Honourable Court Let the Mountains Live!
For the Sámi and their reindeer husbandry, wind power is neither green nor progress. It is just another industry that is gradually fragmenting the Sami cultural landscape, writes Eva Maria Fjellheim, PhD candidate at the Center for Sami Studies at UiT's, in this article.
By Eva Maria FjellheimBeating drums and distant shouts make up the soundscape in the Frostating Court of Appeal on a grey December morning in Tråante (Trondheim) in 2019, the ‘capital’ of the Southern Sámi on the Norwegian side of Saepmie. A group of protesters have gathered outside the main entrance to manifest their discontent with Norway’s ‘green’ energy politics and the violation of Indigenous peoples’ rights when large scale wind power plants are constructed on Sámi land. They are shouting what has become a repeated slogan of the Southern Sámi movement against ‘green colonialism’, while the called parties settle down in their assigned seats on either side of the courtroom. The drums continue to beat, disrupting the formal entrance of the three judges and four lay judges who represent authority and order in this particular space. All rise. From now on, the rule of Law and its language prevails.
I address you from a rather empty back row. As audience members, we do not have the right, nor duty, to give an opinion of the case during the court hearing. We remain silent. Nevertheless, after two weeks, we have observed power dynamics through interactions, subtle gestures and insinuations; listened to monologues, questionings, affirmations and, not least, we have felt the tense silence that speaks its own language. We reflect on the issues debated. But more importantly, on those who are absent. Now, I am borrowing your language, but I might break some rules. This is, you could say, a closing argument from the back row of the courtroom.
For the sake of good order: the case concerns the partly state-owned wind power company Fosen Vind DA and the fully state-owned power system operator Statnett, facing the Southern Sámi reindeer-herding communities in Fovsen Njaarke Sijte. Fosen Vind DA and Statnett own 52,1 percent, the regional power company Trønder Energi 7,9 percent and the European investment consortium Nordic Wind Power, established by Credit Suisse Energy Infrastructure and the Swiss power company BKW, owns 40 percent of the project.
Following the law of expropriation, the Court will have to decide on compensation for disadvantages and negative impacts for the already vulnerable reindeer-herding community on the Fosen peninsula in Trøøndelage (Trøndelag) County. Fosen Vind is developing a cluster of six large wind power plants with extensive infrastructure. Four of them will affect the practice of reindeer herding in Fovsen Njaarke Sijte, interrupting migration routes, calving areas and crucial winter pastures. The project’s total production capacity of 1057 MW makes the Fosen project the largest intervention on Sámi reindeer-herding lands in history. One third of the estimated production has already been sold to supply the Norwegian company Hydro with energy for fifteen years enabling it to brand its production as ‘green aluminium’.
It appears to be a paradox, but the Court is also committed to consider whether Fosen Vind DA and Statnett are violating international law by denying the Fosen Sámis’ right to continue practising their culture, worldview and way of life through reindeer herding. The legality of the license is still unresolved, while the construction is nearly finished.
A retrospective view: in 2016, Fosen Vind DA acquired prior authorisation for construction, despite the fact that the compensation measures and legality question had not yet been settled in the court system. In December 2018, the Norwegian government ignored the request from the Committee for the Elimination of Racial Discrimination (CERD) to halt the construction of the largest of the plants, at Storheia, until they had reviewed the human-rights complaints by the Sámi Council on behalf of Åarjel Fovsen Njaarke Sijte, the family group practising reindeer herding in the southern part of the Fosen Peninsula. In January 2020, the Swiss civil organisation Society of Threatened Peoples (STP) filed a complaint against the Swiss investor bank BKW to the Swiss Contact Point for violations of the OECD's guidelines for responsible business.
To be frank: For some, the shades of grey and formal order of the courtroom is just business as usual. Their job is to ensure the best financial outcome and reputation for their employees. For others, it is an unsettling domain, filled with uncertainty and worries. It is a place where you have everything to lose.
That reindeer herders are experts on reindeer herding and the cultural landscape in which herding is practised would be hard to dispute. They move with the reindeer, think with the reindeer, feel with the reindeer and know with the reindeer. They carry with them centuries of observations, analysis and knowledge of how the landscape laid the foundation for coexistence, survival, continuation. There is an old (Northern) Sámi saying that illustrates well the almost impossible challenge of reducing the use of the land to a single square: ‘Jahki ii leat jagi viellja’ (No year is the other year’s brother). This is even more true with the climate changing faster than before. Winters with rapid temperature shifts block access to pastures locked by ice. Some summers are unusually hot and dry, making it impossible to gather the herd. The wind power installations are additional obstacles that fragment and disrupt the necessary free movement of animals and humans, the reindeer and the herders. The flexibility on which sustainable reindeer herding depends is gradually reduced.
In the courtroom, facts, legal precedence and tough rhetoric make up the rules of the game. Emotions and human reactions are given little space. In order to follow these rules, someone speaks on your behalf.
Fosen Vind DA and Statnett’s lawyers stress the duty of reindeer herding to adapt to the development of the larger society. Any financial loss must be proved by cause and effect in order to be compensated. They try their best to prove that the effects of their operations are insignificant, and that negative impact on reindeer herding is provoked by other interventions and causes. The approach is instrumental, and the logic is financial. They assume that reindeers will avoid the area during construction, but gradually return and adapt to the new installations. Negative effects can be avoided through practical mitigating measures. The territory of Fovsen Njaarke Sijte is vast and the herders control the reindeer. Herding is thus an industry, they claim. Reindeer can be transported in trucks. They can be fed supply forage. This logic is far from a Sámi understanding of the relationship between humans, reindeer and the landscape.
The premises for the debate are set, and the reindeer herders’ lawyers respond. The principles of Compensation Law constitute a limited framework, which twists around numbers and calculation models: the weight of the reindeer, the total number of the herd, investment in workload and equipment. Comparing reindeer herding with any other occupation or industry is a near-impossible task. Nevertheless, it is the logic of the case. When determining the compensation amount, knowledge about land use, the living landscape and the consequences of the wind-power industry are disputed. Expert witnesses are called, according to their profession and competence: ecologists, biologists, economists, engineers and natural resource managers. How many kilometres will the reindeer lose in order to avoid the turbines and power lines, and how can this loss of pasture be calculated and measured? They fundamentally disagree.
An important question remains: whose knowledge counts when millions have already been invested, and when the construction of the project is nearly finished?
There is another pressing question that is impossible to avoid, and seems to be the elephant in the room: how can Sámi culture and livelihood be measured in money?