English translation from the official periodical of RAIPON “Мир коренных народов - живая арктика” (Indigenous Peoples’ World - Living Arctic) No. 14, 2004

Buryatia's court allows to cut window to China through Tunka

O. Belskaya, Press service of the “Baikalskaya ekologicheskaya volna” (“Baikal ecological wave”)

The Supreme Court of the Buryat Republic has suspended the proceedings of the case about an illegal change of boundaries of the Tunkinskiy Ethnic Park until 1 January  2004.

The second session of the court was convened on 31 October in Ulan-Ude, the capital of Buryatia. It dealt with (1) a claim of representatives of the public from 16 regions of Russia, as well as (2) with an application submitted by the Procurator of the Buryat Republic to the Republic’s Supreme Court for recognition of Enactment of the Government of the Buryat Republic # 218 of 27 June 2003 “On making the boundaries of the Tunkinskiy Ethnic Park more precise” as being contrary to the federal legislation. This Enactment was hitherto unacted upon and not implemented. The court merged both civil cases into one single case.

The prehistory of this case is as follows. Order of the RF Minister for Natural Resources # 857, dated 23 September 2003, approved the negative conclusion of the public environmental expert evaluation of the construction project of the Russia-China oil pipeline. The pipeline project was initiated by the open joint-stock oil companies Yukos and Transneft. One of the principal reasons for such a decision was the intention of the project managers to lead the main pipeline across the Tunkinskiy Ethnic Park. Besides, it was planned to locate the pipeline across the mountain range of Khamar-Daban in a nature reserve, which plays an exceptionally important role in the preservation of the ecosystem of Lake Baikal.

At an earlier date, Yukos approached the RF Government with a request to handle the problem of laying the oil pipeline across the Tunkinskiy Ethnic Park as quickly as possible, since the construction of such facilities in federally adminstered protected areas was in fact prohibited categorically. An elegant juridical move was made by joint efforts of functionaries from the RF Ministry for Natural Resources and the regional government of Buryatia: to disguise the process as “making the boundaries of the Tunkinskiy Ethnic Park more precise”. It was remembered all of a sudden that more than ten years ago the Council of Ministers of the Buryat SSR did not define the boundaries of the park precise enough, and now it was just the time to take advantage of this. The oilmen’s desire was satisfied by Enactment of the Government of the Buryat Republic # 218 of 27 June 2003 “On making the boundaries of the Tunkinskiy Ethnic Park more precise”. It contained directions to adjust the boundaries by excluding approximately one third of the territory of the park and at the same time to tack on exactly as much from the neighbouring Buryat districts of Okinskiy and Zakamenskiy.

The high-powered PR campaign in support of the enactment now underway is based on the state functionaries’ touching concern for the rights of local inhabitants to the agricultural lands turnover, which are allegedly usurped by the park. Pressing the point, “the defenders” of the citizens’ constitutional rights are in no way confused by the fact that about one half of the lands, which are going to be chopped off from the park happen to be taiga highlands without any inhabited localities or agricultural lands (basically, it is going to be the corridor for the oil pipeline). Not experienced in legal subtleties, the public considered the efforts of the authorities to be illegal and submitted an application to the procurator’s office of the Buryat Republic with a request to investigate the “linguistic” pretentious novelties of the functionaries.

Indeed, any sensible person having a good command of the “great and mighty” Russian language, is quite able to distinguish between “making the territory’s boundaries more precise” and “changing the territory’s boundaries”. Let’s have an analogy. The making of certain interstate boundaries between neighbouring countries more precise is still going on. For example, between Russia and Mongolia. And now just imagine that the Intergovernmental Commission, as a result of such efforts to make the boundaries “more precise”, makes a decision to hand over a couple of Buryat districts to Mongolia adding, instead, two or three Mongolian aimaks of the same square mileage to the RF territory along with their totally unsuspecting population still grazing their flocks of sheep peacefully. Whose head would an idea like that enter to call this repartition of lands “an effort to make the territorial boundaries more precise”?

Possibly, in a nightmare.

It is clear that the case is about changing the park’s boundaries rather than about making them more precise, which is the prerogative of federal bodies of power rather than the regional ones.

It is quite natural, therefore, that the Procurator’s office of the Republic deemed it expedient to approach the Supreme Court of the Buryat Republic with an application for recognition of the Enactment as being in conflict with the federal legislation, unacted upon, and as not being implemented. Representatives of social environmental organisations from 16 regions of Russia, whose interests are represented in court by the duly authorised lawyer, Nadezhda Khaidurova, also submitted a similar application to the same instance of courts.

So, during the court hearing on 31 October 2003 the Government of the Buryat Republic submitted a petition, which was in essence a request to suspend the proceedings of the civil case until 1 January 2004 to make it possible for the Buryat Government to be game to the last with the procedure of “making the park’s boundaries more precise”, in other words, to complete the work on land use and carry out a public environmental expert evaluation of the project.

Despite the protests of representatives of the procurator’s office and the public, Ms. L.M. Krotova, Judge of the Supreme Court of the Buryat Republic, made a decision to meet the requirements of the Buryat Government’s petition. To substantiate her decision, the Judge is giving the following reasons: “Since the necessary work to make the Tunkinskiy Ethnic Park’s boundaries more precise has been carried out by the Buryat Government and is still underway at present, the documents pertaining to the making of the Tunkinskiy Ethnic Park’s boundaries more precise are required by the court. It is impossible to consider the case in essence without such documents. Therefore, the court deems it expedient, in accordance with Article 215 of the Code of Civil Procedure, to suspend the proceedings of the case until the receipt by the Buryat Government of the conclusion of an obligatory public environmental expert evaluation and until the completion of implementation of necessary work to make the ethnic park’s boundaries more precise”.

To tell the above in plain language, it means that the court has decided to wait for the results of a public environmental expert evaluation of the project to change the park’s boundaries (thus, recognising the Buryat Government’s intention to change rather than to make the park’s boundaries more precise) and officially register the new boundaries of the park. Volens nolens, by doing so the Judge has given the Buryat Government a chance of being conducive to the request of the disgraced oligarch from Yukos.

The situation is almost anecdotal. Imagine, that you are appealing to the court with a request to annul the decision of a hypothetical body with an instruction to cut off your head. The court, having thought for a while, makes a decision to make it possible for the verdict to be fulfilled in due time. What is more, the court intends to determine the validity of this sentence in future depending on whether your head parts with your body or fails to do so in due time.

Well, verily, there’s legal casu(s)istry all right!