Summary of “Respecting the Rights and Legal Interests of Small Indigenous Nationalities of the Russian Federation while Pursuing Natural Resources in Territories of Their Livelihood” (2012)

developed by Enkhchimeg “Jewel” Sengee, TraCCC Graduate Research Fellow, July 2013

Respecting the Rights and Legal Interests of Small Indigenous Nationalities of the Russian Federation while Pursuing Natural Resources in Territories of Their Livelihood” (2012)

Dr. Ruslan Sh. Garipov conducted a research project “Respecting the Rights and Legal Interests of Small Indigenous Nationalities of the Russian Federation in Pursuit of Natural Resources in Territories of Their Livelihood” in 2012. Garipov has a PhD in International Law, and is an Associate Professor at Kazan Federal University. During his career he served as a Chair of the State and Law Department of Tatar State Humanitarian and Pedagogical University. The author draws attention to the imminent threat to the survival  of the cultural and ethnographic values of small indigenous peoples who have lived for centuries in regions that are industrializing rapidly. The author’s research methods include historical-legal, ethno-legal, comparative-legal, scientific-theoretical and normative-legal analysis.   He also uses international best practices on protecting indigenous people’s rights (USA and Canada), statistical data, geographic maps, and online resources. His social and empiric studies include discussions with experts in Moscow, Kazan’, and Yamal-Nenetskii autonomous area; and a survey involving 20 representatives of indigenous small nationalities (Nentsi) leading a traditional way of life in Yamal-Nenetskii autonomous area (p. 5-7).

In 2010, according to the Russian authorities, the small indigenous peoples of Russia consisted of 46 different nationalities (p. 12). They are sparsely located in the North, Siberia, and the Far East of the country from Murmansk in the Northwest to the Chukotka region in the Bering Sea. The population density in these regions is very low. Indigenous people compose only 0.5 percent of the total population of Russia, yet inhabit in 60 percent of the country’s territory. 70 percent of their livelihood is directly dependent on nature. Their traditional methods of livelihood include hunting, fishing, reindeer breeding and other livestock rearing, collecting wild herbs and fruits. Garipov emphasizes that nature is a physical and a spiritual foundation for them.

The North, Siberia, and the Far East are strategically important for the country’s economy, making up the fifth largest contribution to the national income. These regions hold 100 percent of Russia’s diamonds, 97.5 percent of its natural gas, 91 percent of its tin, 75 percent of its oil, 15 percent of its coal, and a substantial part of its gold, copper, and nickel reserves. The region is the fifth largest supplier of the nation’s electric power. It produces half of the forest products, and all apatite concentrate (p. 13). Consequently, the ethnic territories of these small indigenous peoples have become subject to rapid industrial expansion over the past 50 years (p.4). This has become an imminent threat to their traditional way of life, language, culture, and their entire existence.

Garipov stresses that Russia lacks experience in promoting the cultural diversity of small indigenous nationalities living in the North, Siberia, and the Far East. Only at the end of the twentieth century, did the rights of small indigenous nationalities became an integral part of national policy. The author stresses that in 1996, for the first time, Russia’s national policy included provisions to guarantee restoration of destroyed eco-systems and limit economic activities causing irreparable damage to the environment (p.13). According to Garipov, during the Soviet period the Communist Party promulgated a policy of assimilation and “Russification” in order to absorb the non-Russian population (mostly nomads) into the majority Russian population (p. 4). He notes that the small indigenous peoples of the North, Siberia, and the Far East were subject to this policy and their traditional livelihoods and way of life was systematically repressed. Pasture land for reindeers declined continuously, their culture and way of life changed substantially. The experts interviewed by Garipov note that in the last 20th century, the Kereki, Chuvantsi, Oroki, and Aini nationalities of Russia have disappeared. Of the many rights that were violated, the right to acquire and maintain land was most critical to them, as land and nature form the basis of their existence.

The author highlights that in modern Russia, the small indigenous peoples face another challenge: the clash between industrialized and non-industrialized civilizations. Garipov stresses that a market-based industrialized civilization has an aggressive attitude toward the environment. The threat to the small indigenous peoples is not only caused by industrial expansion. It is concentrated around the battle for natural resources. Most importantly, it is a struggle to ensure that special legal status is provided, which could offer protection to their ethno-cultural integrity.. This fight has increasingly become a mechanism to repress indigenous people in this fight by the rules of the industrial civilization (p. 4).

Garipov finds that of 180 different nationalities in Russia, the small indigenous peoples of the North, Siberia, and the Far East are the least protected in social interactions. He states that their situation is extremely perilous in that some of the tribes are close to extinction today. The Yukagiri, Keti, Orochi, and other tribes of Northern Russia are on the verge of extinction (p. 13). The 2010 Census of Russia indicated a substantial demographic decline in the number of small indigenous nationalities living within their ethnic territories (p. 12) (See Appendix 2).

According to an expert interviewed by Garipov “In the past decade, reindeer pasture land has declined by 11million hectares. In the Tyumensk region, due to extraction of oil and natural gas, 6 million hectares (23 times higher than the normal level) of land became unusable for reindeer grazing” (p. 13). Garipov finds that the activities of large firms have a negative impact on the local and regional eco-systems and force the local indigenous population to relocate to different areas. The new areas may not support their traditional way of life because of different environmental conditions. For example, one of the experts noted that the Selkupami had to relocate 124 miles away (200 km) from their ethnic territory when mineral extraction began. The new area’s climate and terrain were unsuitable to their traditional reindeer breeding which led to their cultural and economic distress. Another expert stressed that the Russian Ministry of Natural Resources neglects the protection of small indigenous peoples and does not require firms to minimize the environmental impact of their operations when issuing licenses for exploration and extraction of minerals. (p. 14). According to Garipov, these difficulties lead to serious social problems among the small indigenous peoples: economic and social apathy, loss of cultural values, feelings of insecurity, alcoholism, feeling that life does not make sense, and suicide (p. 33).

Garipov emphasizes that modern international law is the major reference point and a strong incentive for development of national legislation to ensure the rights of indigenous people (p. 7-12). The Constitution of the Russian Federation guarantees rights to small indigenous peoples on the basis of principles, norms of international laws, and international treaties to which the Russian Federation is a signatory (Article 69). Garipov finds that the ILO Convention on Rights of Indigenous Peoples (1989) does not mandate legal obligations for its provisions to member states, but has only an advisory role. Still, he asserts that international documents are important to protect the rights of these people. He cites the UN Declaration on the Rights of Indigenous Peoples (2007) as the most progressive document for the protection of indigenous peoples. Unfortunately, Russia is not a signatory to either of these documents. Russia is a member (1995) to the Convention on Biological Diversity (1992). Three of its articles mention the rights of indigenous peoples but do not provide obligations to its members to implement the clauses of the convention.

The author finds the World Bank policy to be the most effective (p. 10). The World Bank requires its borrowers to protect and respect the rights of indigenous people. The Bank requires the involvement of indigenous people in all levels of the project: design, implementation, monitoring, and evaluation. This policy was effective to many Bank loan recipients in Russia. The author points out that the sole shortcoming of these rules is that they are not universal and only apply to projects financed by the World Bank. The UN Special Report (2010) on indigenous people’s rights in Russia highlighted that laws and regulations are not implemented in practice in Russia. For instance, by law companies must negotiate with indigenous peoples prior to conducting activities, but in reality indigenous peoples are generally provided with final contracts, not subject to revisions, ready for signing. Garipov mentions that the Vice-President of the Association of Small Indigenous Peoples of the North, Siberia, and the Far East view the contract negotiation process in a similar vein and stressed that free, prior, and informed consent from the indigenous population needs to be required and implemented in practice.

The author asserts that Canada and USA provide models for managing the relationship between the indigenous peoples and firms conducting activities in their territories (p. 14-17). Garipov cites Canada’s mandatory requirement and consistent application of the rule for firms to consult with indigenous people before conducting any type of industrial activity in their region as a “best practice” to be copied. In the U.S., as in Russia, the majority of natural resources are located in areas inhabited by Native American populations. In these regions of the U.S., the tribes are provided with privileges for land (Trust Land), and even receive dividends from the natural resources extracted from their territory. This practice supports tribal development and promotes active tribal participation in the use of subsoil minerals on its land. However, Garipov notes that the situation has not always been smooth. During most of the twentieth century, mismanagement and corruption within the Bureau of Indian Affairs, as well as the State and Tribal Authorities, led to the loss of hundreds of millions of dollars of revenue from the rent of tribal land (p. 15). Today the U.S. has numerous legal provisions designed to mitigate the impact of extractive industries on the livelihood of the indigenous population.

Garipov emphasizes that inadequate laws leave the rights and interests of indigenous people in the hands of business interests in Russia (p. 17-20).The author analyzes a series of laws regulating the use of subsoil, rights of the indigenous people, and the territories where they live. He finds numerous inadequacies in them. For instance, the Law on Use of Subsoil lacks provisions to revoke the licenses of violators of indigenous people’s rights. The author notes that the Law on the Small Indigenous Peoples of the North, Siberia, and the Far East (2001) authorizes them to own territories. However, within this law, they cannot secure these territories based on the activities of their traditional livelihood (hunting, trade, reindeer pastures, and fisheries). Per Garipov, without documents on the right to use natural resources in the specified territories, the indigenous people do not have the opportunity to obtain long-term licenses authorizing them to use fauna or even a one-time license or quota for hunting fur animals and fish(p. 20).One of the experts interviewed emphasized that privileges, previously granted to indigenous people to participate in tenders and auctions of fishery and hunting rights have disappeared from the laws regulating these activities; consequently they are deprived of their livelihood sources.

The author found important regional differences in the situation faced by indigenous peoples. He conducted surveys in the Khanti-Mansiisk and Yamal-Nenetsk autonomous areas, both regions rich in natural resources where ethnic nomads live (Nentsi) (p. 23-30). Garipov found that the federal authorities in the Khanti-Mansiisk Autonomous Region effectively manage the relationship between indigenous people and firms. He notes that this region has an effective method for protecting indigenous people’s rights in which they are directly involved in the negotiation processes.

However, the situation is very different in the Yamal-Nenetsk Autonomous Region, even though, legally, subsoil users have to consult with representatives of the indigenous people living in the area before conducting any activities. After extensive research Garipov found that intensive industrialization has negatively impacted the livelihood of the local population in Yamal-Nenetsk Region. Each nomad receives 765 Rubles (approximately 24 USD) as an annual compensation for the negative impacts on his or her life from industrial activities in the region (p. 26). However, the author notes that this money is insufficient to sustain a traditional way of life when the nomads are deprived of their livelihood. Garipov emphasizes that interviews with local reindeer herders and fishermen shows that in reality the situation is far worse than government authorities admit. The locals cite many problems, including the degradation of the environment in their ethnic territories where oil and natural gas are extracted and pipelines are built. These environmental problems do not only affect the indigenous nomadic population (total 4, 731 people), but also everyone living there (educators, workers, doctors, etc).

The author’s questionnaire (p. 26-27), filled out by 20 Nentsiin the Yamal-Nenetsk area reveals that the region is experiencing pollution of reservoirs, forest fires, and damage of the tundra’s snow cover due to industrial activities. Garipov notes that most of the indigenous people felt that the local authorities protected the interests of businesses, not local residents. According to his survey, none of the respondents had participated in a negotiation process with companies. They had no idea whether or how such negotiations are conducted, and had not attended any type of training related to protecting their rights. They had never used the courts to protect their rights. Many of them reported that they would continue their traditional way of life, but had concerns about whether the next generation would be able to do so. Their livelihood is fully dependent on the traditional ways of nomadic life: reindeer breeding, seasonal hunting, fishing, and collecting wild fruits. They have not been allocated any land where they can continue their traditional lifestyle. Many of those surveyed stressed that the remaining area on which they live is insufficient to continue their traditional way of life (esp. reindeer breeding).

Most of the 20 indigenous people surveyed in the Yamal-Nenetsk area said they moved from their territories due to problems caused by the nearby fuel-energy complex. In the majority of cases, the area in which they relocated was not suitable for continuing their traditional way of life. The indigenous people surveyed claimed that they had never received any monetary dividends from the companies that are extracting resources from their ethnic territories. They said that these companies cause environmental damage that directly impacts their traditional livelihood, yet give only meager compensation and never fix the problems. The only material benefit they had received was access to education and medical facilities, which had improved thanks to the industrialization in the region. (p. 28). Based on his research, Garipov stresses that it is difficult to get reliable information on the exploitation of mineral resources in the region, the actions of municipal authorities and their impact on local indigenous peoples. He notes that because of the high revenues derived from the exploitation of natural resources from these territories, the government authorities are fearful of losing control over this land and its accompanying natural resources, and seek to avoid being subjected to demands of the indigenous people living there.

The author finds that almost all conflicts between firms and indigenous people are dealt with outside the court system because indigenous people lack knowledge of their legal rights and do not have qualified lawyers among them who can represent their interests in the courts (p. 30-32). Garipov finds only one case filed in the European Court by a representative of the small indigenous peoples of Russia. However, the case was not accepted because it did not meet the criterion (it was a complaint from a group of people not from the whole community). In subsequent years, the court in Strasbourg received other complaints from representatives of the small indigenous peoples, but has not accepted any of them due to the “acceptability basis” (p. 31). It seems to Garipov that indigenous people in the North do not understand the basic mechanisms for protecting their rights and did not even know where the closest court was or how to make a complaint (p. 31). One of the experts, who worked on numerous drafted bills expressed her concerns about the prospect of any future improvement of the situation. She stated that all drafted legislation is blocked at the federal level because the lobby of concerned firms is so powerful that they have great influence on the political process. She also claimed that the government only passes a few provisions aimed at protecting indigenous people to avoid criticism from the international community.

Garipov emphasizes that large state-owned enterprises involved in the extraction of oil, gas, and other natural resources, and their subsequent sale are a significant source of income for corrupt high-level politicians. The author concludes that the neglect of legal rights and interests of small indigenous peoples in the management of natural resources is an attempt to eliminate all obstacles to extraction of natural resources in the region (p. 33). He concludes that the current problem is an outcome of the convergence of political power and business in Russia with the result that authorities neglect the needs of small indigenous peoples and respond instead to lobbying and bribery from big business.

Policy Recommendations

Based on his research, Garipov offers a series of recommendations to protect the rights and legal interests of small indigenous peoples while pursuing natural resources in their ethnic territories.(p. 34-36).

International Conventions: The Russian Federation should ratify the ILO Convention on the Rights of Indigenous Peoples (1989) and the UN Declaration on the Rights of Indigenous Peoples (2007). These international documents will improve government cooperation with indigenous people at different levels, strengthen the rights of its indigenous people, and will boost Russia’s image in the international community (p. 34).
Indigenous People and Environment: The environmental problem is a global issue. The traditional way of life of indigenous people is inclined or friendly to the natural balance. Therefore, Russia should introduce the principle of free, prior, and informed consent between companies and indigenous people, as well as the principle of the indigenous people co-managing industrial projects during their implementation in their ethnic territories (p. 35).
International Practices: The author highlights the fact that the Russian Federation as a whole still needs to improve the situation of indigenous people when extracting natural resources from their ethnic territories. There have been some successful relationships between firms and indigenous people in Russia that could serve as exemplars. He also recommends learning from the U.S. and the Canadian experiences (p. 35).
Rights of Indigenous People: Public monitoring has to take the leading role in protecting the rights of small indigenous peoples who lack knowledge of their legal rights. The Association of Small Indigenous Peoples of the North, Siberia and the Far East should take on such a role. Its regional offices can monitor conditions in the fields, hold seminars and training sessions for local tribal leaders and promptly react to any complaints and violations of the rights of natives (p. 35).
Managing Natural Resources and Corruption: The North should have a stand-alone law which regulates the appropriate use of the environment, protects the traditional uses of the environment by small indigenous peoples, and manages the relationship between firms and indigenous peoples. He advises that it is necessary to develop and adopt a federal law on the rules of behavior for all subjects of this legal relationship. Such a law would address corrupt relationships between representatives of the extracting companies and the local authorities (p. 35-36).
Compensation for Damages: The author suggests it is necessary to develop and apply a uniform method to estimate the damage caused to indigenous people due to industrial activity. This method should not be advisory, but a legally binding rule even at the federal level. Garipov states that compensation should be provided to inhabitants of the environments affected by the operation of industrial vehicles and machinery, new roads and pipelines, and other environmental pollution and accidents (p. 36).
Legal: Garipov says it is extremely important to fill in the loopholes in Russian laws to effectively reflect the interests of the small indigenous peoples of Russia. He suggests that a series of amendments and revisions need to be made to a number of laws including the Law on the Use of Subsoil (p. 36).
Ecological and Ethnological Expertise: The author asserts that environmental and ethnological assessments should serve as an important mechanism to protect the rights of small indigenous peoples. The assessments should include ecological, cultural, socio-economic and other impacts that affect small indigenous peoples as a result of pursuit natural resources in the territories they inhabit (p. 36).

Appendices to the Research Report:
Appendix 1. Demographic map of small indigenous peoples living in the North, Siberia, and the Far East of Russia.
Appendix 2. Estimate of the small indigenous peoples of Russia in their territories of livelihood.
Appendix 3. 2010 Census of the Russian Federation.
Appendix 4. Map of Natural Resource Activities in the Khanti-Mansiisk autonomous area.
Appendix 5. Survey (Questionnaire).
Appendix 6. Survey Results.
Appendix 7.1. Map of Potential Conflicts.
Appendix 7.2. List of Potential Conflicts.

Link to the original research in Russian: Garipov_Small_Indigenous_Nationalities_2012

NOTE: This is a direct summary of the original report in Russian. The content and views expressed herein do not necessarily reflect the views or policies of TraCCC. 

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