Rodnik Legal Center
from “Mir Korennykh Narodov – Zhivaya Arktika” No. 9-10, 2002
Since the very moment of its establishment the Rodnik Legal Center has been engaged in resorting to legal defense in its activities as one of the most effective methods of preserving Nature and Man.
Information on the legal case in defense of gray whales
Mir korennykh narodov (Indigenous Peoples’ World) journal, in its 8th issue (2002), published articles on the legal case in defense of the endangered species of sea mammals (the Okhotsk-Korean population of gray whales) initiated by social organizations – the Rodnik Legal Center and the Sakhalin’s Ecological Watch.
The Government of the Russian Federation and the RF Ministry of Natural Resources are the defendants in this action while two foreign oil-producing companies have been involved in the case as third parties. As a result of geological prospecting and oil production now well underway in the Sea of Okhotsk the threat of extinction of the Okhotsk-Korean population of gray whales has become a tangible reality. About one hundred people and 19 social organizations whose interests are represented by lawyers and barristers of the Rodnik Legal Center have addressed the court as plaintiffs.
Associations and representatives of indigenous peoples have taken an active position in this case. Plaintiffs in this action are the Russian Association of indigenous peoples of the North, regional organizations and associations of indigenous peoples – the Itelmen and Aleut Community “ITAL” and others.
This case is of immense public interest since preservation of these rare mammals has a bearing on the rights and interests of both our contemporaries and future generations of human beings.
The action in defense of gray whales is, in its essence, an attempt to save the environment of the Sea of Okhotsk from pollution as the habitat of rare mammals. The threat of extinction facing the population of gray whales is an indicator of worsening quality of the environment. In other words, it shows evidence of the citizens’ constitutional right to favorable ambient environment guaranteed by Article 42 of the RF Constitution being violated.
It is exactly due to this fact that the increasing number of citizens and social organizations stand up for this action. Being well aware of practical impossibility of involving all those wishing to become plaintiffs, the Rodnik lawyers make use of new legal forms of defending civil rights stipulated by Articles 12, 980-981 of the RF Civil Code allowing to bring an action in defense of somebody else’s legitimate interest. In this particular case, the action is a matter in defense of public interests. The plaintiffs in this action stand up not only for the defense of their own rights but also for the defense of the right of both contemporary and future generations to favorable ambient environment.
The plaintiffs have circulated the notification about legal actions taken in defense of somebody else’s legitimate interest in compliance with Article 981 of the RF Civil among the public. By now, the approval of the legal actions taken has been received from more than 800 citizens inhabiting various regions of Russia.
The nearest court session is slated for April 9, 2002.
The Rodnik Legal Center is most grateful to all the people and organizations for the support they have given to this case. We hope that our joint efforts would not only save gray whales but would stimulate changes in the mentality of the society, awakening a humane, responsible attitude towards Living Nature and putting an end to its consumer-oriented utilization.
Case of Tkhsanom Traditional Subsistence Territory
The right of indigenous peoples and communities of indigenous peoples to establish traditional subsistence territories (TST) for a traditional lifestyle and protection of indigenous habitat is guaranteed by the Russian legislation now in force.
Implementing its rights guaranteed by the standards of the RF Constitution and RF legislation, a public association of indigenous peoples, “The Council of the Kamchatkan Itelmens ‘Tkhsanom’”, has approached the Government of the Russian Federation with an appeal to establish a traditional subsistence territory of federal status “Tkhsanom” in the south of the Tigilskiy Rayon of the Koryak Autonomous Okrug.
The appeal has been worded in full compliance with the requirements of the Federal Law “On Traditional Subsistence Territories …”. The appeal is supplemented with:
This traditional subsistence territory existed in the past. It was established on December 2, 1998 by Enactment # 317 issued by the Governor of the Koryak Autonomous Okrug stating its status of a traditional subsistence territory of regional subordination. However, the Governor of the Koryak Autonomous Okrug (KAO) declared this Enactment dated March 3, 2001 null and void following the KAO public prosecutor’s protest based on the fact that the TST incorporated lands of federal status. The actual reason for the cancellation of Enactment # 317 was purely formal. The Governor stated it very clearly in his letter # 1334 dated August 1, 2001 that the territory concerned could be established as a federal entity on the basis of the Federal Law “On Traditional Subsistence Territories …” and recommended to apply to the RF Government.
Such an application for the establishment of the Tkhsanom Traditional Subsistence Territory of federal status was made and sent to the RF Government.
However, having considered this application on behalf of the RF Government, the RF Ministry of Economic Development and Trade denied the establishment of the traditional subsistence territory due to “the lack of necessary enforceable legal enactments regularizing the order of establishment of traditional subsistence territories of federal status and definition of their functioning pattern”.
The denial to establish the Tkhsanom Traditional Subsistence Territory not only prevents realization of indigenous peoples’ rights but also brutally violates the Russian legislation currently in force:
Representatives of indigenous peoples inhabiting the Tkhsanom Traditional Subsistence Territory, the Russian Association of Indigenous Peoples of the North (RAIPON) and the Council of the Kamchatkan Itelmens approached the Rodnik Legal Center seeking after the defense of their rights.
Recently, the Rodnik lawyers have prepared a complaint against the illegal denial to establish the Tkhsanom Traditional Subsistence Territory lodged with the Supreme Court of RF on April 3, 2002.
The above case sets a judicial precedent since it is for the first time after the adoption of the Federal Law “On Traditional Subsistence Territories …” that representatives of indigenous peoples defend their rights to native lands in court.
It is hoped that the Supreme Court of the Russian Federation will eliminate the infringements of the law and restore the legitimate rights of indigenous peoples.
The lawyers of the Rodnik Legal Center will keep the readers informed about this judicial proceeding.
The above is not the only case at law conducted by the lawyers and barristers of Rodnik.
The Rodnik Legal Center renders constant consultative assistance to representatives of indigenous peoples, activists of the environmental and human rights movement. A lot of attention has been also focused on educational workshops dealing with the subject of legal defense of citizens’ rights.
The Open Society Institute is largely facilitating the active and diverse activities of Rodnik rendering support to our social organization ever since its foundation, assisting us in the development of various lines of action and providing a lot of formidable information and moral backup.
The Editor’s Board comment:
Below is the full text of the answer given by I.S. Materov, First Deputy Minister for Economic Development to RAIPON’s appeal about the establishment of Tkhsanom TST.
“Esteemed Sergey Nikolayevich!
In accordance with the letter written by the RF Government Staff, Russia’s Ministry of Economic Development in cooperation with Russia’s Ministry of Natural Resources (V.N. Lopatin) have considered your appeal about the establishment of the Tkhsanom Traditional Subsistence Territory in the Koryak Autonomous Okrug and inform you hereby that:
At present, practical realization of standards of the said law is hampered by the lack of essential enforceable legal enactments regularizing the order of the establishment of traditional subsistence territories of federal status and definition of their functioning pattern.
Russia’s Ministry of Economic Development, jointly with interested federal agencies of executive power, have elaborated and submitted a draft plan of actions to realize the concept of state support of economic and social development of Northern areas under new economic conditions, approved by Enactment # 198 of the Government of the Russian Federation, envisaging elaboration of a model provision “On Traditional Subsistence Territories of indigenous peoples of the North, Siberia and the Far East of the Russian Federation of federal status” to the Government of the Russian Federation for consideration.
The above answer contains an actual denial to establish the Tkhsanom Traditional Subsistence Territory. The letter mentioned no deadlines before which “essential enforceable legal enactments regularizing the order of the establishment of traditional subsistence territories of federal status and definition of their functioning pattern” would be elaborated though elaboration of “essential enforceable acts” had been planned long time ago but, judging by the letter, was included so far in the “draft plan of actions to realize the concept of state support of economic and social development of Northern areas under new economic conditions”. The fate of this “plan of actions” is not stated clearly in the letter.
This letter’s message is clear once translated from the red-tape language into plain text: “we cannot realize the federal law now because earlier we have not done what we had to do for realization of this law”. In accordance with the Federal Law “On the Government of the Russian Federation” realization of federal laws and elaboration of essential enforceable acts to this effect are binding obligations of the RF Government.