NGO Submission to the Human Rights Council
Universal Periodic Review Mechanism
Rights of indigenous minority peoples of the North, Siberia and the Far East of the Russian Federation
UPR 30th session (Apr-May 2018)
5th October 2017
Submitted on behalf of the following organisations:
- This submission has been prepared by IWGIA, the International Work Group for Indigenous Affairs, an NGO in consultative status with ECOSOC that supports indigenous peoples’ organisations globally, and the Institute for Ecology and Action Anthropology (INFOE), Cologne, Germany with input from indigenous activists, experts, networks and organisations in the Russian Federation. This submission looks into the situation of Russia’s indigenous minority peoples, which while together numbering only approximately 260,000 people, traditionally inhabit around two thirds of the land mass of the Russian Federation.
- Even though the indigenous peoples are highly diverse in terms of descent, history, language, ethnicity and culture, they have some important aspects in common, such as the prevalence of traditional subsistence-oriented ways of life based on fishing, hunting/gathering or reindeer husbandry. A profound knowledge of and relationship with the territories which they have traditionally used or occupied are deeply ingrained in their cultures, which are finely adapted to their fragile environments, often marked by extreme climatic conditions.
- The focus of this submission is the extent to which recommendations accepted by Russia in the preceding review cycles have been implemented. Overall, the state has failed to live up to its own voluntary pledges. In key areas such as land rights, the rights to self-determination, food, education, health and work, the situation has failed to improve. Some important policy measures were adopted during the period preceding the current review cycle, including the action plan for the implementation of the Concept paper on sustainable development of the indigenous small-numbered peoples of the North for 2009-2011; however, its key components have still not been implemented.
1. Follow-up on recommendations, accepted by the Russian Federation
1.1 /140.219. Ensure the right of indigenous people to their ancestral lands through the implementation of the relevant legislation with measurable targets and effective data collection (Hungary)
- During the review cycle, Russia has failed to implement this recommendation mainly for two reasons: It failed to implement the law “On Territories of Traditional Nature Use of Indigenous Minority Peoples of the North, Siberia and the Far East of the Russian Federation” (7 May 2001, № 49-FZ) and it failed to implement a pledge to institute a system of data collection and tracking for the socio-economic status of the indigenous minority peoples of the North
- In 2001, the Russian Federation had adopted the Federal law ‘On Territories of Traditional Nature Use of Indigenous Minority Peoples of the Russian Federation’. This law provides the principle mechanism through which indigenous land use is regulated. It does not recognize indigenous ownership of their ancestral territories, yet it is intended to ensure indigenous peoples’ use rights and limit harmful third party operations such as oil extraction or mining. According to this law, territories of traditional nature use (TTNU) can be established in places of traditional residence and economic activities of indigenous peoples by decision of the federal, regional or local authorities on the basis of proposals from persons belonging to indigenous peoples and their communities.
- Since its adoption, the federal authorities have failed to establish or confirm any TTNU. The approval of a model TTNU on the Bikin River in Primorye, announced in 2008 in Russia’s 19thPeriodic Report to CERD, was never completed.[i]
- Local and regional authorities have, however, created over 500 TTNU, none of which have been confirmed by the federal government as required by the Land Code of the Russian Federation.[ii]These existing TTNU therefore have no guaranteed legal status and no effective protection from being dissolved or downsized, as often happens. Most TTNUs are located in the West Siberian Khanty-Mansi Autonomous Okrug. They clearly fail to fulfil their intended protective function, as in many of them, oil companies are operating, so that the only real advantage for their indigenous inhabitants is some monetary compensation in exchange, but they are mostly powerless to deny extractive operations on their land. Another problem is that federal land, which includes all land belonging to the ‘forest fund’, cannot be included in regional or local TTNU. These federal lands are, however, often precisely those lands which are the basis of indigenous communities’ livelihood.
- Two acts passed in 2014 significantly weakened the law on TTNU, these being Federal Law 171-FZ dated 23.06.2014[iii] and 499-FZ, dated 31.12.2014.[iv] Notable changes include the downgrading of TTNU from ‘Specially Protected Conservation Areas’,[v] which is a term laid down in environmental legislation and which establishes i.a. the specific participation and consultation rights of the local populations, to ‘Specially Protected Areas’, a term which is undefined such that these legal safeguards have fallen away.[vi]
- The amendment also changed the rules for the removal of land plots from TTNU: a clause was deleted from article 12 that stated that in the case of such removal, the state is obliged to provide indigenous peoples with equivalent land and natural objects in exchange. This followed changes to article 57 of the Land Code of the Russian Federation which, until the revision, had been entitled ‘Compensation of losses in case of alienation of plots of land for state or municipal needs, deterioration of land quality, temporary occupation of land plots, restriction of rights of land owners, users of land, tenants and lessees of plots of land’ introduced by the above mentioned Federal Law 499-FZ. The expression ‘Compensation of losses in case of alienation of plots of land for state or municipal needs’ has disappeared from the title of article 57 as well from the text, and hence from the entire land legislation. Now, article 57 is entitled ‘Compensation of damages in case of deterioration of the quality of lands, temporary occupation of land plots, restriction of rights of land owners, users of land, tenants and lessees of plots of land’.[vii]The rules for compensation for damages have changed accordingly. Land users are now own their own, when negotiating agreements with ‘a person in whose favour a temporary occupation of land is carried out’.[viii] Thus, the state has withdrawn from its role in the relationship between indigenous communities and businesses, potentially impacting their territories and means of existence. And yet the operations of these latter are made possible by licenses which have been issued by the government. This means that the State Party is failing to fulfil its duty to protect human rights, and this diminishes the incentive for businesses to respect rights as well as reducing access to remedies for the potential victims.
- The changes made to the Law on TTNU and the Land Code of the Russian Federation by Federal Law 171-FZ, which entered into force on 1 March 2015, revoked article 31 that had explicitly stated that in places of traditional residence and traditional activities of indigenous peoples, local authorities should decide on where objects are to be placed (i.e.: infrastructure, extraction facilities etc.), based on the results of information gathered from or referendums held among the indigenous and local communities.[ix]This has also contributed to an erosion of the right of indigenous peoples and their bodies of local self-government to participate in land-use monitoring in settlement territories and land used for their traditional economic activity.
- As a result, indigenous peoples have in recent years lost vast areas of their traditional lands and their right to access the traditional natural resources on these lands. In several cases, weakened protection of their rights to participate in decision-making and to compensation, along with the failure of the federal government to confirm any TTNU established by local or regional administrations, has enabled businesses to get the courts to remove protected status from areas they are seeking to exploit, regardless of their significance to the indigenous communities who depend on them.
- On 15 January 2015, the Court of Appeals thus rejected an appeal by the administration of Oleneksky district of the Republic of Sakha (Yakutia) challenging the legality of a license issued by the regional resource authority, Yakutnedra, for the exploration and extraction of mineral resources in territories of traditional nature use that had been established by the local authorities in Olenekski Evenkski district. The court rejected the appeal because the boundaries of the specified TTNU had not been determined by the federal government. As noted above, this is true for all currently existing TTNU, such that they are all unprotected from similar encroachments. In addition, based on the amendments to the Land Code of the Russian Federation, the court concluded in 2015 that ‘the current legislation does not stipulate a mandatory agreement with the local authorities about the list of subsoil resources offered for exploitation, decisions on holding tenders and auctions for the right to resource exploitation and decisions approving the result of a tender or auction for the right to use subsoil resources’.[x]
- Due to the government’s failure to confirm existing TTNU, their status is highly dependent on the goodwill of the particular administration and vulnerable to changes at any time. On 30 September 2016, the acting Governor of Khabarovsk Krai signed a decree changing the boundaries of the 13 previously-formed TTNU without giving prior notification to indigenous peoples to less than half their prior size, justifying the decision with the so-called Far Eastern hectare programme by which each citizen who resettles from central Russia to the Far East is entitled to one hectare of land for free.[xi][xii] Following protests, the administration eventually softened its measures and issued a new decree which now reduces the TTNU area by only 15 per cent.[xiii]
Russia should revert the changes introduced to the Federal Law on Traditional Nature, weakening the rights of indigenous communities and local authorities to participate in the decision-making regarding operations of third parties such as extractive industries in these territories.
Russia should not pass the law in the presented version. The state should organize a broad discussion of the draft law with experts, non-governmental organizations and representatives of indigenous peoples.
- Another area of key relevance to indigenous peoples is that of conservation areas existing or planned on their territories. Here, concerns are twofold: These areas should have a robust protection against third-party infringement such as oil extraction or logging and indigenous peoples’ rights to participate in their management, recognition of their traditional knowledge and role in biodiversity conservation must be ensured. Russia’s national biodiversity strategy for the implementation of the CBD Aichi targets until 2020 contains key stipulations aimed towards recognition of indigenous peoples’ traditional knowledge and their role in biodiversity conservation. Russia thus already has a policy in place, which is designed to ensure that the planned expansion of the country’s protected areas in accordance with Aichi target 11 is done in a way which is compliant with the rights of indigenous communities and conducive to their flourishing. It is of key importance, that this policy is implemented faithfully.
- In October 2016, the administration of the Khanty-Mansi Autonomous Area — Yugra (KhMAO) passed a decree changing the boundaries of the Numto Nature Park established in 2001, when pre-existing TTNU of indigenous Khanty and Nenets had been merged into it.[xvi]Through the decision taken in 2016, territories belonging to the conservation zone of the Numto Park, with the greatest concentration of biodiversity, traditional nature resource use and historical and cultural heritage of indigenous peoples, were seized to the benefit of the ‘Surgutneftegaz’ company, which is seeking to expand its oil extraction operations. The area surrounding Lake Numto is one of the most sacred places on earth for Khanty, Nenets and Mansi. The concerns of the indigenous representatives have been ignored, which means that in this case, even the park status has not been robust enough to prevent harmful changes for the benefit of a business enterprise.[xvii]
Russia should ensure the full implementation of its national biodiversity strategy, including those parts aimed at the fulfilment of Aichi target 18
Russia should restore the strict protection regime of the former wetlands (zakaznik) zone of the Numto natural park included a prohibition of oil and gas extraction and exploration, mining and construction of infrastructure.
- Despite repeated calls by various UN bodies to provide data disaggregated by ethnicity with regard to I.a. the rights to work, housing, health, social security and education, Russia has failed to implement systematic collection of statistical data on the indigenous minority peoples. The action plan for the realisation of the Concept paper on the sustainable development of the indigenous minority peoples of the North for 2009-2011 stipulated that a system of indicators measuring life quality of indigenous small-numbered peoples should be developed and incorporated into the state statistics system; however, while the now defunct Ministry of Regional Development commissioned a study for the development of such indicators, they have not been applied in practice. In a 2011 report, the Federal Accounts Chamber (schetnaya palata) identified this failure as one of the causes of the limited effect that the socio-economic measures taken by the then Ministry were having.[xviii] While the ministry has meanwhile been dissolved and the responsibility for indigenous peoples has been transferred to the new Federal Agency of Ethnic Affairs, there is still no adopted framework for systematic collection of disaggregated data.
The state should comply with recommendations by CERD, CESCR and the UNSR on the Rights of Indigenous Peoples to compile and provide detailed data regarding the socio-economic status of the country’s population, disaggregated by ethnicity, in order to ensure that the effectiveness and adequacy of its measures can be objectively verified and these, where necessary, adjusted.
1.2 / 140.220. Harmonize the various laws on the rights of indigenous peoples, particularly regarding their access to land and natural resources (Mexico)
- This recommendation has not been fulfilled. One area particularly affected by a lack of consistency, resulting in violations of indigenous peoples rights is access to land and biological resources. Federal law 82-FZ “On Guarantees of the Rights of Indigenous Minority Peoples of the Russian Federation” (‘O garantiiakh prav korennykh, malochislennykh narodov Rossiiskoi Federatsii’) stipulates the right of indigenous peoples to free-of-charge land use. The Land Code does not stipulate such a right, since it was revised in 2001. In the reporting period, it has not been re-inserted. The federal laws 101-FZ “On the Turnover of Agricultural Land” (‘Ob oborote zemel’ sel’skokhoziaistvennogo naznachenia’), 209-FZ “On Hunting” (‘Ob okhote’) only allow lease of land based on auctions, so that e.g. the use of reindeer pastures by indigenous communities is subject to rent payments. Federal Law 166-FZ ‘On Fishing’ (‘O Rybolovstve’) as well as the decree (Postanovlenie) 166 of the federal government No 986 only allow for use rights to fishing sites framed in contracts with the winners of tenders. Participation is such tenders required substantial financial and other resources which indigenous communities typically do not have. The law “On Fishing” says in Art. 25 that indigenous peoples have the right to fish for maintaining their traditional way of life without special permits and without assigned fishing parcels, however regulations by the federal fishing agency, which apply to most of the fish species that constitute the indigenous peoples’ staple food, require them to submit applications until a certain deadline and fish only the permitted amount of the permitted species at prescribed places. These are strictly for personal consumption, they do not allow for traditional fishing to be developed into viable businesses, which would be one of the few ways for indigenous peoples to generate revenues. The latter is possible only through commercial bidding, for whom most indigenous communities don’t have the necessary resources (see above). Further, amounts are often vastly below what they need to feed themselves and to maintain their traditional way of life. Finally, the stipulation in the law has not prevented virtually all viable fishing grounds from being leased out to fishing industries, so that indigenous communities who have not won a tender often have no place to fish.
Russia should review legislation concerning indigenous peoples’ access to land and resources and make sure that its free of inconsistencies. It should adopt human rights-based policies with regard to hunting and fishing rights, ensuring that the rights of indigenous peoples to feed themselves in accordance with their traditions and needs and enjoy an adequate standard of living (CESCR Art. 11) is respected, protected and fulfilled.
1.3 / 140.221. Strengthen federal and local legislation in favour of the rights of indigenous peoples (Bolivia (Plurinational State of))
- This recommendation has not been fulfilled. Several federal laws and regulations infringing upon indigenous rights have been enacted in the reporting period. Three recent instances are: regulations regarding pensions of indigenous people, which narrow the number of beneficiaries by introducing new territorial limitations, the Krasnoyarsk regional regulation on Territories of Traditional Nature Use and the new restrictions on indigenous peoples’ traditional fishing enacted in Khabarovsk territory, which
- Federal law N 247-FZ, dated 29 June 2017 modified land legislation so that indigenous hunting territories would be eligible for free distribution to non-indigenous migrants from central Russia, under the so-called Far-Eastern-Hectare programme, which provides a stimulus for voluntary resettlement to the Far East by offering settlers relocating from other parts of the country free land. This has led to a decrease in indigenous hunting grounds in Khabarovsk territory.
- The register of districts of habitation of indigenous minority peoples of the North for the purpose of determining entitlement to social pension (early retirement), as adopted by the federal government in regulation P-1049, dated 1 October 2015 is identical to the register of districts from 1990, when several peoples had not yet been recognized as indigenous minority peoples, such as the Veps, Soyot, Kamchadals and Tubalars, so that their territories were not yet registered as territories of indigenous settlement. In February 2017, the Supreme Court of the Russian Federation declared the regulation null and void, but the decision was published only in September 2017, so that for two years, members of the aforementioned peoples were deprived of their social pension, which is often the only monetary income of a family.
- Regulations which undercut legal and human rights of indigenous peoples are adopted not only by federal but also by regional authorities. In July 2017, the administration of Krasnoyarsk territory issued a regulation (polozhenie) 421-p concerning the formation of regional Territories of Traditional Nature Use (TTNU), which makes the creation of TTNU more difficult by introducing conditions such as that a proposed TTNU must cover an area of at least 3 per cent of Krasnoyarsk territory, belonging to at least two different municipalities. There is nothing in Russian legislation making the imposition of such conditions necessary, so that this measure must be regarded as imposing undue restrictions on indigenous peoples’ land rights, which could easily be avoided.
Russia should ensure that new regulation and legislative changes do not infringe on indigenous peoples legal and human rights, guaranteed by Russia’s constitution, federal legislation and international human rights treaties it has joined.
1.4 / 140.224. Improve the precarious situation of indigenous peoples, particularly by stepping up efforts to guarantee their right to education, including in their own languages; unrestricted use of their lands and territories; address the problem of underrepresentation in State institutions at the federal and regional levels and follow other principles enshrined in the United Nations Declaration on the Rights of Indigenous Peoples (Estonia);
- The right to receive education in one’s native languages is not backed up with adequate funding, teaching staff, textbooks and literature. Even in Yakutia, one of the most prosperous regions, native languages are taught only in 40 schools out of 70 in places of compact indigenous settlement. Out of these 40 schools, the native language is taught as a subject in primary classes only in 22, in other schools it is an elective subject. It is taught only one hour per week.[xix] Besides, most indigenous languages are threatened by extinction as they are used only by the elderly generation. Indigenous languages thrive only where an environment exists, where they are naturally spoken, so that language survival is inextricably linked to the continuation of the traditional way of life. In recent years, various regions have started initiatives for nomadic schools, allowing for children to stay with their families while receiving school training. However, these programmes do not yet reach the majority of indigenous nomads.
Russia should step up the support for forms of education such as nomadic schools, which are compatible with the perpetuation of the traditional way of life and it should ensure that the necessary prerequisites, such as recognition of land rights, are in place, allowing for its perpetuation and thus for the preservation of indigenous languages and their traditional knowledge.
- The case of the Shor settlement of Kazas was considered bytwo UN committees: CERD and CESCR in August-September 2017. The village was destroyed in 2013-2014: the coal company ‘Yuzhnaya’, which has won a mining license for the land surrounding the village has irreparably harmed the environment in such a way as to make perpetuation of the indigenous peoples’ traditional subsistence activities impossible and rendering the place generally unsuitable for habitation, compelled most residents to sell their houses and land. The residents were pressured by a representative of the coal company, who hinted that their houses might eventually burn down. Some months later, the homes of those who refused to sell, were burned down in arson attacks whose perpetrators were not identified. Access to the village is possible only through an armed checkpoint run by a mining company, through which the perpetrators must have passed. Residents who want to get to the remains of the village and the cemetery where their ancestors are buried is closed also must pass through this checkpoint and may be denied if they refuse to comply with whatever the armed guards deny (identification, inspection of their car etc). The state has failed to fulfil its obligation, which would have implied ensuring that there is a proper resettlement plan and adequate substitute land allowing for a continued existence of the community. Instead, it has largely granted free reign to the mining company, which has been allowed to coerce the villagers into leaving.
Russia should live up to its obligation to protect indigenous peoples’ rights against infringement by third parties such as extractive businesses. Especially when territories and livelihoods of indigenous peoples may be affected, the state cann2017.10 NGO Submission to the Human Rights Council Universal Periodic Review Mechanism. UPR 30th session (Apr-May 2018)ot discharge its obligation to protect the indigenous peoples’ human rights by leaving issues of indigenous consent, rehabilitation and compensation to the involved companies to address.
Russia should formally endorse the UN Declaration on the Rights of Indigenous Peoples and implement its principles in national legislation.
Russia should develop and adopt a national action plan on businesses and human rights, aiming at the realisation of the UN Guiding Principles, taking into account the 2013 report of the Working Group on the Issue of Human Rights and Transnational and other Business Enterprise
2017.10 NGO Submission to the Human Rights Council Universal Periodic Review Mechanism. Rights of indigenous minority peoples of the North, Siberia and the Far East of the Russian Federation. UPR 30th session (Apr-May 2018).pdf
[i] See CERD/C/RUS/19, Para 52: “In partnership with the Association of Small Indigenous Peoples of the North, Siberia and the Russian Far East, the Russian Academy of Natural Sciences has prepared draft regulations on the “Bikin” model federal area of traditional resource use for small indigenous peoples in Primorsky Territory, which will be submitted to the Government for approval.”
[ii] The land code states: “The boundaries of all TTNU are to be determined by the Government of the Russian Federation” See Zemel’ny kodeks Rossiiskoi Federatsii, (Land code of the Russian Federation), 25 October 2001, Paragraph 97, Item 6: “5. http://www.consultant.ru/document/cons_doc_LAW_33773/
[iii] Federal’nyj zakon ‘O vnesenii izmenenij v Zemel’nyi kodeks Rossiiskoi Federatsii i otdel’nye zakonodatel’nye akty Rossijskoj Federatsii’ ot 23.06.2014 N 171-FZ http://www.consultant.ru/document/cons_doc_LAW_164516/, last accessed 19 January 2017
[iv] Federal’nyi zakon ot 31 dekabria 2014 g. N 499-FZ ‘O vnesenii izmenenii v Zemel’nyi kodeks Rossiiskoi Federatsii i otdel’nye zakonodatel’nye akty Rossijskoi Federatsii’, http://base.garant.ru/70833160/, last accessed 19 January 2017
[v] Osobo okhranyayemye prirodnye territorrii, OOPT
[vi] Further changes include the cancellation of a norm in Article 12 stipulating that equivalent land plots and natural objects must be provided in the event of land being withdrawn for state needs. Further, these changes have deprived indigenous peoples of the right to participate in monitoring the use of land in places of their traditional settlement and traditional economic activities and weakened the responsibility of the state and business for the use of these lands.
[vii] In Russian: Возмещение убытков при ухудшении качества земель, временном занятии земельных участков, ограничении прав собственников земельных участков, землепользователей, землевладельцев и арендаторов земельных участков http://www.consultant.ru/document/cons_doc_LAW_164774/
[viii] See Правительство Российской Федерации: Постановление oт 31 Марта 2015 Г. N 299 О Внесении изменений в Постановление Правительства Российской Федерации от 7 Мая 2003 Г. N 262 и признании утратившим силу Постановления Правительства Российской Федерации от 3 апреля 2013 Г. N 294 http://www.consultant.ru/document/cons_doc_LAW_177498/#utm_campaign=nw&utm_source=consultant&utm_medium=email&utm_content=body
[ix] Item 3 of art. 31 of the Land Code of the Russian Federation prior to entry into force of Act 171-FZ
[xi] Federal’nyj zakon ot 1 maja 2016 g. N 119-FZ «Ob osobennostjah predostavlenija grazhdanam zemel’nyh uchastkov, nahodjashhihsja v gosudarstvennoj ili municipal’noj sobstvennosti i raspolozhennyh na territorijah sub»ektov Rossijskoj Federacii, vhodjashhih v sostav Dal’nevostochnogo federal’nogo okruga, i o vnesenii izmenenij v otdel’nye zakonodatel’nye akty Rossijskoj Federacii» (Federal law ‘On the peculiarities of providing citizens with land plots in state or municipal ownership and located in the constituent territories of the Russian Federation within the far Eastern Federal district, and on amendments to certain legislative acts of the Russian Federation’) 1 May 2016 N 119-FZ. http://base.garant.ru/71388648/
[xii] Reports suggest, that the administration was using the Far Eastern hectare programme to illegally transfer the territory to a logging company. http://www.csipn.ru/glavnaya/novosti-regionov/2949-v-khabarovskom-krae-territorii-traditsionnogo-prirodopolzovaniya-korennykh-narodov-iz-yali-dlya-lesozagotovok
[xiii] Decree No. 226-PR of 06 June 2017
[xv] Chapter III, Article 11 of the Draft Law
[xviii] Federal Accounts Chamber of the Russian Federation: Otchet o rezultatakh kontrolnogo meropriyatiya
«Proverka ispolzovaniia budzhetnykh sredstv, napravlennykh na podderzhku ekonomicheskogo i sotsialnogo razvitiya korennykh malochislennykh narodov Severa, Sibiri i Dalnego Vostoka Rossiiskoi Federatsii za 2009-2010 gody», pp 82-83 http://www.ach.gov.ru/userfiles/bulletins/2012-07-05-buleten_doc_files-fl-2246.pdf
[xix] V. В.Shadrin: Osnovnye voprosy funktsionirovaniia yazykov KMNS v RS (Ya). In: V Mire Korennykh Narodov 2015-2016 / pp 157-165 http://www.csipn.ru/images/stories/publications/Mir_k_n/MKN-2016.pdf
UN, IWGIA, INFOE, indigenous minority peoples, recommendations, Federal law ‘On Territories of Traditional Nature Use of Indigenous Minority Peoples of the Russian Federation’, TTNU, model TTNU on the Bikin River, Oleneksky district of the Republic of Sakha, Khabarovsk Krai, resource extraction, conservation areas, special protected areas, national biodiversity strategy, Khanty-Mansi Autonomous Area — Yugra, KhMAO, KHMAO, Surgutneftegaz, NUMTO, Нумто, ОАО “Сургутнефтегаз”, disaggregated data, Concept paper on the sustainable development, federal laws, On Guarantees of the Rights of Indigenous Minority Peoples of the Russian Federation, On the Turnover of Agricultural Land, On Hunting, On Fishing, report, submission, social pension (early retirement), indigenous languages, native languages