English translation from the official periodical of RAIPON “Мир коренных народов - живая арктика” (Indigenous Peoples’ World - Living Arctic) No. 11-12, 2002
Establishment of Territories of Traditional Nature Use in the Khanty-Mansi Autonomous Okrug: Experience, problems, prospects
A. Raishev, Vice-Governor of the Khanty-Mansi Autonomous Okrug
Experience
In 1991, those engaged in traditional economic activities in the areas of the indigenous numerically small peoples of the North were exempted from land tax by the federal law On Payment for Land.
The edict of the Russian Federation President, On the Urgent Measures to Protect Places of Residence and Economic Activities of Numerically Small Peoples of the North, and the decision of the Council of People’s Deputies of the Okrug adopted on its basis, “The Regulations of the Status of Lineage-Based Kinship Lands in the Khanty-Mansi Autonomous Okrug (KMAO)”, became effective in 1992. Lineage-based kinship lands were granted for life as inheritable possessions. As of today, 507 lineage-based kinship areas have been organized in the Okrug, totaling 13.5446 million hectares.
Both the presidential edict and the KMAO’s regulations identified the lands used for traditional subsistence activities as traditional/priority subsistence territories (territories of traditional/priority natural resource use). The novelty of this approach was mainly the fact that, apart from the exemption from payment for land, the lands incorporated in the Territories of Traditional Nature Use (TTNUs) were transferred to indigenous peoples on the basis of inheritable life interest, which, in its turn, ensured aborigines’ special rights connected with relations regarding the land plots and natural resources therein.
On the whole, the presidential edict did not grant the aborigines any other rights that would make the conferred right of inheritable life interest work. Therefore, from that moment there have been gaps in the federal legislature with regard to the conditions of industrial activities, and further regulation of relations between to indigenous peoples and others (in particular, the users of mineral deposits and other natural resources).
At the same time, the Okrug’s regulations envisaged regulation of these relations via binding contractual relations in the form of agreements between the owners of lineage-based kinship lands granted as TTNUs and, for example, users of mineral deposits and other natural resources.
The fundamental features of the model forms of agreements approved by the government of the Autonomous Area included:
The above regulations have been incorporated into the Charter of the KMAO, regional laws, including On the Use of Mineral Resources, On Land, and On Dispossession and Granting of Land Plots on the KMAO Territory.
Acting on the basis of these laws, representatives of the Okrug’s government have become members of the commissions which supervise the fulfillment of conditions of license agreements and the regulation of disputes over mineral resource use within the boundaries of TTNUs. (These are the permanent interdepartmental commission on licensing mineral deposits and water resources, the commission to check the fulfillment of conditions of license agreements, various conciliation boards, etc.). Besides, the given authority is carried out via special governmental bodies and services: forestry, management of land resources, water protection, ecological, etc.
On the federal level, since the presidential edict of April 22, 1992 was adopted, the laws dealing with this issue did not change for many years.
However, changes have been underway recently. The following laws were adopted: On Guarantees of the Rights of Indigenous Numerically Small Peoples of the Russian Federation (1999), On General Principles to Organize Communities of Indigenous Numerically Small Peoples of the North, Siberia and the Far East of the Russian Federation (2000), and, mainly, On Territories of Traditional Nature Use (Territories of Traditional Natural Resource Use) of Indigenous Numerically Small Peoples of the North, Siberia and the Far East of the Russian Federation (2001).
Apart from making the status of TTNUs more definite, the federal law has secured the situation when the state is the owner of TTNUs while indigenous peoples are their users. While the owner and the user of mineral deposits used to be the main contractual parties in cases of mineral resource exploitation of lineage-based kinship lands, the institution of TTNU now stipulates that the state is the owner and user of such lands, the supervisory body monitoring their use as well as the guarantor of the aborigines’ rights. Thus, the indigenous peoples rights stipulated by the Okrug’s regulations about the status of lineage-based kinship lands ensuing from, if it is permitted to say so, “semi-proprietary”, contractual relations based on the right of inheritable life interest, have failed to acquire legal fixation in federal legislation.
Moreover, the newly adopted federal Land Code has stipulated that individuals (including indigenous peoples) shall not be granted land plots for gratuitous use. In this connection, the implementation of all the Okrug’s legislative acts inasmuch as they contradicted the Land Code has been suspended, including the suspension of the regulations about the status of lineage-based kinship lands.
The institution of Territories of Traditional Nature Use is today being introduced in the Okrug. In this connection, enactment # 192 of the KMAO government, On Territories of Traditional Nature Use, was issued in the spring of 2002 to recognize lineage-based kinship lands as TTNUs. On the basis of this enactment, the Okrug’s government and its Duma (Assembly) are now working out the law and regulations with respect to the Okrug’s TTNUs.
The prevailing problems
The introduction of TTNUs in the Okrug has not sorted out the main problems of:
(1) The status of indigenous peoples as land users;
(2) The lack of a clearly defined legislative mechanism to defend the economic interests of indigenous peoples when mineral resource are being extracted.
The presidential edict On Urgent Measures to Protect the Places of Residence and Economic Activities of Indigenous Numerically Small Peoples of the North, the federal laws On Payment for Land, On Territories of Traditional Nature Use of Indigenous Numerically Small Peoples of the North, Siberia and the Far East of RF, and On Guarantees of the Rights of Indigenous Numerically Small Peoples of the Russian Federation have established the right of indigenous peoples to gratuitous use of their lands, to compensate for damages connected with a different use of TTNUs.
It is essential to emphasize that nothing new has been introduced into the federal law on TTNUs in this direction though it was required to consolidate and develop the above provisions, while the provision about the protection of economic interests of indigenous peoples through compensation for damages caused to traditional economy is not even mentioned. In addition, the Land Code, recently carried into effect, has made it likely that land users will have to pay for the use of land (which will be leased) to carry out traditional economic activities.
The lack of an efficient mechanism to protect indigenous economic interests in the process of mineral deposit exploitations has been caused by the lack of the above provisions in the federal law on TTNU as well as by the precedents set by the law On Guarantees of Rights…
In our opinion, the payment of compensations should be ensured by the very fact that non-traditional methods of natural resource use are being practiced within the boundaries of TTNUs. Such compensation should be determined by the size of lands which are to be industrially developed and thereby not available for traditional indigenous activities.
The problem is aggravated by the fact that as of now there is no appropriate system of rules adopted in due order even with regard to damages of precedent nature. Therefore, the above compensation payments are subject to taxation due to the lack of corresponding federal enforceable enactments. From the point of view of taxation laws, the amounts paid as damages to the owners of lineage-based kinship lands in accordance with economic agreements are not subject to any preferential treatment whatsoever.
The prospects of introducing TTNUs in the KMAO
Debates are currently going on in the Okrug about how to move forward towards the introduction of TTNUs or the preservation of the institution of lineage-based lands. It is a problem the land status of indigenous peoples depends on, with ensuing rights and relations. I reckon that while determining or choosing the land status of indigenous peoples the earlier developed aboriginal economic activities should be taken into consideration. Thus, for example, indigenous peoples have to carry out their economic activities within the boundaries of the same territories shared with the non-indigenous users of mineral and other natural resources. Under such conditions, it seems that these mutual relations should be maintained within the boundaries of TTNUs and be regulated on a legislative basis including appropriate normative acts. Otherwise, the fundamental rights of indigenous peoples to traditional economic activities and he preservation of traditional ways of life would be undermined. The current law cannot guarantee such rights since it gives non-indigenous users of mineral and other natural resources a legalized possibility to freely operate within traditional indigenous territories, employing non-traditional methods of natural resource use, irrespective of the costs this entails for traditional land users. Under the conditions of providing indigenous peoples with the right to independently dispose of land, including in TTNUs, it is clearly just a question of time and price before lands are transfered to outside mineral and other natural resource users. Moreover, there is no room for the state authorities in these property relations, although state agencies, in accordance with federal legislation and international principles, should be a guarantor of the preservation of indigenous peoples’ rights to carry out traditional economic activities and a traditional lifestyle.
In what way would the institution of TTNU sort out these questions? It is essential to take an inventory, zoning Territories of Traditional Nature Use to determine the status of each and every zone. Non-traditional activities would be totally (say, in reindeer pastures) or partially restricted (with the observance of environmental protection and other conditions). These measures should be conducive to the fulfillment of the main task – to guarantee the preservation of reindeer pastures (the basis for traditional economic activities and lifestyle of the Yugra aborigines). It will also make the fulfillment of this task dependent on the will of the state rather than on the results of individual agreements between the users of mineral deposits and the owners of lineage-based kinship lands.
At the same time, the normative basis of the kinship land institution also contains a number of vitally important provisions essential for preservation. These have been verified by practice and are ready for realization. They include mechanisms to settle land; mechanisms to protect the economic interests of indigenous peoples in situations of mineral deposit extraction; the establishment of strict sanctions for non-traditional and unlawful use of lineage-based kinship lands by third parties, etc. The federal TTNU legislation currently in force, unfortunately, does not formulate clearly enough the above provisions and does not determine the mechanisms of their realization. while the available provisions are frequently proclaimed in declarative form but do not find its use in practice.
However, taking into account the possibility of adding amendments to the federal law on TTNUs, it seems that the institution of TTNU can be used to defend on a greater scale the rights of indigenous peoples to guaranteed traditional economic activities, reindeer breeding development, to authorize the state to supervise the preservation of the legal status of the said lands and to regulate their use, and, by and large, to preserve the traditional lifestyle of indigenous peoples.
The elaboration of a new federal law on TTNU is now also underway. In its first versions, it does not contain principles of division of the given territories into territories of federal, regional, and local significance, or zoning principles, and it restricts the possibilities of regional authorities to participate in the establishment of and supervision of TTNUs. The prospects for the adoption of this new version of the law are unclear though the tendency itself is important.
In conclusion, I would like to point out that the process of TTNU formation in the Khanty-Mansi Autonomous Okrug is already underway. The first steps have been made in this direction. The experience gained and the mechanisms, founded on the normative basis about kinship lands, to protect indigenous rights have been conducive to fulfilling this task.
It should be noted in this connection that while determining model territories and project proposals about TTNUs, the distinctive features, predefined land use conditions and traditional economic activities of indigenous peoples in such regions as KMAO must be taken into account. The search for appropriate forms of land use by indigenous peoples pursuing traditional activities and users of mineral deposits and other natural resources is the key problem of today. Considering the representativeness of the problems facing the KMAO, as well as the degree of its interest in their solution, and on condition of appropriate support being rendered, KMAO should be taken as a model territory for the introduction of TTNUs.