The violation of indigenous rights in the process of national development, particularly in dam construction projects, is a familiar story. But in the 1980s when the Japanese government decided to expropriate land from the Ainu people and build the Nibutani Dam on the Saru River without considering the impact on Ainu culture, the story had a somewhat different ending than indigenous peoples have come to expect. The process resulted in a court decision heralded as a watershed for the recognition of indigenous claims.
On March 27, 1997, as part of the Nibutani Dam case (Kayano v. Hokkaido Expropriation Committee), the Sapporo District court became the first state organ to officially recognize the Ainu people as indigenous, which the Japanese government still refuses to do. The decision by the Sapporo court also recognized that the Ainu’s right to the enjoyment of their own culture is protected under both Article 27 of the International Covenant on Civil and Political Rights, and Article 13 of the Japanese Constitution.
The ultimate outcome of the case, however, rendered the legal content of Article 27 and the constitutional protections as mere rhetoric. While the court held that the administrative decisions to expropriate Ainu land and approve the dam project were illegal, it would not reverse the all-but-complete dam construction.
Instead, the plaintiffs were denied substantive relief on the basis that considerations of “public interest” dictated that the dam should be completed. And so the dam remains. As one plaintiff from the case, Koichi Kaizawa, described it, the dam stands as a monument to the destruction the Wajin (non-Ainu Japanese) settlement has wrought on Ainu culture. Emboldened by the findings in the Nibutani Dam case, the Ainu brought subsequent court cases, including the Ainu Communal Property or Trust Assets litigation. These cases ended in cursory dismissals of Ainu claims without any further consideration of their status or rights as an indigenous people.
Yet the seeming “paper only” victory of the Nibutani Dam case has recently turned into something much more concrete. The reason, ironically, is the construction of the Biratori Dam, a second dam further upstream on the same Saru River water system. Due to the Nibutani dam litigation, work on the second dam was delayed until recently. But as this second dam construction now proceeds, aiming to increase flood control and generate hydroelectric power, the Ainu (including the Nibutani Dam case’s two plaintiffs) and the local community are engaged in the process. They are actively involved in the planning, development, and execution of a unique survey to assess and minimize the impact of the second dam on the region’s Ainu people, culture, and environment.
Same River, Different Process
The 1999 Survey on the Living Conditions of Hokkaido Utari (Ainu) indicates that about 40 percent of the population in the Biratori region are Ainu. The Ainu population increases to as high as 70 percent in areas like Nibutani that are close to the Saru River, as found in the Nibutani Dam case. The legends of the Sarunkur Ainu Clan from this region indicate that the Saru River is a sacred place for their people. The god Okikurmikamuy, for example, was said to have been born in the Nibutani area, near the midpoint of the Saru River. For the Sarunkur Ainu, the Saru was traditionally the source of their name and identity. The space within the surrounding mountains was their recognized living, hunting, and gathering area (or Iwor). Salmon from the river was their staple food. Because they worshipped nature and its bounty as gods, the river was also a site of worship. The river bank is used for Chipsanke ceremonies, in which newly built boats were first floated.
Positive changes in the consultation and planning process of the Biratori Dam have been influenced not only by the Nibutani Dam judgement, but also by other subsequent legal developments. The first involved amendments to the Rivers Act in June 1997. A new article was added requiring river management authorities to take necessary measures to ensure that the views of local citizens were reflected in the drafting of River Maintenance Plans. As a result, a committee made up of local representatives from the Biratori Township participated in the drafting of the maintenance plan for the Saru River system, including decisions regarding the construction of the second Biratori Dam. Members of this Saru River Basin Committee included the Biratori town mayor and, more importantly, the head of the Biratori branch of the Ainu Association of Hokkaido.
The committee’s deliberations resulted in the finalization of the Saru River Water System and River Maintenance Plan. Under this plan it was agreed that construction of the Biratori Dam would go ahead for flood control reasons (although likely also for economic reasons). Importantly, the plan also included “efforts to preserve, pass on, and promote Ainu culture” within the river maintenance process. This included commitments to give consideration to Ainu culture in the preservation and management of the river while supporting a framework to pass down and develop Ainu culture.
In an area which is known as the “heartland of Ainu culture,” such measures are an important step toward the recognition and protection of Ainu culture.
A Unique Survey
The second important legal development influencing the Ainu’s situation was the July 1997 enactment of the Ainu Cultural Promotion Act. This law was aimed at “implementing measures to promote Ainu culture and realize a society in which the ethnic pride of Ainu people is respected.” Although not without its problems, this law this law is also said to have influenced the Hokkaido Development Bureau (the regional organ of the Hokkaido Development Agency, reorganized as Hokkaido Bureau under the Ministry of Land, Infrastructure and Transport in 2001) and its local Muroran Development Construction Division to consider Ainu culture during the dam construction process.
The Hokkaido Development Bureau’s (HDB) Muroran Division realized it faced a development project that would dam the same river as the Nibutani Dam. Therefore, it felt directly bound by the court’s reasoning in the Nibutani case that the HDB should carry out “the equivalent of a preliminary environmental assessment … [on] the degree of impact that the proposed project would have on Ainu culture.” In order to carry out a survey of this nature, the Muroran Division approached the Biratori Township in December 2002, seeking its cooperation in a full-scale local field assessment of the Biratori Dam project’s impact on Ainu culture. This survey was to be carried out before final determination of the dam’s construction plan. The Muroran Division also indicated it wished to ensure the participation of local residents in this survey, and wanted to entrust the process to Biratori Township.
The Biratori town and education boards were initially uncertain as to whether to take on the task. Among other concerns, they were worried about the lack of a guiding domestic precedent for such an assessment. Ainu culture traditionally transmits information on cultural assets orrally, and the town was concerned about its inexperience in recording the cultural assets of this culture. But the town ultimately agreed to cooperate, and decided with HDB that the work would be carried out over a three-year period, beginning the following year.
In 2003, 15 local people, approximately half of whom were Ainu, were employed to carry out field work (the project now employs 17 people). This work included collecting and recording data, as well as creating a simulation of the planned site of the dam. They mapped the relevant natural and cultural sites in the planned construction area.
Importantly, Koichi Kaizawa, the Ainu plaintiff from the Nibutani Dam case involved in local forest preservation and Ainu cultural preservation activities, has been hired as a consultant and plays a leading role in the field work. Originally opposed to the Biratori Dam, Kaizawa became involved when it became clear that the dam project was inevitable. He said he wanted to help minimize the impact of the construction on the environment and Ainu culture.
The field work has been carried out under the auspices of the assessment survey’s executive office. Staff from the Biratori Township Office Planning Section, as well as the Biratori Education Board Cultural Assets Section and its Nibutani Ainu Culture Museum and Historical Museum of the Saru River, collectively conduct the work. Because this assessment is unique within Japan, a steering committee has also been established. The committee consists of 17 committee members and one adviser who are experts, academics, and representatives of related local organizations. Members include local Ainu representing the Ainu Association, the Nibutani Ainu Language Classroom, and the Ainu Cultural Preservation Society.
In the past, public works projects in Japan have only involved an environmental impact assessment and an archaeological survey of buried cultural assets in the proposed construction area. This Biratori Dam survey is the first effort within Japan to examine the impact of public works on both the regional culture and the lifestyles of people living in the area.
The work of the committee has been underway for more than a year and a half. Field work carried out or planned for the near future as part of the survey includes:
• Hearings with Ainu elders from the Biratori area, to ascertain the uses and importance of land in the area for the Ainu people and culture;
• The identification, from Ainu traditional oral legends (yukar), of geographical features, water sources, plants, animals, and other natural materials important for such necessities as traditional clothing, food, and shelter;
• Field work surveys to locate the animals and plants in the planned dam area that are used in traditional Ainu daily life and for medicinal purposes;
• Surveys of plant and animal life and flood-control structures that have been built from the mouth of the Saru River to its source
• An ecological survey to examine the movements of brown bears (an Ainu god called Kimun kamuy) and other animals.
Effective Participation
While their ultimate outcome and success cannot yet be judged, these developments already represent important steps forward for the Ainu people. First, they indicate a new respect by administrative bodies (in particular the HDB) for legal developments regarding the Ainu people and their culture. As a result, local Ainu are seeing tangible results from what was previously a paper victory.
Second, the active involvement of Ainu people in the survey teams and fieldwork for the Biratori Dam project has provided employment, skills training, and a “paid” chance for Ainu people to learn more about their own culture in a region where local employment opportunities are scarce.
Third, the hearings carried out with Ainu elders as part of the cultural survey have created an important opportunity to record and officially document their living culture and cultural knowledge. Many Ainu youth may not possess this information firsthand. A record now exists for future generations to learn from this otherwise oral tradition.
Finally, this impact assessment process has included both of the plaintiffs from the Nibutani Dam case. Normally, the case would have been entrusted to a professional or environmental research organization with no personal interest in the local Ainu culture or community. Kaizawa’s involvement, together with the presence of other committed local groups and individuals, has made the Biratori process unique.
But the degree to which the opinions and observations of these local people will be reflected in the steering committee’s final documents remains to be seen. The Muroran Development Construction Division and the Biratori Township have the ultimate authority. Nonetheless, the result so far has been the realization of “effective participation” for local Ainu people, as promoted by various international instruments such as Agenda 21 of the Convention on Biological Diversity, the Rio Declaration on Environment and Development, and the Vienna Declaration and Program of Action.
A Lasting Precedent?
This focus on the inclusion of Ainu people represents a significant change from the past when it comes to the Japanese government’s consideration of Ainu issues. This process also represents a departure from the bureaucracy’s traditional position of carrying out environmental and cultural assessment of development projects without any direct local community involvement.
But while these many positive developments are to be lauded, the national or long term implications of this cultural environmental survey should not be overestimated. It would be presumptuous, for example, to assume that this case is a blueprint for HDB future policy. Rather, officials at the HDB who are funding the impact assessment committee seem keen to limit the process’s precedent.
With dams being built all over Japan by the Ministry of Land, Infrastructure and Transport, it is unsurprising that the HDB and the ministry are reluctant to provide the Biratori Dam’s funding and support to other areas even within Hokkaido. They instead hope to justify the process in Biratori as a unique “special case” based on the obligations imposed on Saru River dams by the Nibutani Dam decision. It will thus remain up to local residents and local interest groups to argue based on the Biratori precedent for similar regional cultural assessments and grassroots participation in future development projects. In such a lobby process, however, the Biratori case will present a compelling example.
Georgina Stevens is a master’s student in international law (indigenous rights) at the Graduate School of Law, Hokkaido University, Japan. She has been attending the committee meetings of the Committee for the Survey on Countermeasures to Preserve Ainu Culture and Environment and the related Iwor Cultural University lectures series in Nibutani, Hokkaido, since soon after its inception in May 2003. She would like to thank Hideki Yoshihara and Koichi Kaizawa from the impact assessment team, and Professor Teruki Tsunemoto, committee member and professor at Hokkaido University, for their comments and assistance with this article. The views expressed remain the author's alone.
References and further reading
Saru River Region Cultural Assessment Activities, Survey on Countermeasures to Preserve Ainu Culture and Environment (2003 Report). Biratori, Japan: Executive Office of the Survey on Countermeasures to Preserve Ainu Culture and Environment. On file with author.
Levin, M. The Nibutani Dam Case: Kayano v Hokkaido Expropriation Committee. English translation. http://www.hawaii.edu/law/faculty/publications/nibutani.html
Foundation for the Research and Promotion of Ainu Culture (1997). Ainu Cultural Promotion Act. English translation.
Kayano, S. (1994). Our Land was a Forest: An Ainu Memoir. Boulder, Colorado: Westview Press.
Tsunemoto, T. (2003), Constitutional and Legal Status of the Ainu in Japan: A National Report. http://courseweb.edteched.uottawa.ca/IACLindigenousminorityrights/Japan….
Sonohara, T. (1997). Toward a Genuine Redress for an Unjust Past: The Nibutani Dam Case, E Law 4(2). http://www.murdoch.edu.au/elaw/issues/v4n2/ sonoha42.html
Stevens, G. (2001, February). The Ainu and Human Rights, Domestic and International Legal Protections. Asia Pacific Journal on Human Rights and the Law Vol 2(2), pp 110-133.
