PAPERS FROM THE
MOSCOW CONFERENCE II
THE RIGHTS OF SMALL-
NUMBERED PEOPLES OF THE
RUSSIAN NORTH IN THE
TERRITORIES OF TRADITIONAL
OWNERSHIP OR USE?
After six years of perestroika and seven years of economic, social and political reforms the Russian Federation legislation is in 1997 in a paradoxical situation. Large-scale changes led to the development and adoption of new basic laws both in the field of environmental protection and resource use and in the field of individual human and ethnic groups’ rights. Unlike the vast majority of multi-ethnic countries, Russia established a special Ministry of Nationalities and Federal Relations. It also passed a number of laws and other legal acts regulating State policies in the field of languages and ethnic (‘national’) cultures and in the field of inter-ethnic relations and rights of ethnic communities and their territorial autonomies (Republics and Areas [Okrugs] as subjects of the Federation). But at the same time Russia probably remains one of the very few modern countries that have an aboriginal population and recognize the very fact of its existence. However, it does not have State legislation determining the rights of that population to occupied lands and traditionally used [page 122] natural resources.
The aboriginal population of this country has been called ‘small-numbered peoples of the North, Siberia and the Far East’ and has been legally distinct since 1926. The official list of ‘small peoples’ was determined by a special Decree of the All-Union Central Executive Committee and Council of Peoples’ Commissars of October 15, 1926, called “On Adoption of Provisional Status for Governing Aboriginal Nations and Tribes of the RSFSR Northern Outskirts”. The original list included peoples, tribes and clans “that were of roaming, nomadic or semi-nomadic way of life”, but under the condition that they “did not form separate republics or provinces”. This meant that Yakuts, Komis and other large Northern and Siberian peoples were not included in the list (Nationality Policies 1992: 20). This list, that was changing as a result of the changes in the Russian names of peoples, and diminishing as a result of the mergers of previously separate local or tribal and clan groups with major ethnic groups, has been replicated in all statistical reviews and legal acts.
Small-numbered peoples of the North, Siberia and Far East fully meet the criteria of identifying aboriginal population. (See e.g. for an opinion of a western expert in this field Kaapcke 1994.) Federal draft laws concerning the rights and status of these peoples in Russia have been published and actively discussed since 1992 (e.g. Ethnopolis 1992: 59-63; Sokolova et al. 1995: 80-85). While Federal legislation is not in place, many subjects of the Federation - Territories (Krais), Republics and Regions (Oblasts) – have passed their own laws, Acts and other provisional documents that regulate land rights of aboriginals. But the very non-uniform and contradictory regional legislation will have sooner or later to be brought into agreement with a future federal law if it is passed.
The issue of legalizing aboriginal rights has been discussed for many years, and the discussion has highlighted two sets of problems. First, public opinion in this country holds almost unanimously that ‘small-numbered peoples of the North’ represent a genuine aboriginal population. All Northerners know about the official list of those peoples and about their privileges. It is also well known that the cultures of those peoples are closely related to the traditional economies of hunting, fishing and reindeer herding, since many aboriginals who abandon hunting or reindeer herding and settle in large multi-ethnic localities are quickly assimilated by Russians or Yakuts, occupy marginal socio-economic niches, and more than anybody else suffer from such diseases as alcoholism and tuberculosis. Finally, many experts recognize the necessity of passing a special federal law concerning the rights and status of the small-numbered peoples of the North which would focus on regulating land and nature use by those peoples.
Second, there emerged great differences concerning the exact land and resource rights of small-numbered peoples of the North. It must be noted that the difficulty in regulating the land rights of small-numbered peoples of the North is increased by the fact that the very notion of ‘North’ in Russia has been legally defined and covers vast territories. There are two different definitions: (a) “areas of Extreme North and territories equal to them in status”; and (b) “areas of residence (habitats) of small-numbered peoples of the North”. A small part of the “areas of residence of small-numbered peoples of the North” lies outside the “areas of Extreme North”, but many cities and industrial centers that are located within the “areas of Extreme North” and occupy relatively small territories are not included in the “areas of residence of small-numbered peoples of the North”.
Probably it was those differences concerning the land rights of Russian Northern aboriginals that caused the delay in passing the above Law, because those rights covered vast territories extremely rich in minerals, oil, gas and timber. The great variety of viewpoints can be brought down to three options for solving the problem. On the one hand it may be recognized that small-numbered peoples of the North have: (a) either rights of communal ownership of land with all its natural resources; (b) or rights of communal land use and exploitation of renewable resources. On the other hand, (c) those peoples may not have any special collective rights to land and renewable (biological) and other natural resources. It appears that the best decision is the second of the these options, that is, recognition that Russian aboriginals living a traditional life have the prior right to free and indefinite communal or individual (family) land use and the exploitation of renewable resources and to adequate compensation if that right is limited.
It would be reasonable to explain in greater detail that ‘the right of traditional land use’ in the best way corresponds to age-old popular norms of land and nature use, that is, to those norms that had been finally formed by the end of the 20th century, that are still preserved by elders and that are recorded by ethnographers and accepted by people as ‘truly popular’. Secondly, such an interpretation of aboriginal land rights entails the least distortion of the rules formed during the Soviet period and also accepted by those peoples. Thirdly, and most importantly, only that approach can organically combine the preservation of traditional economies and cultures of Northern peoples and biodiversity in their territories with the restoration of State support for the development of traditional Northern economies.
Let us consider certain arguments favoring this approach. In doing this we should keep in mind that in the long run legislation concerning aboriginal land rights in Russia may determine both the well-being of aboriginal peoples and the possibility of preserving their unique traditional cultures. To a certain degree it entails the preservation of small-numbered peoples of the North themselves as special ethnic and cultural communities.
First let us note a paradox. Since the nineties, the official vocabulary of politicians and legislative acts has included the term “clan communes” and its derivative “clan lands”. They are misleading because they create an erroneous impression that small-numbered peoples of the North still have the old clan social structure and that those clan groups have been closely tied to certain lands for several centuries. Scientists have repeatedly emphasized the erroneous nature of that conclusion as applied to all or even the majority of small-numbered peoples of the North. Even in the case of the [page 125] nations of the Amur River basin, who actually had a clan structure, that structure determined only marriage relations and never presumed that any clans had a monopoly of certain territories. That is why in many cases lands were used together by several communities composed of families representing different exogamous clans. There were frequent cases of families changing communities, i.e. they changed the territories they had been using. However, small-numbered peoples of the North had and to some extent still have territorial-and-commune structure (Pika and Prokhorov 1994: 71-75; Simchenko and Sokolova, 1994: 227). Because of that structure, to-day many “clan communes” of small-numbered peoples in Khabarovsk Krai contain more Russian than aboriginal families. There are also mixed communes which include, for example, Evenki and Negidal families. The nations of the Amur River basin have ‘clan communes’ that include representatives of different clans, but this causes no serious conflicts in the field of land use (Yamskov, 1996: 16). The terms used are not important. In practice, no great problems arise from the fact that the territorial communes are called ‘clan communes’. This is merely a tribute to the romantic tradition of seeing the cultures of those peoples as ‘exotic’. The important fact is that a part of some small-numbered peoples of the North have preserved the traditions of commune land use.
The stability of commune land use traditions is also explained by the fact that, until collectivization, reindeer grazing, hunting and fishing grounds, though Crown or State lands, were actually divided among territorial or family communes with exact delineation of borders for land use. This was recognized and supported by both the Russian Empire and Soviet authorities. During the collectivization of the thirties and fifties those communes served as a basis for the formation of separate collective farm brigades, teams, and suchlike, that continued living and working on the same lands. In both cases, i.e. before collectivization and shortly after it, the aboriginals in question had a guaranteed right to use certain land inherited from their ancestors for the purpose of sustaining traditional economies. That period of pre-collective farm and early collective farm land use during the first half of the 20th century is perceived to-day as having involved a traditional division of lands among ‘clans’ or communes. That is why it underlies modern views on whose successors have the ‘historic’ (traditional) right to use certain hunting, fishing or grazing grounds. Because of the brief time interval, those views have remained rather definite.
The situation radically changed with the implementation of State programs of the sixties and seventies that consisted in bringing indigenous Northern dwellers to large settlements. At the same time frequent redistribution of lands among hunting and reindeer herding teams was taking place within the framework of large collective and state farms. That was done in consequence of ideas of economic necessity and not according to traditional folk law norms of land use among those peoples. These actions were based on Decree #300 of the CPSU CC and of the USSR Council of [page 126] Ministers dated March 16, 1957 “On the Measures for Further Development of the Economy and Culture of Northern Peoples” (Pika and Prokhorov 1994: 132, 137-138). Regrouping and transformation of the system of residence and that of land distribution and use turned out to be very important, and the new systems have for some time now been effective in the modern North. Concentration of population in large settlements made some traditional lands inaccessible and they became unused, while some more accessible lands suffered ecologically from the overkill of fur animals or from overgrazing. The deep crisis of traditional economies of the early nineties started against a background of changes in the distribution of lands and grazing grounds between the families and dynasties who had led traditional life-styles, and was aggravated by the relocation of aboriginals from traditional lands into large villages. Suffice it to say that in 1994 the State stopped financing traditional economies (Ethnopolis 1995: 90). It should be recalled that the majority of the traditional sector enterprises had planned deficits even during the Soviet period, i.e. before the sharp rise of transportation and fuel prices. The purchases of traditional economy goods stopped because of low cost effectiveness, and the population lost practically all jobs. At the same time the State started allocating ‘territories of traditional nature use’ (TTNU) and giving parcels as ‘clan lands’ to ‘clan communes’ of small-numbered peoples of the North. During the same period reorganization or even disintegration of State and collective farms started.
Such a situation made a proportion of indigenous Northerners move from villages to the land of their ancestors. Those people received the land for long-term or indefinite use and formed family, commune (‘clan’) or cooperative reindeer herding or hunting and fishing enterprises. That started a spontaneous reverse process of population dispersal to the lands of the ancestors. The process was analyzed by ethnologists and laid the foundation for modern concepts of development and the preservation of the cultures and life style of small-numbered peoples of the North who rejected the Soviet programs of ‘imposed modernization’ that were leading to the gradual disappearance of traditional economies (Pika and Prokhorov 1994: 131-139).
The above process became a special Northern form of continuous ‘re-traditionalization’ in the new social, cultural and economic conditions of this country. Alternatively, it can be called social archaization and the enhancement of the elements of natural economy among the rural population.
The people engaged in traditional economies were left on their own and lost practically all state support for the economies that sustain them. On the one hand, there is no longer any administrative interference with the land use of those groups in their territories, which is positive. But, on the other hand, the system of purchase of traditional goods has been completely destroyed. As a result, hunters and reindeer [page 127] herders have either lost their salaries or receive very small and irregular payments. That also destroys traditional economies and provokes population movement to large multi-ethnic settlements where people almost inevitably become unemployed and lumpenized.
At the federal level, land use by small-numbered peoples of the North is regulated by Land and Forest Codes which guarantee them the following rights on state lands: (a) preservation of traditional cultures and economies, which means free access to lands with their wild life resources, and (b) free and long-term use of those lands and renewable resources (Forest Code, 1997: 58; Land Code, 1994: 122-125). Some regions passed legislation that formalizes the ‘territories of traditional use of nature’ and describes in detail the right of those peoples to the free use of the taiga and tundra lands (Ethnopolis 1992: 59-63; Sokolova et al. 1995: 80-85).
On State lands the use of bioresources (hunting, fishing, gathering and reindeer herding) by small-numbered peoples of the North is regulated by rules and laws concerning fishing, hunting, wild life protection, forest use, etc. As far as concerns the use of forest resources, those peoples have the right to the free use of wood for all housing, construction and heating needs. As during the Soviet period, small-numbered peoples of the North have certain privileges in obtaining hunting, fishing and gathering licenses. They have a prior right to obtain quotas, and many licenses are granted to them free (though licenses for hunting valuable fur bearing animals or catching salmon above the established limits must be paid for at universal tariffs). Those provisions also cover the TTNU.
Revenue from the use of these territories is generated by the sale of traditional goods that, during the Soviet period, was organized and subsidized by the State. At that time some of the most valuable products (especially caviar and valuable pelts) were sold illegally, but those operations were small-scale because the production grounds were remote from population concentration areas. Now that the products are not divided into legal and illegal, and are not purchased by private or State enterprises, the only way to sell them is to occasional outsiders, and this has brought the prices down. For example, during the winter of 1994-1995 a quality sable pelt in Khabarovsk Krai cost about $30 - the cost of four-five kilos of good sausage in Khabarovsk shops (information to the author from N.M. Balagansky, Head of the Kabarovsk Krai Hunting Department, in 1995. This paper also contains the materials collected in Khabarovsk and Krasnoyarsk Krais during the field trip of World Bank experts in January-February, 1995.) Representatives of small-numbered peoples of the North practically never sell their traditional products in city markets because of their inexperience and the high transportation costs.
Under such conditions the efficiency of traditional economy declined and it actually [page 128] became a natural subsistence economy for many indigenous Northerners. It is estimated that the natural traditional economy supports about 25 - 30% of able-bodied representatives of small-numbered peoples of the North (Klokov and Koryukhina 1994a: 68). They cannot actually be counted as employed in the traditional economy (as they would have been during the Soviet period) because they practically do not receive regular monetary revenue. Unfortunately, all this encourages poaching and undermines wild life protection measures: if people have a chance to sell some traditional goods to occasional outsiders, they readily violate both hunting, fishing and gathering rules and laws and traditional ecologically sound nature use norms, while generating additional revenue.
The deep crisis in the traditional economy can be overcome only by restoring the system of subsidies and privileges for the people who are involved in reindeer herding, hunting and fishing. These should cover transportation, supply and, most importantly, purchase of traditional products. Meanwhile, though traditional economy continues to play a vital role as the main source of revenue for many small-numbered peoples of the North, it allows them only a miserable life.
The restoration of the living standards of the people employed in traditional economy requires significant and constant expenditure. The disastrous situation of reindeer herders and hunters is forcing local authorities to think of ways to overcome the crisis by encouraging any potentially profitable economic development projects - mining, logging or hunting and ethnographic tourism. The main task is to use any opportunity for employment and the provision of revenue for the people, and to find stable sources to finance social programs. In doing this, the authorities often allow destructive ways of extracting mineral resources, which irreversibly damage the resource and economic potential in the territories inhabited by small-numbered peoples of the North. In many cases representatives of those peoples are forced to participate in such activities. It means that such practices will never stop even if the TTNU become the property of communes.
For example, Vanino District in the Far East was the first to set up a pilot zone of traditional nature use for Orochi people. Only three weeks after the publication of the Decree of the USSR Supreme Soviet “On Immediate Measures for Ecological Improvement in the Country” of November 11, 1989, the Vanino District Council in its Decision No. 273 of December 19, 1989 proclaimed: “The basin of the Khutu River from the river-head to estuary shall be allotted to Orochi small-numbered ethnic group for traditional nature use” (Startsev, 1994: 36). But by the mid-nineties Orochi, with the help of professional lumberjacks, had organized blanket forest cutting on their own ‘lands of traditional economic activities’ (information received from the author in 1995 from O.D. Zakvassovsky, Head of National Policies Division in the Khabarovsk Krai Administration). Similar blanket forest cuttings [page 129] initiated by aboriginals themselves (in Selkup, Khanty, Mansi) were organized in Western Siberia in the TTNU (Gulevsky and Simchenko 1994: 36). The destruction of forests can be explained by the disastrous economic situation of the people involved in traditional economies, by the desire to get any employment and revenue, and by the wish to restore supply and transportation routes into the cities. Some communes use the opportunity to share in the profits from timber sales even without doing any work.
In Khabarovsk Krai local and regional authorities and federal organizations responsible for controlling resource use close their eyes to such practices because they have to take into account the crisis in traditional economy and lack of revenue for people. That is why they recognize the right of those people for any kind of work and revenue (Yamskov 1996). It is apparent that these alarming facts of the destruction of the resource potential of the traditional nature use territories requires a strong provision in the future law regulating the rights and responsibilities of federal services (Environment Protection, Forestry, Hunting and Fishing) in the monitoring of the status of renewable natural resources in the TTNU. In those territories the services must also impose regimes of nature use that will guarantee the preservation of the resource potential at a level sufficient for traditional economic activities by present and future users. Consequently, the destructive exploitation of forest and other resources in the TTNU must be forbidden not only to outside companies and individuals, but to all other users, including ‘clan communes’ of small-numbered peoples of the North, though this is feasible only if those lands are allotted only for use and do not become their property.
But the essence of the matter is to stop destructive use and, in particular to ban blanket forest cutting over large areas. On the other hand, in some places limited logging in the form of sanitation or selective cutting can be economically efficient and undamaging for hunting or fishing. So there is no reason to ban these activities completely in the TTNU and thus deprive people from getting additional revenue.
At least two conclusions follow from the above. First, the interest of traditional resource use by Northern peoples engaged in hunting, gathering and reindeer herding often contradict the interests of timber, mining or oil and gas companies. In order to preserve traditional economies and unique cultures, and to survive as distinct ethnic communities (peoples), aboriginals need untouched or only lightly affected ecosystems, and these can be secured only through background resource use. Recent [page 130] history (excluding late Soviet period) and modern policies strengthened the traditional feelings of those peoples about their permanent right to use forest and tundra resources, which right can be inherited by their direct successors. Industrial use of natural resources in their territories is not acceptable, and, if some lands are alienated for industrial needs, compensation is essential. Small-numbered peoples of the North engaged in traditional economies, though not the largest resource users in the North, absolutely depend on preserving the natural status of forest and tundra ecosystems in their territories.
Secondly and most importantly, the ultimate interests of aboriginals are fully compatible with the task of preserving biodiversity in the forest and tundra zones, for only this can guarantee the preservation of the traditional economy and culture, and hence of the indigenous peoples in those territories. In particular, the saving of forests from blanket cutting, fires and pests is one of the conditions for preserving the economy, culture, life style and the very existence of individual small-numbered peoples in the taiga zone of Siberia and the Far East. Consequently, representatives of those peoples engaged in traditional economies should closely cooperate with forestry, environment protection and ecological organizations in searching for mutually acceptable compromises in the tactics of resource use, since their strategic goals are common.
But those conclusions in no way contradict the idea of transferring the territories of traditional resource use to ‘commune use’ by small-numbered peoples of the North. On the other hand, the proposal by many ethnologists and representatives of aboriginal public movements to make those lands ‘commune property’ is incompatible either with the task of resuming State support for traditional economies in those territories or with securing necessary State measures for preventing blanket industrial forest cutting, protecting forests from fires and pests, protecting wild life, and preventing poaching.
In conclusion, we shall attempt to formulate a possible approach to codifying the concepts of ‘the territories of traditional nature use’ (on which see also Yamskov 1997), and the rights of small-numbered peoples of the North in the development of traditional economies. In any case this has become an immediate problem which, if not resolved, will delay investment in and the economic development of vast regions.
The basis for future federal legislation concerning TTNU by Northern indigenous population engaged in traditional economies can consist in the concept of TTNU multiple functions. (This opinion of the author has been noted by a number of experts and included in discussions on the rights of small-numbered peoples of the North: Lopulenko and Uvarova 1997: 136.) This means recognizing the fact that the importance of TTNUs for the Russian State and society (and not only for a limited circle of direct users) is determined by a number of TTNU functions that absolutely cannot be reduced to satisfying the interests and needs of small-numbered peoples of the North engaged in traditional economies. It also presumes that full TTNU efficiency is possible only under the condition of combining several approaches to determining both the status and responsibilities of TTNU users, the latter being the direct consequence of the above TTNU multiple functions.
The economic approach assumes:
· identification of the ‘traditional sector of the economy’ as a special, separate branch;
· recognition by the state of responsibility for further development of that branch and, in particular, recognition of that sector’s right to state subsidies (on grounds similar to agriculture or the coal industry);
· definition of TTNU as the key element of the traditional sector.
The social approach means:
· the State recognizes that those engaged in traditional economies have the right to employment and adequate remuneration and, consequently, to the preservation of TTNUs in a condition suitable for the needs of traditional economies. (If state economic policies result in the loss of paid jobs, those employed both in the traditional and other sectors must have the right to unemployment allowances, permanent compensation payments or professional training with further [page 132] employment. If this were the case, the expenditure might be so high that it would be easier to subsidize the traditional sector);
· the Sate recognizes that the dwellers in remote settlements and villages, including those engaged in traditional economies, have the right to transportation links with urban centers if transportation services are subsidized to make them accessible for the majority of the population. (The state is responsible for providing transportation services in urban and rural areas of Central Russia. The same must apply to the North, and it will encourage production and export of traditional goods.)
The ecological approach is based on recognizing that:
· TTNUs are already officially included in ‘specially protected natural territories’ of the country. That status must be developed until the time when the preservation of TTNUs becomes a priority environmental protection task and, consequently, certain economic losses from identifying TTNUs will be accepted as a cost of environment protection. By definition, TTNUs fully protect biodiversity and ensure ecologically stable economic development of the territories in question.
The ethnological and cultural approach is based on the fact that:
· ethnic cultures and traditional economies of small-numbered peoples of the North are indissolubly related. Those peoples are rightfully regarded as ‘aboriginal’ population and, as such, must have certain privileges and priorities in the field of land and natural resources use. Thus, allotting TTNUs to them must be regarded as (a) observance of the inalienable rights of those peoples, and (b) assistance in protecting small-numbered peoples of the North as bearers of unique cultures.
Further development of ideas about TTNU multiple functions, and recognition of the necessity to allot those territories for indefinite commune or individual (family) use by small-numbered and other indigenous peoples of the North may well contribute to speedy codification of that concept at the level of federal legislation, which would then replace provisional legislation of regional authorities. Taking into account past and present Russian realities, it appears that the greatest potential can be found in the combination of state efforts to support the traditional cultures of Northern reindeer herders, hunters and fishermen, and environmental protection efforts in the territories of traditional nature use.
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