Rus

 

ENVIRONMENTAL PROTECTION AND THE RIGHTS OF INDIGENOUS
PEOPLES IN THE RUSSIAN ARCTIC

(Review of Russian legislation 1990-1998)

K.D. Arakchaa, E.N. Sumina

1. Legislation, its application and national programs for the protection of the environment in territories traditionally inhabited and worked by indigenous peoples of the Arctic

1.1. The legislative process for small indigenous peoples of the North

Legislation concerning small indigenous peoples began to be drafted in earnest in the late ‘80s. Figure 1 shows the legislative dynamic from 1980 through 1997. The list of laws and other normative legal acts includes those which affected small indigenous peoples directly as well as indirectly. The period from 1980 to 1997 is shown here in order to illustrate the stages of establishing a legislative base for the benefit of small indigenous peoples in the North in the ‘80s and ‘90s. The diagram clearly shows two stages: the first (1989-1993) when federally created laws outstripped regional ones, and the second (1994-1997) when, in contrast, regional legislation predominated.

Fig. 1. Developmental dynamic of legislation concerning small indigenous peoples of the Russian North (1980-1997).

Note, too, the qualitative differences between federally and regionally created laws (Fig. 2 and 3). First, federal legislation directly concerning small indigenous peoples of the North consisted mainly in presidential decrees, parliamentary resolutions and government instructions, whereas regional legislation consisted primarily in laws. Second, while there are roughly as many federal laws on land relations and the use of mineral and natural resources as there are regional ones, the percentage of regional legislation devoted to the local autonomy of small indigenous peoples of the North is greater (15%) than that of federal legislation (3%). In contrast, regional legislation’s percentage of laws on nature conservation is smaller (2%) than that of federal legislation (15%). Meanwhile, regional legislation contains a number of laws concerning traditional occupations whereas federal legislation has almost none.

Fig. 2. Percentages of federal legislation devoted to different issues concerning small indigenous peoples of the North (1990-1997).

 

Fig. 3. Percentages of regional legislation devoted to different issues concerning small indigenous peoples of the North (1990-1997).

A recent region-by-region study shows that the republic of Sakha (Yakutia) and the Yamal-Nenets autonomous okrug have drafted the most comprehensive legislation concerning small indigenous peoples of the North.

The legal status of small indigenous peoples and communities in the Russian Arctic has been formalized in the republic of Sakha (Yakutia).

Legal acts guaranteeing the right of peoples of the North to engage in traditional occupations (reindeer-breeding, etc.) and regulating the use of mineral and natural resources in localities densely inhabited by peoples of the North have been passed in the republic of Sakha (Yakutia) and in the Yamal-Nenets autonomous okrug.

Legal documents on tax privileges were adopted by managerial entities created by small indigenous peoples of the North in the republic of Sakha (Yakutia) and in the Yamal-Nenets, Tajmyr and Nenets autonomous okrugs.

Most Arctic regions have passed legislation on the free distribution of medicines to indigenous peoples residing in rural areas.

In the Yamal-Nenets and Chukotka autonomous okrugs and in the Murmansk area, advantageous limits on fishing and hunting of waterfowl and wild ungulates have been established for indigenous peoples.


1.2. Russian legislation on environmental protection in territories traditionally inhabited and worked by indigenous peoples of the Arctic (1990-1998)

Russian legislation on environmental protection in territories traditionally inhabited and worked by indigenous peoples of the Arctic can only be considered in the context of the Soviet-era legislation that preceded it.

In the Soviet Union, the Arctic was never formally defined as a special geographical part of the country. It was simply a closed zone with a border and a passport regime, so that all work in the Arctic, even of the most civic sort, had a certain official level of secrecy. Because of this secrecy, the Arctic’s development was the result of secret resolutions and instructions by the Central Committee of the Communist Party and the Council of Ministers of the USSR and RSFSR [1-5].

Of those legal acts on environmental protection in the Arctic that were adopted openly between 1980 and1990, two deserve mention: an ukaz of the Presidium of the USSR Supreme Soviet (dated 26.11.84, No. 1398-1) “On increasing environmental protection in areas of the Far North” [6] and a resolution by the USSR Supreme Soviet (dated 27.11.89, No. 829-1) [7] “On urgent measures for the improvement of the country’s ecological health”. The resolution recommended that in 1990 zones of primarily traditional land use, not subject to industrial development, be allotted to small indigenous peoples of the Russian North, Far East and Siberia. This resolution was the virtual precursor of the first legislation concerning the rights of indigenous peoples to the lands they had traditionally inhabited and worked [8].

The next serious impetus to the development of legislation to protect the environment of indigenous peoples of the North was a presidential ukaz (dated 22.04.92, N397) [9] “On urgent measures to protect places inhabited and worked by small indigenous peoples of the North”. On the basis of this ukaz, family farms, communities, national enterprises and other entities of indigenous peoples were created in the Far North in 1991-93. In most regions, farms received traditional land use zones on various conditions. These zones, as stated in the ukaz, were the inalienable property of these peoples and could not be used for industrial or any other non-traditional purposes without their consent.

The meaning of this formulation can hardly be overstated. First, the State recognizes the collective right of small indigenous peoples of the North. Second, the object of this right the territory that they have traditionally inhabited and worked: traditional (or, as in some normative legal acts, primarily traditional) land use zones.

Thus, in the late ‘80s and early ‘90s, Russian legislation established small indigenous peoples of the North as a collective legal entity and traditional land use and habitation zones as the object of their collective right. Article 69 of the Russian Constitution [10], adopted in 1993, went so far as to accord the rights of natives of the North and small indigenous peoples of Russia international status: the Russian Federation guarantees the rights of small indigenous peoples in accordance with the generally recognized principles and standards of international law and international treaties of the Russian Federation. Furthermore, the Constitution provides for the protection of their native environment and traditional way of life (Art. 72, par. 1m) and, conditionally, the protection of natural resources in their native environment (Art. 9, par. 1).

Constitutional standards concerning the right of indigenous peoples of the North to the protection of their native environment and traditional land use are evolving, though more so in federal legislation than in regional legislation.


Federal legislation

The federal law “On specially protected territories” [11] allows small indigenous peoples and ethnic communities on specially protected territories to make extensive use of the nature and natural resources in ways that will protect the native environment and preserve the traditional way of life (Art. 9, par. 4; Art. 15, par. 3; Art. 24, par. 4). Environmental interests and the traditional way of life are also protected by the federal law “On the continental shelf of the Russian Federation”[12]. This law brings the study of, prospecting for, and exploitation of mineral resources, living resources, etc., under federal jurisdiction, with special consideration given to the economic interests of small indigenous peoples and ethnic communities of the Russian North and Far East (Art. 6, par. 3). Furthermore, the law entitles these peoples and ethnic communities to preferential rights in the use of living resources on the continental marine shelf (Art. 11).

According to the federal law “On mineral resources” [13], defending the interests of small indigenous peoples in mineral resource exploitation falls under the jurisdiction of the State authorities (Art. 4, par. 10). This law also stipulates that part of the payments for use of mineral resources in districts inhabited by small indigenous peoples and ethnic communities go towards the socio-economic development of those peoples and groups (Art. 42). Moreover, the law requires that investors engaged in mining share production and “take all measures necessary to protect the native environment and traditional way of life of small indigenous communities” (Art. 7, par. 3 of the federal law “On agreements concerning production sharing”) [14].

According to the federal law “On the animal world” [15], the State authorities must protect the environmental rights of indigenous peoples in territories traditionally inhabited and land worked by them, and guarantee their traditional way of life and ways of using animals (Art. 6). Furthermore, these peoples receive special rights when their environment and traditional way of life are connected with the animal world (Art. 9): the right to use traditional methods of procuring animals and their by-products (Art. 48) and the right to preferential use of the animal world (Art. 49).

The Russian Forest Code [16] exempts small indigenous peoples from payments for the use of forests for their own needs (Art. 107) and states that, on the native territories of small indigenous peoples and ethnic communities, the forests must be used in such a way as to ensure the traditional way of life of these peoples and ethnic communities, according to federal law.

In addition to the above-listed environmental and traditional-use rights accorded to small indigenous peoples of the North, the federal law “On State regulation of the socio-economic development of the Russian North” envisages the organization of ethno-ecological zones, limits on and quotas for biological resources for use in accordance with ecological requirements, and also the familiarization of public organizations of small indigenous peoples of the North with projects for the development of the North (Art. 12).

The 1995 federal law “On ecological expertise” of the Russian Ministry of the Environment (now the Russian State Ecology Committee) confirms the Instruction on ecological substantiation of economic and other activities (injunction of the Russian Ministry of the Environment, dated 29.12.95, No. 539). Section 4 of this instruction [17] reads as follows:

4.2. The activity planned should take into account ... established national traditions and cultural-historical heritage...

4.7 The ecological substantiation should include... the region’s potential in natural resources, its economic use, and national use...

4.8 If the region is inhabited by several indigenous peoples (nationalities), the interests and rights of each of them should be taken into account as well as the possible emergence of new social groups that may change the traditions and way of life of the primary indigenous population and destroy the region’s natural and social equilibrium.*

From this brief legislative analysis, it is clear that, on the federal level, the environmental rights and traditional-use interests of small indigenous peoples and ethnic communities of Russia (including the North and the Arctic) have, for the most part, been taken into account. The question is to what extent the indigenous populations of the North and the Arctic are using this federal legislation in their own interests, and how this legislation is applied in practice.


Regional legislation

Figures 2 and 3 (pp. 8, 9) show that the percentage of regional legislation devoted to the environmental protection of territories traditionally inhabited and worked by small indigenous peoples of the North is significantly lower than that of federal legislation. But note that environmental protection in regions inhabited by indigenous peoples of the North and the Arctic is taken into account by the State authorities in the regions. The present legislative analysis refers to only two regions in the Russian Arctic (the republic of Sakha (Yakutia) and the Yamal-Nenets autonomous okrug) because that is where the legislation on small indigenous peoples of the North is most developed.

In the republic of Sakha (Yakutia), the law “On the legal status of small indigenous peoples of the northern republic of Sakha (Yakutia)”(dated 24.04.97, No. 3 1-171) guarantees the allotment to small indigenous peoples of territories traditionally inhabited and worked by them, territories large enough for their original development, for conservation of the environment and for sustainable use (Art. 3). Moreover, in these traditional land use zones, the peoples themselves may initiate the introduction of a special regime for the use of natural resources and even declare them closed to industrial exploitation (Art. 22). Another law in Yakutia “On clannish and tribal nomadic communities of small indigenous peoples of the North” states that “the community together with State bodies and public organizations has the right to conduct checks at any time of the activities of relevant state or other enterprises, organizations, private persons to make sure that they are complying with the laws on environmental protection. Based on the results of this check, a community has the right to demand that any violations cease, that compensation for any damages be paid, or even that the contract for the land be dissolved (Art. 12). This same article describes, as well, the obligations of the community: “The community is obliged, in the interests of sustainable use, to use resources for their designated purposes, to ensure their preservation and reproduction, to take measures to protect the environment and prevent its deterioration as the result of the community’s economic activities”.

The Yamal-Nenets autonomous okrug’s fundamental law or charter [18] refers to the okrug authorities’ obligation to organize “monitoring to expose factors harmful to humans, and to inform the local public (including representatives of small indigenous peoples of the North and ethnic communities with a nomadic way of life) in a timely and reliable manner of these factors”. In 1997, this okrug adopted a law “On specially protected natural territories of the Yamal-Nenets autonomous okrug” (dated14.10.97, No. 40, printed in Krasny Sever, 30 October 1997) allowing environmentally protected lands inhabited and worked by small indigenous peoples of the North and ethnic communities to be used for reindeer grazing (Art. 2). The law also envisages the creation of ethnic and nature parks on tribal hunting, fishing and reindeer-breeding lands, parks intended to conserve territories of special ecological and historical-cultural value, to ensure the traditional way of life of small indigenous peoples of the North and ethnic communities, and to preserve local natural resources through rational use.

At the same time, the okrug passed another law “On the regulation of land relations in areas traditionally inhabited and worked by small indigenous peoples of the North in the Yamal-Nenets autonomous okrug” (dated 14.10.97, No. 39, printed in Krasny Sever, 30 October 1997). This law regulates questions concerning the land as an object of nature, an object of economic use and of collective property which, taken together, are the bases of the life and traditional occupations of small indigenous peoples of the North and ethnic communities. This law is also intended to ensure the rational use and protection of lands, to determine how they should be used, to conserve and improve the environment, to protect the rights to these lands of small indigenous peoples of the North and ethnic communities, and to provide the economic and ecological conditions necessary for their sustainable traditional occupations (Art. 2). This law stipulates that customs of small indigenous small peoples of the North and ethnic communities recognized by national and international law may serve as a regulator in land relations (Art. 5).


1.3. The application of Russian environmental legislation in territories traditionally inhabited and worked by indigenous people of the Arctic

There have been almost no studies made of the practical application of federal legislation with respect to small indigenous peoples of the North. The State North Committee was the first to attempt this in early 1998: questionnaires were sent to 3 respondents in each of 27 northern regions (to administrations, to local representations of the State North Committee, and to regional associations of small indigenous peoples of the North). Most of the administrations and local representations responded but, unfortunately, the regional associations of peoples of the North did not. The questionnaires concerned federal laws (many of which are discussed in section 1.2. of this review) “On specially protected territories”, “On mineral resources”, “On agreements concerning production sharing”, “On the continental shelf of the Russian Federation”, “On the animal world”, the Forest Code, “On State regulation of the socio-economic development of the Russian North”, “On general principles of local self-government in the Russian Federation”, and “On rents for land”.

Analysis of the responses received shows that there is virtually no difficulty in applying the laws “On specially protected territories”, “On the animal world”, and “On rents for land”, and the Forest Code. These federal laws -- intended to protect the rights and interests of small indigenous peoples of the North, their traditional way of life and occupations, or to provide them with certain benefits – are reflected in regional legislation and strictly observed. This is due to the clear wording of these laws, which have only one interpretation, and to the fact that to implement them costs nothing.

The laws “On mineral resources”, “On agreements concerning production sharing”, “On the continental shelf of the Russian Federation”, “On general principles of local self-government in the Russian Federation”, all of which concern small indigenous peoples of the North, have little practical effect. There are several reasons for this: first, there is no mechanism for the implementation of these laws; second, they concern attitudes towards natural resources, payment for use of mineral and other resources, and the problems of establishing traditional institutions of self-government and their funding. Most respondents wrote of the need for more detailed federal regulations.

The federal law “On State regulation of the socio-economic development of the Russian North”, intended to protect the rights and interests of small indigenous peoples of the North, stipulates various guarantees and privileges. But this law is rarely carried out because there is no money: the law does not say where the money should come from or how it should be paid.


1.4. Federal Russian programs for environmental protection in territories traditionally inhabited and worked by indigenous people of the Arctic

Environmental protection in territories traditionally inhabited and worked by small indigenous peoples of the North is part of a 1996 federal program called “Economic and social development of small indigenous peoples of the North until the year 2000”. This program includes a subprogram called “Conservation of the natural habitat and improvement of the ecological situation”. Its purpose is to conserve the natural environment of small indigenous peoples of the North, to improve it, to decrease or eliminate pollution (air, earth, water), to restore natural resources traditionally used and landscapes natural for the peoples, birds, fish, marine mammals, wild and domestic animals.

This subprogram includes enactments on ridding these territories of stored oil products, oil pipelines, and oil and gas operations; on cleaning reservoirs and water sources; and on restoring the soil and the forests.

In order to promote traditional land use, this subprogram envisages studies to establish the borders of these territories and geo-botanic research to determine how best to use them. The question has been raised of building overland tunnels for the passage of wild and domestic animals.

One of this subprogram’s chief goals is to create five nature and eco-ethnic reserves occupying a total of 100,000 sq. kilometres by the year 2000.

The success of the overall federal program (“Economic and social development of small indigenous peoples of the North until the year 2000”), including environmental protection in traditional living and land use zones, will depend on the amount of federal and regional funding available. Russia’s current financial situation will not allow all the measures cited above to be fully implemented in the near future.

At present, there are no other federal programs devoted to the environmental protection of territories traditionally inhabited and worked by small indigenous peoples. But problems of nature conservation and sustainable growth in the Arctic are addressed in the Russian Federation’s Concept for Sustainable Growth. Furthermore, the protection of the traditional environment and way of life of indigenous peoples of the Arctic is included in a national action program now being created to protect the Arctic marine environment from the consequences of activities on dry land (NAP - Arctic).

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2. The infrastructure of Russian State and public organizations involved in protecting the traditional interests of indigenous peoples of the Arctic

2.1. Federal level

At the federal level, environmental protection of traditional land use zones of small indigenous peoples of the North is under the jurisdiction of the State Committee on Development of the North. This committee is also responsible for coordinating the work of State authorities in carrying out State policy with respect to these peoples. This work is done through the federal program discussed in the preceding section (“Economic and social development of small indigenous peoples of the North until the year 2000”). The Fuel and Energy Ministry, too, is supposed to take measures to protect the environment in areas densely populated by small indigenous peoples of the North (e.g. the recultivation of reindeer pastures).

Furthermore, a number of Russian ministries (Natural Resources, Nuclear Energy, Land Policy, Building and Housing, Agriculture, Civil Defense, Emergency Situations) as well as the State Committee on Environmental Protection and the Federal Forestry Service are contributing to the environmental effort. Meanwhile, the Ministry of Internal Affairs and the Prosecutor General’s Office are responsible for supervising and checking up on this effort.

Nearly all these federal executive bodies have regional representatives (consulting bodies).

Federal-level public organizations intended to protect the environmental rights of indigenous peoples of the Arctic include (in addition to the Associations of Small Indigenous Peoples of the Russian North, Far East and Siberia) the Deputy Assembly of Small Indigenous Peoples of the North, the Moscow group of the International Working Group on the Indigenous Arctic (IWGIA) and the Socio-Ecological Union (an non-government organization).


2.2. Regional and local levels

At the regional level, questions of environmental protection are addressed by the regional authorities as well as by various public organizations (republican, krai, oblast, okrug, village) and local (settlement) associations of indigenous peoples. But the regional and local associations of indigenous peoples do not have sufficient experience in protecting their environmental rights. The best way to gain this experience is to work with international NGOs on joint ecological projects and programs.

 


2.3. International collaboration of Russian State and public organizations involved in protecting the traditional interests of indigenous Arctic peoples

As an Arctic state, Russia is a member of various intergovernmental environmental organizations, including the Arctic Council, the Barents Euro-Arctic Region Council and the North Council. Russia’s most active collaboration is with the circumpolar Arctic Council, which is currently implementing its Arctic Environment Protection Strategy (AEPS). One of the AEPS programs is devoted to the study and use of traditional ecological knowledge and experience of small indigenous peoples of the North (IPK).

Living Arctic is a nongovernmental joint project of Russia’s Socio-Ecological Union and the Moscow group of the International Working Group on the Indigenous Arctic (IWGIA). This project is intended to coordinate efforts to protect the environment and rights of indigenous Arctic peoples and to promote sustainable growth.

Public organizations of indigenous peoples of the North (Arctic) involved in international environmental efforts include: the Association of Small Indigenous Peoples of the Russian North, Far East and Siberia (ASIP), the Yupik Society (of Eskimos on Chukotka), and the Murmansk Oblast Association of Kola Peninsula Lapps. ASIP is implementing a Danish-Greenland project together with the Inuit Circumpolar Conference (or ICC, an international organization of Eskimos in Greenland, Canada, the United States (Alaska) and Russia (Chukotka)) and a Canadian project together with indigenous peoples of Canada and the Canadian Ministry on Indian Affairs and the Northern Regions. These projects are also aimed at solving ecological problems in the Russian Arctic. Moreover, ASIP is working with Norway’s Indigenous Peoples’ Secretariat (IPS) and the United Nations Environmental Program (UNEP) on a project to activate and institutionalize the participation of indigenous peoples of the Russian Arctic in environmental efforts in the Arctic region.

The Yupik Society, an ICC member, takes part in ICC projects devoted to environmental protection and sustainable growth in the Arctic. The Association of Kola Peninsula Lapps, together with public organizations of Norwegian Lapps, is working on a Barents Region nature conservation project organized by the Barents Euro-Arctic Region Council.


Conclusion

This review of Russian legislation concerning environmental protection of territories traditionally inhabited and worked by small indigenous peoples of the North and the preservation of their traditional way of life shows that these peoples have legal regulation. This review also shows that the existing legislation is better developed at the federal level than at the regional level. That said, the implementation of most federal legislation is impeded by a lack of mechanisms necessary for their application.

Nevertheless, some regions of Russia – the republic of Sakha (Yakutia), the Yamal-Nenets autonomous okrug and, to a lesser extent, the Nenets, Chukotka and Koryak autonomous okrugs – are working hard to create new legislation on a whole range of issues concerning the development and life sustenance of indigenous peoples. Sometimes these regions make radical changes (especially with respect to their rights in the sphere of mineral and natural resources use and to the development of traditional institutions of self-organization and self-government) in accordance with international legislation concerning indigenous peoples (e.g., the MOT Convention No. 169 “On indigenous peoples and peoples leading a tribal way of life in independent countries”).

Public organizations of small indigenous peoples of the North do not have enough involvement in nature conservation. This is because a civil society, based on the priority of human rights, is only just beginning to take shape in the Russia. During this period of transition, international collaboration (in nature conservation and in the protection of indigenous people’s rights, interests and traditional way of life as a part of world culture) is vital.

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Literature

1. Federal law RF “On State regulation of the socio-economic development of the Russian North”. Sobr. zakonodat. RF. 1996. N 26. St. 3030. (In Russian)

2. Statement of the USSR Cabinet of Ministers and of the RSFSR Council of Ministers, dated 11.03.91. No 84 // SP SSSR. 1991. No 7. St. 31. (In Russian)

3. Instruction of the RSFSR Government, dated 12.12.91. N132-r. (in Russian)

4. Statement of the Council on Nationalities of the SC RF dated 24.03.93 // Vedomosti SND RF i VS RF. 1993. No 13. St. 465. (In Russian)

5. The Russian Arctic: On the brink of catastrophe / Editor A.V. Yablokov. M.: Izd. CEPR, 1996. 206 p. (In Russian)

6. Vedomosti BS SSSR. 1984. No 48. St. 863.

7. Vedomosti SND SSSR i VS SSSR. 1989. No 25. St. 487.

8. Kryazshkov V.A. The right of small indigenous peoples to land // Gosudarstvo i pravo. 1996. No 1. P. 61-72. (In Russian)

9. Vedomosti ND SSSR i VS RF. 1992. No 18. St. 1009.

10. The RF Constitution. M.: Yuridich lit. 1997. 64 p.

11. Sobr. zakonodat. RF. 1995. No 12. St. 1024.

12. Rossiiskaya gazeta. 1995, 7 December. No 237.

13. Sobr. zakonodat R.F. 1995. N 10. St. 823.

14. Sobr. zakonodat R.F. 1996. N 1. St. 18.

15. Sobr. zakonodat R.F. 1995. N 17. St. 1462.

16. Rossiiskaya gazeta. 1997, 4 February.

17. Conserving our common heritage of the Arctic. M. , 1998. P. 28.

18. Moving Towards Sustainable Growth // Bul. CEPR. 1997. No 1 (5). P. 29-30.
(In Russian)

 

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