English translation from the official periodical of RAIPON “Мир коренных народов - живая арктика” (Indigenous Peoples’ World - Living Arctic) No. 13, 2003
Oilmen again violated the rights of Sakhalin’s indigenous peoples
The history of interaction between Sakhalin’s Association of Indigenous Peoples and oil companies has lasted for as many years as the companies have operated on the shelf of Sakhalin.
We have tried various methods to influence the oil companies, so that their operations would be carried out, not only on a state-of-the-art technological level, but also according to international rules and standards with regard to the ,ights of the indigenous peoples and local population of Sakhalin.
The Sakhalin Association of Indigenous Peoples and RAIPON, hand-in-hand with environmental organisations, used to convene workshops inviting representatives of oil companies engaged in Sakhalin offshore operations to participate in joint sessions. We used to organise seminars on legal education together with the Rodnik Legal Center. We participated in initiating court cases pertaining to illegality of the permission to dump drilling mud in the sea given by the Provisional Ordinance of the RF Government, as well as to the protection of the habitat of gray whales.
We have been searching for mutual understanding with companies and signed cooperation agreements. One of the paragraphs of such agreements would demand from the companies the provision of information concerning all their projects, results of environmental expert evaluations and impact assessments. But so far, apparently, the companies have not become mature enough for civilised cooperation with Sakhalin’s indigenous peoples. As soon as the drilling season starts people signal about the resumed operations, but the Sakhalin Association of Indigenous Peoples once again is left without the promised information.
The case described in the appeal to S.N. Kharyuchi, RAIPON President, published herein, which we sent right after the resumed seismic prospecting, is an appropriate example. We believe that RAIPON in Moscow will find methods to influence the company and help suspend the illegal actions.
RAIPON President S.N. Kharyuchi
Dear Sergey Nikolaevich!
On 6 April 2003 the Rosneft-Sakhalinmorneftegaz oil company set about its seismic prospecting (blasting operations) by the method of reflected waves, of the general depth point MRDP-3D in the Kaurunanskaya area situated in the Noglikskiy District of Sakhalin. This has triggered protest from the indigenous peoples as well as other inhabitants of the Noglikskiy District, since the Nyiskiy Bay (the Kaurunachinskaya area) is the primordial habitat and traditional subsistence territory of 90 percent of the indigenous population of Northeastern Sakhalin.
Rosneft-Sakhalinmorneftegaz using this method has caused tremendous damage to the fish stocks in the Nabilskiy and Lunskiy Bays, and today there is no traditional commercial fishing of salmon and Polar cod in these bays once known to have rich fish resources.
On 29 January 2003, the Sakhalin Association of Indigenous Peoples sent a letter to the company’s management emphasising the idea that seismic prospecting in this area should be carried out only after the conclusion of the public environmental expert evaluation and after discussions in agreement with the indigenous peoples. However, the company – ignoring this appeal and violating federal legislation and international legal standards – set about using this outdated and barbarous method of seismic prospecting.
The Sakhalin Association of Indigenous Peoples requests your support in sorting out the conflict which becomes unavoidable, and in protecting the rights of Northern indigenous peoples.
President, Sakhalin Association of Indigenous Peoples
In reply to this appeal, RAIPON promptly approached the Procurator-General of the Russian Federation on 7 April with the following letter. Copies were sent to the RF Ministry of Natural Resources and the office of Rosneft-Sakhalinmorneftegaz in Yuzhno-Sakhalinsk.
V.V. Ustinov, Procurator-General of the Russian Federation
Dear Vladimir Vasilevich!
The Association of indigenous peoples of the North, Siberia and the Far East of the Russian Federation has received an appeal from the Sakhalin Association of Indigenous Peoples stating that on 6 April 2003 the Rosneft-Sakhalinmorneftegaz open joint stock oil company set about its seismic prospecting (blasting operations) in the Kaurunanskaya area situated in the waters of the Nyiskiy Bay off the Northeastern coast of Sakhalin. The beginning of these operations has caused great anxiety among the indigenous and local population since the subsistence of 90 percent of this population depends on fishing, while the Company’s seismic prospecting carried out by similar methods have already caused enormous damage to fish resources in the Nabilskiy and Lunskiy Bays, where the traditional commercial fishing of salmon and navaga had to be stopped after the seismic operations.
On 29 January 2003 the Sakhalin Association of Indigenous Peoples sent a letter to the company’s management with a request for information about the planned operations, including the enquiry about whether the conclusion of an environmental expert evaluation and minutes of public hearings and coordination discussions with the region’s indigenous population were available. However, the company has not replied to this enquiry, which suggests that the above operations started in violation of federal environmental legislation.
Before the production operations started in the area the indigenous and local population had not been informed about the decision to set about the work, about who had made this decision, or about the contents of the conclusion of the public environmental and ethnological assessments of the development project, or about the very existence of such evaluations which are demanded by Russian environmental legislation.
Thus Rosneft-Sakhalinmorneftegaz and, possibly, the RF Ministry of Natural Resources, if it already has granted the license for seismic prospecting in the Kaurunanskaya area, have violated a number of standards of the federal legislation, namely:
Article 72.1 “m” of the Constitution of the Russian Federation about the protection of primordial habitat and a traditional way of life of numerically small ethnic communities;
Article 8.1, paragraphs 5 and 6 of the Federal law “On guarantees of rights of indigenous numerically small peoples of the Russian Federation” stipulating the following:
“Article 8. The rights of numerically small peoples, associations of numerically small peoples and individuals related to numerically small peoples to protection of their primordial habitat, traditional lifestyle, economic activities and occupations:
1. To protect their primordial habitat, traditional lifestyle, economic activities and occupations numerically small peoples, associations of numerically small peoples have the right:
(5) to participate via authorised representatives of numerically small peoples in preparation and approval by the bodies of state power of the Russian Federation, bodies of state power in the subunits of the Russian Federation and bodies of local self-governance in decision-making concerning questions of protection of primordial habitat, traditional lifestyle, economic activities and occupations of numerically small peoples;
(6) to participate in environmental and ethnological assessments during the elaboration of federal and regional state programmes of natural resource development and environmental protection in the localities of traditional habitation and economic activities of numerically small peoples”.
According to Articles 12, 13 of the law “On protection of the natural environment” citizens and social organisations have the right to demand the following information:
(1) on the basis of which instructions of the RF Government and other state departments the development of gas deposits is carried out;
(2) when and in which official publications the regulations of the RF Government about the beginning of natural resource development have been made public;
(3) whether or not a public environmental expert evaluation of such natural resource development projects has been carried out in accordance with the requirements of Article 11 of the Federal law “On environmental expert evaluations”.
Besides – having in mind that the said district is a traditional residence and subsistence area of indigenous peoples – the beginning of such operations should be preceded by an additional ethnological assessment. This means, in other words, an assessment of the impact of planned operations on the primordial habitat and traditional lifestyle of indigenous peoples and ethnic communities inhabiting the impact zone of the planned operations. A special programme of compensation for damage caused to traditional subsistence activities should be worked out in cooperation with representatives of the indigenous population, which here has not been done.
Therefore, in accordance with Article 3 of the Federal law “On protection of the environment …”
“Article 3. The basic principles of environmental protection…
RAIPON requests you to interfere, and to check by way of supervision by the Procurator’s Office, the observance of environmental legislation of the Russian Federation by federal authorities during initiation of the activities of the “Rosneft-Sakhalinmorneftegaz” Open Joint Stock Oil Company in the Kaurunanskaya area, as well as the legality of granting the license for these operations, if there is any, and to suspend the above operations during the verification period.
The Association received the following answer to the above letter from the RF Procurator-General’s Office dated June 3, 2003:
“Your request concerning the observance of environmental legislation while carrying out prospecting, search and other operations by the “Rosneft-Sakhalinmorneftegaz” Open Joint Stock Oil Company in the Kaurunanskaya area off the coast of the Sakhalin Island has been considered.
It has been proved that license YuSH 00225 NE for geological prospecting and subsequent extraction of hydrocarbons on the Kaurunanskaya structure was granted in 1993 by the territorial body for the management of natural resources in the Sakhalin Oblast to the oil and gas production amalgamation “Sakhalinmorneftegaz” (at present “Rosneft-Sakhalinmorneftegaz” Open Joint Stock Oil Company) for the period until 2018.
To carry out the above operations the enterprise received the required permissive documents, including the available positive conclusion of a state environmental expert evaluation with regard to project materials to proceed with seismic prospecting in the Kaurunanskaya area of the Noglikskiy District, the Sakhalin Oblast, approved by Order # 223 dated April 17, 2003 of the department for natural resources and environmental protection in the Sakhalin Oblast, the Ministry of Natural Resources, according to which the expected impact on the natural environment is permissible; the documentation substantiating the seismic prospecting operations is in compliance with the requirements of environmental legislation and is directed at the observance of environmental safety.
During the verification procedure carried out by the Procurator’s Office of the Sakhalin Oblast, no facts suggesting damage to the primordial habitat of indigenous peoples of the North in the Noglinskiy district have been discovered.
At the same time, the verification has revealed that the “Rosneft-Sakhalinmorneftegaz” Open Joint Stock Oil Company set about a seismic prospecting project on 14 March 2003, i.e. prior to the approval from the conclusion of the state environmental experts. In this connection, the Sakhalin inter-district procurator in charge of environmental protection issued representation to the chief executive officer of the enterprise calling attention to inadmissibility of such illegalities in future.
Senior Assistant to the Procurator-Generalof the Russian Federation”
Comments by the Legal Center Rodnik
E. Khmeleva, M. Sc. (Law)
The availability of a positive conclusion made by the state environmental expert evaluation with regard to seismic prospecting referred to in the reply of the Procurator-General’s Office, confirms the observance of environmental legislation. However, closer scrutiny of the text reveals a number of contradictions throwing doubts upon this impression.
In accordance with Article 3 of the Federal law “On Environmental Expert Evaluations” one of the principles of ecological expert evaluation is the principle of openness, participation of social organisations, and giving proper consideration to public opinion. In accordance with Article 14 of this law, the materials reflecting discussions of the development project with citizens and social organisations constitute an obligatory component of the package of materials to be submitted to the public environmental experts.
If the project received a positive conclusion from the state environmental experts it can be assumed that such documents had been duly included in the submitted project materials.
However, according to the letter written by A.G. Limanzo, President of Sakhalin’s Association of Indigenous Peoples, neither the Association itself nor representatives of Sakhalin’s indigenous peoples whose rights were directly affected by the seismic prospecting operations had been informed about the preparation of the project. None of them participated in its discussion and their opinion was not taken into consideration.
Hence, it is doubtful if the positive conclusion produced by the state environmental experts has been well grounded.
The very form of acknowledgment of the beginning of seismic prospecting prior to obtaining a positive conclusion of the public examination is remarkable. In accordance with Article 30 of the Federal law “On Environmental Expert Evaluations” an environmental expert evaluation without a positive conclusion of a public expert commission is a serious violation of legislation on environmental expert evaluations. The letter says that the presentation was issued to the chief executive officer of the enterprise about inadmissibility of such violations in the future.
The fact that the Company started operations prior to obtaining a positive conclusion of the state environmental commission is also remarkable. In other words, the Company was evidently confident of the outcome, and rather a soft reaction of Sakhalin’s environmental inter-district procurator to this action proves that. In accordance with the paragraph of Article 8.4 of the RF Code of Administrative Infringements of the Law, such an offence “entails imposition of an administrative penalty on legal entities to the extent of 400 to 500 minimum wages”.
To sort out these problems RAIPON is planning to send a letter to the RF Ministry of Natural Resources and its department for natural resources and environmental protection in the Sakhalin Oblast with a request for information in the hope of obtaining comprehensive answers.