English translation from the official periodical of RAIPON “Мир коренных народов - живая арктика” (Indigenous Peoples’ World - Living Arctic) No. 15, 2004
Legal defense of indigenous peoples’ right to establish territories of traditional nature use
Yu. Yakel and E. Khmeleva,
The federal law “On territories of traditional nature use of indigenous numerically small peoples of the North, Siberia and the Far East of RF”, adopted in 2001, has secured the right of these peoples to establish territories of traditional nature use (TTNU) and stated that such territories are specially protected nature territories formed for such peoples engaged in traditional nature use and pursuing a traditional lifestyle, in order to preserve and defend the primordial living environment, to preserve and develop these peoples’ original culture and to preserve biological diversity in these territories.
The law anticipates the establishment of three types of TTNU: federal, regional and local subordination. However, due to the fact that there are sites and units of federal property on practically all the territories of traditional settlement of indigenous numerically small peoples, the establishment of TTNU on a regional and local scale has become virtually impossible. Moreover, for this reason, many of the previously established TTNU of regional and local category have been liquidated.
Soon after the adoption of the federal law in 2001 the lawyers of the Legal Center “Rodnik”, hand in hand with
As a result of such efforts, dozens of applications have been sent to the RF government on behalf of communities and representatives of indigenous numerically small peoples about the establishment of territories of traditional nature use of federal category.
In accordance with Article 6 of the federal law “On territories of traditional nature use of indigenous numerically small peoples…”, the decisions about the establishment of TTNU of federal category are made by the RF government.
Unfortunately, indigenous representatives received letters from the RF Ministry of Economic Development and Trade instead of an answer from the RF government. These letters referred to some contradictions allegedly slipped into the Russian legislation on TTNU and to the necessity of introducing changes in the existing laws, elaborating and adopting new legislative and normative enforceable enactments. These circumstances, according to the RF Ministry of Economic Development and Trade, are blocking the possibility of realization at the moment of the Federal law “On territories of traditional nature use of indigenous numerically small peoples…”. At the same time, there has been no refusal to establish concrete TTNU in these letters.
Many of those who have received such answers from the Ministry approached the
Having analyzed these applications and answers of federal authorities, the lawyers of the
According to the lawyers, the RF government has grossly violated the provisions of the RF Constitution and the present federal law, created artificial obstacles to realizing the fundamental right of indigenous peoples and to the defense of their primordial living environment.
Such a position has demonstrated the unwillingness of
The position of the federal authorities that the law cannot be implemented before certain amendments and normative enforceable enactments are in place, does not justify the violation of citizens’ rights. The law “On territories of traditional nature use …” became effective in May 2001 and declared the obligation to harmonize the RF government’s normative enforceable enactments with it as appropriate. The fact that the law has not been acted upon throughout the period of three years is an indication of the RF government’s failure to take action in the field of TTNU establishment.
Such an approach has proved total disregard of constitutional principles of the
The lacking answer from the RF government to the applications from representatives of indigenous numerically small peoples about the establishment of territories of traditional nature use, from a legal point of view, demonstrates the inertia of the RF supreme executive body of state power.
The objective of a series of litigation cases dealing with the defense of the indigenous peoples’ right to establish TTNU is the creation of precedents in legal practice to influence change in the RF government’s position and the orientation of it’s activity regarding the principles of respect and observance of constitutional human rights.
The appeal against the refusal to establish the TTNU “Thsanom” became the first case in this series.
In 2002, the lawyers of the
The court dismissed the complaint. The appeal against this illegal court ruling at a second appeal instance was not successful either. Having failed to secure defense of this right in the Russian institutions of justice, the lawyers of the
For the first time, representatives of indigenous numerically small peoples defended their constitutional right to traditional nature use and conservation of primordial living environment in a courtroom.
Unfortunately, this case was not the last one at bar. The RF government and the RF Ministry of Economic Development and Trade continued to turn down all others applying for the establishment of TTNU.
The issue of rendering the inactivity of the RF government as illegal with regard to the establishment of the TTNUs “
In 2002, the communities of indigenous numerically small peoples “Ilel”, “Avlakan” and “
The Katanga District of the Irkutsk Region, where it was intended to establish a specially protected TTNU, is the location of dense and traditional settlement and economic activity of Evenks, both those living now and their predecessors. There are valuable ecological systems in this territory which are of special ecological, biological, esthetic and ethno-cultural value for the Evenks. In 1992, the decision of the Irkutsk Regional Council of Peoples’ Deputies declared the entire Katanga District within its administrative borders as a TTNU of indigenous numerically small peoples. With the adoption of the law it became necessary to register this territory as a TTNU of federal category, since there are sites and units of federal ownership on it (water sites, forest fund land, etc.). This had been done when the communities of indigenous numerically small peoples of the Katanga District sent their application to the RF government about the establishment of a TTNU of federal category.
Commissioned by the RF government, the RF Ministry of Economic Development and Trade considered the application and sent a letter to
The unlawfulness and illogical nature of the actions taken by the authorities when rejecting the idea of the establishment of a TTNU are reflected in the fact that all these legislative procedures can be fulfilled only after the RF government’s decision about the establishment of a specially protected TTNU has been made. The execution of all necessary procedures to organize a TTNU of federal category is within the exclusive competence of the RF government and federal authorities. Therefore, representatives of indigenous numerically small peoples, having approached the RF government with the initiative to establish a TTNU, not only should not but also cannot carry out these procedures, since they do not have the corresponding authority.
Besides, the RF Ministry of Economic Development and Trade does not have any authority to make decisions about the establishment of TTNU of indigenous numerically small peoples or to reject such applications. In accordance with Article 6 of the law “On territories of traditional nature use …” this is the exclusive competence of the RF government.
Analogous letters from the Ministry were received by the communities “Kunnoir” and “Bergima” in the Evenk Autonomous Okrug, which had approached the RF government with their applications to establish TTNU of federal category, also in 2002.
The fact that the RF government has not considered in its essence the question of the establishment of TTNU, has failed to make a decision about the establishment or rejection of the request to establish such TTNU, and has not answered the indigenous representatives, is a lack of action violating their right to a traditional lifestyle and defense of primordial living environment.
The lawyers of “Rodnik” have prepared and submitted to the Presnensk District Court of Moscow two statements of claim dealing with the illegal inactivity of the RF government regarding problems with the establishment of the TTNU “Kunnoir” and “Bergima” in the Evenk Autonomous Okrug and “
Despite the fact that an analogous case dealing with the complaint about the refusal to establish the territory of traditional nature use “Thsanom” was already tried by the Presnensk court, when faced with new statements of claim the court again intentionally created obstacles and gave numerous illegal decisions, refusing to accept these statements for trial. This has once again confirmed the dependence of the court on the bodies of state power and their unwillingness to observe the statutorily guaranteed right of indigenous numerically small peoples to establish specially protected territories of traditional nature use.
The lawyers have appealed the illegal rulings of the court to the second appeals instance.
Having overcome all the roadblocks preventing the consideration of the statements of claim in court, the lawyers of “Rodnik” submitted a petition about the joinder of claims with regard to the illegal inactivity of authorities on questions of the establishment of TTNUs “Kunnoir” and “Bergima” in the Evenk Autonomous Okrug and “Katanga” in the Irkutsk Region, to secure a more correct and timely sorting out of the cases in their essence. The court accepted this petition and joined these claims.
The consideration of the statements of claim in their essence took place on
The Presnensk district court of
Despite this statement by the representative of both defendants, the court viewed the letters of the RF Ministry of Economic Development and Trade not as evidence of inactivity on the part of the RF government, but as a real denial by the RF Government to establish TTNU of indigenous numerically small peoples.
Having recognized the letter of the Ministry of Economic Development and Trade as a denial to establish TTNU, the court attached new significance to this case. It created grounds to challenge not only the RF government’s inactivity, but also the gross violation of the right of indigenous numerically small peoples to establish TTNU.
For three years the RF government and the RF Ministry of Economic Development and Trade have been busy putting false roadblocks in the way, preventing the implementation of the federal law. During this period not a single TTNU has been established. Moreover, many TTNU established before the law had been carried into effect were liquidated as inconsistent with the new legislation.
Irrespective of the fact that at this stage the court disagreed with our position, we believe that it is possible to achieve a change in the RF government’s position by combining legal actions oriented towards defending the rights of indigenous numerically small peoples with a broad social movement.
At present, the lawyers of “Rodnik” are working on the appeal of the judgment of the Presnensk court and are elaborating a new strategy of handling the cases in defense of the rights of