. Often, entire communities have to be relocated. Traditional knowledge about nature management is in danger of disappearing, knowledge that has contributed to the preservation of biodiversity.

Indigenous peoples’ legal protection

Because indigenous peoples’ culture and traditional ways of life are so strongly linked to nature and because they as a peoples are particularly vulnerable to encroachment on nature, indigenous peoples and “tribal communities” have special rights to land under international law. In some countries also in the constitution.

Indigenous rights can also be seen as a recognition of historical injustice, colonization and abuse.

But despite the special legal protection given  to indigenous areas, they have a larger proportion of large development projects. The reason is simple. In many countries, it is in these areas that sought-after mineral and natural resources still exist, or can be exploited without threatening major social and political interests. And then indigenous peoples’ land rights have little weight,

That indigenous peoples have rights to the land does not necessarily mean that to develop it is a violation of their rights.

However, according  to the UN Declaration on the Rights of Indigenous Peoples, states are obliged to obtain free and informed consent.

This means that before a project is initiated, the authorities must carry out real, free and informed consultations with affected indigenous peoples with a view to reaching agreement on the development and how it is to be implemented.

This obligation is often ignored. And that’s an important reason why indigenous peoples in many parts of the world bring cases before the courts. Like the Fosen reindeer herders did.

 The independence of the judiciary is crucial

The situation raises many questions: What will it take for national and international courts to protect indigenous peoples’ rights in cases where major economic and political interests are at stake? And does winning in court help? What does it take for the authorities to respect and implement such judgments? And does it in practice lead to the protection of indigenous peoples’ land and rights?

In the research project PluriLand , we investigate these questions in seven countries: Brazil, Colombia, Ethiopia, Guatemala, India, Mexico and South Africa. What the countries have in common is that there are major conflicts between indigenous peoples’ rights and development interests, and many of the conflicts end in the legal system.

We see that the independence of the judiciary is important, as in other cases where the authorities have strong interests. But the trials are also challenging professionally speaking. The judges’ competence and understanding of the issues are thus very important. And not least, it can be decisive how the case is brought, how sound the scientific and legal basis is, and how convincing it is argued.

Many layers of law and rights are in play and judges often have to navigate terrains where they have little case law to rely on. It can also be difficult to design effective remedies without venturing far into the domain of politics.

Nevertheless, in a global perspective the courts are an important arena for indigenous peoples, also because they add force to other battles – in the streets and in the media – as we have seen in the Fosen case

Photo: Stian Mo (Flickr)