Background to the case
The Øyfjellet wind farm is located just outside Mosjøen in Nordland, in an area where the Jillen-Njaarke reindeer herding district holds rights for domestic reindeer herding.
In 2014, the NVE granted a construction licence and permission to expropriate land and rights for the construction and operation of the wind farm. The reindeer herding district appealed against NVE’s decision, but the decision was upheld by the Ministry of Petroleum and Energy on 16 November 2016.
In 2019, the Ministry of Petroleum and Energy granted approval for what is known as ‘early access’, i.e. permission for the wind farm to be established before compensation for the reindeer herding district had been determined. The plant became fully operational in autumn 2022.
The compensation payable to the reindeer herding district was subsequently determined by Helgeland District Court in an appraisement handed down on 20 December 2024. The District Court’s decision was appealed by the reindeer herding district and one of the reindeer herders. Hålogaland Court of Appeal therefore held a new appraisement. The reindeer herders argued before the Court of Appeal, among other things, that the appraisement should be refused because the license decision and the expropriation decision are invalid. The refusal to hold the appraisement means that the court declines to award compensation.
In its recent ruling, the Hålogaland Court of Appeal held that the license decision and the expropriation decision were invalid. The appeal was therefore dismissed.
A brief summary of the Court of Appeal’s reasoning
In summary, the Court of Appeal has based its ruling on the invalidity of the license decision on the grounds that it was not sufficiently substantiated and therefore suffers from procedural irregularities. In this regard, the Court of Appeal has placed particular emphasis on the fact that the impact assessment on which the decision was based does not contain assessments of cumulative effects on reindeer herding, and that the impact assessment is not based on sufficient understanding and knowledge of the consequences for reindeer herding. Specifically, the Court of Appeal considers, amongst other things, that the assessment of the wind farm’s impact on the reindeer’s migration to and from winter pastures is inadequate.
However, the Court of Appeal does not consider that the licensing decision infringes the human rights of reindeer herders.
What happens next?
Following the Court of Appeal’s ruling, the situation is that the wind farm is operational, but no compensation can be awarded to the reindeer herding industry because the license and expropriation decisions are deemed invalid. This raises the question of what will happen to the wind farm going forward.
In its ruling, the Court of Appeal itself stated the following regarding the consequences of the appeal being dismissed:
‘In light of this, the Court of Appeal finds that the Ministry of Energy’s decision of 16 November 2016 is invalid, and that the appeal must be dismissed. The wind farm has been constructed and has been in operation for several years. The Court of Appeal therefore emphasizes that the legal consequence of the decision being invalid is not that the turbines must be demolished or that the plant must be shut down immediately. The Court of Appeal further finds that the procedural error relating to the lack of an assessment does not automatically mean that the expropriation and license must be refused upon reconsideration. However, the error requires that a renewed and adequate assessment be carried out, including a detailed assessment of which mitigating measures are necessary to safeguard the rights of reindeer herding, and that the measure does not entail a closure of the migration route in contravention of Section 22 of the Reindeer Herding Act.’
From a legal perspective, the situation bears several similarities to the Fosen case, in which Hjort assisted the wind power companies Roan Vind DA and Fosen Vind DA in the period following the Supreme Court’s refusal to hold the appraisement. The Fosen case attracted considerable national attention, and many believed that the wind turbines on Fosen should be demolished. However, the outcome was that the parties reached amicable agreements following a lengthy mediation process.
The Øyfjell case nevertheless differs from the Fosen case in two key respects. Firstly, the Court of Appeal’s ruling is not final. The ruling may still be appealed to the Supreme Court, and it is therefore not certain that the application will be refused. Secondly, the invalidity in the Øyfjell case is based solely on inadequate assessment, not on that the establishment of the wind farm is, in substantive terms, in breach of the reindeer herders’ human rights. As it generally takes less to remedy procedural errors than substantive breaches of human rights, it will likely be easier to remedy the invalidity in the Øyfjell case than in the Fosen case. Unlike the Supreme Court’s approach in the Fosen case, the Court of Appeal in the Øyfjell case has clearly been keen to communicate that even if the license and expropriation decisions are deemed invalid, the operation of the wind farm may continue whilst the consequences for reindeer herding are further investigated.
Would you like to know more?
The Øyfjell case raises a number of legal issues, including the relationship between reindeer herding and energy production, and the situation where an application for a review is refused after the measure giving rise to the review has been implemented.
We have been working extensively on these issues and are monitoring developments closely. For those interested in finding out more, we particularly recommend:
- Fosendommen: Hva nå? | An article and podcast episode on the situation following the Supreme Court’s refusal to hear the appeal in the Fosen case.
- Meklingen i Fosen-saken – et eksempel til etterfølgelse? | An article and podcast episode on the mediation in the Fosen case, which could serve as a model for other disputes concerning the development of renewable energy.
- Er det behov for endringer i ekspropriasjonsregelverket? | An article and podcast episode on the need for changes to the expropriation regulations, including the rules on early possession and the process for reviewing expropriation decisions.
