– As a natural consequence of the Fosen judgment, we wanted a legal opinion on one specific question. Does the Davvi wind farm conflict with Article 27 or not? The conclusion is quite clear.
The words belong to Harald Dirdal, the project manager at Grenselandet DA. He talks about the legal opinion, or written statement if you will, that they requested on their own initiative in the wake of the Fosen judgment.
The opinion states that the Davvi project is far from being in conflict with the UN Convention on Civil and Political Rights, Article 27. If we had been in a gray area, it would have been problematic. But we are not in that situation, which is absolutely essential for us, says Dirdal.
The opinion states that the Davvi project is far from being in conflict with the UN Convention on Civil and Political Rights, Article 27.
In October '21, the much-discussed Fosen judgement was announced. There, the Supreme Court established that the construction of the Storheia and Roan wind farms violates the cultural rights of the Sami reindeer herders. Since then, the decision has naturally influenced the discourse.
– The judgment is valuable for society, Dirdal begins.
The project manager further points to the Fosen case as a good guideline for where the boundary actually lies regarding Article 27.
– The judgment affirms that significant negative consequences are required before rights are violated. The Supreme Court concluded that the intervention in Fosen would constitute a serious threat to the long-term existence of reindeer herding, thus affecting cultural practices. Winter pastures were effectively lost, and the mitigating measures were not satisfactory.
At the same time, Dirdal points out that the ruling also mentions that reindeer husbandry, like other activities, has a certain obligation to adapt to interventions that are of societal benefit.
– In summary, it can be stated that not every intervention conflicts with the mentioned article. The significant difference between the Davvi project and Fosen lies in the negative consequences. They simply cannot be compared because the negative consequences are very low with the Davvi project, he says.
Speaking of consequences. The legal statement related to the Davvi wind farm is based on impact assessments conducted in connection with reindeer husbandry and the project in Lebesby.
– This foundation is very solid. There are source reports from the Sami Business Association, which have based their assessments on interviews with key reindeer herders in the districts. From these source reports, NaturRestaurering has produced a professional report on reindeer husbandry. In addition, NaturRestaurering has produced a separate report on cumulative effects, Dirdal explains.
In the legal opinion provided by the law firm Robertsen AS, it is emphasized that strict conditions must be met for a conflict with Article 27 to arise. It is pointed out that there must be a loss of reindeer pastures that has significant effects on whether the business can continue to yield profit or has a substantially negative impact on the reindeer herders' ability to practice their culture in the area.
It is also emphasized that mitigating measures play a crucial role in the question of infringement, and that reindeer herding has an obligation to adapt within certain limits. The final part of the conclusion is specifically directed at the Davvi project and reads as follows:
«It concludes, among other things, as follows: When the development area consists mostly of stone scree that is neither used for reindeer grazing nor for reindeer migration between summer pastures in the north and winter pastures in the south, it is unlikely that the development will have any impact on access to pasture or reindeer migration. In this case, it falls well below the threshold for violation of the United Nations International Covenant on Civil and Political Rights, Article 27.»
The difference between the Davvi project and Fosen is simply not comparable. The significant difference lies in the negative consequences, which are very low with the Davvi project.
In response to the direct question about what Dirdal and his team are securing with this opinion, the project manager is clear in his response.
It doesn't secure anything for us. Nonetheless, we believe that this statement is an important part of the process to highlight the consequences of the project. Which we consider a completely natural thing to do after the Fosen judgment became known, Dirdal responds.
He reminds us that, in the end, it's the authorities themselves who must make their own assessments regarding the various wind power projects and Article 27.
– Regardless of one's opinions, the permit application will be sent out for consultation. That's the whole point, to gather feedback. Then the Norwegian Water Resources and Energy Directorate will review these comments and measure them against the impact assessments, including this statement, concludes Harald Dirdal.