Categories
2021 Domestic court Indigenous peoples' rights Norway Right to culture

Statnett SF et al. v. Sør-Fosen sijte et al.

Summary:
In this judgment of 11 October 2021, the Supreme Court of Norway found that the construction of two wind power plants on the Fosen peninsula interfered with the rights of reindeer herders to enjoy their own culture under Article 27 of the International Covenant on Civil and Political Rights (ICCPR). The Supreme Court unanimously found that there had been an interference with this right, and accordingly invalidated the wind power licence and the expropriation decision.

Facts of the case:
In 2010, two wind power plants (the Roan and Storheia plants) received a license from the Norwegian Water Resources and Energy Directorate. These plants are located within the Fosen grazing district, where the Sør-Fosen sijte and Nord-Fosen siida keep their reindeer. In 2013, the Ministry of Petroleum and Energy rejected their claim that the construction of the wind power plants interfered with their right to cultural enjoyment. Construction on the plants commenced while the issue was pending before the courts, and the two plants – which are part of the largest onshore wind power project in Europe — were ready to become operational in 2019 and 2020, respectively.

Merits:
The main issue at stake before the Supreme Court was whether the development interfered with the reindeer herders’ rights under Article 27 ICCPR. That provision enshrines the right of persons belonging to an ethnic, religious or linguistic minority to enjoy their own culture, in community with the other members of their group. It was undisputed before the Supreme Court that reindeer husbandry is a protected cultural practice. The Supreme Court relied on the Court of Appeal’s finding that the winter pastures near Storheia and Roan had in practice been lost to reindeer husbandry, and that the wind power plants in question are a threat to the reindeer industry’s existence on Fosen peninsula absent remedial measures.    

The Supreme Court, relying on the work of the UN Human Rights Committee, held that the total effect of the development in question determines whether a violation of the ICCPR right has taken place. Although there is no room for a proportionality assessment, a balance must be struck if the rights under Article 27 ICCPR conflict with other fundamental rights. The Supreme Court established that the right to a healthy environment might constitute such a conflicting right.

The Supreme Court found that the herders’ cultural rights would face significant adverse effects and be violated if satisfactory remedial measures were not implemented. The Supreme Court agreed that a “green shift” and increased renewable energy production are important, but found that there were alternatives that were less intrusive for the reindeer herders less, so that there was no collision between environmental interests and the reindeers’ right to cultural enjoyment in this case.   

Remedial awards:
In its ruling, the Court of Appeal had previously stipulated sizeable compensation for the winter feeding of fenced-in reindeer, and on this basis it had found no violation of the right to cultural enjoyment. In the Supreme Court’s view, such a solution was too uncertain to be a determining factor in whether Article 27 ICCPR had been violated. In any event, the courts could not rely on such a measure as a part of the reindeer herders’ duty to adapt.  

Separate opinions:
N/A

Implementation:
N/A

Date of judgment:
11 October 2021

Links:
A summary of the judgment (in English) is available here.

The full text of the judgment (in Norwegian, English translation forthcoming) is available here.

Suggested citation:
Supreme Court of Norway, Statnett SF et al. v. Sør-Fosen sijte, HR-2021-1975-S, Judgment of 11 October 2021.

Categories
Children and young people Emissions reductions European Convention on Human Rights European Court of Human Rights Norway

‘The People v. Arctic Oil’ (X. v. Norway)

Summary:
The fourth climate change case at the European Court of Human Rights has been announced, and it has been brought by six young Norwegian climate activists aged between 20 and 27, along with two organisations who allege that their members’ lives, health and well-being are being directly affected by the escalating climate crisis. The six individual applicants also allege that, as young people, they are being disproportionately affected by the climate crisis.

The application concerns the Norwegian State’s decision to license continuing exploration for oil and gas in new areas of the Arctic (Barents Sea), and its intention to bring new fossil fuels to market after 2035. The applicants argue that the best available science shows that the emissions from known reserves of fossil fuels will already exceed the carbon budget that remains given the 1.5°C temperature target set in the Paris Agreement.

Citing the seriousness and urgency of the climate crisis, the applicants allege that the respondent State has failed to take the precautionary measures of prevention and protection required under Articles 2 and 8 ECHR (the right to life and the right to respect for private and family life, respectively). They furthermore allege a breach of the prohibition of discrimination in Article 14 ECHR. during the domestic court proceedings, as well as a violation of the right of access to an effective domestic remedy under Article 13 ECHR.

The applicants have sought the application of the Court’s priority policy under Rule 41 of the Rules of Court. In the two already-communicated climate cases, Duarte Agostinho v. 33 Member States and Klimaseniorinnen v. Switzerland, the Court has granted the applicants’ request for priority. A third case has not yet been communicated, making this the fourth climate case pending before the ECtHR.

Domestic proceedings and the reasoning of the Norwegian Supreme Court:
This case is a follow-up from domestic proceedings that were concluded by a judgment in favour of the State that was issued by the Norwegian Supreme Court on 22 December 2020.

In 2016, the two applicant organisations brought a case against the State’s decision to grant 10 licences in the Barents Sea. On 22 December 2020, the Norwegian Supreme Court ruled that this decision did not violate the right to a healthy environment under Article 112 of the Norwegian Constitution. It also found no violation of the ECHR. While it did find that climate impacts should have been assessed, it held that this could be remedied at the development stage (after the licences in question had been issued).

The Norwegian Supreme Court considered that there had been no violation of the ECHR in this case because that Convention only applies to “direct and immediate” environmental harms. Although the Supreme Court considered Articles 2 and 8 ECHR and referred to the pending Duarte Agostinho case in its oral ruling, it considered that the case-law as it stood at the time of decision had not been contravened.

Regarding Article 2 ECHR, the Supreme Court held that this only applies to real and immediate risks of loss of life. The question before the Supreme Court, it argued, was the issue of a sufficient link between the domestic administrative decisions and the risk of a loss of life. It considered that it was not clear whether the decisions would in fact lead to emissions, and the threat concerned was in the future.

Regarding Article 8 ECHR, the Court held that this did not cover every harm to the environment, that an impact had to be “direct and immediate” also here, and that efforts by the Committee of Ministers to add a separate right to a healthy environment to the ECHR had failed.

The Supreme Court also considered that the Dutch Urgenda judgment was not comparable to the case at hand, because that case concerned already-established climate targets, and not the possible invalidity of an administrative decision.

Submissions before the Court in greater detail:
The applicants argue that there is a real and serious risk to their lives and well-being, and to their ability to enjoy their private life, family life and home. They submit that the Norwegian State has failed to adopt the necessary and appropriate measures to address this risk, and that it has failed to describe and assess the total climate effects, including exported emissions, of continued and expanded extraction of oil and gas from the Arctic, thereby also violating the applicants’ rights.

The six individual applicants submit that they have experienced climate anxiety, emotional distress and great worry about the
current and imminent risks of serious climate harms, and the impact on their lives, life choices, and the lives of future generations. They refer to mental health literature, which increasingly draws attention to such concerns, described in the application as “pre-traumatic stress.”

The applicants note that, under current climate policies, the average temperature in Norway is expected to rise by more than 5.5 degrees Celsius by 2100. There has already been an increase in extreme rainfall events, flooding and landslides. Future impacts will include increased risk of drought and forest fire-inducing thunderstorms, changes to flood systems, sea level rise and ocean acidification.

The applicants note that there is a significant difference between planned fossil fuel extraction and Norwegian climate goals. The applicants submit that State representatives stated before the Norwegian Supreme Court that Norway will continue to produce and export petroleum as long as there are buyers. They note that Norway is the 7th largest exporter of emissions in the world, and the 3rd largest per capita, behind Qatar and Kuwait. There is no system in place to declare, assess, calculate, or reduce exported emissions from fossil fuels extraction projects, nor the exported emissions from oil and gas extraction overall.

Claims made:
On victim status, the applicants allege that the licencing of fossil fuels extraction is too complex for individuals and young people to challenge alone. The organisations in question are not only better suited to challenge such decisions, but they also claim to represent future generations.

The applicants allege Articles 2 and 8 have been violated because of the presence of a real, immediate and serious risk to these rights, of which the State had actual or putative knowledge and regarding which it failed to adopt reasonable and appropriate preventative measures. They invoke the principle of prevention, and argue that the State must adopt a legislative and administrative framework designed to provide effective deterrence against threats to the right to life. They argue that an unequal burden has been placed on younger generations, and those unborn. The applicants argue that the threats against their rights are ongoing since temperature increase cannot be reversed and the authorities must act immediately to prevent the harms in question.

Under Article 13, the applicants argue that the Norwegian courts did not assess the merits of the Convention claims in full and
based on ECtHR case law.

Under Article 14, they argue there are disproportionately prejudicial effects on a particular group, citing the factors of young age and the fact that two of the individual applicants are members of the indigenous Sami minority, whose traditions, land and resources are negatively impacted. Due to their age, the young applicants, it is submitted, had no opportunity to participate in the relevant decision-making while at the same time having to shoulder a heavier
burden concerning the long-term consequences of the acts and omissions in question.

Date filed:
15 June 2021

Date communicated: 6 January 2022 (press release).

Suggested case citation:
ECtHR, The People v. Arctic Oil, application filed on 15 June 2021, application available at www.greenpeace.org/static/planet4-norway-stateless/2021/06/0392a3c0-people-vs.-arctic-oil-–-application-to-the-ecthr-–-for-distribution_skjult-innhold.pdf.

Link to the text of the application: click here

Categories
Austria Belgium Bulgaria Children and young people Croatia Cyprus Czechia Denmark Emissions reductions Estonia European Convention on Human Rights European Court of Human Rights Finland France Germany Greece Hungary Ireland Italy Latvia Lithuania Luxembourg Malta Non-discrimination Norway Paris Agreement Poland Portugal Private and family life Prohibition of torture Right to life Romania Russian Federation Slovakia Slovenia Spain Sweden Switzerland The Netherlands The United Kingdom Turkey Ukraine

Duarte Agostinho et al. v. Austria et al.

Summary:
This case was brought by a group of young people who are part of Youth for Climate Justice against 33 Council of Europe Member States. The applicant young people claim that their right to life is threatened by the effects of climate change in Portugal (e.g. forest fires). Moreover they claim that their right to privacy includes their physical and mental wellbeing, which is threatened by heatwaves that force them to spend more time indoors; and that as young people, they stand to experience the worst effects of climate change.

This is the first climate application brought before the European Court of Human Rights, and it was brought with the support of the Global Legal Action Network (GLAN). The issues raised here are novel in the Strasbourg context. In addition, in communicating the case, the Court also proprio motu raised an issue under Article 3 ECHR, the prohibition of torture and inhuman and degrading treatment.

Admissibility:
Pending

Merits:
Pending

Remedies:
Pending

Separate opinions:
Pending

Implementation measures taken:
N/A

Date:
Pending

Type of Forum:
Regional

Status of case:
Communicated by the Court on 30 November 2020

Suggested case citation:
ECtHR, Duarte Agostinho and Others v. Portugal and 32 Other Member States, no. 39371/20, Communicated Case, 30 November 2020

Links:

For more information on the case, see the following links.

  • For more background on the case and profiles on the applicants, click here: https://youth4climatejustice.org/
  • For the original application for as submitted to the Court, click here
  • To see all of the third party interventions filed in the case to date (eight in total), click here.
  • To read the observations of the 33 respondent states in this case, click here.