A. Human Rights and a Just Transition

To date, the academic discourse surrounding the conceptualization of a just transition and human rights has been cursory. In interdisciplinary scholarship, the discussion often lacks specificity regarding the particular human rights involved and fails to explore their implications critically.Footnote ¹⁹ For example, while the overarching concept of ‘human rights’ is integral to each of the three topical perspectives of a ‘just transition’ proposed by Heffron and McCauley, the intricate details and ramifications for human rights are frequently overlooked or left unspecified.Footnote ²⁰ Heffron and McCauley define a ‘just transition’ as comprising, at least, climate, energy and environmental justice. Focusing on the ‘justice’ element of these aspects of the transition, Heffron and McCauley define each, in the following way: climate justice concerns ‘sharing the benefits and burdens of climate change from a human rights perspective’;’ energy justice refers to ‘the application of human rights across the energy life-cycle (from cradle to grave)’; and environmental justice aims ‘to treat all citizens equally and to involve them in the development, implementation and enforcement of environmental laws, regulations and policies.’Footnote ²¹ Thus, the justice aspect of a ‘just transition’ in regard to climate and energy in both cases embodies an explicit human rights reference as the compass setting the direction for that particular form of ‘justice.’ However, the authors fail to specify the substantive human rights content—or they solely allude to citizens’ involvement in the development of laws, regulations and policies for promoting environmental justice. Moreover, because ensuring citizens’ involvement through the right to public participation in environmental decision-making, as granted by the Aarhus Convention, does not fulfil Indigenous Peoples’ demands, these analyses remain insufficient for the purposes of a just transition that respects the rights of Indigenous Peoples. In fact, as demonstrated by Fjellheim in renewable energy contexts, formalized dialogues led by state or corporate entities may be legitimate processes that are acceptable to the majority but detrimental to Indigenous communities.Footnote ²² This underscores the importance of recognizing and addressing the distinct rights and perspectives of Indigenous groups in the formulation and implementation of environmental regulations and policies, as well as development strategies more generally.

Moreover, despite widespread acknowledgement of justice as a fundamental aspect of the three topical aspects of a just transition,Footnote ²³ critical voices have also highlighted a related lacuna in the energy scholarly discourse: the failure to address intersecting inequalities linked to gender, Indigeneity, race and other interwoven disparities.Footnote ²⁴ This criticism arises from the fact that the core theories of justice employed by energy justice scholars are often grounded in Western value orientations and lean towards liberalism, emphasizing democracy and human rights while neglecting non-Western philosophies.Footnote ²⁵ In response to such normative assumptions and potential biases, scholars have argued for the integration of Feminist, Indigenous, anti-racist and postcolonial approaches to justice, recognizing them as essential correctives to theories of justice rooted in colonial, liberalist or majoritarian paradigms.Footnote ²⁶

At the same time, the development of scholarship on a ‘just transition’ has been instrumental in expanding the understanding of the concept and its normative aspects, in the process challenging its original narrow focus on the workforce and fossil fuel considerations.Footnote ²⁷ So far, the significance of a just transition has been predominantly examined in the literature within the particular context of mining ‘critical’ or ‘transition’ minerals, —such as cobalt, zinc, copper, lithium and others— that are crucial for windmill structures and turbines, solar panels or batteries to store (excess) energy.Footnote ²⁸ Moving beyond the confines of the impacts of the transition for the company’s workers, scholars have drawn attention to the vulnerability of local communities to adverse human rights impacts that may result from mining.Footnote ²⁹ Many of the mining-induced human rights impacts relate to land, family sustenance and traditional lifestyles, somewhat similar to those that Indigenous groups affected by wind energy farms encounter.

As tensions arising from the green transition have become more apparent, and studies illuminate the extensive harmful impacts on human rights associated with the energy transition, policymakers have also responded by expanding the scope of a just transition to include diverse concerns beyond the workforce, such as vulnerable groups, youth, Indigenous Peoples, regional issues and the alleviation of poverty.Footnote ³⁰ On this basis, human rights mechanisms and international institutions, including the UN General Assembly and the International Labour Organization (ILO), have increasingly underscored the pivotal role of human rights in the context of promoting green and just transitions. The UN General Assembly, for instance, explicitly calls for the application of a human rights-based approach to climate change adaptation and mitigation, ‘focusing on the rights of those who are already vulnerable and marginalized due to poverty and discrimination.’Footnote ³¹ Similarly, the International Labour Organization has expanded its conception of a just transition from its application to the workforce, now also highlighting the intrinsic connection between a just transition and human rights standards, especially those of Indigenous Peoples.Footnote ³² Additionally, the ILO stresses the necessity for states and businesses to assess potential risks linked with the implementation of sustainable development policies in line with human rights principles. This discourse echoes the sentiments of Agenda 2030 for Sustainable Development, which recognizes the roles of both government and corporate actors in advancing sustainable development while emphasizing that inclusivity, equality, justice and respect for human rights are essential for sustainable development.Footnote ³³

Such legal and policy development is also reflected in other organizational settings. As part of its series of guidance elaborating on the implementation of risk-based due diligence in specific operational contexts, the Organisation for Economic Co-operation and Development (OECD) has issued Due diligence guidance for meaningful stakeholder engagement in the extractive sector. Footnote ³⁴ While this instrument primarily targets the extractive sector, many of the associated human rights risks—and consequently, the relevance of due diligence steps for companies—may also apply to the wind sector.Footnote ³⁵ Indeed, further attention to due diligence, including as established by the OECD Guidelines for Multinational Enterprises on Responsible Business Conduct, is sorely needed for a just transition.Footnote ³⁶

Nonetheless, as this part of the review of the current literature and trends within international law and organizations has evidenced, concerns remain about companies’ adequate integration of human rights for achieving sustainable development, including for the energy transition to be just in not harming human rights of affected communities, including Indigenous groups. This underscores the relevance of a rights-based approach as a means of prioritizing human rights in the development discourse.

B. Human-rights-based Approach

Building on the earlier more general rights-based approach (RBA) to development theory,Footnote ³⁷ a human-rights-based approach places human rights at the centre of economic projects and wider societal change for the delivery of public goods.Footnote ³⁸ Within the current context of global sustainable development, a human rights-based approach can be summarized as a conceptual framework for the process of human development that is normatively based on international human rights standards and operationally directed to promoting and protecting human rights.Footnote ³⁹ As described by United Nations agencies, it ‘seeks to analyze inequalities which lie at the heart of development problems and redress discriminatory practices and unjust distributions of power that impede development progress and often result in groups of people being left behind.’Footnote ⁴⁰ On this basis, a rights-based approach to the green transition emphasizes the importance of integrating human rights considerations into environmental policies and practices, thereby advancing both environmental sustainability and social justice goals.

From a legal perspective, a human-rights-based approach to a just transition is arguably founded on several key international agreements. The preamble to the Paris Agreement, which states its commitment to respecting human rights, was the first international environmental agreement to mention climate change with reference to a just transition and human rights.Footnote ⁴¹ Agenda 2030 (embodying the 17 Sustainable Development Goals (SDGs),Footnote ⁴² including SDGs 7 and 13, which jointly advocate for a transition to a low-carbon economy and the fight against climate change), underlines the central importance of human rights for achieving sustainable development. Additionally, Agenda 2030 underscores the importance of respecting human rights in business contexts, explicitly referencing the UNGPs.Footnote ⁴³

While the human-rights-based approach has natural appeal in a human rights setting, it also contains weaknesses that raise questions about its potential to address the current crisis. Specifically, the human rights regime has been criticized in so far as it does not fundamentally challenge the existing development paradigm that prioritizes economic growth over alternative models of development.Footnote ⁴⁴ Similarly, inherent tensions within the human rights regime call into question its effectiveness in tackling structural injustice and inequality.Footnote ⁴⁵ Moreover, some have suggested that the human rights regime itself may contribute to the problem rather than solely serving as a solution.Footnote ⁴⁶

At the same time, some of these critiques have contributed to the emergence of the recognition of Indigenous Peoples’ rights as a distinct regime. This recognition, as currently framed within the body of law addressing Indigenous rights, highlights the need for a more comprehensive and inclusive approach to address the injustices and enduring inequalities Indigenous groups face within the broader human rights framework.

C. Indigenous Peoples’ Rights and Corporate Responsibilities

Although the essence of Indigenous Peoples’ rights diverges from the traditional understanding of human rights, Indigenous rights are embedded in a structure reminiscent of conventional human rights systems. In this regard, it follows from international law that states bear the primary duty to protect human rights, and therefore also Indigenous Peoples’ rights. This duty requires states to establish adequate institutional mechanisms and legal frameworks for fulfilling the purpose of conventional human rights, such as the International Bill of Human Rights (IBHR) and specific instruments concerning the rights of Indigenous Peoples, as further explained below. In addition, the UNGPs further elaborate on the implications of this responsibility for states, while also explaining that businesses are responsible for complying with all applicable laws and for respecting human rights.Footnote ⁴⁷ Furthermore, corporate actors are also expected to respect human rights, including the rights of Indigenous Peoples, independently of states’ abilities or willingness to fulfil their human rights obligations.Footnote ⁴⁸ This is especially pertinent in situations in which host nations fail to acknowledge the status of Indigenous Peoples or provide insufficient national protection. It is significant in many ways that the UNGPs refer to the IBHR and the ILO fundamental conventions as the minimum for corporate responsibility in this regard. In the current context, importantly, the fact that the IBHR is the minimum, also means that companies should exceed those baseline standards, particularly in situations involving Indigenous Peoples or their ancestral lands.Footnote ⁴⁹

More particularly, when considering what human rights are to be applied to the situation of Indigenous Peoples, business actors must consider relevant provisions of general international law such as Article 27 of the ICCPR and instruments that are especially applicable to their situation,Footnote ⁵⁰ namely ILO Convention 169 on Indigenous and Tribal Peoples and the UNDRIP.Footnote ⁵¹ Countries that have ratified ILO Convention 169 have committed themselves to involving Indigenous Peoples in decision-making and respecting their right to determine their own priorities for the process of development. This includes decisions that affect their lives, beliefs, institutions and spiritual well-being, as well as the lands they occupy or utilize and their economic, social and cultural development.Footnote ⁵²

With the adoption of UNDRIP, most countries have also recognized the collective rights of Indigenous Peoples to self-determination, which includes their right to autonomy and self-government in internal and local affairs, their collective rights to lands, territories and resources, and the right to participate in decisions affecting them through FPIC.Footnote ⁵³ These rights grant Indigenous Peoples a distinctive status as both human rights holders and peoples entitled to collective rights under international law. Despite its legal status as a declaration and therefore international soft law, UNDRIP is considered to be the most significant and authoritative international instrument for guaranteeing the rights of Indigenous Peoples.Footnote ⁵⁴ While its status as customary law remains contested,Footnote ⁵⁵ its broad endorsement by states, international organizations and corporate mechanisms has reinforced its influence over the years.Footnote ⁵⁶ In other words, both state and business actors are expected to uphold its provisions.

While states remain the primary recipient of UNDRIP, current trends underscore the importance of business actors exceeding the minimum human rights standards and considering contextually relevant human rights instruments, such as UNDRIP or ILO Convention No 169. This need has been reflected in the development of policies and guidelines by numerous international and regional financial and business governance institutions for both public and private projects impacting Indigenous communities. In 2012, the International Finance Corporation (IFC) developed its Performance Standard 7 on Indigenous Peoples, which requires the FPIC of Indigenous Peoples in certain circumstances that directly and adversely impact them.Footnote ⁵⁷ Furthermore, in a follow-up to its 2011 revision of the Guidelines for Multinational Enterprises, the OECD on its own or with other organizations has elaborated upon the responsibility of the private sector in relation to the rights of Indigenous Peoples.Footnote ⁵⁸ In the OECD-Food and Agriculture Organisation (FAO) Guidance, a dedicated section on engagement with Indigenous Peoples highlights international instruments and standards (such as UNDRIP and ILO Convention No. 169) and recognizes the importance both for states and companies of ensuring that they protect and respect legitimate tenure rights.Footnote ⁵⁹

Although far from the reality of corporate practice, as evidenced by continuous UN reports addressing the situation of Indigenous Peoples,Footnote ⁶⁰ it follows from the above that the corporate responsibility to respect the human rights of Indigenous Peoples as prescribed by the UNGPs is based on human rights due diligence (HRDD). However, the absence of mandatory and uniform HRDD demands and agreement on the substance of international legal standards concerning the implementation of the rights of Indigenous Peoples leads to a lack of clarity over what the rights of Indigenous Peoples entail in terms of the responses required of business actors to fulfil their corporate responsibility to respect. In turn, this contributes to the challenge of preventing human rights abuses related to business activities. In that regard, it has been argued that institutional guidelines ‘still fall short of interpreting international human rights law.’Footnote ⁶¹ For instance, safeguarding policies and guidelines from the IFC and the OECD have not provided detailed explanations regarding the extent and significance of ‘consent’ in relation to the requirement of achieving FPIC. In practice, this lack of clarity supports damaging processes, as consent is occasionally misconstrued as merely necessary for consultation rather than a substantive requirement before advancing with a project.Footnote ⁶² Furthermore, even in cases in which domestic laws mandate HRDD, concerns arise over poorly crafted legislation, which may lead to superficially compliance-oriented, ‘check box’ human rights due diligence processes.Footnote ⁶³

Thus, while it remains uncertain whether HRDD can genuinely improve conditions for rights holders and address structural economic issues,Footnote ⁶⁴ the need persists to clarify what the rights of Indigenous Peoples entail for corporate actors for them to respect human rights. The following sections of this article help respond to this need by analysing three disputes that have arisen because of the development of wind farm projects on the traditional land of Indigenous Peoples. We first briefly outline the trend and then describe and analyze each of the cases.

A. Fosen

In 2010, Norwegian authorities awarded licences for extensive wind farm development on the Fosen peninsula in central Norway. Finalized in 2019–2020 and comprising six wind farms, the industrial installation is located in an area where the local Sámi have practised reindeer husbandry since time immemorial. The Sámi are an Indigenous People, traditionally living across central and northern Norway, Sweden, Finland and northwestern Russia. Reindeer herding, which includes migrating with the reindeer between summer and winter pastures, is key to their livelihoods and a protected right at the national and international levels.

The Fosen wind farm project, led by the Fosen Wind company—a Norwegian joint venture backed by European investors—was initially authorized by the relevant authorities, as it was not deemed to violate Sámi human rights. Despite ongoing concerns that Sámi rights are not sufficiently protected at the domestic level, Norway remains one of the few countries to have ratified ILO Convention 169 and incorporated Article 27 of the ICCPR into its legal system. This has positioned Norway as having one of the more robust frameworks for safeguarding Indigenous rights while also providing legal certainty for companies and investors seeking to operate in the region. However, in its landmark Fosen decision in 2021, the Supreme Court of Norway ruled unanimously that the government-issued licences for the Roan and Storheia wind energy facilities on the Fosen peninsula were invalid because the licences violated the protection of Sámi rights under Article 27 of the ICCPR. The decision followed years of legal struggle where the Fosen Sámi had challenged the validity of the licences through national and international courts, including a petition to the OECD and the UN Committee on the Elimination of Racial Discrimination (CERD). In 2018, CERD urged the Norwegian government to temporarily halt the project, but the OECD National Contact Point petition had little impact in resolving the matter. Instead, it primarily advised BKM, one of the Fosen investors, to carry out appropriate due diligence, including ensuring FPIC.Footnote ⁶⁹ As a result, the project went ahead over communities’ objections while national lawsuits were still pending.

The Fosen decision is particularly significant because it marks the first time the Norwegian Supreme Court has recognized a violation of the human rights of the Sámi people concerning their culture.Footnote ⁷⁰ Against this backdrop, three key aspects of the court’s decision are particularly relevant for assessing the broader framework of corporate responsibility in the green transition. First, the court’s assessment of the threshold for violations of Sámi rights under Article 27 is particularly significant, especially given that this provision is applicable in many countries worldwide. While Article 27 of the ICCPR primarily concerns the rights of minorities to culture, the Human Rights Council’s broad interpretation of this provision includes protections for Indigenous individuals against actions that could significantly disrupt their cultural practices, such as reindeer husbandry.Footnote ⁷¹ In practice, this means that decision-making by relevant authorities regarding wind energy projects or any other initiatives affecting the Sámi way of life depends on determining whether a project crosses the threshold for a violation. Typically, only projects causing substantial negative impacts are prohibited by government authorities. Conversely, this interpretation also suggests that measures with limited impact on the way of life of minority groups may not necessarily amount to a denial of rights under Article 27 of the ICCPR.Footnote ⁷²

In opposition to the government’s conclusions, the Supreme Court found in the Fosen decision that the project’s interference was significant and thus constituted a violation of ICCPR Article 27. In determining the impact of the Fosen windmill project, the court also noted that the project must be seen in the context of other activities in the area, thereby implying consideration of the extent of existing as well as planned activities in the Fosen area and their cumulative impact on the local Sámi reindeer herders.Footnote ⁷³ The reindeer herders’ potential loss of their winter pastures and a substantial part of their income was key to deciding on the significance of the impact. Importantly, the court also considered Sámi knowledge as a basis for its assessment. In its decision, it took note of the environmental impact assessment commissioned by Fosen Wind but chose to emphasize the conclusions from an assessment conducted by the expert witness for the Nord-Fosen Sámi community.Footnote ⁷⁴ Finally, the fact that the company was unable to remedy this loss in a manner congruent with the culture of the Sámi was also highlighted by the court. Contrary to arguments made by the wind-power company, the court found that monetary compensation to provide winter feeding—a method that is not traditionally used by Sámi reindeer herders—was inadequate to prevent a violation of Article 27 of the ICCPR.Footnote ⁷⁵ As a result of this decision, the Supreme Court revoked the licence for the Fosen wind energy installation, though arguably with questionable timing, given that the construction of the turbines had already been finalized.

Second, in a just transition context, it is noteworthy that the violation of the human rights of the Sámi had occurred despite the necessary consultation required by national law. Considering the jurisprudence of the HRC as well as Norwegian case law, the Supreme Court observed that the presence or extent of consultation with the affected communities should not be considered a decisive factor. Notably, the court observed that undertaking consultation did not prevent a violation of Article 27 if the consequences of the interference were sufficiently serious. Thus, the court found that while consultation with minority groups was an important factor, it was insufficient in itself to prevent a violation of human rights if the negative effects were substantial.Footnote ⁷⁶ The court’s ruling rejected the argument presented by the wind power company, which had claimed that significant weight must be placed on consultation and involvement in the decision-making process.Footnote ⁷⁷ In contrast, the court found that it was not an absolute requirement under the Convention that the minority had participated in the decision, although that, too, may be essential in the overall assessment.Footnote ⁷⁸

Third, the Fosen decision is also significant for highlighting the possible conflict between the promotion of the green shift and the protection of human rights. In its decision, the court examined and agreed with the wind energy company’s assertion that the transition and increased production of renewable energy are important considerations in the overall assessment of wind farm development. However, it also underlined that Article 27 of ICCPR did not allow for a balancing of interests. According to the court, such balancing may only be permitted in the event of a conflict between fundamental rights (i.e., an explicit and direct conflict between Article 27 and another ICCPR article).Footnote ⁷⁹ Taking into consideration the project development, the court observed that the windfarms could have been located in other locations less prone to interference with reindeer herding. Thus, the court did not reject the importance of expanding wind energy for the transition and its longterm ecological effects. Rather, it rejected the suitability of the chosen site because it placed a disproportionate burden on the Fosen reindeer communities when less intrusive development alternatives existed.Footnote ⁸⁰ Contributing to its landmark character, the Fosen ruling signals that the green transition does not take priority over the obligations and responsibilities of states and companies towards human rights. Notwithstanding the urgency of climate action, as this decision suggests, policies and development projects supporting the green transition cannot override the human rights of the members of Indigenous minorities.

However, the controversy continued after the Fosen ruling, with the wind turbines remaining in place. After years of negotiation, agreements were finally concluded, first with the Southern Fosen Sámi group in late 2023 and early 2024 with the Northern Fosen Sámi group.Footnote ⁸¹ Following a demonstration by reindeer herders and environmental activists in the government quarter,Footnote ⁸² a mediation process was initiated. As a result, the state has undertaken the responsibility to facilitate a process aimed at securing additional winter grazing areas outside the Fosen reindeer herding district. In this context, the Fosen case not only underscores the challenges of evaluating the effects of wind energy projects on human rights, particularly those of Indigenous communities but also lays bare the constraints to safeguarding human rights within legal frameworks such as Norway’s. Moreover, it also reveals the hurdles to implementing substantive and adequate remedies, even after judicial recognition of human rights violations.Footnote ⁸³

B. Turkana

In the Lake Turkana case, the legality of the Lake Turkana wind energy project, the largest wind energy installation in Africa, was brought into question following a court decision by the Land and Environmental Tribunal of Kenya in October 2021.Footnote ⁸⁴ Using windmills provided by the Nordic company Vestas and financed by various foreign investors, the wind farm was constructed in 2017 in the northern part of Kenya.Footnote ⁸⁵ Comprising 365 wind turbines, along with a high voltage substation and power line, the project was deemed essential by the national authorities and investors for delivering affordable and clean energy to the country’s population.Footnote ⁸⁶ However, the project entailed the acquisition and privatization of 150,000 acres of community land through a 99-year lease to the company LTWP, approved by the Kenyan authorities but contested by local communities based on national and international law, including their rights as Indigenous Peoples.Footnote ⁸⁷ While the company offered corporate social responsibility ‘strategies’ to gain local support, no adequate compensation was paid because of its narrow definition of Indigenous communities in the area, which side-lined several communities due to their lack of permanent settlement in the area.Footnote ⁸⁸ Testimonies revealed that several communities were not recognized as Indigenous by the government and, as a result, were denied adequate protection—an ongoing issue in Kenya, which has faced similar accusations of failing to uphold Indigenous Peoples’ rights despite endorsing the UNDRIP.Footnote ⁸⁹ Ultimately, this situation triggered a lawsuit and a decision by the Land and Environmental Tribunal of Kenya that established a violation of procedural law, thereby indicating that the government and the companies responsible had built the Lake Turkana wind energy project illegally.Footnote ⁹⁰

From a rights-based approach focusing on Indigenous Peoples, the Turkana decision is interesting in several ways. At the outset, the judgment underlined how developers had violated national laws, even in the face of strong governmental support for the project. In its ruling, the Court determined that the land acquisition had been performed illegally, unconstitutionally and unlawfully, violating national procedural laws governing communal land acquisition.Footnote ⁹¹ Despite the involvement of the county council, the ministry of energy and the national treasury in the approval process of the land acquisition, the court found that the allocation of the land was unlawful because the process did not respect the law protecting the collective rights of the pastoral communities to lands. In contrast to LTWP’s depiction of the land as ‘an investable terra nullius’,Footnote ⁹² the court acknowledged that it was collectively owned and used by multiple local communities.Footnote ⁹³ This required specific procedures mandated for the acquisition of such land, which the court found LTWP and the national authorities had failed to adhere to.Footnote ⁹⁴ Notably, the court found that the company had not followed essential procedural rules, such as issuing notice of the project, conducting hearings, recording resident representations and obtaining the majority approval of the county council members.Footnote ⁹⁵ Consequently, by neglecting the mandated procedural rules of participation outlined in the Trust Land Act to regulate the process of land acquisition, the court concluded that LTWP had violated Kenyan law.

In addition, even though the court did not find a breach of the environmental, socio-economic and cultural rights of the communities as protected under international law, the decision raised several issues directly concerned with the rights of Indigenous Peoples. In their claim, the communities contended that the project would dispossess them of part of their ancestral land, hindering its use for seasonal and cyclic purposes like pastureland, grazing corridors and cultural activities.Footnote ⁹⁶ They also alleged that the project failed to seek their FPIC, contrary to the IFC performance standards concerning Indigenous Peoples and cultural heritage. However, in its ruling, the court contended that inadequate evidence was presented to substantiate these allegations and concluded that the project did not violate the human rights of the local communities.Footnote ⁹⁷

As in the Fosen decision, the court scrutinized whether the project could be deemed legitimate based on its contribution to green energy production and the national development of Kenya. More specifically, arguments were presented regarding the project’s ‘benefit to the people of Kenya and more so on economic development.’ Moreover, ‘[i]t was contended that Kenyans shall benefit from power generated from the wind power project.’Footnote ⁹⁸ Its status as ‘one of the largest single private sector funded investments in the history of the country’ was also reported.Footnote ⁹⁹ However, the court, recognizing the project’s scale, emphasized that appropriating such a significant amount of land for private use was a drastic step requiring strict adherence to the law.Footnote ¹⁰⁰ The court acknowledged the project’s alleged economic and social benefits, such as job opportunities and socio-economic contributions to local communities through the company’s corporate social responsibility policy.Footnote ¹⁰¹ Nevertheless, it concluded that no benefits from the project could justify a blatant violation of the law.Footnote ¹⁰² The court explicitly stated that non-compliance with the law for trust land allocation could not be excused on the grounds of public interest, legitimate expectation, government policy or any other justification.Footnote ¹⁰³ Additionally, the court emphasized that even with the company’s legitimate expectation that the government had complied with the regulations when allocating the land, the law could not be circumvented. In this context, the court underscored the government’s fundamental responsibility for failing to ensure legal compliance but concluded that, as a major investor in a multibillion-shilling project, LTWP ‘should have undertaken careful and foolproof due diligence.’Footnote ¹⁰⁴

Ultimately, despite finding a violation, the decision also demonstrates the difficulties in providing remediation to communities negatively affected by wind-power projects. Even though the court determined that the plaintiffs had been denied the opportunity for just compensation, it refrained from deciding on the amount of compensation and delegated this task to the relevant institutions designated by law.Footnote ¹⁰⁵ Moreover, as in the Fosen case, the court did not terminate the project, arguing that it was already completed and operational. While acknowledging that a demolition order could be a remedy for the violation, the court opted not to issue such an order. Citing the absence of a request from the plaintiff,Footnote ¹⁰⁶ the court also justified its decision on the fact that the project had been approved at the highest level of the Kenyan Government and that the plaintiffs had delayed filing the lawsuit until several years after the land acquisition.Footnote ¹⁰⁷ The court, constrained by the reality of the completed project, therefore granted the project proponents one year to rectify the land allocation in compliance with existing laws. Failure to do so within the specified timeframe would result in the land reverting to the community.Footnote ¹⁰⁸ However, after the issuance of the decision, LTWP informed the court that no actions had been taken toward implementing the judgment, which also means that the project continues to operate illegally.

C. Gunaa Sicarú

In 2017, Eólica de Oaxaca, the Mexican subsidiary of Electricité de France (EDF), proposed building a 300-megawatt (MW) wind-power plant in the Isthmus of Tehuantepec, one of the world’s windiest regions and the location of the lands of several Indigenous communities. This project, among the largest in Latin America, involved 115 turbines and the use of 4,700 hectares of land. EDF’s decision to proceed with this venture, despite already operating three wind farms in the region, followed the Mexican government’s opening of the market to private investments in renewable energy. However, several local Indigenous groups opposed the project, leading to legal challenges both domestically and internationally. In 2018, they filed a complaint with the OECD National Contact Point in France, withdrawing it in 2019 due to perceived ineffectiveness.Footnote ¹⁰⁹ In 2022, their legal actions in Mexican courts proved decisive, resulting in a decision by the Mexican Land and Agrarian Tribunal to halt the project before completion.Footnote ¹¹⁰ While significant in itself, this decision also reveals the challenges Indigenous communities encounter in accessing judicial remedies against multinational corporations, even when mandatory human rights due diligence is required. At the time, France was one of the few countries in the world that had adopted legislation mandating human rights due diligence from its largest corporations. After reviewing the Mexican court’s decision, this article also explores the project’s scrutiny under the French duty of vigilance law (Loi Devoir Vigilance).

From the perspective of a rights-based approach to the green transition, the merit of the Gunaa Sicarú judgment lies in its recognition of the collective land rights of Indigenous Peoples, which led to the cancellation of the project licences. The 2022 ruling specifically emphasized the centrality of land ownership in revoking the lease contract for various project-designated plots of land. Despite the company’s claim that the project was situated on private land, the court determined its location within communal lands, affording them inalienable, imprescriptible and non-sizeable status under national law. The process of ascertaining land ownership involved grappling with several conflicting and false testimonies from various experts and residents.Footnote ¹¹¹ The court’s decision revealed that the company had initiated negotiations for the project with selected individuals from the Unión Hidalgo community, including self-proclaimed ‘landholders committee’ members.Footnote ¹¹² Usufruct contracts were then concluded with individuals declaring themselves as ‘landholders’, who were allegedly deceived in signing the lease contracts.Footnote ¹¹³ However, the court’s ultimate recognition of the communal status of the land emphasized that Indigenous customary authorities held decision-making power in land governance. The court emphasized that all decisions regarding the land should be made through community assemblies, rendering contracts with individuals inadmissible.Footnote ¹¹⁴ This authority extended to critical matters such as developing Indigenous consultations for infrastructure projects, including wind-power infrastructure.Footnote ¹¹⁵ Consequently, the court determined that the lease contract was unlawful due to the disregard for laws safeguarding Indigenous collective land rights,Footnote ¹¹⁶ aligning with the findings of the Lake Turkana decision mentioned earlier.

While the court decision was successful in temporarily halting the project, its timing was too late to prevent adverse effects on the Indigenous communities. In this regard, the decision is valuable as it illustrates the challenges in upholding the rights of Indigenous Peoples when public authorities inadequately protect them in practice. In a violation of the rights of Indigenous Peoples, including the standard of FPIC, as recognized under Mexican Law and re-affirmed by the court, it was effectively only several months after granting licences for the project that the Mexican authorities decided to consult the affected communities, amidst unrest.Footnote ¹¹⁷ Research has shown that Eólica de Oaxaca initially opposed any dialogue and ‘tried to proceed without the consent of the community.’Footnote ¹¹⁸ Moreover, subsequent research has also revealed that the project caused divisions and clashes among community members, a phenomenon observed in various other wind energy development projects in Mexico,Footnote ¹¹⁹ as well as in Kenya, as experienced in the Turkana case. In a context in which land ownership and use are poorly documented, recognized or contested, the development of wind energy projects can either create or exacerbate division and conflict among individuals and communities. This trend often arises from the process of privatizing communal land, which imbues it with a ‘new value’ yet leads to internal tensions jeopardizing the livelihoods and traditional lifestyles of Indigenous Peoples.Footnote ¹²⁰ Whether these divisions and conflicts occur as a result of companies’ tactics to promote their business and interests or are due to internal struggles within Indigenous communities, whose members are often split over the potential benefits of the project, the impacts are profound and shape the socio-economic landscape in a manner that can perpetuate existing injustices and create new ones.

In this context, the question of the responsibility of the parent company, EDF, for the adverse impacts of the development of the Gunaa Sicarú project and the violations caused by its subsidiary also becomes a critical issue. To protest the development, a lawsuit was additionally filed in France by representatives of the Indigenous Zapotec community of Unión Hidalgo, alongside two NGOs—ProDESC and the European Center for Constitutional and Human Rights (ECCHR)—against EDF based on France’s duty of vigilance law. This law was the first to require large companies to establish and implement ‘reasonable vigilance measures to identify the risks and prevent severe impacts … resulting from the activities of the company and those of the companies which it controls.’Footnote ¹²¹ In their legal proceedings in France, the plaintiffs argued that EDF had failed to adhere to the Indigenous community’s right to effective consultation regarding the Gunaa Sicarú wind park project, thereby infringing the community’s entitlement to FPIC.Footnote ¹²² In November 2021, the Paris Civil Court, during preliminary legal processes, dismissed a plea to halt construction of the project, citing procedural reasons.Footnote ¹²³ Nevertheless, the court confirmed its authority in matters associated with the duty of vigilance law and specified that a trial would be held against EDF’s headquarters rather than its subsidiaries. However, the French lawsuit did not come to fruition, as it remained stalled in legal proceedings. As such, the obligation to safeguard the rights of Indigenous Peoples based on due diligence requirements remains largely untested. In sum, whether the Gunaa Sicarú case heralds a new era of accountability for multinational corporations operating in Indigenous territories or simply serves as a singular instance of legal intervention demonstrating the shortcomings of the current system, its impact underscores the ongoing need for robust mechanisms to ensure the protection of Indigenous rights in the context of the green transition.

A. Implications for the Responsibility of Corporate Actors for the Rights of Indigenous Peoples

Five important lessons can be drawn from the Fosen, Turkana and Gunaa Sicarú court decisions on the responsibility of corporate actors in the green transition. At the outset, it is important to note that compliance with national law alone is insufficient for companies to fulfil their responsibility to respect the rights of Indigenous Peoples. All three cases serve as a clear illustration that national legislation and public authorities often fail to fulfil their duties to protect the rights of Indigenous Peoples. While a stronger commitment to Indigenous Peoples’ rights at the domestic level is likely to provide better safeguards for their human rights,Footnote ¹²⁴ these protections remain insufficient when governments prioritize competing interests, such as those of the green transition. As the outcomes of these cases demonstrate, the mere fact that a wind company operates in a country that has ratified ILO 169 (as in Mexico and Norway) or has committed to the UNDRIP and is bound by the ICCPR (as is the case with all three countries) does not guarantee adequate protections. The Fosen case, for instance, illustrates that even in Norway—widely regarded as one of the world’s most robust democracies—the protection of Indigenous rights remains inadequate.

Given their independent responsibility to respect human rights, business actors should consequently not assume that adherence to national law equates to compliance with international standards on Indigenous rights. In accordance with the UNGPs, they should undertake human rights due diligence, even when not mandated by national law, to ensure that their activities do not infringe or contribute to violations of Indigenous Peoples’ rights. Accordingly, they should identify and assess any actual or potential adverse impact of a project and take measures to mitigate and remedy interferences and violations when necessary. Nonetheless, as evidenced by the French case prior to the Mexican Gunaa Sicarú decision, mandatory due diligence is also no guarantee that companies will deliver fully on their corporate responsibility to respect human rights. In this context, examining corporate responsibility inevitably raises questions about the adequacy of remedial mechanisms to ensure the accountability of business actors, both within their host countries and their home states.

Following this, the first lesson is that upholding the rights of Indigenous communities to the governance of their lands and resources is indispensable for embracing a rights-based approach to promote justice in the transitions. Despite limited recognition of their self-determining authorities, which varies greatly from one country to another, as evidenced in the case of Norway, Mexico and Kenya, Indigenous communities possess their own governance structures and internal laws that regulate their ancestral territories. Businesses must acknowledge the collective land rights of Indigenous Peoples, granting them decision-making authority over their lands. Land stands as the cornerstone of Indigenous communities’ lives and cultures, serving as the foundation for the exercise of their self-determination rights. Respect for self-determination and land rights is also what may differentiate community-led initiatives from development projects that Indigenous Peoples do not control. While the former uphold Indigenous governance and decision-making, the latter are often met with Indigenous opposition because they undermine local autonomy and disregard the community’s needs and values, all under the guise of what is portrayed as sustainable development. However, when deprived of the right to access and utilize their lands, territories and resources, Indigenous Peoples’ ability to shape their own development is compromised, and their fundamental rights are endangered.

Yet, because numerous countries fail to acknowledge and effectively protect Indigenous territorial and land rights, businesses are allowed to operate on lands that can be considered unceded, unlawfully expropriated or unfairly appropriated. As illustrated by the Fosen, Lake Turkana and Gunaa Sicarú cases, national authorities often fail to secure land rights adequately, either by neglecting to recognize the ownership and usage rights of local communities or by willingly omitting protection measures to favour specific development interests. Consequently, businesses are faced with the responsibility of ensuring that those rights are properly safeguarded before initiating wind energy projects. The situation is further complicated when corporate actors fail to recognize Indigenous claims to land or face unsettled land claims between communities. When disregarding or marginalizing certain claims, corporate actors not only run the risk of curtailing the rights of communities but also perpetuating patterns of dispossession and subjugation, potentially leading to the emergence of new forms of injustice. In fact, as specifically reported in relation to Turkana and Gunaa Sicarú, development initiatives can exacerbate divisions or conflicts among communities and their members.Footnote ¹²⁵ By introducing new (economic) value to the land, wind energy projects create a complex mix of outcomes: while local communities may seek to share in the perceived benefits of the project, they also face new forms of exclusion.Footnote ¹²⁶ In addition, the development of such projects can catalyze detrimental socio-economic processes impacting communities’ sense of belonging to the land.Footnote ¹²⁷ This underscores the need to protect the collective rights of Indigenous Peoples, which inevitably raises complex legal and political challenges when the state fails to recognize them in practice.

Second, while consulting with Indigenous Peoples is crucial, it should not be considered as a comprehensive and exhaustive measure. The significance of adequate consultation was underscored in all three court rulings: Fosen, Gunaa Sicarú and Turkana. Without proper consultation, involving the relevant representative authorities, the decision-making process for wind projects can be compromised, as highlighted in the Gunaa Sicarú and Turkana decisions. In accordance with international law, adequate consultation with Indigenous Peoples requires FPIC. The standard mandates consultation through Indigenous representatives for free and informed consent before approving projects affecting their lands.Footnote ¹²⁸ It applies to states and business actors, regardless of national legislation. Several institutions and international organizations, including the OECD, increasingly highlight FPIC as a fundamental aspect of consultation, emphasizing the need for ‘meaningful’ engagement as a due diligence requirement.Footnote ¹²⁹ In this regard, FPIC is now understood as the basic requirement for ensuring meaningful consultation. Nonetheless, it is important to underline that achieving FPIC should not be viewed as an end in itself and does not justify harmful practices against Indigenous Peoples. This aspect was particularly emphasized in the Fosen decision in relation to the consultation procedure.Footnote ¹³⁰ Thus, from an Indigenous rights-based perspective on a just transition, although consultation with Indigenous Peoples is crucial for respecting their rights, consultation must be recognized as just one aspect of the rights that should be upheld by states and corporate actors.

Third, environmental or social impact assessments must incorporate the rights and knowledge of Indigenous Peoples. Business or governmental authorities often determine the impact of energy projects on the rights of Indigenous Peoples, and this task is commonly delegated to experts and scientists who may not always involve Indigenous Peoples in the assessment process. The Gunaa Sicarú and Fosen decisions underscore the importance of valuing the voice and knowledge of Indigenous representatives in establishing a violation. However, the court in the Turkana case was unable to find sufficient evidence to confirm a human rights violation, prompting questions about whether Indigenous rights and knowledge were adequately considered throughout the proceedings. In fact, the court’s lack of engagement with international law and human rights in its decision is also a reminder that the language of human rights is not equally favoured by all state institutions in the world. Thus, to ensure an Indigenous Peoples’ rights-based approach to a just transition, one crucial consideration is the integration of the rights of Indigenous Peoples throughout the entire development process and the inclusion of their knowledge into impact assessments of wind energy projects taking place on their lands. Fourth, ensuring culturally appropriate and timely mitigation and remedy measures is imperative. The Fosen ruling emphasizes that monetary compensation alone may not adequately address the impacts of projects, stressing the need for business operators to design mitigation plans that respect the cultural rights of Indigenous Peoples.Footnote ¹³¹ From a legal perspective, it is crucial to refrain from initiating the construction of wind power plants while legal disputes are pending. The insights that may be gained from the Fosen and Turkana decisions highlight that despite official approval and strong support, a project can still be deemed illegal, posing challenges to identifying suitable remedies once a wind farm is built on Indigenous lands in violation of their rights. Both cases illustrate the court’s difficulty in finding such remedies, due to the operational status of the projects. Importantly, none of these decisions has provided a satisfactory resolution to how Indigenous communities can be appropriately compensated for the harm caused by these projects. Drawing on Guinaa Sicarú and Turkana, it also becomes apparent that the adverse effect on Indigenous communities often exceeds the benefits provided by the development project, particularly when the communities do not reap the rewards of the energy generated by the project. Furthermore, merely proposing a wind energy project can also foster division, exacerbate tensions or incite conflicts among communities, implicating wind energy developers in a complex web of social responsibility that frequently remains unaddressed. Despite the urgency of advancing renewable energy projects for the green transition, it is therefore essential to prioritize the protection of Indigenous Peoples’ rights before fast-tracking project development. This distinction is pivotal to determining the just or unjust nature of projects.

Finally, widespread support for wind energy projects as a matter of public interest in advancing the green transition does not justify legal violations or the infringement of the rights of Indigenous Peoples. This is explicitly emphasized in the Fosen and Turkana decisions. Regardless of the perceived benefits, including those stemming from corporate social responsibility initiatives, wind energy ventures must adhere rigorously to national and international legal frameworks, including human rights and the rights of Indigenous Peoples. However, as noted, not all states are equally committed to safeguarding these rights and often fail to provide adequate protection. This underscores the crucial role of businesses in being aware of their role in upholding Indigenous rights, as companies cannot solely rely on host states to ensure adequate protections. This commitment is key to ensuring that the transition supports renewable energy production without perpetuating patterns of discrimination, dispossession or subjugation. At the same time, it also raises important questions about how to frame corporate responsibility and accountability in safeguarding the rights of affected communities.

B. Framing a Rights-based Approach to Promote Just Transitions

The insights provided from the Fosen, Turkana and Gunaa Sicarú cases underscore the need to adopt a rights-based approach prioritizing the rights of Indigenous Peoples to ensure justice in the green transition. However, the application of a rights-based approach to the situation of Indigenous Peoples extends beyond the conventional understanding of human rights law and creates unique challenges for conceptualizing and applying a regime of responsibilities that guarantees the rights of Indigenous Peoples.

In this context, a rights-based approach features the rights of Indigenous Peoples both as human and collective rights.Footnote ¹³² This stems from the fact that Indigenous Peoples possess rights as distinct communities to self-determination in international law, encompassing political rights of self-government as well as the rights of individuals under classical human rights law. In challenging the liberal interpretation of human rights, which assumes that rights, framed as equal citizenship rights, form an unproblematic basis for a ‘common emancipatory project’,Footnote ¹³³ the approach, when applied to the situation of Indigenous Peoples, encompasses their collective right to self-determined development. This is due to the injustices endured by Indigenous Peoples, including colonization and dispossession of their lands, territories and resources, which have hindered their ability to exercize their right to development in alignment with their own needs and interests.Footnote ¹³⁴ This said, the question of which communities can claim the status and rights of Indigenous Peoples is clearly a vexing one,Footnote ¹³⁵ posing significant challenges for companies operating in states that partially recognize Indigenous Peoples and their rights. Even though companies will face significant challenges—such as navigating conflicting claims, —community self-identification remains nonetheless a crucial element in addressing government failures to recognize certain groups.Footnote ¹³⁶

Second, considering their collective rights to self-determination, the application of a rights-based approach implies that Indigenous Peoples possess not only the right to be included in development projects affecting their land, territories and resources but also the right to control the direction of development, allowing for the establishment of alternative development paradigms.Footnote ¹³⁷ This contrasts with the conventional understanding of the human rights-based approach at the United Nations level, which emphasizes participation and inclusion of individuals and communities in decision-making processes without challenging the contested development paradigm that is currently championed by Western industrialized countries and most postcolonial nation-states at the expense of Indigenous Peoples.Footnote ¹³⁸ Whereas the court decisions examined in this article largely fail to provide a detailed assertion of the right of Indigenous Peoples to self-determination, this right represents the cornerstone of their empowerment in shaping their future development in accordance with their own needs.

Additionally, in theory, a rights-based approach also provides the opportunity to integrate considerations of collective rights for both humans and non-human entities. This aligns with the development of Indigenous worldviews and ecocentric legal philosophies, which perceive humans as integral parts of a broader community of beings, interconnected with the Earth’s welfare as a whole.Footnote ¹³⁹ This conceptualization of a rights-based approach aims to ameliorate the traditional conceptualization of human rights that overlooks the specific situation and rights of Indigenous Peoples and tends to favour theories based on anthropocentric assumptions.Footnote ¹⁴⁰ This finding is notably important for the conceptualization of impacts assessment, which often adopts a narrow understanding of the environment in contrast with Indigenous Peoples’ holistic relations with nature.

Finally, the fact that Indigenous Peoples possess collective rights challenges the traditional notion that states are the sole authorities governing land, territories and resources. In this light, the articulation of business obligations towards Indigenous Peoples, increasingly prominent in legal disputes involving renewable energy projects, presents complex and unresolved dilemmas. Particularly challenging is the delineation of corporate responsibilities regarding Indigenous Peoples’ rights in the context of ongoing land disputes or inadequate state protection. Thus, while the UNGPs offer a foundational framework for addressing the relationship between corporate entities and Indigenous Peoples through human rights due diligence, persistent challenges within the current regime remain.