English translation from the official periodical of RAIPON “Мир коренных народов живая арктика” (Indigenous Peoples’ World Living Arctic) No. 3, 2000

You need to have rights to be free, or "An oath on a bear’s claw "

Natalya Novikova
Rodnik (“Spring”) Legal Centre

I saw a bear’s claw in the Uchinskiy ethnographic museum. The cultural artefacts of the Kondinski Mansi are exhibited here. Mr Anatoly Khomyakov, the founder and the manager of the museum, explained that the elder women in the Mansi villages used the bear’s claw to exercise justice. When an offence was committed, the elders would order the suspect to go and cut off a wild bear's claw. Few dared to cheat or avoid the confession. The only other choice was to move to the forest – where the bear will not spare lives.

This tradition is only kept nowadays by the ‘people of the woods’. How are we then supposed to resolve a conflict, to make judgements when the land is claimed for reindeer herding and extraction of oil? The oil industry may perhaps obtain temporary rights, agreeing to return the land to the indigenous people afterwards. So the elders thought, but it did not work this way. A conflict arose. Mr Yuri Vella, a famous poet and a reindeer herder, wrote open letters to the Government and the executives of LukOil. Then he decided to appeal to the local authorities to obtain exact information on his rights to the land where he and his family live. He also wanted to know if the Law on environmental protection had been followed when the land was given to the oil industry. The only result was a rather rude formal reply. Mr Vella resolved to take legal action. However the regional judge in the Khanty-Mansiyskiy Okrug refused to take the case against the Governor. Mr Vella filed a second request for information, and after the legal workshop was conducted concerning the reindeer herders’ legal standing, Mr Vella’s neighbour filed a similar request. Rodnik (“Spring”) Legal Centre provided the reindeer herders with legal aid. We have recently learned that the Parliament of the Khanty-Mansiyskiy Okrug is drafting a new law ‘On information in the use of natural deposits’. The local legislators think perhaps that the rights which the Russian constitution and the federal laws give to Russian citizens are too broad.

 LukOil drew their own conclusions. Usually the owners of the traditional land enter into contracts with the industry that extracts deposits on this land. A conflict arose in the Surgut region between the parties to such a contract, and LukOil unilaterally cancelled the contracts with five families in 1998 in spite of the fact that, according to law, only the court may cancel such agreements. This conflict has not been resolved.

A book written by the oil industry in the souls of the inhabitants of the Western Siberia contains many tears. Their pain and anger take form of numerous letters, appeals, resolutions at informal meetings, workshops and conferences. Many did not live to see the result of these efforts. We had to find another way to resolve conflicts.

All over the world, legal actions are used to assert people’s rights. However, in Russia people generally do not trust the courts; they are afraid of the courts. This is sometimes merely the fear of the unknown. Perhaps we should bring actions to the courts more often, since the Northern indigenous peoples — those who maintain a traditional way of life — have special rights to legal protection.

Let’s have a look at how the Russian legislation may help us here. Firstly, the right to legal protection is ensured by the Constitution. Secondly, this right is expressly stated in the new federal law ‘On ensuring rights of the indigenous minorities of the Russian Federation’. The Law provides the indigenous peoples special rights to protection by the courts. Article 14 of the Law states that ‘the indigenous individuals and associations of indigenous minorities have rights to protection by the courts of native lands, the areas of traditional ways of life, of traditional economies and of traditional trades…’. Thus the legislators buttressed the usual civil rights of citizens by specifying the right of the indigenous peoples to protection by the courts as a right that requires special care.

Article 14 brings us to several important conclusions:

1. In the context of this law, both citizens and associations enjoy the right to legal protection.

2. The text of the Law expressly states that the Law is applied to protection of native lands and areas of traditional ways of life.

3. The traditions and customs of these peoples should be taken into account by the courts.

4. The appointed representatives may take part in legal hearings.

What does this right mean to us? First of all this right concerns the responsibility for land. The norms of the usual Law of the indigenous peoples towards land express the basic feature of the indigenous ideology – the high value of responsibility towards the condition and the future of the native land. Another important feature of the indigenous ideology lies in the fact that following the norms of the usual Law the land was not distributed among the owners. The estates may be superimposed upon each other. The Khanty, the Mansi and the Nenets distributed the land based upon agreements with neighbours. Neighbours know the life of each other, they try not to impede on each other, not to inflict damage on the pastures. If the traditional lifestyle is preserved, the neighbours together attempt to preserve the land, since everybody knows what is good for your neighbour and what is not. The indigenous poeple believe that land use rights could be granted to the oil industry if they had the right attitude toward the land, and toward their neighbours, but the oil industry cannot and does not want to follow these rules. The oil industry demands rights to land strictly on its own terms.

Naturally, the traditional indigenous ideology has changed today; some indigenous people have taken up a more exploitative attitude towards their lands. Indigenous people told me that the Mansi who live in the urban centre and visit their native lands from time to time only take from the land. They told me that that land should be taken care of, just as you take care of your children or elder parents. It is not only older people who believe this; many young Mansi who obtain rights to the native lands and move to the forest share this view. In this view, the land cannot become people’s property; one can only take care of it.[1] Therefore the Khanty and the Nenets do not understand the concept of ‘remitting land for industrial development’. Perhaps this is one of the reasons why they so easily gave access to their lands to the geologists and later to the oil industry. The elders tell us now that they thought the “guests” would work here and leave afterwards; they did not know that the land would be permanently alienated from them. The Khanty believe that it is their obligation to preserve the land and, most importantly, the holy land. The people of the woods and the people of the tundra consider themselves part of the land, in fact, a very necessary part of it. One reindeer herder explained this connection: "We have a large herd. Our summer pastures come close to the oil rigs. I cannot put up a fence, since the herd is so large. The herd requires a very large pasture; a small one will be used up quickly. Now my reindeers are short of land, and they go out of the boundaries of our pastures. Once the land is used up, the reindeers start to disappear. This means that the people will disappear, too".  

Mr Tarastupga, one of the initiators of the indigenous movement, spoke to me about what he called “the Law of mutual responsibility”, a morality that is distinct from the formal laws of the state. It is this Law of mutual responsibility — people’s obligations toward one another, with respect to the land — that helps the Khanty and the Mansi explain why a traditional economy works in one community and does not in another. Not everybody who lives on the native land does well. There are several reasons behind it. Some got parcels surrounded by oil rigs. This presents enormous challenges to the traditional economy – there is nothing to hunt or to fish. Others got good untouched forests, but they still fail. Many were educated in boarding schools and lived in the urban centres. They wanted to have their own farm, but it does not work. They are so used to living in the urban centres, even being unemployed. Life in the taiga requires other knowledge, other skills and - what is very important - an entirely different attitude toward one’s place on the land.

The traditional perceptions of natural resource use as a responsibility has some important legal implications. For example, Russia’s Law on flora and fauna gives priority rights to the use of natural resources to the indigenous minorities and ethnic communities whose “distinctive cultures and lifestyles include traditional ways of protection and use of flora and fauna”. However, if the traditional hunting ways are not followed, the people cannot enjoy speical legal status within the framework of this Law. The laws regarding indigenous peoples may be used only when the traditional ways of life are maintained.

The Act on Tribal Lands has been in force in the Khanty-Mansiyskiy Autonomous Okrug since 1992. The lands were distributed among the indigenous people. The local authorities in the eastern oil-producing regions have not yet issued titles to these lands. So they are considered “uninhabited” when the oil industry claims rights to them and the local authorities then issue licenses to extract oil. The local authorities first tried to settle resulting conflicts, but later sided with the oil industry, which got control of more and more land. The conflict between the reindeer herder Aivaseda and LukOil has roots in this situation. Mr Aivaseda has no deed on the land of his actual abode. An employee of LukOil told me: “We work here, we invest, and out of the blue come the Nenets with the reindeer”. The oil industry considers itself first on this land. And the oil industry will not cut the bear’s claw.

This old way of conflict resolution is being replaced nowadays by the new opportunities provided by the federal legislation. Article 14 says “The indigenous traditions and customs that do not contradict the federal and regional legislation of the Russian Federation may be taken into consideration by the courts in cases where the indigenous minorities are plaintiffs, defendants, victims or accused”.

Should the need to defend indigenous rights in the court of the Khanty-Mansiyskiy Autonomous Okrug arise, I and Ms Yakovleva, our lawyer, are ready to use this right in a court hearing on the case of Mr Aivaseda and his complaint on violation of his rights. Firstly, we will look into his right on ‘the tribal land as a native environment’. There are wooden houses of Mr Aivaseda’s ancestors on this tribal land; the holy lands of his tribe are here as well. We may use these arguments in court to prove indigenous rights to this land and the right of Mr Aivaseda as a representative of the indigenous peoples.

In this context, evidence that a part of the tribal land is ‘holy land’ may become an important argument to the court. There has been a precedent in the Khanty-Mansiyskiy Okrug. The boundaries of one tribal land were defined by the instructions of the oil industry. The Nenets wanted to retain rights to that land since it was holy to them. However, they did not  mention this during the negotiations. They simply said they need the land, without further arguments. The administrations found the arguments of the oil industry to be more convincing. Today, the Nenets are ready to tell the court that the land is holy to them and that they go there to offer sacrifices. Now they are aware of their rights and responsibilities in accordance with traditional land–use. There is an opportunity in place to protect the Nenets’ rights in court, especially by using the new Law that provides further protection.

Another outcome is plausible though: the representatives of the indigenous minorities may attempt to claim land rights on the basis of past use. If, however, these people live in the urban centres, are on governmental salaries, and merely use the land as plots for their summer houses, the oil industry may say in court: ‘The Khanty come to their tribal lands so seldom that they have no right to claim the land where we extract oil’. Unfortunately, there are many cases in the Khanty-Mansiyskiy Okrug where people were granted legal rights to their tribal lands, but are not aware of their responsibilities related to these lands.

The Law gives indigenous peoples right regard-ing traditional uses of natural resources. One of the disadvantages of the Law is that it only gives rights to the government to adopt laws and to protect the indigenous rights, to the indigenous peoples to maintain the traditional economy, to the NGOs to protect the indigenous rights. There is nothing in this Law about responsibilities. The Law does not say that the traditional use of the natural environment is not only a right but also a responsibility of those who choose this way of life. This does not mean that the 180 000 indigenous men and women have to move to the forest and engage in hunting or reindeer herding. No, many indigenous people work in the urban centres and live on salaries, even though they may not get salaries on a regular basis. They choose to maintain an urban way of life.[2]

I believe the indigenous intellectuals whose activity contributes to the traditional use of natural resources shall enjoy a special status in this system. These are the teachers of the indigenous languages, the artists and the folklorists whose way of life relates directly to the traditional use of natural resources. It is a well-known fact that most Northern indigenous minorities limit use of their languages more and more. This leads to major cultural losses and sometimes has direct effects on the very existence of the small ethnic nations.

The use of indigenous languages is linked to the traditional economy. For example, the Inuit of the Lavrentiya village at Chukotka use either the Inuit or the Chukchi language in whale hunting. All hunters, even the Inuit hunters, know the Chukchi language since it is widely used and taught in schools. Whale hunting is a dangerous trade; the hunters say that if they speak Russian while hunting the whale will elude them or drown them all. In the context of the whale hunt, the Chukchi and the Inuit languages are more effective than Russian: one or two words are enough for everybody to understand what to do.

The Law envisages other ways to protect indigenous rights, for example, in the form of compensation for damages incurred in result of an economic activity. Conflict settlement between the parties to a conflict is possible as well. However, today we ob-serve that the industry does not fulfill their responsibilities. Therefore the application of Article 8(8) of the Law is only possible through decisions by courts. The Law may play an important role in ethnologic assessment. In this context, the arguments that point to the absence of the Law on ethnologic assessment and procedures for its implementation have no ground. The Law on ethnologic assessment is needed but the right to the assessment is provided by the existing legislation. Therefore citizens may claim their rights. The ethnologic assessment may significantly widen the scope of application of the Law on Environmental Assessment that covers environmental impact assessment and ‘social, economic and other impacts of the subject of EIA’. Current practice shows that in this respect the EIAs include only certificates of archaeological monuments. This brings both funny and tragic results. The Tyanskiy mineral deposit is under development at Trom-Agan in the Khanty-Mansiyskiy Okrug. The status for the holy lands is not defined here, though any indigenous person or an anthropologist knows that that a holy land is a land that people consider to be holy. However the oil industry does not know that, and the government does not require the oil industry to have this knowledge. Therefore when the industry started to construct a road here, Mr N.N. Vyllo, the owner of the tribal land, wrote a letter to the oil production company. He wrote that the land is holy. The reply from the managing director of the oil company was that his map of archaeological monuments does not show any holy lands here. Perhaps the application of the Law to conduct an ethnologic assessment may help here. Further, the Law may be applied here, as it states that the traditions and customs of the indigenous minorities must be taken in to consideration.

The Law will work when the indigenous peoples themselves, both individuals and organisations, will feel the need for its application. We have also faced the situation where courts were not ready to apply the Law. For example, even though Article 4 of the Law gives rights to indigenous peoples to seek support from organisations, the court of Khanty-Mansiysk rejected a complaint because an NGO supported the complainant.

The legal process, and even just submitting a complaint to the court, may have direct and indirect effects. For instance, Mr Yuri Vella sent in a complaint to the court after he had been denied information that he had requested. The court rejected Mr Vella’s complaint, but when Mr Vella applied for information once again, he received about 50 pages of documentation, which is what he wanted to get from the court in the first place.

I do not want the reader to get the impression that a court may solve all our problems. Experience shows that the court is one tool to protect the rights of indigenous peoples. However, our own civil activity will determine the effectiveness of legal protection. Here I mean establishment of an NGO, public meetings, pickets, writing appeals, conducting polls, conducting public environmental impact assessments and ethnologic assessments, participation in the legislative process, establishment of zones under special protection, and defining the status of holy land.

The government is interested, or should be interested, in the preservation of the northern natural areas, including its biodiversity, and in achieving sustainable development. Therefore the government should support the people whose very lives are preconditions to sustainable development. However, only people who maintain a traditional way of life have legal and moral rights to enjoy governmental support. Therefore norms of usual right that regulate native environments, traditional ways of life became part of the legal system. This means that the norms of the usual right correspond to the legal system. In this context, advisability to apply the norm of the usual right may be proved in the court of Law on the basis of its compliance with the humanitarian and environmental orientations of the current legislation, especially with the Constitution of the Russian Federation.

The right is an obligatory form of freedom. Perhaps, with thoughts of freedom people go to courts.

[1] Traditional, indigenous land “ownership” consists of use rights, passed down through the generations and sometimes temporarily extended to others, rather than freehold property rights. --The Editor.

[2] The author is referring to the responsibilities of those indigenous individuals who have rights to traditional lands (in reality, some of them are irresponsible and lands are in decay), but who have chosen an urban way of life. They are responsible for the bearing of traditional culture, language etc., but not for their lands. According to the author, they cannot continue to take care of their ancestors' lands when leading an urban way of life, but they might still have quota for fishing, hunting etc. --The Editor.