Novikova N. I.
The Second International Summer School on Legal Anthropology
The article represents an Introduction to the book that describes the subject matter and organization of the Second International Summer School in St. Petersburg – Pushkin on August 20–25, 2001. The School was devoted to the protection and use of natural resources and to the right of indigenous peoples for renewable bioresources under modern conditions. Lectures and discussions focused on how those issues are resolved in international law as well as in national legislation and common law of Russia and Canada. The School paid priority attention to the issues of protecting indigenous rights in courts and to the potential of out-of-court conflict resolution through negotiations and other procedures. The book includes articles written both by the lecturers and by the School students themselves, as well as Annexes in the form of international and Russian documents.
Klokov K. B.
Actual Situation WITH Biological Resources in the Russian North and PrinciplEs of Wildlife Management in Traditional Land Use
Social and economic crisis has provoked dramatic decrease of marketability in the economy of indigenous peoples of the Russian North (including reindeer husbandry and use of wildlife recourses). Subsistence hunting and fishing have become the main source for surviving of indigenous population when incomes were reduced, state support stopped and transport links were destroyed. Traditional forms of wildlife use are restoring now in many places. Although total amount of harvested wild animals and fish has slightly reduced, resources of the most valuable of them are overused, especially in the nearest and most accessible areas.
Contradictions between old order of state wildlife management and interests of indigenous population have become strained. In this connection it is actual to use the experience of Canada and Alaska, where indigenous population collaborates with state agencies and takes an active part in wildlife management.
Sea hunters of Eastern Chukotka have been acquiring an experience of such co-management of late. In this region associations of Chukchi and Eskimo created a new system of sea mammals monitoring. In its framework indigenous hunters observe migrations of whales and walruses, register harvested animals and send data to ecologists. In such way traditional ecological knowledge and scientific methods supplement each other.
Murashko O. A., Davydova O. I.
Past and Current Legal Basis for Traditional Fishing and Sea Mammal Hunting of Indigenous Peoples
The article analyzes the legal and actual status of Far Eastern indigenous peoples fishing in the XIX century and to-day. It provides detailed data concerning the legal side of indigenous peoples fishing, traditional rules and catch volumes in the XIX century. It also describes the current situation related to indigenous peoples fishing in Kamchatka.
In the XIX century the indigenous peoples fishing management system was based on custom and traditional knowledge that allowed the aboriginals to harvest enough fish and sea mammals for their needs and to regulate flexibly the harvest of different fresh water and sea bioresources. The state statistics of the XIX century did not record the incidents of overcatch or fish gutting for caviar. Greed and poaching were condemned by aboriginal custom.
At present, the strict federal fishing regulation which unjustifiably covers indigenous communities has caused systematic shortage of subsistence fish products for the indigenous peoples of Kamchatka and loss of traditional responsibility for the consequences of actions affecting the future of fishing resources.
Smirnov A. G.
Northern Peoples, Traditional Resource Use, Public Activities: Problems, Difficulties and Successes
The article analyzes the current socio-economic and legal status of indigenous peoples of the North in the Olsk District of the City of Magadan and the activities of the local Association of small-numbered indigenous peoples of the North. It provides data on the status and distribution of resources, first of all salmon stocks, and quotes documents, including the Status of the «Yamskaya» Traditional Resource Use Territory which had been developed by the author. The article also criticizes federal legislation for lack of efficiency in terms of applying it for the protection of indigenous peoples’ rights.
Benda-Beckmann K. von
Legal pluralism in a transnational setting
Since the end of the Soviet Union, the peoples of the North have started to rearrange their legal relationship in the Russian Federation. In this process, international law, state law and local laws of indigenous peoples are used to further claims for self determination and claims to land. This paper discusses some crucial issues that crop up in these processes. There is a need to understand better how these different types of law operate, affect each other and how different persons deal with the interaction and the dilemmas and contradictions this constellation of legal pluralism brings with it. The existence of legal pluralism is a realistic basis for understanding current socio-political developments and of political activism. The paper deals with some important practical questions and political issues that follow from an approach that takes legal pluralism seriously. Point of departure is that all legal systems, whether national or customary, are adaptable and subject to change. Issues of participation and exclusion are discussed in situations where people from different ethnic groups live intermingled. One of the results was that indigenous communities have been discriminated against and now claim more autonomy. Non governmental organizations, often operating transnationally, form an important link between local communities and the state administration in the process of restructuring. The paper discusses some of the effects of this involvement on the local population and their law.
Benda-Beckmann F. von
Legal Pluralism and Natural Resources
Franz von Benda-Beckmann in his talk drew attention to the plural and often contested constructions of rights to natural resources that may be based on state legislation, customary laws, or rights derived from international legal instruments and conventions, such as those protecting the rights of indigenous peoples. He also explained the metaphor of «the bundle of rights» as a useful means to come for the description and analysis of rights and obligations towards natural resources, and the question of how elements of these bundles are distributed over people and organizations, and to different elements of the physical environment. He also addresses the issue of the political and normative implications of legal pluralism, and the logical consequences following from different perspectives one can adopt. Finally, he discussed the difference between a more detached social scientific perspective on law and an engaged, legal political approach aiming at changing the law and distribution of rights in the benefit of a certain population group, in this case the indigenous peoples of the north.
Kriazhkov V. A.
Small-Numbered Indigenous Peoples of Russia and International Law
The article analyzes the international law basis of indigenous peoples status. It systemizes current international norms, their integration into the legal system of Russia and their correlation with the Russian Constitution and laws. The article describes the institutions (both domestic and international) that guarantee the observance of those norms and explains the legal aspects of ratification and operation of the ILO Convention 169 in the Russian Federation.
Krehbiel R.
Legal Basis of Aboriginal Rights in Canada
This paper provides a basic introduction to the land and resource rights of the aboriginal peoples of Canada, who include the Indian, Inuit and Metis peoples.
The rights of aboriginal people to lands and resources in Canada have four sources. These are the general law which is applicable to all Canadians and includes protection of fundamental rights and freedoms; specific statutes such as the federal Indian Act which provides a unique administrative regime for Indian people; treaties and land claims agreements which have been negotiated between aboriginal groups and the domestic governments; and common law aboriginal rights established by the courts through litigation.
These rights exist within four spheres of jurisdiction that make up the governing structure of Canada: federal, provincial, municipal and aboriginal. Rights are further defined and protected through the Canadian common law legal system and a hierarchical court structure culminating in the Supreme Court of Canada.
The paper observes that although history, law and governance systems differ greatly between Canada and Russia, the situations of aboriginal peoples have much in common and there are many opportunities to learn from each other.
Fiske J.-A.
Inherent Rights of First Nations to Natural Resources in Canada: ‘Traditional Use’ and Beyond
In this paper the author discusses the legal foundation for aboriginal rights to natural resources in Canada. The concepts of inherent rights, traditional use and customary law are analyzed in detail. The paper begins with providing definitions of the key terms and then it turns to review and analysis of key legal decisions rendered by the Supreme Court of Canada – notably Delgamuukw, Gladstone, and Marshall.
A discussion of the existing legal protections for aboriginal resource rights is followed by a case study of how one First Nation, The Lake Babine Nation of central British Columbia, continues to use customary laws to manage ancestral resource territories. The author looks at the ways that the colonial state disrupted the customary legal order, in particular, the alienation of women from land and resources.
Kriazhkov V.A.
The Right of Small-Numbered Indigenous Peoples of Russia for Land and Other Natural Resources
The article provides a legal analysis of the right of small-numbered indigenous peoples of Russia for land and other natural resources. It describes the international law basis of the indigenous peoples right and the provisions of the Russian Federation Constitution that creates favorable conditions for establishing special rights of the indigenous peoples in the field under consideration. The article provides a detailed analysis of the most recent Russian federal and regional legislation covering the subject matter.
Novikova N. I.
Customary Law of Indigenous Peoples of the Russian North in the Legal System of Russia: Past and Present
The article analyzes the current legal status of indigenous peoples of the North in connection with adopting new federal laws that take account of customs and traditions of those nations. It characterizes the basic features of aboriginal customary law related to such notions of a conventional legal system as ban, measure and «model». The article analyzes the possibilities of using customary law for protection of rights in court and for legal regulation of land use. It compares the potential of the relevant legislation of the early 19th century and to-day.
Kovler A. I.
European Convention on Protecting Human Rights and Basic Freedoms: Practice of Application to Small-Numbered Peoples
The European Convention (1950) represents a part of international legal mechanism intended for the protection of individual and collective rights. Without establishing a special regime for the so-called «national minorities» (as opposed to the European Council Framework Convention on the Protection of National Minorities) it nevertheless has a significant practical importance in the field of protecting the rights of small-numbered indigenous peoples because its observance is provided by a unique body – the European Human Rights Court. The jurisdiction and binding force of the Court’s decisions and rulings are recognized by all Convention member countries, including Russia that ratified the Convention in 1998.
Of special importance for indigenous peoples’ representatives are Article 6 (Right for Fair Court), Article 8 (Right for Respect of Private and Family Life), Article 13 (Right for Effective Legal Protection Means), Article 14 (Prohibition of Discrimination) and Article 1 of Protocol 1 (Protection of Property).
Using specific examples of cases decided by the Court, in particular the Muonio Saami Village v. Sweden case (Court decision of January 9, 2001), the author thoroughly analyzes the conditions for accepting the complaints sent to the European Court as well as the specifics of considering the so-called «collective complaints».
Kouznetsova G. N.
Court Protection of Indigenous Peoples’ Rights for Tra-ditional Resource Use
The radical changes that occurred in the economic and social life of Russia during the past ten years required significant changes in the Russian legislation, too. New laws and other legal acts taking account of those changes were adopted. In particular, they bear on the small-numbered indigenous peoples of Russia. The adopted laws and other legal acts have rather fully established their rights in different spheres, which means that aboriginals are now in a better position to protect their right efficiently in different institutions, including courts.
The specifics of court protection of the right of small-numbered indigenous peoples for traditional life and habitat consists in the fact that when aboriginals go to court they have to be guided by the current legislation that regulates the rights of small-numbered indigenous peoples of the Russian Federation, in particular by the laws establishing the fishing and sea mammals hunting quotas, regulating allocation of lands for traditional economies and establishing the right for the protection of traditional habitat, traditional life style, economies, crafts, etc.
Court suit or claim can often represent the most efficient means to protect one’s right and interests that are violated. The article describes the procedure for starting a court action and contains an example of a claim.
Kochetygova N. I.
Specifics of Court Proceedings with the Participation of Small-Numbered Indigenous Peoples’ Representatives
In accordance to the general principles of the Russian Federation Criminal and Civil Codes, the fact that the Constitution singles out a specific group of small-numbered indigenous peoples obligates the courts and law enforcement agencies to take into account the special characteristics and special guarantees of their rights in the process of considering cases involving representatives of those peoples. Article 14 of the Law «On the Guarantees of Rights for Small-Numbered Indigenous Peoples of the Russian Federation» establishes that the courts, while considering cases that involve small-numbered indigenous peoples’ representatives as plaintiffs (claimants), defendants (respondents), victims or accused, might take into account the customs and traditions of those peoples provided that the said customs and traditions do not contradict the federal laws and the laws of the Subjects of the Russian Federation.
Legislative guarantees of the above norms mean that the State respects them, strives to provide a comfortable legal environment not only for the majority but also for the minority of the population, recognizes the right «to be different» and intends to create normal living conditions for different peoples of Russia.
Krehbiel R.
Environmental Impact Assessment and its Ethnic Requirements in Canada
Impact assessment of development proposals in Canada is carried out concurrently under federal and provincial statutory regimes, which are coordinated through a Harmonization Accord. This paper describes the basic operation of each system and details the opportunities for aboriginal participation in their design, review and operation.
The provincial environmental assessment process in British Columbia applies to larger development projects. The statute provides for formal, government-to-government aboriginal participation in directing the review. First Nations were consulted in drafting the statute, and a First Nations Technical Working Group provides ongoing advice to provincial authorities. These and other measures discussed in the paper have earned considerable credibility among first nations. The federal process offers relatively little opportunity for aboriginal participation, but a recent five-year review has provided a means to re-examine some of these deficiencies.
The paper also introduces recent initiatives that are intended to broaden aboriginal influence in environmental assessments, including treaty negotiations, the federal Framework Agreement on First Nations Land Management and formalized consultation processes. Other emerging issues such as inclusion of traditional knowledge, first nations capacity and various theoretical questions are considered.
Stepanov V. V.
Ethnological Assessment
The article is devoted to the analysis of ethnological assessment as a means for protecting ethno-cultural environment. The main objective of the assessment consists in preventing the disintegration of population integrity provoked by managerial activities. Ethnological assessment is regarded as a multi-discipline scientific express research system of the «affected population». The assessment provides analysis and forecast of demographic and socio-economic stability, ethno-cultural and socio-psychological integrity of the local population.
Yamskov A. N.
The World Bank Indigenous Policies
The paper is devoted to the field of applied ethnology (applied anthropology) in general and to the role that the World Bank experts have played in its development, in particular. The author reviews history of and reasons for developing, as well as effects of using, various types of formal assessments within the framework of the World Bank projects. Current activities in developing the new formalized procedure of «social-ethnological» (sociological) assessment are analyzed in more details and used as a background for reviewing aims and importance of the World Bank documents, forming its indigenous policies (Operational Directive ¹ 4.20 «Indigenous Peoples», the previous document, and the new draft versions).
This lecture served as a source of information for and methodological introduction to students’ independent studies of the World Bank new draft versions of Operational Policies and Procedures ¹ 4.10 «Indigenous peoples», both of which are currently in the process of preparation. Thus the paper includes review of students’ written comments and suggestions about these documents, discussed by them after the lecture.
Novikova N. I.
Simulation of «An Aboriginal Community Negotiations with Local Government»
The article describes a game scenario and settings, emphasizes the importance of negotiations for preventing and resolving conflicts that arise in the course of resource use, provides recommendations for conflict diagnostics and resolving dead end situations during negotiations.
Fondahl G.
Aboriginal Community Research Protocols
Numerous aboriginal communities in Canada have adopted their own research protocols, which establish the responsibilities, duties and obligations of researchers who wish to work in their communities. This paper provides a brief summary of why such protocols are being adopted in Canada and what issues the protocols address. It also considers why researchers might wish to support such initiatives, given the added burdens they entail. The author provides this discussion in order to animate a discussion of whether such protocols might be useful tools for aboriginal communities in the Russian North. Provided are two examples of aboriginal research protocols from Canadian First Nations communities.
Vakhtin N. B.
Some Notes on Ethics of Field Studies in the Far North of Russia
The author of the present paper discusses ethical issues connected with socio-anthropological, ethnographic and linguistic field research among ethnic minorities of the Russian Arctic. The problem is discussed in the context of relationship between the «collector» and the «informant»; various national and international documents regulating the relationship are taken into consideration. The paper also discusses possible motivations of conflict and misunderstanding between the «collector» and the «informant» based on intrinsic inequality of their roles and statuses, and possible ways to overcome the conflict.
Students about the School
A. Uvachan from Evenkia and M. Sadovskaya from Chukotka present their impressions about the event. L. Zaksor gives her opinion about the School and provides some information about the Institute of Peoples of the North at the A. I. Herzen State Pedagogical University, because most of the Summer School students come from it.
Annexes include the following materials:
· Convention for the protection of the human rights and fundamental freedoms (1950) and instructions on and forms of application to the Euro-pean Human Rights Court.
· Copies of the form «Appeal for organizing territories for traditional nature resource use» and regulations about territories for traditional nature resource use;
· Program of the 2nd International Summer School in Legal Anthropology;
· List of authors.