500 days of Inaction
On Monday, 11. March 2024, the trial against seventeen young activists started, who in February and March 2023 demonstrated against the inaction of the government of Norway to implement the judgment in the so-called Fosen case. This criminal case is against thirteen defendants who on 27. February 2023 protested in front and inside the Ministry of Petrol and Energy (now: Ministry of Energy) and five defendants who demonstrated in front the Ministry of Finance on 2. March 2023. Their demonstrations marked 500 days since the Supreme Court of Norway, sitting in Grand Chamber, unanimously held that the licenses upon which the windmill park on the Fosen peninsula was constructed, breached the Indigenous Sámi reindeer herders’ right to culture under Art. 27 ICCPR.
The Fosen Case
The Fosen case concerns the, at the time, largest onshore wind power project, a prestigious investment into ‘green transition’. It is also the largest intrusion on Sámi traditional lands in history, and connected to Norway’s commitments to international climate policy, the EU’s renewable energy goals and demands to electrify industry and society. The wind turbines were built despite protests of the concerned Sámi reindeer herding groups (siidas) and the request of the UN Committee on Racial Discrimination (CERD) to suspend the construction. Scholars have pointed to “the amalgamation of resource extraction on indigenous land, the reinforcement of asymmetric power imbalances, and the erosion of indigenous livelihood”, and termed this cocktail ‘green colonialisation’.
The Trial
The demonstrations were organised jointly by Sámi activist and environmentalists. Members of both groups now stand trial for failing to immediately comply with orders given by the police (Act relating to the Police, Police Act, § 5). The indictment concerns their refusal to leave the premises of two ministries in spring 2023. The police, after providing information and warnings, removed the protesters — in one case in the middle of the night, at 02.25 a.m., when all journalists and supports had left, giving an impression that it cannot stand the light of day.
This week, the Courtroom 828 in the District Court in Oslo (Norway) sets the scene. The Court is made up of three judges: a professional judge wearing a robe, and two lay judges to his right and left side in civilian clothes. On the right side of the bench, the prosecution consists of two police attorneys. On the left side of the bench, the young defendants sit in two rows. Most defendants are in their early 20s. The prosecution explains that four individuals, who were removed by the police in spring 2023, were minors. While they were not indicted, child protection service was alerted. In the words of the prosecution, the removal of the protesters was necessary in order to uphold “order and security in society” and “a necessary preparedness”.
Silent Symbolic Protest
The majority of the defendants present in the courtroom are Sámi. They all wear their traditional clothing, the gákti, inside out. It is a garment of high value and honoured as such. After more than a century of harsh and targeted assimilation policies, where the Norwegian State tried to rid or suppress Sámi traditions, language, and culture, the gákti is today worn with pride and as a symbol of reclaiming Sámi identity. The threshold of wearing it inside out is considerable because the ugly sides of the clothing become visible, while the beautiful embroidery is hidden. The act of turning it around is a strong but peaceful sign of symbolic protest, as become visible during the protests in 2023. It was also an issue that was raised repeatedly at trial today.
The Rule of Law
Unlike the prosecution, the defence claimed that this case is not a matter of law and order. The defence lawyer stressed the importance of the context of the demonstrations and the interconnected civil disobedience, namely indigenous rights that have a special protection under Norwegian and international law. He reminded the Court of the particular vulnerability of the Indigenous people, especially considering that the law and legal practice were used to limit Sámi rights during and after the assimilation. It was the government’s responsibility to implement indigenous rights, also in light of the ongoing reconciliation process.
“This is not an act of civil disobedience that is against the rules of democracy”, said the defence lawyer. On the contrary, these were acts that were motivated by the principles of the rule of law. The freedom of expression and assembly of an Indigenous people, by way of civil obedience, is in the view of the young defendants necessary to uphold democracy. The Fosen judgment of 11 October 2021 was clear that there was a violation of the Sámi’s human rights. Remarkably, only three days before the current trial began, the reindeer herder siida on Fosen and the State finally reached an agreement. As such, the 877 days of ongoing human rights violations that the Prime Minister Jonas Gahr Støre and the Minister for Energy Terje Aasland in March 2023 finally admitted to, ceased to exist.
The protests in 2023 were thus not in opposition to or a means to prevent a ruling of a court. Rather, they were in support of the Fosen judgment, but as a reaction to the inaction of the government to implement it. It thereby stands in contrast to the famous Alta judgment, where the Supreme Court of Norway’s judgment was not favourable for the Sámi. The outcome led to protests and a hunger strike before the Norwegian Parliament in 1980.
The defence strategy was noteworthy: rather than addressing the defendant’s infringement of criminal law or the Police Act, the entire focus was assimilation policies, truth and reconciliation, discrimination, the Sámi’s connection to nature, and the fight for indigenous rights.
Personal Experiences of Civil Disobedience
On the first day of the trial, five defendants, Ella Maria Hætta Isaksen, Elle Margget Nystad, Jon Anta Eira Åhrén, Mihkkal Robertabártni Hætta, and Rasmus Madsen Berg voluntarily took the stand. Nystad and Åhrén are central persons in the youth branch of the Norwegian Sámi National Association. Robertabártni Hætta is a young reindeer herder from Kautokeino who became known when he, on the occasion of 700 days of governmental inaction following the Fosen judgment, erected a lavvo in front of the Norwegian Parliament, much in resemblance of the Alta protests in 1980. Hætta Isaksen is a Sámi actress and artist who took a lead role in the protests and became their public face.
Hætta Isaksen was visibly touched and struggled to contain herself. She emphasised that the demonstrations and the current trial had an enormous emotional toll on her and the other activists. They felt the strain of continuously having to defend their right to exist and to draw attention to their situation. As Indigenous people, the Sámi were continuously exposed to pressure from all sides, especially from the State. She felt that they were a burden to the whole Norwegian society – and that Sámi matters always became questions of their value as human beings. However, she stood on the shoulders of her ancestors, whom she did not want to disappoint. Hætta Isaksen was proud that their actions awakened a Sámi resilience and, not least, a Sámi consciousness. In her view, Fosen was a milestone and felt like a victory for all Sámi. Therefore, the disappointment was even bigger when the government refused to acknowledge the human rights violation and to implement the judgment. The government’s inaction reconfirmed the Sámi’s feeling of not being heard, even if there was a unanimous judgment by the Supreme Court sitting in Grand Chamber. This was yet another proof of the Sámi’s continuous suppression – and the proverbial nail in the coffin of trust in the State. The activists’ use of civil disobedience was their last resort, after having tried to be heard by all other means.
Democracy and the Separation of Powers
This first day in the trial of the seventeen Fosen activists raised numerous aspects that go far beyond the case itself. It deals with fundamental matters of a democratic state, namely the principle of separation of powers, the respect of the rule of law, and trust in the State and its institutions as prerequisites for peaceful coexistence. These matters are important because they are warrants for the future respect of human rights. As late as in November 2023, the Norwegian Judges’ Association issued a statement where it expressed concerns over the weakening of the rule of law. The Association was particularly worried that the trust in the State would be weakened in the affected group, the Sámi, toward whom the State has special constitutional obligations.
The issue of trust in a government is also key to tackle long-term societal challenges such as climate change, which is a driving force to achieve a green transition. The defendants’ statements also show the importance of recognition, especially against the backdrop of exploitation of indigenous land, river, sea, especially if framed as necessary for the greater good of society. The recognition includes justice for an Indigenous minority group. Here, the case also touched on the importance to view the Fosen judgment and the peaceful demonstrations as part of an ongoing reconciliation process. The publication of the report of the Truth and Reconciliation Commission coincided with the protests and drew attention to the human rights situation of the Sámi. The report and today’s statements of the Sámi defendants who all mentioned hate speech, discrimination, and shame made clear that there are still big hurdles that need to be overcome in order to achieve reconciliation.
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