Introduction: Why has the Japanese Government not recognised Ainu indigenous rights?
This commentary critically reviews Hiroshi Maruyama's article ‘Japan's post-war Ainu policy: why the Japanese Government has not recognised Ainu indigenous rights?’ (Maruyama Reference Maruyama2013a), recently published in this journal and referring to his other two articles (Maruyama Reference Maruyama2012, Reference Maruyama2013b). It is a pleasure to see several articles on the subject in English. This article will be especially beneficial for those who are interested in the Ainu but who do not read Japanese. Also, I believe that his article, as well as my contribution, might help in serving to inform scholars elsewhere concerning the Ainu situation, and the current debate on it, and to assist in comparative studies concerning Arctic and sub–Arctic peoples. Even though Maruyama's article was published as a note, not as an original research article, it would have been appreciated more if it had been constructed with a greater logical organisation. As it is presented, I am wary that his article might cause misunderstanding and confusion about Japan's Ainu policies. In particular, while the title of Maruyama's article asks an important question, the reader is left to wonder about the answer. This is perhaps because he discusses several ways in which ‘the Japanese government has not recognised Ainu indigenous rights’, but does not satisfactorily explain the reasons. Consequently, he blames the national government for lacking strong leadership to enact a new Ainu law that would guarantee these rights. At times, his discussion gives the impression that legislating indigenous rights will solve all indigenous issues. From my perspective, his approaches to indigenous policies are often seen as either black or white (if a law recognises indigenous rights, it is a utopia, and without a law, it is hell for indigenous peoples). In the case of indigenous rights, however, many grey areas exist. Furthermore, in regards to the Ainu indigenous rights, one must consider the Japanese legal, political, and social contexts and examine how the UNDRIP articles can be realised in those contexts. In the annex of the UNDRIP (2007: 4) the country's context is specifically mentioned:
The situation of indigenous peoples varies from region to region and from country to country and that the significance of national and regional particularities and various historical and cultural backgrounds should be taken into consideration.
Maruyama's article, however, tends to lack this perspective.
Can UNDRIP be realised in the Japanese context?
What then are the Japanese legal, political, and social contexts that need to be considered to discuss indigenous rights? To begin, the Japanese constitution, article 98 states:
This Constitution shall be the supreme law of the nation and no law, ordinance, imperial rescript 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.
Generally, the Japanese constitution is considered to be superior to international law, as well as United Nations declarations. Thus, when international law disagrees with the constitution, the constitution will be observed.
Constitution article 14 states that all of the people are equal under the law. Indigenous rights are considered to privilege a particular group of people, which is against article 14. In addition, the constitution itself does not assume the existence of ethnic minority groups in Japan.
Furthermore, as Maruyama identifies, the fundamental philosophy of the constitution is to guarantee individual rights, and it does not always agree with the recognition of collective rights. Even if individual and collective rights are not mutually exclusive under the Japanese constitution, as implied by the decision of the Nibutani Dam lawsuit (Levine Reference Levin2001; Porter Reference Porter2008), an important issue must be addressed. Currently, the Ainu have no legal power or special political status as an indigenous people of Japan. They are merely Japanese citizens. The Ainu also do not have an institution of representation (the Ainu Association of Hokkaido is the largest Ainu organisation, but membership is voluntary and less than half of the total Ainu population are members). The district of Nibutani, which is mentioned in the Nibutani Dam lawsuit, is a district in the town of Biratori, Hidaka subprefecture (it is not located in Iburi subprefecture as Maruyama states). Although most of the Nibutani residents are of Ainu ethnicity, they do not have any authority to limit access to outsiders or to ensure that land and resources are specifically used for the Ainu. Nibutani is not a reservation governed by an indigenous organisation. The local government of Biratori is responsible for offering services equally to all residents, regardless of their ethnicity. Under such circumstances, who will hold the collective indigenous rights? Although Maruyama (Reference Maruyama2012: 79) argues that the society should work with Koichi Kaizawa, who was one of the plaintiffs in the Nibutani Dam lawsuit and who is now leading a national trust movement to plant trees, he is not a representative of the Ainu, nor even a representative of the Nibutani Ainu. These points demonstrate that the ratification of UNDRIP does not suggest any immediate realisation of Ainu indigenous rights. Policy planners must first address all of the issues.
Some resolutions for the issues have been suggested. For example, as discussed later, Tsunemoto (Reference Tsunemoto2011) suggests a resolution to the conflict between prioritising indigenous people and Constitution article 14 for the equal treatment of all people. Uemura (Reference Uemura2009) argued that UNDRIP is equivalent to an established law of nations, which shall be faithfully observed, as stated in Constitution article 98. Ichikawa's (Reference Ichikawa2013) statement in the Ainu human remains lawsuit can serve as a strong foundation for Ainu collective rights.
Challenges to the enactment of a new Ainu law
After the formal recognition of the Ainu as an indigenous people of Japan in June 2008, the Chief Cabinet Secretary organised the Advisory Council for Future Ainu Policy (ACFAP). Nevertheless, it did not move forward to enact a new Ainu law to guarantee indigenous rights. An examination of the politics behind the enactment of the Ainu Culture Promotion Act of 1997 may reveal the reasons for the ACFAP's inertia.
The draft of the Ainu New Law, adopted by the Ainu Association of Hokkaido in 1984, included guaranteed political participation, and economic benefits in the form of a self-reliance fund based on the principle of compensation for historical dispossession, which would be administrated by Ainu themselves. The Ainu Culture Promotion Act, however, explicitly rejected the concept of indigenous rights, ‘leaving only the thinnest crescent of cultural promotion and dissemination of information about the Ainu to [the Japanese]’ (Levin Reference Levin2001: 467). The Act was criticised by specialists and Ainu activists.
Shigeru Kayano, who was the first Ainu member of the Diet and contributed to the act, states his struggle at the time. Indeed, Kayano and the Ainu Association of Hokkaido were dissatisfied with the draft of the Act but Kayano also heard several politicians implying that the Ainu Culture Promotion Act would be withdrawn if the Ainu did not acknowledge the draft. Considering the circumstances, he accepted it as a first step towards the future, and the issues of indigenousness were formed as a supplementary resolution (Kayano Reference Kayano1998: 167–168).
Tsunemoto and Yoshikawa provide informative perspectives. The act was created for a minority group, and under democracy, the majority generally has the right to make decisions, suggesting that the legal guarantee of minority rights would rely on the majority. The act excluded the concept of indigenous rights and focused only on cultural aspects to win the majority's sympathy, understanding, and consensus (statement of Tsunemoto, in Kayano Reference Kayano1997: 157–158; statement of Kazuhiro Yoshikawa, in Kayano Reference Kayano1998: 150). The lack of understanding of Ainu issues among the general public (and politicians, in particular) is serious and the situation has not significantly changed over the past three decades. The Japanese population is generally ignorant about ethnic minority groups, and many are unaware of the existence of some groups. This is the result of a lack of education, only minor differences in the facial appearance of the ethnic Japanese and other ethnic minorities, the highly Japanised lifestyle of ethnic minorities, and the small populations of ethnic groups (more than 98% of Japan's population is of Japanese ethnicity).
After formal recognition in 2008, several nationalist politicians, writers, and cartoonists have attacked the Ainu for their ‘deceptive Indigeneity’ and for the ‘privileges’ they enjoy, including welfare policies for enhancing their quality of life by the Hokkaido Prefectural Government (for example Kobayashi Reference Kobayashi2009; Matoba Reference Matoba2009). Some argue that the ‘ethnic Ainu’ people do not exist, because the contemporary Ainu do not live as they used to. At the same time, they ignore the history of colonisation and the fact that even the contemporary ethnic Japanese do not live as they used to. For the enactment of a new Ainu law, the Ainu must have the support of the majority of Japanese citizens; however, this is a difficult feat in the current intolerant environment that sides against ethnic minorities. Many Ainu simply conceal their ethnicity, even to their family members, for fear of discrimination (Onai Reference Onai and Onai2010). An Ainu activist stated that it was difficult to find support for their activities from those who do not ‘come out’ (statement of Hideo Akibe, in a panel discussion, Ainu Association of Hokkaido memorial event on the International Day of the World's Indigenous People, Sapporo, 6 August 2011). In the 2008 Hokkaido Ainu Living Conditions Survey, a gap was found between activists and other individuals in their ethnic identity and general interest in Ainu issues (Onai Reference Onai and Onai2010). The activists who are requesting the enactment of a new Ainu law do not always represent those who tend to conceal their ethnicity and live as mainstream Japanese citizens. Can one really require the Ainu to ‘further their presence on the international stage’ to ‘attain levels of equality’ like other indigenous peoples? (Maruyama Reference Maruyama2013b, 84)
Realising indigenous rights in the Japanese context
The ACFAP has searched for the foundation of new Ainu policies in the existing legal framework. Tsunemoto, a member of the ACFAP, maintains that the legal base of the new Ainu policies is provided in Constitution article 13, which states:
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.
If an individual chooses to live as an Ainu, that choice should be respected and the national government must assume responsibility for providing a social environment to protect the choice. Former ‘inappropriate’ assimilation policies by the national government have caused difficulties for the Ainu to live as they were, and the Ainu were forced to become an ethnic minority without their consent. The socioeconomic hardships of the contemporary Ainu are derived from these historical factors. Under such circumstances, the national government must assume responsibility for recovering the dignity of the Ainu and for restoring their previous social prosperity (ACAFP 2009: 22; Tsunemoto Reference Tsunemoto2011: 46–48). Therefore, the new Ainu policies will be implemented not to recognise special rights of the Ainu but to fill the gap between the Ainu and other Japanese citizens that had been caused by the previous government's policies. The ‘reasonable’ distinction between the Ainu and other Japanese citizens is recognised in article 14, in its aim for the equal treatment of all individuals under the law (Tsunemoto Reference Tsunemoto2011: 50).
According to such philosophies, some UNDRIP articles may be realised in the Japanese context. In 2010, the national government conducted a nation-wide survey on the socioeconomic status of the Ainu to identify necessary welfare measures, including scholarships, life and employment consultations, and life protection funds. These policies are considered as the realisation of UNDRIP articles 20 and 21. Also, the ACFAP has discussed and polished a plan to establish a park, called the Symbolic Space for Ethnic Harmony (ACFAP 2009: 26–7), which will realise articles 11, 12, 13, and 14. Furthermore, the Cultural Impact Assessment project for the Biratori Dam construction, which is funded by the national government and developed in the town of Biratori, can be considered as the realisation of articles 28, 29, 31, and 32 (Nakamura Reference Nakamura2013).
Some slow progress has been seen in implementing new Ainu policies since the ratification of UNDRIP in 2007. Without constant pressures from activists, the government might not have even ratified UNDRIP and the awareness among the general public on Ainu issues would have been lower. In regards to the Biratori Dam construction, Kaizawa correctly states that tree planting would be more efficient for flood control and more environmental-friendly than constructing a dam. Furthermore, unlike the case-by-case policies and projects, the enactment of a new Ainu law will establish the strong framework of the government's responsibility (Uemura Reference Uemura2009). Nevertheless, all of the above-mentioned policies and projects can be realised without the enactment of a new Ainu law, and some Ainu have benefited or will benefit from the policies. Thus, the existing legal framework can make some progress for indigenous rights. In addition, the Ainu do not need to have a consensus.
The enactment of a new Ainu law is not the only way to guarantee their indigenous rights. Certainly, a grey zone exists between the realisation of indigenous rights and the enactment of an indigenous law. In the post-war era, indigenous legal issues have not been widely discussed and Japanese citizens have also lacked a meaningful co-existence with such peoples (Uemura Reference Uemura2009; Tsunemoto Reference Tsunemoto2011). The government needs to assume its responsibility to educate the general public and promptly implement Ainu policies. Consequently, the policy planners and the general public would benefit from making constructive and practical suggestions, rather than to further one-sided critiques.
