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Tahara, Kaori --- "Asia & Pacific: Nibutani Dam Case" [1999] IndigLawB 70; (1999) 4(23) Indigenous Law Bulletin 18

Nibutani Dam Case

by Kaori Tahara[1]

On 27 March 1997, a decision of epochal significance for Ainu people was handed down by the Sapporo District Court.[2] It was one year before the 130th anniversary of the Japanese invasion of Hokkaido Island and the consequential receipt of Japanese law into the homeland of Ainu. Since 1868, the goal of the Japanese government has been to assimilate Ainu people into Japanese society and to keep the natural resources of the Island under its control. One of the remarkable aspects of the decision was that it clearly recognised Ainu people as an indigenous minority group of Japan. Since 1878, when the Japanese Colonisation Commission to Hokkaido applied the administrative name Former Aborigines to Ainu people,[3] such recognition has not been forthcoming. Thus, the recognition of Ainu represents a significant change to the Japanese government’s policy.

Background to the Case

In 1973, the Hokkaido Development Agency (‘the HDA’) publicised its plan to construct a dam on the Saru River in Hokkaido. The dam was to provide water resources for a planned industrial development zone called Tomakomai Tobu[4] on the Pacific coast of Hokkaido, and to local residents in the Nibutani region.

In the 1980’s the HDA proceeded with its plan and started purchasing properties. Of these properties, 123 were owned by Japanese and 60 by Ainu people.[5] The HDA could not come to an agreement with two Ainu residents, Mr Shigeru Kayano and Mr Tadashi Kaizawa, for the acquisition of their properties. The HDA therefore requested an arbitration by the Hokkaido Land Expropriation Committee (‘the HLEC’) which is mandated to arbitrate between the interests of public welfare and private property in the proper and rational use of national land. [6]

The HLEC decided that the HDA could expropriate the land under the Eminent Domain Law, which gives government agencies a mandate to carry out administrative measures for the appropriation of land from private owners for public utilities. Kayano and Kaizawa refused to accept the compensation that the HDA subsequently offered them for their land. In March 1989, even though the construction of the dam had already started in September 1986, they requested the Minister of Construction to withdraw the HLEC’s decision.

The Ministry of Construction rejected their request for the HLEC’s decision to expropriate the land to be retracted. Kayano and Koichi Kaizawa (the son of Tadashi Kaizawa, who replaced his father after his death in 1992) filed an appeal for revocation[7] of the decision of the HLEC in the Sapporo District Court in 1993. The central government decided to participate in the case as an observer for the defendant.

The Claim and Defence

There were four main points in dispute. Firstly, the Ainu complainants asked whether the central government and the HLEC recognised Ainu people as an indigenous people of Japan.

In Japan, trials proceed by way of oral pleadings and examination of witnesses’ testimonies. Ahead of the eighth oral pleading, the central government, acting as observer for the defence, submitted a preparatory paper to the Court. In this paper, it was stated that the central government and the HLEC acknowledged that the Ainu in Nibutani were a ‘minority’ for the purposes of article 27 of the International Covenant on Civil and Political Rights (‘the ICCPR’),[8] and as such had a right to enjoy their own culture. On the other hand, the preparatory paper for the ninth oral pleading stated that it was difficult to judge whether Ainu people are an ‘indigenous people’ since that term has not been defined nationally or internationally.[9]

Secondly, the Ainu complainants pointed out that the stated purpose for the construction of the dam had changed. As stated above, the dam was initially intended to serve as a water supply for a proposed industrial area. However, industries had shown a lack of interest in investing in the area. Consequently, the dam’s use became ‘multipurpose’. The complainants argued that as a result of the fact that the proposed purpose of the dam could not be realised, the public interest purposes which may have justified the compulsory acquisition of lands for the construction of the dam in Nibutani were no longer valid.

Thirdly, the place where the dam was being constructed included sacred areas for Cip-sanke,[10] two Ci-nomi-sir[11] and two archaeological sites of Casi.[12] The complainants claimed that the original proposal for the construction of a dam did not take into account the loss to Ainu culture that the flooding of these sites represented. In relation to this point, a preparatory paper submitted by the observer for the seventh oral pleading alleged that the benefits for which the complainants claimed loss, such as ethnicity and culture, were abstract and that they did not have an arguable nor answerable case until the complainants showed the number and location of archaeological sites, and the presence of rites relating to those sites.[13]

Finally, the defendant and the observer claimed that the District Court did not have jurisdiction to review the decision of the HLEC. It was argued that the court, defined in Japanese law as an ‘administrative office’, was not competent to make decisions which impede or obstruct the decisions of another administrative body (the HLEC).

Before the case was fully heard, the dam was completed and experimental water storage commenced on 2 March 1996. The sacred land of Nibutani Ainu was sunk into the water.

The Decision

The District Court found that the HLEC’s decision to expropriate the Ainus’ land was illegal and that it was possible to rescind its decision regarding the dam project under the Eminent Domain Law. Moreover, the Court stated that, according to its own definition of indigenous peoples, Ainu are the indigenous people of Hokkaido.[14] The tribunal defined indigenous peoples as social groups who have lived in a region prior to colonisation and who have subsequently maintained their distinct culture and identity.[15]

The right to enjoy own culture

The Court mentioned that Ainu people have the right to the pursuit of happiness and the right to enjoy their own culture,[16] rights which are guaranteed by article 13 of the Constitution of Japan[17] and article 27 of the International Covenant on Civil and Political Rights (‘the ICCPR’).[18]

The Court also stated that under article 98 of the Japanese Constitution, governments have a duty to fulfil their international obligations. Article 98 states,

This Constitution shall be the supreme law of the nation and no law, ordinance, imperial rescript [sic] or other act of government, or part thereof, contrary to the provisions hereof, shall have legal force or validity.

The treaties concluded by Japan and established laws of nations shall be faithfully observed.[19]

The decision holds that the ICCPR’s guarantee of the right of minority groups to enjoy their own culture imposes a responsibility on State parties to consider these rights in decision-making or policy matters which affect these rights. Moreover, it expressed that it is necessary to give more consideration to the interests of indigenous peoples than to minority groups.[20]

Jijo Hanketsu reparations

The Court held that while the HLEC’s acts were illegal, it was in the public interest not to withdraw the arbitration by the HLEC since the dam was already completed and was being used to store water. The Court also noticed that the defendant and observer had shown some consideration for Ainu culture, although that consideration was insufficient to discharge their responsibilities under the ICCPR and the constitution.

In spite of the tribunal rejecting all claims by the Ainu and declaring illegal the HLEC’s decision, the Ainu did receive some reparation.[21] In Japanese law, the practice of finding against the complainant but awarding damages is called a Zijo Hanketsu, which means the tribunal can dismiss the complaint itself but declare illegal the administrative decisions made by the central and local governments if the dismissal is necessary or unavoidable but against the public interest.[22]

Accordingly, one archaeological site will be restored as a reduced scale miniature in the Dam Memorial Museum and the other will be partly restored. Regarding the Cip – sanke, the possibility of the Ainu holding it downstream of the Dam is being discussed.[23]

The Court’s decision was final because the government of Japan decided not to enter an appeal to the High Court.

The effect of the District Court’s decision in the Nibutani Dam case was to awaken Japanese society to the indigenousness of Ainu people. The decision is often compared with the Law Concerning the Promotion of Ainu Culture and Dissemination and Enlightenment of Knowledge about Ainu Traditions, enacted in May and enforced in July, 1997. This Act is the nation’s first legislation acknowledging the existence of an ethnic minority in Japan.[24] It too acknowledges the indigenenousness of the Ainu even though such recognition could raise questions over aboriginal rights, including those related to land and natural resources.[25] The Court’s decision also led to the comment on 28 March 1997 by the Prime Minister Ryutaro Hashimoto that ‘it is an historical fact that Ainu people are indigenous’.[26]

The Act and the decision of the District Court do not recognise Ainu as an Indigenous People entitled to internationally recognised rights including the right of self-determination in regards to land, resources and politics.[27] Rather, they recognise the rights of individuals who are members of minority groups to enjoy their own culture. Collective rights such as self-determination were not mentioned, nor argued by the Ainu.[28] In effect, the Court recognised the indigenous identity of Ainu but not their rights as indigenous people. Consequently it could be said that by recognising the Ainu as an Indigenous minority group the Court went beyond the minority rights argument put to it by the Ainu but did not follow its own argument to its logical conclusion.

Kaori Tahara is a member of the Ainu Association of Sapporo. She participated the Indigenous Fellowship Programme at the Office for the UN High Commissioner for Human Rights in 1997.

[1] This article is dedicated to Mr Shigeru Kayano, the late Mr Tadashi Kaizawa and Mr Koichi Kaizawa for their great achievements.

[2]Kenri Shutoku Saiketsu Tou Torikeshi Seikyu Jiken (Case of the revocation of the expropriation decision), Sapporo District Court, 1997, 82-83. Hereafter referred to as Kenri Shutoku.

[3] Brochure on the Ainu People, the Ainu Association of Hokkaido.

[4] Koichi Kaizawa, ‘Dawn the Nibutani Dam’ (1993) 24:3 AMPO Japan-Asia Quarterly Review10.

[5] Hokkaido Newspaper, 7 September 1982.

[6] 17 Sojou (appeal) in Shigeru Kayano and Hiroshi Tanaka (eds), Nibutani damu saiban no kiroku (Documentation of Nibutani Dam Case) (1999) 276.

[7] Concerning actions for revocation of administrative decisions, see John O. Haley, ‘Japanese Administrative Law’ in Kenneth Port (ed), Comparative Law: Law and the Legal Process in Japan (1996) 640.

[8] 27Junbi syomen (the preparatory paper). Cf Kayano & Tanaka, above n 6, 319. Japan ratified the ICCPR and promulgated it as domestic law in 1979. The ICCPR may be found at 999 UNTS 171 (1980) ATS 23.

[9] 30 Junbi syomen. Cf Kayano & Tanaka, above n 6, 333. Note that Ainu did not argue for recognition as Indigenous peoples as referred to, for example, in Article 1 of the ICCPR.

[10] Means launching ceremony in the Ainu language.

[11] Means oracle in the Ainu language.

[12] Means fort in the Ainu Language.

[13] 24 Junbi syomen. Cf Kayano & Tanaka, above n 6, 313.

[14] Kenri Shutoku, above n 2, 82-83.

[15] Ibid, 75-76.

[16] Kenri Shutoku, above n 2, 93.

[17] Article 13 reads: ‘All of the people shall be respected as individuals. Their right to life, liberty, and the pursuit of happiness shall, to the extent that it does not interfere with the public welfare, be the supreme consideration in legislation and in other governmental affairs’, UN doc CCPR/C/10/ Add.1, 138.

[18] Above, n 9. Article 27 states that members of ethnic, religious or linguistic minorities shall not be denied the right, in community with the members of their group, to enjoy their own culture, to profess and practise their own religion or to use their own language.

[19] Ibid, 140.

[20] Ibid, 102.

[21] Ibid, 103 –108.

[22] See article 31 of the Administrative Litigation Act.

[23] Kenri Shutoku, above n 2,102.

[24] The Japan Times, 9 May 1997.

[25] Mainichi Daily News, 9 May 1997.

[26] Yomiuri Newspaper, 29 March 1997.

[27] Kenri Shutoku, above n 2, 74.

[28] Teruki Tsunemoto, Ainu shinpou no igi to senjuminzoku no kenri ( The significance of the New Act Concerning Ainu and the rights of indigenous peoples ), (1997) Houritsu jihou, 69 Kan 9 gou, Nihon hyouronsha, 5.

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