English translation from the official periodical of RAIPON “Мир коренных народов - живая арктика” (Indigenous Peoples’ World - Living Arctic) No. 11-12, 2002
Why is the Federal Law on Territories of Traditional Nature Use not Working?
Unfortunately, the cause of this problem is partly rooted in the law itself. This federal law is in fact a framework. It offers neither a mechanism nor a procedure of its realization. Regretfully, nothing else could be expected since representatives of regional authorities objected to specific, concrete measures to establish Territories of Traditional Nature Use, sticking to their belief that any instructions regarding what way things had to be accomplished, and by whom, were an infringement of their sovereignty.
However, after the law had emerged, many regional administrations started to approach federal authorities with requests for information of how to carry the law into effect.
Thus, since in accordance with the law on Territories of Traditional Nature Use (TTNUs) the legal regime of each and every TTNU is determined by the Statute, the majority of regional authorities opted for taking their time until the Government of the Russian Federation would work out a model statute about the legal regime of TTNUs, though creation of a model statute is not stipulated by the said federal law. Besides, regions could establish TTNUs themselves since in accordance with the law in force they are to be set up by the decision of the organs of executive power in the Federation subjects and local self-governance. Some regional authorities did so, for example, in the Khanty-Mansi Autonomous Okrug, and in the Tomskaya Oblast.
But a second contradiction rooted in the federal laws emerges in this instance.
Organs of administrative units of Russia and local authorities are unable to take decisions about the gratuitous transfer of the majority of Territories of Traditional Nature Use demanded by indigenous peoples. This is the case when the lands in question are under federal authority―and the majority of lands occupied by indigenous peoples of the North: forests, water reservoirs, coastal and offshore zones are in fact under federal authority. Secondly, it happens because soon after the law on TTNUs had been adopted the Land Code of the Russian Federation was passed. This Land Code does not include the possibility of gratuitous use by individuals. Now, only two forms have been left for citizens: the right of ownership and the right of leasehold.
It would be logical if the renewed Land Code could take into account the form of land use which has already been fixed in the federal law on Territories of Traditional Nature Use adopted earlier. Besides, the legislator should have taken into account the special historic, economic and ethnic circumstances of indigenous peoples. Neither the right of ownership nor the right of leasehold is applicable where reindeer pastures, hunting grounds, fishing areas, and sacred sites have been in general use in accordance with indigenous customary land use norms. It was possible for the Land Code to take this into consideration in accordance with the Constitution of the Russian Federation since this attitude of indigenous peoples towards their lands and natural resources as a common source of existence has been reflected in the Constitution. However, for some reason it failed to be reflected in the Land Code.
Now, in accordance with the standards of the Land Code, RAIPON representatives are told that indigenous peoples should rent (!) their lands after they have bee put out to tender. They have used these kinship pasturelands, areas of traditional occupation and business activities, sacred sites and burial plots, and preserved them for their descendants during the past centuries. Having to rent sacred sites and burial places would be blasphemic to indigenous peoples and contradicts common sense.
Reformers of the Land Code should also have taken into account the fact that the majority of indigenous peoples’ representatives―those engaged in traditional natural resource use―live in localities far away from administrative centers and, judging by the level of their income, well below the poverty line. Traditional natural resource use for them is the only source of sustenance. It is quite evident that these representatives of Northern indigenous peoples will not be able to offer competative bids and pay the rent. Following the standards of the Land Code, therefore, these Russian citizens will be deprived of their last sources of existence.
To overcome this monstrous injustice as well as to eliminate the contradiction rooted in the legislation RAIPON has put forward a suggestion to introduce certain changes into the articles of the Land Code. The aim is to provide individual indigenous persons and their communities with the right of permanent use of state-owned or municipal lands for traditional natural resource use in localities they traditionally inhabit and where they are involved in economic activities. This suggestion has not found any support yet.
Thus, the discrepancy between the two federal laws (the Land Code and the law on Territories of Traditional Nature Use) and the unwillingness of legislators to bring them in line with each other have caused the absence of Territories of Traditional Nature Use on the federal level.
Similar discrepancies or uncertainties in the rights of indigenous peoples to use natural resources have been identified in the federal laws On Fauna, On Hunting, On Fishing, and in the federal Forest Code.
To rectify them the way the authorities are now trying to do―putting indigenous peoples’ rights concerning the use of traditional natural resources on the same footing as the rights of all the rest of the citizens, i.e. making natural resource use for traditional subsistence activities subject to payment―is tantamount to murder in the present socio-economic situation.
After all, special laws on indigenous peoples’ rights are created especially with the aim of accepting special rights of indigenous peoples as a permanent feature, at least for the limited time of reviving their economy under the new conditions.
So, one of the reasons that the federal law on Territories of Traditional Nature Use is not being acted upon is in the lack of agreement between the laws. The method to overcome this problem is to improve the laws.
The second cause of the present-day absence of Territories of Traditional Nature Use at the federal level is, unfortunately, due to the sabotage by by state executive agencies, starting with the federal authorities, in implementing the federal law on TTNUs.
The process to improve the laws should not be cause for the suspension of the present law. Otherwise, this process itself becomes illegal. Likewise, any assumption that it is not worthwhile establishing a traditional subsistence territory since the law is on the verge of being revised or because some legally binding statutory instruments are not ready yet is illegal. Since the law was carried into effect on 11 May 2001 representatives of indigenous peoples have the right from that very date to submit requests about the establishment of TTNUs and the authorities are to consider the applications and come to a decision.
Article 5 of the current law on TTNUs clearly states:
“Territories of Traditional Nature Use of federal significance are to be established by decisions of the government of the Russian Federation in agreement with relevant state agencies on the basis of applications made by persons, related to numerically small peoples, and communities of numerically small peoples or their authorized representatives”.
In other words, the right of indigenous peoples is to apply while the government’s responsibility is to make a decision about the establishment of a TTNU or to give a substantiated denial.
With the assistance of experienced lawyers, RAIPON has attempted to work out legally competent samples of applications relevant to the establishment of TTNUs envisaged by Articles 6 and 11 of the federal law. These samples were published in the journal “Mir korennykh narodov – zhivaya Arktika”, No. 6, 2001 (Pp. 24-39). The Association has convened workshops to train representatives of indigenous peoples in writing applications for the establishment of TTNUs. Such applications have been prepared, along with draft provisions about the legal circumstances concerning TTNUs, and sent to the federal government.
What was the federal government’s response to these applications made by indigenous peoples? The Ministry for Economic Development and Commerce authorized to give answers to indigenous peoples’ applications about the creation of TTNUs used to give a standard response. I repeat it verbatim: “Practical realization of the law’s standards has been hampered at present by the absence of the required judicial documents regularizing the system for establishing Territories of Traditional Nature Use of federal significance and defining the regime of their functioning”. It was further noted that there was an ordinance issued by the federal government about the elaboration of a standard provision concerning Territories of Traditional Nature Use without indication of any term of its realization.
Firstly, this standard response to applications made by indigenous peoples about the establishment of TTNUs contains a refusal to establish TTNUs, which is based on the absence of certain statutory instruments required by the government itself to do the job. Such a response contradicts the federal law “On the Russian Federation Government”: it is, above all, the responsibility of the federal government to execute federal laws.
Secondly, the availability of a standard act is not envisaged by the law on TTNUs; it is merely an intra-departmental document the government needs for itself to elaborate the mechanism of execution of the law. In accordance with the abovementioned law on the federal government, it is a direct responsibility of the government itself to work out such a mechanism. The absence of such an enforceable enactment cannot serve as a cause of refusal to execute the law. Thus, the causes of non-existence of TTNUs are rooted in non-compliance of the adopted laws with each other, i.e. something the indigenous peoples are not guilty of. It is lawmakers’ fault.
That is to say, both the aforementioned refusal to establish TTNUs and the given reason for the refusal are illegal.
What should indigenous peoples do in case there is an evident non-execution of law? Take the case to court. And that is what exactly was done following the receipt of the first response of that kind. But even appearing in court the government’s representatives failed once again to offer anything to justify their actions apart from inarticulate promises to work out a standard act. In case their court action is not satisfied, indigenous peoples have nothing to do but to demand execution of the law appealing to a higher authority. The lawyers of the social Legal Center Rodnik, authorized by representatives of indigenous peoples to develop the case, are fully resolved, if need be, to defend indigenous peoples’ interests with regard to this claim both in the federal Constitutional Court and in the European Court.
Despite non-observance of the law by the federal government, RAIPON continues to offer the authorities its cooperation. RAIPON is striving to participate in all the measures of state agencies carried out within the framework of the modern process of legislation reforms. Unfortunately, both revised versions of the Territories of Traditional Nature Use law which are currently put forward by executive agencies can hardly satisfy the indigenous peoples of the North. As it has already been mentioned, the right of gratuitous use of lands is not included in one of them.
The other measure put forward by the Ministry for Economic Development and Commerce, firstly, includes a proposed new law and the abolition of the old one, thus annulling the legitimacy of all the indigenous peoples’ applications for TTNUs sent to the authorities during the past eighteen months. This proposal, justified by nothing, is unacceptable. At the same time there is a possibility to improve the law in force by inserting amendments and adding supplements. Secondly, the second variant of the law lacks certain standards essential for indigenous peoples. These include:
- The restriction of turnover of lands constituting TTNUs;
- The realization of indigenous peoples’ rights to participate in the supervision over the use and protection of lands and other natural resources;
- The determination of the system to assess the environmental impact of industrial projects and to participate in any managerial decisions relating to the sustainable development of indigenous, numerically small peoples, in terms of human habitat, health, employment, traditional natural resource use, ethnic and cultural integrity as well the system of reimbursement of damages done to the environment and traditional lifestyle, and realization of programs of socio-economic adaptation of indigenous peoples to the conditions prevailing after the realization of industrial projects.
The absence of these standards is inadmissible; it contradicts international principles which the Russian Federation has accepted as binding with regard to indigenous peoples. Corresponding proposals about the insertion of these standards into the said draft law have been duly submitted by RAIPON to the federal government.
Having defended the rights of indigenous peoples of the North, RAIPON hopes to cooperate with both legislative and executive branches of power. It puts forward proposals for improving the laws as well as pushing for their realization. Northern indigenous peoples should not lose their hope: using the right given by the current legislation, they should continue to approach the federal government with their claims to establish Territories of Traditional Nature Use―the third cause of TTNUs being non-existent is rooted in the low activity of the Northern indigenous peoples themselves. It might seem to the authorities that indigenous peoples are hardly in need of TTNUs since there have been only a handful of applications about their establishment. It is high time for indigenous peoples of the North to get united in defense of their rights to their traditional lands before they are in the hands of other owners and leaseholders. RAIPON is ready to render any assistance in this respect, including workshops to help realize the rights of indigenous peoples of the North, Siberia and the Far East.