Country engagement, agenda item 6 – EMRIP session July 14, 2025
Introductory statement from the Government of Norway
By: Bjørn Olav Megard, Director General,
Ministry of Local Government and Regional Development (Norway)
Honourable Chairperson,
Norway welcomes this opportunity to respond to some of the issues raised in the advisory note resulting from The Expert Mechanism on the Rights of Indigenous Peoples, EMRIP’s, country visit to Norway in March 2024. I am glad to have attended the panel on country engagements last year, and I am pleased to return to elaborate on our positions.
I will begin by highlighting some important examples of where Norway and the expert mechanism have similar views:
In paragraph 61 of the technical advisory note the EMRIP states that free, prior and informed consent, FPIC, “is not achieved in a single moment or action but rather, it is a process of dialogue and negotiation over the course of a project.” The EMRIP continues to emphasise that the combined terms ‘consult and cooperate’ used in the UN Declaration on the Rights of Indigenous Peoples, UNDRIP, “denotes a right of Indigenous Peoples to influence the outcome of decision-making processes affecting them, not a mere right to be involved in such processes or merely to have their views heard” and further in the same paragraph that, “Indigenous Peoples must also have the ability to make an alternative proposal or suggest different models”. The EMRIP also refers to the Human Rights Committee elaboration that Indigenous Peoples’ participation in decision-making processes must be ‘effective’.
This understanding of “consultations and cooperation” is very similar to what is codified in Norway’s Sami Act, chapter 4. The system in the act, with agreement or consent as the obligatory purpose of the process, is clearly a more cooperative process than what is referred to in the advisory note paragraph 78 a) as “a mere right to be consulted”.
Also worth mentioning: If there is disagreement on whether or how the law requiring consultations applies in a particular circumstance in Norway, the matter can be raised in administrative complaints or be brought to regular, domestic courts.
In the advisory note, the EMRIP recommends several measures that are in fact already in place in Norway. For example, the need for training local and central government employees and politicians. Measures already in place include written guidance and competency building courses. Another example is that our domestic legal order, with impact assessments followed by assessments in the agencies and ministries, already provides the necessary requirements to satisfy the content of impact assessments as described by the EMRIP in paragraph 72. There is also already a requirement to include analysis of cumulative effects of land use interventions, which is important, as emphasised by the EMRIP in paragraphs 52, 63 (d), 64 (h), 76, 79 (b) and 90.
However, in paragraphs 72 and 79 the EMRIP recommends that the rules and procedures for impact assessments and the knowledge base for land use cases should be improved. As the delegation was informed of during the visit, work has started on possible improvements of “The Regulations on Impact Assessments[1]”. The ministries on environment and on local government have jointly consulted the Sami Parliament on the draft new regulation and will consult further. The plan is for the regulation to go out on a public hearing by the end of this year.
Chairperson,
I now turn to some aspects of the advisory note where we, respectfully, have different views and interpretations, both on whether domestic legislation should be amended, and on the obligations under international law:
The EMRIP suggests, in paragraphs 75 and 78 (a) of the advisory note, that Norway should enact provisions on consultations into other laws, such as the Energy Act or the Mineral Act. In our view that would be unnecessary duplicative legislation, as the relevant provisions are already enacted in the Sami Act. There are no plans to do so as duplicative legislation is generally disfavoured in the Norwegian legal system. Having the same rules in different statutes makes it more challenging to keep the rules consistent over time, when amendments are needed, or when only one statute is applied and interpreted in court.
More concerning, the wording of paragraph 66 of the advisory note implies that agencies or ministries give licenses – or permits or concessions – for land use interventions “before full consultations are conducted” or “before a full assessment of cultural, environmental, and socio-economic impacts is made”. As we have communicated in writing[2], this is factually not correct.
Please allow me to clarify. The system for granting licenses, as obliged by law, can be summarised in five phases:
- The first phase is a licensing process and a decision at the agency level, for example the Norwegian Water Resources and Energy Directorate or the Directorate of Mining.
- The second phase is the possible appeal of the decision, which is then decided by the relevant ministry[3]. The ministry may try all aspects of the case, including the exercise of discretion.
- The third, sometimes partly concurrent, phase is that the business enterprise in question acquires the necessary private rights, if needed as a mandatory sale, called “expropriation.”[4]
- The fourth phase is; while the compensation for the mandatory sale is being determined, the enterprise can get a permission to start building, that is a decision on advance possession (“forhåndstiltredelse” in Norwegian).
- The fifth and final phase is determining the price for the mandatory sale, if necessary, by an appraisal court[5].
All five decisions mentioned here can be challenged in court[6], throughout the process, which includes thorough assessments, dialogue and consultations; there is no need to wait until phase 5.
Even in the fifth phase, when the installations may have already been built, the right holders can make a claim in appraisal court, that the underlying license is legally invalid, because it violates the human rights of the right holders. At this point the right holders may make that claim without running a risk of being held liable for litigation costs, as the expropriating party is obliged to cover all necessary litigation costs.
It rarely happens that a license is deemed invalid by the courts, but it notably did happen in the Supreme Court’s decision in October 2021 regarding the wind power plant at Fosen.
Unfortunately, some sources have translated the name of the fourth phase, advance possession, into “pre-permitting” in English.[7] This might have led to a misunderstanding that advance possession may happen earlier in the process. It may not. Advance possession only happens “prior to” the fifth phase, that is: determining the compensation for and the final processing of a mandatory sale.
Either way, let me be clear: Agencies and ministries have the duty to make all impact assessments, and human rights assessments, before they grant any license. The consultation processes must be initiated early in the planning phase, long before any license is granted. This means the advice in paragraph 76 in the advisory note, is already the law, codified in the Sami Act section 4-6, which states that consultations shall begin early enough to give the parties a genuine opportunity to reach an agreement.[8]
Finally, Chairperson,
some comments regarding the interpretation of international law.
The EMRIP appears to take the view that FPIC is always a requirement when land use decisions are affecting areas traditionally used or owned by persons belonging to an Indigenous People.
Norway has a different legal view, as acknowledged in the terms of reference for the country engagement.[9] Norway’s view is is virtually the same as the views taken in section 3 of the report by an expert committee of the International Law Association. It was presented to the Sofia Conference in 2012[10], and the relevant part analyses the wording of UNDRIP articles 19 and 32 (2). Norway’s legal view on this topic can be summarised in three points:
- There is not a general right of veto in land use cases, but always a duty on the state to make a real effort, in good faith, to reach agreement or FPIC.
- Achieving consent is more important in more severe circumstances.
- In extreme cases, like relocation or when lack of consent would lead to other human rights being violated, achieving FPIC becomes mandatory.
The third point corresponds to the Poma Poma decision from the Human Rights Committee.[11] A requirement to reach agreement or consent, whenever a land development impacts Indigenous Peoples, cannot be deduced from that opinion.[12]
Former Special Rapporteur on the Rights of Indigenous Peoples James Anaya phrased it similarly in his 2013 report on Extractive industries,[13] stating that consultations “should take place and consent should at least be sought, even if consent is not strictly required”.
Norway’s assessment of these international legal obligations was described to Norway’s Parliament in 2021, in a proposition presenting the law proposal on consultations. The Sami Parliament agreed to this assessment of the international legal obligations during the prior consultations on the law proposal.
In paragraph 73 of the advisory note, the EMRIP refers to the two constitutive elements of customary international law. It suggests that there may exist obligations of customary international law in relation to FPIC[14]. In the opinion of Norway, there is no sufficient opinio juris, expressed by states, nor relevant state practice establishing international obligations relating to FPIC going beyond the obligations that is referred to in the above.
Furthermore, the assessment of the Norwegian government is that our existing laws strike a reasonable and fair balance between the various societal interests at stake.
We maintain that our domestic law, that is the Human Rights Act in combination with the Sami Act, on consultations and cooperation with the Sami, and on the duty to aim for consent, is in accordance with international law. Given the amendments in 2021 of the Sami Act, Norway has fully implemented the 2018 recommendation on this issue from the Human Rights Committee, referenced in paragraph 10 in the advisory note.
To summarise, this means that Sami right holders and interests are involved from an early stage in all land use projects that may affect them directly. It also means that all parties should seek to find common ground and practical solutions. Whenever possible, a particular responsibility lies with government agencies and ministries to strive to find agreement or consent.
We thank the EMRIP for the interesting and respectful conversations we have had during the country visit. Let me reiterate Norway’s commitment to protecting and promoting the rights of Indigenous Peoples globally and in our own country.
I thank you for your attention and look forward to your questions and comments.
[1] In Norwegian: «Konsekvensutredningsforskriften».
[2] Letter 16 May 2025 to the EMRIP from The Royal Norwegian Ministry of Local Government and Regional Development.
[3] Some complaints, in major cases, are formally decided by the King in Council, that is, as practical matter, by the Government as a collective, and then effectuated by the responsible ministry. The sequencing of the phases described here, remains the same.
[4] Expropriation is only necessary if the business enterprise has not acquired the necessary private rights through voluntary agreements. The expropriation permit may be decided by a ministry at the same time as the licensing decision, but they are to legally to different decisions.
[5] «Skjønnsretten» in Norwegian.
[6] The decision from phase 1 is usually challenged by complaint to the ministry, in what is described as “phase 2”, but may also be challenged in court.
[7] See footnote 27 in the technical advisory note.
[8] Also more generally, the EMRIP’s advice and recommendations regarding this issue, are already standard procedural requirements in Norway. As stated in the letter of 16 May 2925 (cf. footnote 1), we believe that the phrasing of paragraphs 66, 67, parts of paragraph 77, and indirectly paragraphs 75 and 76 in the advisory note may be a result of a misunderstanding.
[9] We refer to Terms of Reference heading 5 (purpose), subheading iv (second part of the paragraph) for references to previous statements from the Government of Norway on these topics.
[10] Report from the International Law Association, presented by an expert committee to the Sofia Conference in 2012: https://www.ila-hq.org/en/documents/conference-report-sofia-2012-10)
[11] CCPR/C/95/D/1457/2006
[12] The Norwegian National Human Rights Institution holds a similar view of the Poma Poma decision in its 2021 report on Human Rights Protection Against Interference in Traditional Sami Areas. See footnote 19 in the technical advisory report.
The Supreme Court of Norway has stated in HR-2017-2428-A (Sara) para 74, with reference to the Poma Poma case, that free, prior, and informed consent is required in cases where the basis for livelihood is completely destroyed. However, the Supreme Court states in reference to the Lovelace case and Kitok case, that in other occasions there is no absolute requirement that the participation of the minority must have influenced the decision.
[13] Report A/HRC/24/41, Extractive industries and indigenous peoples. Report of the Special Rapporteur on the rights of indigenous peoples, paragraph 27.
[14] I.e. (1) Opinio juris and (2) the crystallisation of sufficient state practice, carried out under an understanding that such practice is legally required. as codified in Art. 38 (1) of the ICJ Statute, see for example the ICJ Rep 3, The North Sea Continental Shelf Cases (1969), and ICJ Rep 14, “The Nicaragua Case” (1986).