The right to effective participation and the Ainu people

International Journal on Minority and Group Rights

Volumn 11, Issue 1-2, 2004, Pages 21-74

  Kawashima, Saeko ^a  

^a UNIVERSITY OF TOKYO   (Japan)

Author keywords

[No Author keywords available]

Indexed keywords

PARTICIPATORY APPROACH;

EID: 24144457246     PISSN: 13854879     EISSN: None     Source Type: Journal    
DOI: 10.1163/1571811041631290     Document Type: Review

References (141)

1. Here, the word 'minzoku' is used. 'Minzoku' can mean peoples/ a people or ethnic group/an ethnic group.
2. G. Nomura, 'Ainu Sinpo (the New Ainu Law)' in S. Kayano (ed.), Ainugo Ga Kokkai Ni Hibiku (The Ainu Language Echoes Throughout the Congress) - Kayano Shigeru Ainu Bunka Koza (Shigeru Kayano, Anu Culture Course) (Sofukan, Tokyo, 1997), p. 44.
3. 'Wajin' refers to the majority ethnic Japanese people as distinguished from the Ainu.
4. K. Chichibu, 'Shoten Ha "Senju-ken" No Atsukai (The Focus is How to Treat "Rights of Indigenous Peoples")', Mainichi Hokkaido Morning Edition, 24 March 1996, p. 27.
5. Opinions on the appropriate form in which to 'live together' could be diverse among indigenous peoples (or other ethnic minorities). In the application of the words 'live together' I do not imply a particular governmental or political form, such as federalism, regional autonomy, etc. It could range from multiculturalism within a State, to the creation of a different State.
6. M. Scheinin, 'The Right to Self-Determination under the Covenant on Civil and Political Rights', in P. Aikio and M. Scheinin (eds.), Operationalizing the Right of Indigenous Peoples to Self-Determination (Åbo Akademi University, Turku, 2000), pp. 196-197. Here, the author criticizes the first Länsman case of the Human Rights Committee, stating "what counts is the viability and sustainability of the arguments suggests that the viewpoint of the indigenous or minority group should be the starting point for national problem-solving exercises.
7. Focusing on and placing weight on a fair negotiation forum (and the right to effective participation which guarantees it), which requires the mutual cooperation and support of participants, could be understood as an Asian way of thinking, as opposed to a Western way of thinking, stressing unilateral assertions of an individual's right or interest.
8. See below for more detailed discussion concerning the concept of dialogue.
9. The Act for the Promotion of Ainu Culture, the Spread of Knowledge Relevant to Ainu Traditions, and an Education Campaign, 1997 (For more detailed information on this Act, see infra note 40).
10. Articles 1, 25 and 27 of the UN International Covenant on Civil and Political Rights. Article 1 reflects the collectivity of the right to effective participation, while Articles 25 and 27 provides the possibility to exercise the right individually. Also see, the Human Rights Committee's General Comment on Article 25, Human Rights Committee, General Comment 25 (57) (U.N. Doc. CCPR/C/21/Rev.1/Add.7 1996), para. 2.
11. For an approach that considers a range of rights, both individual and collective, of ethnic or national minorities, including polyethnic rights (rights to protect specific cultural/religious practices), special representation rights and self-government rights, and explores the relationship between individual and collective minority rights, see W. Kymlicka, Multicultural Citizenship (Oxford University Press, New York, 1995).
12. J. Rossi, 'Participation Run Amok: The Costs of Mass Participation for Deliberative Agency Decision-making', 92 Northwestern University Law Review (1997), pp. 185-187.
13. As for 'dialogue', see the discussion by Mikhail Bakhtin, a leading theorist: M. M. Bakhtin. et al., The Dialogic Imagination: Four Essays by M. M. Bakhtin (University of Texas Press, Austin, 1981) M. Holquist (ed.), C. Emerson and M. Holquist (trans.).
14. J. Tully, Strange Multiplicity (Cambridge University Press, Cambridge, 1995), pp. 129-136. He criticizes Habermas' view of dialogue as the pursuit of consensus. Bakhtin's theory contains a similar argument.
15. By 'modernization' of 'Westermizations', I mean social changes towards a society based on systems originally developed in Western Europe, inheriting the tradition of Greek philosophy and Christianity and having experienced the industrial revolution. These systems could include concepts of democracy, law and human rights (including the concept of 'rights' itself and its relationship with law, deeply rooted in Western European culture and history), capitalism and the modern structure of industrial production.
16. To read more about this Asian way of thinking, see K. Okakura, The Book of Tea (Dover Publications, New York, 1964).
17. For convenience, I will call the other stateless ethnic minorities other than indigenous peoples 'stateless ethnic minorities'. To refer to both indigenous peoples and stateless ethnic minorities, I will use the term, 'ethnic minorities'.
18. J. Anaya, Indigenous Peoples in International Law (Oxford University Press, New York, 1996);
19. B. Kingsbury, 'Indigenous People in International Law: a Constructivist Approach to the Asian Controversy', 92 American Journal of International Law (1998) p. 414;
20. W. Kymlicka, Politics in the Vernacular (Oxford University Press, New York, 2001), pp. 120-132.
21. For an overview of self-determination, see H. Hannum, Autonomy, Sovereignty and Self-Determination (University of Pennsylvania Press, Philadelphia, 1990) (Revised edition, 1996).
22. See, K. Myntti, 'The Right of Indigenous Peoples to Self-Determination and Effective Participation', in P. Aikio and M. Scheinin (eds.), Operationalizing the Right of Indigenous Peoples to Self-Determination (Åbo Akademi University, Turku, 2000) pp. 103-109.
23. See M. E. Turpel, 'Indigenous Peoples' Rights of Political Participation and Self-Determination: Recent International Legal Developments and the Continuing Struggle for Recognition', 25 Cornell International Law Journal (1992) pp. 592-595.
24. Specifically Articles 1, 25 and 27 of the ICCPR, (addressing self-determination, participation in public affairs and the right to belong to a minority respectively) as interpreted by the Human Rights Committee in the Mikmaq Tribal Society (Marshall et al.) v. Canada, 3 December 1991, Human Rights Committee (UN doc. CCPR/C/ 43/D/205/1986);
25. Kitok v. Sweden, 27 July 1988, Human Rights Committee (Communication No. 197/1985), UN doc. A/43/40 (1988));
26. Chief of the Lubicon Lake Band v. Canada, 26 March 1990, Human Rights Committee (Communication No. 167/1984, UN doc. A/45/40);
27. Mahuika et al. v. New Zealand, 27 October 2000, Human Rights Committee (Communication No. 547/1993, UN doc. CCPR/C/70/D/547/ 1993) paras. 3, 9.2;
28. General Comment on Article 25, supra note 10, para. 2;
29. Human Rights Committee, General Comment 23, Rights of Minorities, Article 27, 8 April 1994 (UN doc. HRI/GEN/1/Rev. 1) paras. 6.2, and the Committee's concluding observation to the report of Republic of Congo, Human Rights Committee, Concluding Observations on the Second Periodic Report of the Congo: Democratic Republic of the Congo. 27 March 2000 (UN doc. CCPR/C/79/Add.118) para. 20.
30. Also see Martin Scheinin's approach, Scheinin, supra note 6.
31. The Committee on the Elimination of Racial Discrimination, General Recommendation XXI(48), on self-determination, 8 March 1996 (UN. Doc. CERD/48/Misc. 7/Rev. 3) para. 5
32. General Comment 23, Rights of Minorities, Article 27, supra note 23, para. 7: 'With regard to exercise of the cultural rights protected under article 27, the Committee observes that culture manifests itself in many forms, including a particular way of life associated with the use of land resources, especially in the case of indigenous peoples. That right may include such traditional activities as fishing or hunting and the right to live in reserves protected by law ... The enjoyment of those rights may require positive legal measures of protection and measures to ensure the effective participation of members of minority communities in decisions which affect them.'
33. Declaration on the Rights of Persons Belonging to National or Ethnic, Religious or Linguistic Minorities, 18 December 1992, (G.A. res. 47/ 135, annex, 47 U.N. GAOR Supp. (No. 49) at 210, U.N. Doc. A/47/49 (1993). Article 2: "2. Persons belonging to minorities have the right to participate effectivvely in cultural, religious, economic and public life. 3. Persons belonging to minorities have the right to participate effectively in decisions on the natioal and, where appropriate, regional level concerning the minority to which they belong or the regions in which they live, in a manner not incompatible with national legislation."
34. ILO Convention (169) Concerning Indigenous and Tribal Peoples in Independent Countries, Article 6: 1. In applying the provisions of this Convention, government shall: (a) consult the peoples concerned, through appropriate procedures and in particular through their representative or administrative institutions, whenever consideration is being given to legislative or administrative measures which may affect them directly; (b) establish means by which these peoples can freely participate, to at least the same extent as other sectors of the population at all levels of decision-making in elective institutions and administrative and other bodies responsible for policies and programs which concern them; (c) ... 2. The consultation carried out in application of this Convention shall be undertaken, in good faith and in a form appropriate to the circumstances, with the objective of achieving agreement or consent to the propose measures."
35. Ibid. Articles 2, 5, 7, 12, 15, 16, 17, 20, 22, 23, 25, 27, 29, and 30.
36. The Draft Declaration on the Rights of Indigenous Peoples, UN doc. E/ CN.4/sub.2/1993/29, pp. 50-60.
37. Ibid., Article 19: "Indigenous peoples have a right to participate fully, if they so choose, at all levels of decision-making in matters which may affect their rights, lives and destinies through representatives chosen by themselves in accordance with their own procedure, as well as to maintain and develop their own indigenous decision-making institutions."
38. Ibid., Article 20: "Indigenous Peoples have the right to participate in fully, if they so choose, through procedures determined by them, in devising legislative or administrative measures that may affect them. States shall obtain the free and informed consent of the peoples concerned before adopting and implementing such measures."
39. Ibid., Preamble, para. 16, and Article 4.
40. Ibid., Article 20.
41. Ibid., Article 10 (relocation), Article 27 (restitution of land), Article 30 (lands and natural resources). Especially, Article 30 reads "the right to require that States obtain their free and informed consent prior to the approval of any project affecting their lands, development, utilization or exploitation of mineral, water or other resources."
42. The Framework Convention for the Protection of National Minorities, Strasbourg, 1 February, 1995, ETS No. 157 (also cited in 16, 1-3 HRLJ 98) Article 15: "The Parties shall create the conditions necessary for the effective participation of persons belonging to national minorities in cultural, social and economic life and in public affairs in particular those affecting them."
43. Conference on Security and Co-operation in Europe, The CSCE Document 1992: The Challenges of Change, Helsinki Decisions VI The Human Dimension, para.24. , 7 January 2004: "[The participating States] [w]ill intensify in this context their efforts to ensure the free exercise by persons belonging to national minorities, individually or in community with others, of their human rights and fundamental freedoms, including the right to participate fully, in accordance with the democratic decision-making procedures of each State, in the political, economic, social and cultural life of their countries including through democratic participation in decision-making and consultative bodies at national, regional and local level, inter alia, thorough political parties and associations".
44. Inter-American Commission on Human Rights, Organization of American States, Proposed American Declaration on the Rights of Indigenous Peoples (1997), (OEA/Ser/L/V/11.95, Article XV (2)) , 7 January 2004.
45. Ibid., Article XIII (2), (4), Article XVII (1), (2), Article XVIII (5), and Article XXI (2).
46. Statutory provisions in Japanese laws and Article 27 of the ICCPR mentioned in this section are cited in Appendix C.
47. The Act for the Promotion of Ainu Culture, the Spread of Knowledge Relevant to Ainu Traditions, and an Education Campaign, 1997 (For more detailed information on this Act, see infra note 40).
48. Law No. 52 (1997). In Japanese, "Ainu Bunka No Sinko Narabi Ni Ainu No Dento Ni Kansuru Chisiki No Hukyu Oyobi Keihatsu Ni Kansuru Horitsu": A private English translation done by the Ainu Association of Hokkaido can be found on the website of the Foundation for Research and Promotion Ainu Culture (Ainu Bunka Sinko Kenkyu Suisin Kiko), which was established by this act. Japanese: , 10 January 2004. English: 10 January 2004;
49. also, both of the Japanese text and the English translation are in Hokkaido Utari Kyokai (The Ainu Association of Hokkaido) Kokusaikaigi Siryoshu (Materials of International Conferences), (Hokkaido Utari Kyokai, Sapporo, 2001) pp. 273-282.
50. For a brief description of this Act, see M. A. Levin, 'Essential Commodities and Racial Justice: Using Constitutional Protection of Japan's Indigenous Ainu People to Inform Understandings of the United States and Japan', 33 New York University Journal of International Law and Politics (2000), pp. 467-468.
51. Hokkaido Ex-Aborigines (Former Aborigines) Protection Act, Law No. 27 (1899), amendment Law No.94 (1968); its English translation can be found in Hokkaido Utari Kyokai, ibid., pp. 11-20.
52. In Japanese 'Ainu No Hitobito No Minzoku Tosite No Hokori'. In the English text, the words 'the Ainu people' are employed. But in the original Japanse text of this act, the words. 'Ainu minzoku' that are supposed be the direct translation of 'the Ainu people' is carefully avoided. Instead, the words 'Ainu no hitobito' ('Ainu persons') are used to refer to people belonging to the Ainu. Thus, a direct translation of this phrase could be 'the pride of Ainu persons as mizoku (an ethnic group/a people)'. The word 'minzoku' is used only twice (once in each of two articles) in the whole act. In contrast with this, a draft made by the Ainu Association of Hokkaido uses 'Ainu minzoku' through-out its text. This attempt to avoid using 'minzoku' as much as possible reveals the reluctance of the Japanese government to implement positive policies for protection of ethnic minorities in general. 'Minzoku' can mean an ethnic group or a people, but the former has less connection with self-determination in international law and so is likely to be inferred as the meaning of 'minzoku' in the context of the Ainu Culture Act. This can be drawn from the fact that the Japanese government recognizes the Ainu people as 'an ethnic minority group' but does not recognize it as 'an indigenous people'. (The third periodic report of Japan to the Human Rights Committee 1991 (UN doc. CCPR/C/70/Add.1; Corr. 1; 2; Congress record, Sangiin Naikaku Iinkai No. 6) An ethnic minority is called 'shosu minzoku' (less number minzoku) in Japanese. 'the Ainu people' are employed. But in the original Japanse text of this act, the words. 'Ainu minzoku' that are supposed be the direct translation of 'the Ainu people' is carefully avoided. Instead, the words 'Ainu no hitobito' ('Ainu persons') are used to refer to people belonging to the Ainu. Thus, a direct translation of this phrase could be 'the pride of Ainu persons as mizoku (an ethnic group/a people)'. The word 'minzoku' is used only twice (once in each of two articles) in the whole act. In contrast with this, a draft made by the Ainu Association of Hokkaido uses 'Ainu minzoku' through-out its text. This attempt to avoid using 'minzoku' as much as possible reveals the reluctance of the Japanese government to implement positive policies for protection of ethnic minorities in general. 'Minzoku' can mean an ethnic group or a people, but the former has less connection with self-determination in international law and so is likely to be inferred as the meaning of 'minzoku' in the context of the Ainu Culture Act. This can be drawn from the fact that the Japanese government recognizes the Ainu people as 'an ethnic minority group' but does not recognize it as 'an indigenous people'. (The third periodic report of Japan to the Human Rights Committee 1991 (UN doc. CCPR/C/70/Add.1; Corr. 1; 2; Congress record, Sangiin Naikaku Iinkai No. 6) An ethnic minority is called 'shosu minzoku' (less number minzoku) in Japanese.
53. For commentary on this interpretation see T. Tsunemoto, 'Minzoku Teki Mainoriti No Kenri To Aidentiti (Rights and Identities of Ethnic Minorities)', in M. Iwamura et al. (eds.), Iwanami-koza Gendai No Ho 14: Jikokettei Ken To Ho (Iwanami Course, Contemporary Law, No. 14: Self-Determination Rights and the Law) (Iwanami Shoten, Tokyo, 1998) p. 185;
54. also see Levin, supra note 40, p. 467, footnote 165.
55. The structure of the Ainu Association includes the general assembly, the board of directors, managers, the secretariat, and regional offices. The Association operates programmes to protect the traditional Ainu culture and improve the social standing of the Ainu people and the standard of Ainu livings, such as training of Ainu traditional crafts, training of Ainu language teachers, promotion of Ainu employment, loans schemes for welfare and education and advocacy for policies promoting the Ainu culture and welfare.
56. G. Nomura, supra note 2, pp. 43-46;
57. the Japanese text of the Draft New Ainu Law (Ainu Minzoku Ni Kansuru Horitsu An) is found in the same book, at pp. 243-247;
58. also see Levin, supra note 40, footnote 85;
59. Its English translation done by John Lie and Hideaki Uemura can be found in Hokkaido Utari Kyokai supra note 40, pp. 45-46. Compared with the Japanese original text, the translation of (4) by Levin, 'recognition of rights to natural resources', is a little too removed from the meaning in the original text.
60. T. Tsunemoto, Ainu Sinpo No Igi To Senju Minzoku No Kenri (The Significance of the Ainu Culture Act and the Right of Indigenous Peoples), (1997) 69.9 Horitsu Jihyo p. 5;
61. K. Yoshikawa, 'Ainu Sinpo (The Ainu Culture Act)'; 203 Horitsu Kyositsu (1997) p. 3.
62. On the Hokkaido Utari Welfare Measures (Hokkaido Utari Hukushi Taisaku), which is a general welfare programme for the Ainu People run by the Hokkaido Prefecture, see the third and the forth periodic reports of Japan to the Human Rights Committee in 1991 and 1997, especially those sections on Article 27, respectively: (UN doc. CCPR/C/70/Add.1; Corr. 1;2) and (UN doc. CCPR/C/115/Add.3); and the second periodic report of Japan to the Committee for the Elimination of Racial Discrimination, 2000, (UN doc. CERD/C/350/Add.2), paras. 10-19.
63. Tsunemoto, supra note 46, p. 185.
64. In Japanese, 'Hokkaido Utari Mondai Konwa Kai'.
65. Translated by the author (Kawashima). Section 3 in Hokkaido Utari Mondai Konwa Kai Tosin (A Report of the Round Table on a Policy for the Ainu Culture), March 1988.
66. The Japanese text of this report can be found in Kayano, supra note 2, pp. 247-251.
67. For example, T. Tsunemoto, 'Ainu Sinpo Seitei He No Hoteki Kadai (Legal Problems in the (Future) Enactment of the Ainu Culture Act)', in Kayano, supra note 2, pp. 89-101.
68. N. Ashibe, Kenpo; Sinpan (Constitutional Law; New Edition), (Iwanami Shoten, Tokyo, 1997) pp. 122, 124-125, and 128.
69. For a discussion on the constitutional debates on 'representation', see Ashibe, ibid., pp. 260-263,
70. and Y. Higuchi, Kenpo (Constitutional Law), (Sobunsha, Tokyo, 1992) pp. 301-316.
71. T. Ebashi, 'Senju Minzoku No Kenri To Nihonkoku Kenpo (Rights of Indigenous Peoples and the Japanese Constitution)', in H. Yoichi and T. Nonaka (eds.), Kenpo Gaku No Tenbo (Prospects of Constitutional Law Studies) (Yuhikaku, Tokyo, 1991) pp. 487-488;
72. D. Ueda, 'Ainu Minzoku No Tokubetsu Giseki Ni Tsuite (About Special Representatives of Ainu People)', 149 Nagoya Daigaku Hogaku Ronju (1993) 243, pp. 253-255.
73. On the utility of the special representation without voting rights and similar measures taken for special representation of indigenous peoples in various countries, see Turpel, supra note 22.
74. At the time of election (1992), Mr. Kayano was the eleventh candidate in the list of the Social Democratic Party in one of the electoral zones in the proportional representation system. According to the proportion calculated from the votes, ten candidates in the list won the election, at this time. Thus Mr. Kayano, the eleventh candidate, could not be elected. However, two years later, an elected person in the list died and his seat became empty. Therefore Mr. Kayano moved up from the eleventh to the tenth in the list, and was awarded the election.
75. On this whole process, see S. Kayano, 'Ainu No Kokkai Giin Toshite (As an Ainu Congressman)', in Kayano, supra note 2, p. 7: the fact that the Social Democratic Party, a progressive party, took office in 1994 also contributed significantly to the movement toward the enactment of the Ainu Culture Act. The Chief Cabinet Secretary, Mr. Igarashi, in the cabinet at that time was from Hokkaido and had sympathy for the Ainu people. However, it could be said that Mr. Kayano's presence in the Diet and the public opinion generated because of his presence facilitated progress toward the enactment of the legislation and prevented the Liberal Democratic Party (a conservative party) from stopping this progress when it returned to power in 1996. Mr. Kayano's article cited here refers to the influence of mass media in the dissemination of information on the Ainu people;
76. also see, Nomura, supra note 2.
77. On the process of making the Draft New Ainu Law and its content, see Nomura, supra note 2.
78. About the text of the Draft New Ainu Law, see supra note 45: the 6 points proposed in the Draft are: (1) the elimination of discrimination, (2) special representation in local and national legislative assemblies, (3) affirmative educational and cultural policies, (4) stabilization of Ainu people's agricultural practices and fisheries, and promotion of forestry, commerce and industry run by members of the Ainu, (5) establishment of a fund for Ainu self-reliance, and (6) establishment of a standing consultative Ainu body.
79. On the establishment of, and the discussion in, the Round Table on a Policy for Ainu People, see, Tsunemoto, supra note 46;
80. for information about the text of the report issued by this Round Table, see supra note 50.
81. M. Yamauchi, 'Ainu Sinpo Wo Do Kangaeruka (How to Think about a New Ainu Law)', 623 Sekai (1996) p. 155 This author was a member of the Experts Meeting.
82. Compare with the Draft Ainu New Law.
83. The Japanese text of the report of the Experts Conference can be found in Ainugo Ga Kokkai Ni Hibiku, supra note 2. Its English text is available in the website of the Foundation for Research and Promotion of Ainu Culture: , 7 January 2004 (The Japanese text is also available in its Japanese site.);
84. also, both the Japanese text and the English translation are in: Kokusaikaigi Siryoshu (Materials of International Conferences), supra note 40, pp. 229-258.
85. Yamauchi, supra note 60.
86. Yoshikawa, supra note 46, p. 3:
87. The text of this resolution can be found on the website of die Foundation for Research and Promotion Ainu Culture , 7 January 2004;
88. and in Kokusaikaigi Siryoshu (Materials of International Conferences), supra note 40, p. 258. The resolution primarily demands that appropriate steps be taken for the implementation of the Ainu Culture Act and the Hokkaido Utari Welfare Measures.
89. H. Uemura, 'Nibutani Damu Hanketsu To Ainu Sinpo No Okina Kyori (Distance Between The 'Nibutani Dam Decision and the Ainu Culture Act)', 5:16 Shukan kinyobi (1997) p. 24;
90. H. Uemura, 'Nibutani Damu Hanketsu To Ainu Bunka Sinko Ho (The Nibutani Dam Decision And The Ainu Culture Act)', 636 Sekai (1997) p. 27.
91. H. Uemura, 'Nibutani Damu Hanketsu To Ainu Bunka Sinko Ho (The Nibutani Dam Decision And The Ainu Culture Act)', 636 Sekai (1997) p. 30.
92. Yamauchi, supra note 60, p. 162.
93. Kayano v. Hokkaido Expropriation Committee 27 March 1997 Sapporo District Court, 1598 Hanrei Jiho 33;
94. 938 Hanrei Times 75.
95. A private translation of the text of this adjudication, made by M. A. Levin, is available: M. A. Levin (trans.), 'Kayano v. Hokkaido Expropriation Committee (The Nibutani Dam Decision)', 38 International Legal Materials (1999) p. 394;
96. and online at: , 7 January 2004.
97. The Court stated, 'the greatest degree of consideration seems warranted'. Levin, ibid., p. 37.
98. Detailed analysis of this case was made in Levin, supra note 40.
99. The decision of the Nibutani Dam case, Japanese text - Section 2. Jian No Gaiyo (Case Overview); a private English translation made by Levin - B. Case Overview.
100. K. Fusagawa, 'Ainu Minzoku No "Shosu Senju Minzoku" Sei Ni Kansuru Kousatsu (Examination Of the "Minority Indigenous" Nature of the Ainu People)', 6 Hokudai Hogaku Kenkyu Ka Junia Risachi Janaru (1999) pp. 247-249. This article is a detailed description of both the pre-history and the adjudication of the Nibutani Dam case, written by one of attorneys of the plaintiffs.
101. H. Shiono, Gyosei Ho I; Dai Nihan (Administrative Law I; The Second Edition) (Yuhikaku, Tokyo, 1994) pp. 234-236.
102. Ibid., pp. 263-264.
103. Congress record (Sangiin Naikaku Iinkai Kaigiroku) 24 November 1994 (No. 7) the records of Mr, Kayano's speech at the Diet are available in Ainugo Ga Kokkai Ni Hibiku, supra note 2.
104. Academic works regarding the trust assets are rare. Some of the only available scholarship (at the time of writing) is listed here: K. Yoshida, 'Ainu Minzoku To Shoyuken, Kankyo Hogo, Tabunka Shugi (The Ainu People and Property, Environmental Protection, and Multiculturalism)', 1165 Jurisuto (1999) p. 96;
105. S. Yamada, 'Hokkaido Kyu Dojin Hogo Ho Niyoru Tokachi Ainu No Kyoyu Zaisan Kanri (The Management of The Trust Assets of the Tokachi Ainu People Through the Hokkaido Ex-Aborigines Protection Act)', 30 Hokkaido Kaitaku Kinenkan Kenkyu Kiyo (2002), p. 75.
106. Newspaper articles are useful references for materials on this case: 'Henkan Muko To Chiji Wo Teiso (Filing a Suit Claiming the Nullity of Return)', Hokkaido, 6 July 1999, p. 1;
107. S. Yasukawa, 'Do No Henkan Sagyo Ni Husinkan (Distrust towards the Return Procedure of Hokkaido)', Hokkaido, 6 July 1999, p. 31;
108. 'Ainu Minzoku No Hokori Kakeru (With Full Pride of Ainu)', Hokkaido, 19 October 1999, p. 25;
109. 'Ainu Go Majie Iken Chinjutsu (Pleading in Both Japanese and Ainu Language)', Hokkaido, 21 October 1999, p. 1;
110. 'Nihon Seihu Ha Shazai Wo (The Japanese government Should Apologize)', Hokkaido, 21 October 1999, p. 13;
111. 'Jissitsu Sinri Sezu Benron Shuketsu (Hearing Was Closed without Examining Merits)', Hokkaido, 1 February 2001, p. 13;
112. 'Benron Wo Saikai (Hearing was Restarted)', Hokkaido, 2 June 2001, p. 34;
113. '"Monzen Barai" No Kosan Dai (The Court is Likely to Turn Down the Suit)', Hokkaido, 23 October 2001, p. 13.
114. There are also reports written by the secretary general of an organization that supports this suit: N. Owaki, 'Kyoyu Zaisan Henkan Mondai No Honsitsu To Keika (Essence Of The Problems In The Return Procedure Of The Trust Assets And The Process Of This Procedure)' (1999) 51:6 Buraku p. 15, which has a useful list of the trust assets announced by the Prefecture to return;
115. N.Owaki, 'Ainu Bunka Sinko Ho To Ainu Minzoku Kyoyu Zaisan Saiban (The Ainu Culture Act And The Lawsuit Concerning The Ainu Trust Assets)', 621 Rekisi Chiri Kyoiku (2001) p. 84;
116. N. Owaki, 'Chisai Hanketsu To Korekara No Tatakai (The Adjudication Of The District Court and the Struggle To Be Made From Now On)', 54:6 Jinken To Buraku Mondai (2002) p. 53.
117. Ogawa et al. v. Governor of Hokkaido 7 March 2002, Sapporo District Court. This judgment can be found in , (Japanese) visited on 14 January 2004. Also see my English translation of this case in Appendix B.
118. Hokkaido Ex-Aborigines (Former Aborigines) Protection Act, supra note 41. In Japanese, "Kyu Dojin Hogo Ho". The purpose of this act was to improve the living standards of the Ainu people and contained measures for education, health care, etc. However, those measures were based on ignorance of the unique Ainu culture. Pursuant to this act, each Ainu was donated circa 5 ha. of agricultural land, but many of the Ainu people, who were not accustomed to agriculture, could not take advantage of the donated lands. It is also said that the lands given to the Ainu people were often infertile.
119. The trust assets held in trust under the Ex-Aborigines Protection Act were regarded as common properties of the Ainu people. In Japanese, these trust assets are called 'kyoyu zaisan' which means common properties.
120. Law No. 9 (1934). In Japanese, 'Asahikawa-Si Kyu Dojin Hogochi Shobun Ho'. In Asahikawa, the 1899 Ex-Aborigines Protection Act was not put into operation because of the tension between Ainu residing there and the government. (Disputes concerning lands occurred three times before World War II.) In 1934, the Asahikawa Ex-Aborigines Protection Land Disposition Act was established as a special law by virtue of the Ainu people's campaign. However, the land given under this Act was 99.2 hectares per family. This area was 1/5 of the area, which was donated to a family under the 1899 Ex-Aborigines Protection Act in other places. The remaining four-fifths was held in trust by the Prefecture. For more about this history, see Yoshida, supra note 77. Careless management of the trust assets having originally belonged to Ainu people, who lived in the Tokachi region, could be raised as another example. See Yamada, supra note 77.
121. Here, I raise the examples of the lands in Asahikawa: in 1949, approximately 85.3 ha of the trust lands was bought by the Prefecture and sold to wajin under the Owner-Farmer Establishment Law. This deal was reached with the consent of the parties. Yet it is said that what the government did amounted to an act akin to compulsory purchase. Some other parts of the trust land were donated as sites for public schools and roads. This also amounts to confiscation. Some lands were rented to a munitions factory during the War and purchased for the Forestry and Forest Products Research Institute by the Prefecture after the War. These were self-dealing, which has been prohibited by the Japanese Civil Law (see Article 108 of the Civil Law prohibiting a party of a contract from acting as an agent of the other party. It is supposed that those lands in trust were deemend as quasi-national estates so that the Prefecture could dispose of them, as it liked, without consulting the Ainu people. The Ainu Protection Act stipulated that trust assets are the common properties of Ainu people, but only the administrative property rights over these assets. For more about this history, see Yoshida, ibid. trust lands was bought by the Prefecture and sold to wajin under the Owner-Farmer Establishment Law. This deal was reached with the consent of the parties. Yet it is said that what the government did amounted to an act akin to compulsory purchase. Some other parts of the trust land were donated as sites for public schools and roads. This also amounts to confiscation. Some lands were rented to a munitions factory during the War and purchased for the Forestry and Forest Products Research Institute by the Prefecture after the War. These were self-dealing, which has been prohibited by the Japanese Civil Law (see Article 108 of the Civil Law prohibiting a party of a contract from acting as an agent of the other party. It is supposed that those lands in trust were deemend as quasi-national estates so that the Prefecture could dispose of them, as it liked, without consulting the Ainu people. The Ainu Protection Act stipulated that trust assets are the common properties of Ainu people, but only the administrative property rights over these assets. For more about this history, see Yoshida, ibid.
122. In Japanese, 'Hokkaido Kyu Dojin Kyoyu Zaisan To Shori Sinsa Iinkai'.
123. Decisions of the Prefecture are issued in the name of the Governor.
124. As described in infra note 92, the trust assets were stipulated as the common properties of plural Ainu person, entailing their joint/ collective ownership. Therefore, I frequently call an owner of a trust asset a co-owner.
125. The leader of the plaintiffs is Mr. Ryukichi Ogawa. The summary of the plaintiffs' complaint can be found, in Japanese, at , 7 January 2004.
126. The difference between declaratory affirmation of nullity of an administrative disposition and revocation of an administrative litigation is explained in infra note 101.
127. This case also involves a valuation question, although it is not clear in the plaintiffs' statement of claim. The plaintiffs complained that the published amount of the assets was calculated without taking post World War II inflation into account. They insist that if inflation was taken into account, the amount of the assets could be approximately 14 billion 5 hundred million yen: T. Hirata, 'Wajin Ni Iitai! (I Would Like to Say to Wajin!)' Interview with Ryukichi Ogawa, 5:16 Shukan Kinyobi (1997) p. 30.
128. For example, see supra note 82.
129. Article 13 of the Constitution guarantees a right to life, liberty and the pursuit of happiness. The jurisprudence in the Nibutani Dam Case confirmed that minority rights are included in this Article. See Levin, (Nibutani Dam case English translation) supra note 69, p. 27.
130. Ogawa et al. v. Governor of Hokkaido, supra note 78.
131. Under Japanese administrative law, an administrative disposition, the legality of which can be judged in an administrative litigation, is defined as an activity of the public authority creating a right or a duty for an individual or limiting the range of a certain individual's right. For an administrative disposition to be judged, usually it must have changed the content of a specified individual's duty or right. In the case of the trust assets, when the return procedure was set up it was not known to whom the assets should be returned. (The procedure itself did not specify by name to whom to return the assets). The identity of recipients remained undecided until the Prefecture's decisions (dispositions) were made vis-á-vis each individual who applied for the return. Consequently, the court considered that the return procedure itself was for unspecified people, and that the decisions (dispositions) made in accordance with this procedure were for specified persons.
132. Levin, (Nibutani Dam case English translation) supra note 69, p. 27.
133. Ibid., pp. 27-28.
134. S. Yasukawa, 'Do No Henkan Sagyo Ni Hushinkan (Distrust towards the Return Procedure of Hokkaido)', Hokkaido, 6 July 1999, p. 31;
135. Y. Sakamoto, 'Sin-rijicho Ni Akita-si (The New Chairman of the Board of Directors is Mr. Akita)', Tokachi, 7 August 2001, , 10 January 2004.
136. Hirata, supra note 88, p. 28.
137. Refer to Appendix C to see the contents of statutory provisions mentioned in this translation.
138. In Japanese, 'Zaidan hojin ainu bunka sinko kenkyu suisin kikko'.
139. In Japanese, 'Hokkaido kyu dojin kyoyu zaisan to shori sinsa iinkai'.
140. Interested-parties litigation (Tojisha-sosho): - Litigation, which is concerning an administrative disposition or an administrative judgment that confirms or forms legal relationship between interested parties, and in which either one of the interested parties becomes a defendant according to a law or an ordinance, OR. - Litigation, concerning legal relations under public/administrative law, but other than administrative complaint litigation, where a complaint is made against an exercise of public authority (See below).
141. Administrative complaint litigation (Kokoku-sosho): Litigation to complain about a certain exercise of public authority (power). This category of administrative litigation includes some different types of litigation. Two typical types are: (1) litigation in which a plaintiff claim's for repeal of a certain administrative disposition, and (2) litigation in a plaintiff claim's for declaration of nullity of a certain administrative disposition. The latter is a form of litigation more advantageous to a plaintiff with respect to burden of proof, statute of limitations, effect of a judgment. Especially, the latter is not subject to statute of limitations. However, the range of a plaintiff's standing in the latter litigation is narrower. If a plaintiff can accomplish his/her purpose by bringing a lawsuit concerning a present legal relationship (i.e. civil litigation or interested-parties litigation that judges a present legal relationship between a plaintiff and a defendant (e.g. which party has a ownership to a certain land, which was confiscated by the government from the plaintiff and sold to the defendant.)), presupposing invalidity of an administrative disposition that affected the plaintiff.), he/she cannot use the latter litigation. On the other hand, in the former litigation, a plaintiff can select either a lawsuit demanding for repeal of an administrative disposition or civil or interested-parties litigation.