MurUEJL 16
Toward a Genuine Redress for an Unjust Past: The Nibutani Dam Case
Professor of Law, Daito Bunka University, Japan
||Volume 4, Number 2 (June 1997)|
Editors' Note: for a translation of the decision of the court into English by Mark A Levin use these links -
- The relationship between the Ainu people and Japan
- The Nibutani Dam
- The Court decision
"It is the modern Japanese State that, from the Meiji era on, usurped our land, destroyed our culture, and deprived us of our language under the euphemism of assimilation."
The Hon. Kayano Shigeru
- On March 27 1997, the Sapporo District Court ruled that the Ainu people should be granted recognition as an indigenous people of Japan and therefore entitled to the protection of their distinct culture.
- This is what the Ainu people have been seeking for many years from the Japanese government as redress for the historical injustices imposed on them. Until recently, the Japanese government had not officially recognized the existence of an indigenous people in Japan. Instead, the government had characterized the Ainu as an ethnic minority group and asserted that the Ainu people were entitled only as individuals to equal protection under the Japanese Constitution.  Accordingly, the government has denied collective aboriginal rights to the Ainu.
- For their part, the Ainu people have organized several associations
to maintain their cultural heritage as well as to defend their rights.
The Ainu Association of Hokkaido (the largest association organized by
Ainu residents in Hokkaido, the northern most administrative district of
Japan) has proposed a bill to change the government's assimilationist
policy and guarantee Ainu rights. The basic philosophy of the draft bill was that the Ainu are entitled to the full enjoyment of human rights which have been elaborated and developed within the United Nations human rights protection mechanism. Therefore, the present lawsuit may be a move toward the recognition and guarantee of Ainu rights in the context of the Japanese legal system.
- In this article, I first explain the relationship of the Ainu people with the majority Japanese and the latter's colonization of Ainu the homeland. Next, I give a short history of the dam construction project which constitutes the main issue in the present case.
- In analyzing the decision, I focus on the court's rationale on cultural rights of the Ainu people. In conclusion, I offer some remarks concerning the implications of the present decision in the context of recent legislation on Ainu culture.
2. The relationship between the Ainu people and Japan
Japanese invasion of the Ainu's homeland
- The Ainu people are the original inhabitants of Hokkaido and its adjacent
areas (including the Kurile islands and Sakhalin Island). They constituted a distinct culture in which their livelihood was mainly
based upon hunting, fishing and gathering. Also, their lifestyle was inseverably connected to their natural and spiritual environment. In the fifteenth century, mainlanders entered the Ainu territory (or "Ainu-moshir" which means tranquil land of human beings in the Ainu language) and established a trading system with local people. As the mainlanders and their rulers began to exploit the locals economically and ignored their social customs, the Ainu and their leaders often rose up in arms. Although their resistance ended in failure, the Ainu people established their ethnic identity and were determined to maintain their heritage. 
The modern Japanese State and its policies toward the Ainu
- Ever since the modern Japanese State was constituted in the Meiji period, the central government has adopted both a colonial and assimilationist policy in relation to the Ainu people.
- Without any formal treaties or arrangements, the Japanese government incorporated the Ainu land and extended its administration over the Ainu. The central government set up a colonization commission in Hokkaido (renamed the Ainu territory in Japanese) and carried out policies through which many immigrants from the mainland settled in the Ainu territory and occupied Ainu lands. The colonial authorities banned traditional Ainu lifestyle and forced the Ainu to use the Japanese language and adopt Japanese culture. In 1899, the central government enacted the 'Hokkaido Kyu-Dojin Protection Act" for the declared purpose of protecting the Ainu people. The real purpose was, however, to legitimize and complete its colonization and assimilation policies. Under this Act, the Ainu were characterized as "kyu-dojin' (former Aborigines in Japanese, with a derogatory connotation) and as a group they had to abandon their distinct culture in order to integrate into mainstream Japanese so
- Each Ainu family was allocated a small plot of agricultural land by this
law. Nonetheless, Japanese farmers had already occupied the best lands and many Ainu farmers were forced to give up their lands due to the lack of farming experience. Many Ainu people thus became dispossessed of
their homeland and deprived of economic bases necessary for maintaining their identity.
Ainu people speak out
- Under the present Constitution promulgated in 1946, the Japanese society and its government was formally democratized and the Ainu people (as Japanese nationals) were entitled to equal protection by law.
- However, the reality has been different. As the social and political dominance of the majority ethnic Japanese persists, the Ainus have been threatened to assimilate into mainstream society. And the aforementioned "Protection Act" survived with only slight amendments.
- In order to defend their cultural heritage and promote mutual assistance, the Ainu people have organized several associations and societies, among which the Ainu Association of Hokkaido is the largest in its membership. This association proposed a draft bill to the Japanese government in 1984 in which it called on the government to repeal the "Protection Act" and to completely eliminate racial discrimination against the Ainu people. Also it demanded the guarantee of Ainu's political participation through a quota system and realization of their economic, social and cultural rights.
- After studying the Ainu proposal, the Hokkaido government endorsed this draft (with reservations concerning the proposed notion of political quotas) and requested that the central government enact new legislation accordingly.
3. The Nibutani Dam
- In the 1960s, the central government pursued a nation-wide development project to achieve a highrate of economic growth. The Hokkaido Development Agency developed a plan to construct a dam in the Nibutani region to supply water for an industrial development area.
- Although the development project was not completed, the Hokkaido Development Bureau (the local branch of the Agency with full budgetary resources for development projects) launched a dam construction over the Saru River. Local Ainu farmers gave up farming in exchange for monetary compensation and job opportunities in the construction work. The Bureau requested the Hokkaido Land Expropriation Commission to make a decision on the expropriation of riparian lands owned by two Ainu residents-Kaizawa Tadashi and Kayano Shigeru. Both men opposed the decision and petitioned to the central government to negotiate and work out a settlement, but the Commission rejected their repeated petitions. Thus in 1993, Kayano Shigeru as well as Kaizawa Koichi who replaced his father Tadashi after his death, filed a lawsuit in the Sapporo District Court to challenge the legality of both the Commission's decision and the project approval from the central government.
- The plaintiffs claimed that the Court should rescind the expropriation which ran counter to relevant provisions of the Japanese Constitution and International Covenant on Civil and Political Rights (ICCPR).
4. The Court decision
- The Court dismissed the plaintiffs' claim, drawing on provisions of the
Administrative Litigation Act. At the same time, it declared the illegality of the expropriation, citing the plaintiffs' arguments in affirmative terms.
In this section, I will focus on the main thrust of the Court's decision
and critically analyze its legal reasoning in the context of Japanese
domestic law as well as international law concerning minority rights.
The Ainu as an indigenous minority group
- The first issue the Court raised in its decision was the recognition of the Ainu people as an indigenous minority group of Japan. The Japanese government has yet to do so, although it recently admitted that the Ainu came within the definition of "minority" under Article 27 of ICCPR. The government has, however, denied the status of an indigenous people. On the other hand, the Court gave the definition of that term and applied it to the Ainu people, noting that:
"the Ainu people had inhabited mainly Hokkaido and maintained their distinct culture and identity before Japan extended its rule over them, and they still form a social group with a distinct culture and identity even after suffering social and economic damage caused by policies carried out by the majority Japanese who incorporated the Ainu into Japan."
- This formal recognition by the Court is the most significant single factor to the plaintiffs as well as to the whole Ainu people. Also, it marks a leading case in Japanese jurisprudence to the effect that the Court seemed to draw on international legal texts regarding the definition of indigenous people. For example, the ILO Convention on Indigenous Peoples (No.169) of 1989 provides that the Convention applies to:
"peoples in independent countries who are regarded as indigenous on account of their descent from the populations which inhabited the country, or a geographical region to which the country belongs, at the time of conquest or colonisation -- and who, irrespective of their legal status, retain some or all of their own social, economic, cultural and political institutions." (emphasis added)
The relationship of international human rights and Japanese domestic law
- The second issue was the applicability of ICCPR in Japanese domestic courts. In this regard, there has been no established position shown by the Supreme Court. In some cases, several lower courts hinted at the direct applicability of some provisions. Thus, the present case marks the latest example. The District Court considered the following facts in determining such applicability.
- Japan ratified ICCPR in 1979 and promulgated it as part of domestic law.
- Under lCCPR, articles such as 2(l), 26 and 27 relate to Ainu's cultural rights.
- The Japanese government submitted its third report to the Human Rights Committee to review Japan's implementation of ICCPR. In this report, the government admitted that the Ainu people may be referred to as the minority in Article 27 because they preserve their own religion and language and maintain their own culture.
- Article 27 stipulates that in those States in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practice their own religion, or to use their own language.
- The government also did not challenge the "minority" status for the Ainu people in the proceedings of the present case.
- Thus, the Court found that the Ainu people, as an ethnic minority group with a distinct culture, are entitled to the protection of the rights to enjoy their own culture. It is plausible that Article 27 can be applicable directly through the judicial process. As the Court noted, Japan has the duty (under its Constitutional law) to respect in good faith such human rights enshrined in ICCPR. This implies that the courts of justice, as the judicial branch of the government, have the power to ensure the fulfilment of its obligation to respect these rights.
- But there remains a question of who can actually claim the exercise of such judicial power. According to the District Court, "the Ainu people" could do so.  A problem then arises. As cited before, Article 27 of ICCPR
grants minority rights only to "persons belonging to such minorities". Therefore, only individual members are allowed to invoke their rights before the courts. In the present case, it is unclear whether the plaintiffs could claim them in their personal capacity or as representatives of a "people" collectively.
What ICCPR protects
- The third issue is the interpretation of Article 27. The Court gave a positive interpretation, saying that the
"ICCPR not only guarantees the right of individual minorities to enjoy their own culture but puts the Contracting Members of ICCPR under the obligation that the States shall take adequate consideration in developing and implementing governmental policies which might affect the culture of the minority." (emphasis added)
- This interpretation is in line with the normative development of the Article. The Human Rights Committee adopted a general comment on Article 27 in 1994, in which they elaborated the cultural rights of minority group as follows:
"The Committee observes that culture manifests itself in many forms, including a particular way of life associated with the use of land resources.-- That right may include such traditional activities as fishing or hunting and the right to live in reserves protected by law."
- When members of the group in question wish to enjoy cultural rights, they can claim "positive legal measures of protection" and "measures to ensure the effective participation of members of minority communities in decisions which affect them".
- In relation to the latest individual case, the Committee viewed that measures whose impact amounts to a denial of cultural rights is not compatible with complying the obligation under the Article 27. However, measures that have a certain limited impact on the way of life of persons belonging to a minority does not necessarily amount to a denial of such cultural rights.
- Concerning the Nibutani Dam case, the Court formulated the "impact" principle as follows:
"In developing and implementing such policies as would produce effects on the culture of indigenous minority groups, the government has a special duty to give adequate consideration to such cultures with a view to avoiding unjust encroachment on their rights."
- Then the Court considered the following facts in regard to the lands in question.
1) The Ainus practice an annual ceremony of launching their traditional boat on the Saru River (Chip-Sanke in Ainu).
2) The Saru River is surrounded by several mountains where sacred religious sites (Chinomi-shir in Ainu) are located.
- The Court regarded such practice and sites as indispensable elements of the Ainu culture which have a close and inseparable relationship with nature and land. Furthermore, the Court affirmed that these cultural values need to be maintained and handed down to future generations.
- Although they were aware of these facts, the government did not fully
carry out an "impact" assessment on whose basis the development and approval of the project would be made.
- Thus, the Court found that:
"The government failed to carry out the necessary research and assessment process and that it unfairly devalued and disregarded the Ainu's cultural heritage and values. Moreover, it did not take steps to minimize the damage to Ainu culture. Therefore, the government exercised an ultra vires discretionary power under the Land Expropriation Act making the project approval as well as the expropriation illegal."
The Japanese Constitution
- The fourth issue concerns the relevancy of the Japanese Constitution. The plaintiffs argued that Article 13 of the Constitution guarantees the Ainu people protection of their ethnic dignity from adverse effects which might be caused by the government's action.
- The Court basically accepted this argument in a way that provides a new interpretation of the provision, citing as follows:
"The article means that individuals are the ultimate source of values in their relationship with the government and the State acknowledges the human value of each individual citizen in governmental administration. It manifests individualism and democratic principle.
As social and economic conditions of individual citizens vary from person to person, the Constitution requires the government to respect these citizens in a substantive manner so that the socially advantaged will care for the comparatively disadvantaged group thus maintaining and developing a greater social diversity.
When it comes to the relationship of a dominant ethnic group and a minority group, the dominant group tends to neglect or disregard the interests or distinct culture of the minority.
Since the distinct culture of the minority group is essential to the preservation of their ethnic identity, the recognition and guarantee of the rights of the group members to enjoy their own culture is crucial to their survival."
- Thus the Court argued for the relevancy of the Constitution in the present case. This is another key point of the decision. But this reasoning needs further elaboration. Article 13 provides for the respect of individual rights "to the extent that it does not interfere with the public welfare". The Court accepted the government's argument that this restriction is similarly applicable to Article 27 of ICCPR. As noted earlier, Article 27 does not contain such a proviso. Nor did the Human Rights Committee mention such a "public welfare" limitation in relation to the said Article.
Thus the Court's position in this respect is not tenable in the context of the proper interpretation of ICCPR. 
A balancing test
- The last point is a balancing test used by the Court. The applicable provision of the Land Expropriation Act (Article 20 (3)) authorizes the expropriation on the condition that the proposed project contributes to the proper and reasonable utilization of the land in question. In order to determine this condition, the District Court provided a test to strike a balance between the public good brought by the project and the interests or values affected by it. And, in the opinion of the Court, it is necessary for the government to show that the public good supersedes other affected interests. The Court's judgement was that "the public good" was uppermost because the dam would secure the lives, physical integrity and property of the downstream residents through its flood control function and it would also supply water for irrigation, household, and industrial use as well as power generation.
- On the other hand, the affected interests are the Ainu rights to enjoy their culture as explained above. The plaintiffs accepted the balancing test as a means to decide the legality of the expropriation. Also they argued that their distinct culture was adversely affected by the dam construction. They differed from the Court's judgement in that the dam was, in their opinion, useless in every respect. They further argued that alternative methods of flood control were available other than the dam and that water supply from the dam was not needed. Considering the fact that the government had not carried out a full environmental impact assessment on the project, the Court should have been cautious in applying the balancing test and in defining the "public good".
- Preoccupied with the "public good" argument, the Court chose to draw a very dubious conclusion. While the Court found the expropriation to be illegal, it also deemed it inappropriate to declare the expropriation decision null and void. To justify this conclusion, the Court took into account the facts that the dam construction has been completed and that the land is now submerged. Also, the Court regarded the government's measures to protect "Chash"(historical Ainu sites) and to offer a substitute site for the "Chip-Sanke" as some measure of compensation - though insufficient - in regard to the preservation of Ainu culture. Thus, the Court did not rescind the expropriation decision and instead it dismissed the plaintiffs' claim by drawing on so-called 'Jijo Hanketsu" system under the Administrative Litigation Act(Article 31).
- After acknowledging the existence of ethnic, cultural, historical and religious connection with the lands in question, the Court called on the expropriating government to take into utmost consideration the Ainu culture all the more because the government must reflect on its historical encroachment on the distinct Ainu culture through its assimilationist policies. This notion of respect for cultural rights is in fact parallel to
that of the recognition of indigenous rights as discussed within the United Nations human rights protection mechanism.
- In 1993, the United Nations Working Group on Indigenous Populations agreed on a Draft Declaration on the Rights of Indigenous Peoples which expresses concern that indigenous peoples have been deprived of their human rights and fundamental freedoms, resulting in their colonization and the dispossession of their lands. The Draft Declaration also provides for the recognition and guarantee of the rights of such peoples to culture, religion and land. In regard to the land which such peoples "have traditionally owned or otherwise occupied or used", indigenous peoples will have the right to maintain and strengthen their distinctive spiritual and material relationship with the land as well as the right to own, develop, control and use the land and its resources, should this Declaration be adopted by the UN General Assembly.
- Thus, the main thrust of the Nibutani Dam case corresponds to the emerging human rights of indigenous peoples although the case itself addressed Ainu rights to enjoy their culture as recognized and guaranteed by ICCPR and the Japanese Constitution.
- On May 8, the Diet passed an Act regarding the Promotion of Ainu Culture and the Dissemination and Education of Knowledge concerning Ainu Traditions. Mr Kayano(co-plaintiff of the Nibutani Dam litigation) worked to push the government to enact the new law. He had earlier been elected a member of the House of Councillors. In a sense, the new law may be seen as the government's response to the Court's decision. Also, as mentioned earlier, one Ainu association has proposed a draft bill to defend their human rights. The new law may be seen as response to that proposal.
- However, the new law does not mention recognition and protection of indigenous rights. Nor does it provide for cultural rights as recognized by the court. While the law formally and finally abrogates the ancient "Protection Act" and refers to the Ainu as a people, its main objective is limited to the promotion and teaching of Ainu culture. 
- Therefore, it is still the case that the Ainu people are on a long road
searching for redress to the injustices they have experienced.
 Associate professor at Yachiyo International University, Japan.
I thank Mrs Bill Casey, Dan LaBranche, David Nelson as well as Professor Hosokawa Komei for their advise and comments. Nonetheless, the opinion expressed here is exclusively the author's.
 Kayano Shigeru, Our Land Was a Forest: An Ainu Memoir, Westview, 1994, p 153.
 Re: Revocation of the expropriation decision (Kenri-shutoku-saiketsu-to Torikeshi Seikyu Jiken), on March 27, 1997 (unreported) I will refer to this as the Court's decision. The present case falls within the category of actions for revocation of administrative decisions. Concerning this type of lawsuit, please see John Haley, 'Japanese Administrative Law" in Kenneth Port (ed.), Comparative Law: Law and the Legal Process in Japan, Carolina Academic Press, 1996, p 640.
Japan has a three-tier judicial system which consists of the district courts and High Courts as well as the Supreme Court. There are fifty district courts, one in each Prefecture except Hokkaido. (There are three courts in Hokkaido) Concerning the organization of the judicial system of Japan, please see Perry R.Luney,Jr., "The Judiciary: lts Organization and Status in the Parliamentary System" in Kenneth Port, Comparative Law.
 The Third Periodic Report of Japan under Article 40 Paragraph 1 (b) of the International Covenant on Civil and Political Rights (1991), para 233 CCPR/C/70/Add.1.
 The Ainu Association of Hokkaido (Hokkaido Utari Kyokai) was
established in 1946. For the English text of the draft bill, please see Ainu Association of Hokkaido, Ainu History (Ainu Shi), 1994, pp 1091-1100
 In 1994, the Hokkaido government conducted an investigation into the living conditions of the Ainu residents. According to the investigation, the number of Ainu population in Hokkaido was 23,830. The Ainu population in Tokyo was estimated at 2,700 by the Tokyo Metropolitan Government which conducted the similar investigation in 1988. Since some Ainu do not identify themselves for fear of "disadvantages" they might take, the exact figures of Ainu population cannot be available. For further information, please see Ainu Association of Hokkaido, Brochure on the Ainu People, undated publication.
 Concerning the Ainu-Japanese relations, please see Tabata Hiroshi, "Some Historical Aspects of Ainu-Japanese Relations: Treachery, Assimilation and the Myth of Ainu Counting" in Noel Loos and Osanai Takeshi (eds.), Indigenous Minorities and Education: Australian and Japanese Perspectives of their Indigenous Peoples, the Ainu, Aborigines and Torres Strait Islanders, Sanyusha Publishing Co., 1993.
 For the English text of the Act, please see Ainu History at 1172.
For further information on the current problems the Ainu face, please see AMPO Japan-Asia Quarterly Review, Vol.24, No.3 (1993).
 Concerning the Ainu initiative in protest against the assimilationist
policy, please see Nomura Gui'ichi, "The Ainu and the Japanese: An Appeal for Justice" in Indigenous Minorities and Education.
 Please see Owaki Noriyoshi, "On A Proposal for Legislation Concerning the Ainu People: Its Meaning and Future Prospects" in Indigenous Minorities and Education.
 Please see Nakamura Yasutoshi, "Flooding Ainu Lands: Test Filling Begins in the Nibutani Dam", AMPO. Vol. 27, No-2 (1996), pp 2-3.
 The original text of the judgement in Japanese is on file with the author. The English translation is mine.
 Please see The Third Periodic Report, supra, note 4. After discussing this report, the Human Rights Committee (a watchdog committee for monitoring the Covenant's implementation) expressed "concern at the continued existence in Japan of certain discriminatory practices against social groups, such as -- persons belonging to the Ainu minority." For detailed information on the Committee discussion, please see the Japan Federation of Bar Association, Sekai ni Towareta Nippon no Jinken, Kouchi Shobo. 1994.
 The decision, pp 75-76
 The Japanese government has not ratified the ILO Convention. On the other hand, the Ainu Delegates have participated in and contributed to the adoption of the Convention in 1988. Besides that, Mr. Nomura Gui'ichi, the then Director of the Ainu Association of Hokkaido, delivered an opening speech in the UN General Assembly in 1993 in celebration of the International Year of the World's Indigenous People. please see Ainu History, supra note 5, pp 810-814.
 Concerning the status of treaties, their ranking among the Japanese
legal system, please see Kenneth L. Port, The Japanese International Law 'Revolution': International Human Rights Law and Its Impact in Japan" in K. Port, Comparative Law, p 555.
 The decision at 69. Article 98 (2) of the Japanese Constitution provides that the treaties concluded by Japan and established laws of nations shall be faithfully observed.
 The District Court refers as " Ainu Minzoku", namely the Ainu People. Ibid.
 General Comment No.23 (50), CCPR/C/21 /Rev. 1 /Add.5 (1994) at paragraph 7.
 Ilmari Lansman et al. v. Finland, Communication No.511/1992, at Paragraph 9.4.
 The decision, p 91.
 Id. pp 100-101.
 Id. pp 70-72.
 The full text of the Article is:
"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."
A Japanese constitutional lawyer comments that "this right to the pursuit of happiness (kofuku Tsuikyuu Ken) has been reinterpreted as one which provides the constitutional foundation for newly emerging rights (for example, the right to privacy)." For further discussion of the Article, please see Ashibe Nobuyoshi, Kenpou (Constitutional Law), New Edition, Tokyo University Press, 1997.
 Mr. Manfred Novak comments that "The limitations provisos in these provisions ( Arts. 18,19,21 and 22) are applicable to the majority but not the minorities protected by Article 27." (emphasis added) Manfred Novak, UN Covenant on Political and Civil Rights: CCPR Commentary, N.P.Engel, 1993, p 505.
 The decision at p 21.
 Id. pp 26-41.
 However, the Court pointed out the failure of the government to carry out full assessment procedure concerning the impact on Ainu culture. Id. pp 95-100.
 Id. pp 103-107. Under the "Jijo Hanketsu" system, the courts are allowed to dismiss suits while they declare the illegality of the administrative decisions in question. In these cases, the courts have to declare that the revocation of such decisions would be against the "public good". Obviously, the unrestricted use of such system impairs and reduces the judicial review over administrative decisions. For further information on Administrative Litigation, please see John Haley, " Japanese Administrative Law" in Port, Comparative Law, pp 635-645.
An administrative lawyer suggests an approach by which the system is only applicable when the case meets certain requirements.
Nalamura Yoshiuki, ' Jijo Hanketsu Seido - Sairon" in the Journal of Meiji Daigaku Junior College, No.49 (1991), pp 23-58.
 The decision, p 93.
 Here I cited the preambular paragraph 5 as well as the Articles 25 and 26. For the full text of the Draft Declaration, please see E/CN.4/Sub.2/1993/29 Annex 1.
 Considering that Japan adopted civil law system in Meiji era, it would be inadvisable to raise a "native title" argument here without further comparative analysis.
However, I would like to raise another issue that the District Court did not deal with. That is the international duty of the government to take measures to "review governmental, national and local policies, and to amend, rescind or nullify any laws and regulations which have the effect of creating or perpetuating racial discrimination" under the provision of International Convention against Racial Discrimination which Japan ratified in 1995. The government treated the plaintiffs (and the Ainu) in a discriminatory manner that "it unfairly, devalued and disregarded the Ainu's cultural elements or values." Thus, my point is that Japan did not fulfil its duty to review its policies leading to the present expropriation.
 KANPOU (The Official Gazette). No.2136, May 14, 1979
 Hideaki Uemura, "Nibutani-damu-hanketsu to Ainu-bunka-shinkouhou", SEKAI, June 1997, pp 27-30