Introduction: a brief history of the Hokkaido Ainu
Since the annexation of Hokkaido by Japan, the Ainu have been deprived of their land, culture and language under the process of colonisation. They were also displaced inside and outside Hokkaido by Japan's imperial policy to develop Hokkaido by Japanese immigrants. Those Ainu who lived in Sakhalin and the northern Kuril Islands were forcibly relocated to Hokkaido under the Treaty of St. Petersburg in 1875 under which Japan gained the latter but lost the former. Some of these Ainu returned to Sakhalin under the provisions of the Treaty of Portsmouth in 1905 after the Russo-Japanese War. As part of its colonial settlement policy, Japan annexed Hokkaido in 1872 and claimed it as terra nullius, limited the ability of Ainu to sustain their livelihood traditionally, and coerced the Ainu into agricultural production (Larson Reference Larson, Johnson and Murphy2008: 57). It was the notorious Hokkaido Former Aborigines Protection Act of 1899 that supplied the impoverished Ainu under the colonial rule with a small portion of land to force them to help develop Hokkaido as Japanese farmers. After World War II, almost all of the Ainu in Sakhalin and the Kuril Islands were expelled to Hokkaido by the USSR. According to the Japanese statistical data, the Ainu population has been stable from the late 19th century to 1960 at around 17,000 (Yoshida Reference Yoshida1989:293).
Ancient history shows the influence of southern cultures on Hokkaido, whereas the northern Ainu territories in Sakhalin and the Kuriles have a prehistory closely linked to the Amur River region, Siberia, and Kamchatka both of which are in the sub-Arctic region. The northern resources (especially salmon, sea mammals and bears), the north Pacific environments and other north Pacific cultures have had a strong influence on the foundation of Ainu culture (Kikuchi Reference Kikuchi, Fitzhugh and Dubreuil1999: 47). The Ainu people, however, are now isolated from their northern territories. Much has recently been published, in this journal and others, concerning the situation of indigenous peoples in the Arctic and sub–Arctic. This note is intended to provide an outline statement of the situation of the Ainu, a sub–Arctic people, in Japan, for comparison with those studies.
The Ainu Association of Hokkaido in the post-war period – seeking equality
In 1946, months after World War II, the Ainu Association of Hokkaido was established as the only incorporated association to represent Ainu people in that island. It had three goals (Kaizawa Reference Kaizawa2010: 91–93). The first was to retain the lands given to them under the post-war Agricultural Land Act even if those lands were not being cultivated. Some of the land given to them was not capable of being cultivated by the Ainu and the authorities wanted that land returned. The second was to attain the return to the Ainu of expropriated land in Niikappu, that the government had taken for the establishment of an imperial farm for the Emperor. The imperial farm was developed for the raising of military horses on the land hitherto cultivated by Ainu. The third was to reestablish control of land promised to the Ainu in Asahikawa; land that was later set aside for use by the military prior to WWII. In order to realise those claims, the Ainu Association of Hokkaido went to the Hokkaido Prefectural Government, the headquarters of the US Forces, the Imperial Household Agency and the Department of Agriculture and Forestry to appeal for the restoration of their rights. However, those campaigns bore no fruit with the exception that some Ainu successfully returned to their lands in Niikappu (Kaizawa Reference Kaizawa2010: 105–106).
In 1960 the Ainu Association pledged the unity of the Ainu again in an attempt to improve social services as well as living standards and to promote education (Kaizawa Reference Kaizawa2010: 106). From 1974 the Hokkaido Prefectural Government formed a policy package named Hokkaido Utari Welfare Measures to improve the social welfare and education of Ainu and to promote their culture. In other words, ‘The Utari Taisaku’ [‘Ainu policy’] represented the state's response to the ‘Ainu problem’ by attempting to manage it through the structures of what Beckett terms ‘welfare colonialism’ (Siddle Reference Siddle1996: 169). However, the 1970s saw Ainu self-perceptions changing as the executives of the Ainu Association, namely Nomura Giichi and Kaizawa Tadashi, had travelled and encountered indigenous peoples in other nation-states who enjoyed certain levels of autonomy under specific minority policies (Siddle Reference Siddle1996: 182). Kaizawa describes this in his writings as follows. In order to raise the low living and educational conditions of the Ainu to the norms of the other Japanese, we came to a conclusion that the revitalization of Ainu language and culture would be the source of emotional support to the Ainu (Kaizawa Reference Kaizawa2010: 107).
On 27 May 1984 an original draft ‘New Ainu Law’ to replace the Hokkaido Former Aborigines Protection Act was adopted unanimously by the General Assembly of the Ainu Association. The preamble of the draft begins with an appeal for official recognition of Ainu's indigenousness, respect for their ethnic pride and protection of their collective rights under the Constitution of Japan. The main text includes the following six objectives: firstly, eradication of discrimination against the Ainu to protect their human rights; secondly, affirmative allocation of parliamentary seats for the Ainu to reflect their voices on local and national governments; thirdly, adoption of comprehensive measures for the education and research of the Ainu such as the systematic introduction of Ainu language, the establishment of academic units of Ainu language, culture and history with Ainu professors in higher education, and participation of Ainu researchers in Ainu studies; fourthly, establishment of countermeasures to promote self-reliance amongst the Ainu engaging in agriculture, fisheries, forestry and commerce and industry; fifthly, the creation of self-management-based funds for the self-reliance of the Ainu instead of the existing social welfare measures; and lastly, inauguration of local and national organs of consultation in relation to the Ainu.
The enactment of the so-called ‘New Ainu Law’
In May 1997 the New Ainu Law replaced the Hokkaido Former Aborigines Protection Act on the basis of a1996 report by the High-Level Panel of Experts on Ainu Policy. The main proposals of the report included the promotion of comprehensive and practical research, advancement of Ainu culture and language, revitalisation of traditional living space called Iwor and promotion of Japanese understanding of Ainu persons and culture. One of the problems with the New Ainu Law is that ‘culture’ is limited to cultural products such as music, dance and handicraft by Article 2. More seriously, the law does not recognise any indigenous rights of the Ainu, though the aforementioned report reluctantly recognised the Ainu as an ethnic minority in Japan and original inhabitants of Hokkaido. This was not unexpected based on the fact that the Japanese Government had denied the existence of minorities within its borders to the UN in its 1980 report to the Human Rights Committee, and yet admitted the presence of Ainu persons (as individuals but not as members of an ethnic group) in its next report in 1987 (Siddle Reference Siddle1996: 185). In addition, no Ainu were designated as members of the panel of experts.
The Japanese Society of Cultural Anthropology expressed its approval of the report. Tsunemoto Teruki (Reference Tsunemoto2010: 215–217), who has made a great contribution to Ainu policy as a legal scholar since the 1980s, defends the New Ainu Law mainly on the following grounds. On the one hand, it stops short of a discussion of indigenous rights but on the other, it frees the people concerned from discussing how the Ainu are identified and what organisation should take responsibility for the exercising of rights. It is also successful in promoting Ainu culture and disseminating information about it. However, ‘the Foundation for Research and Promotion of Ainu Culture, which is in charge of implementing the law, organizes classes to teach the Ainu language, but does not plan to create a specific writing [proposition] to prevent the Ainu language from disappearing’ (Diene Reference Diene2006: 9). Further, Kano Oki, a well-known musician who uses traditional Ainu instruments, ‘strongly criticised the CPA (synonym for the New Ainu Law) at the United Nations Working Group on Indigenous Populations for not providing, “an opportunity for us to decide, for ourselves, in what manner we will promote our own culture. It is a law for the Japanese government to co-opt, limit and control Ainu culture”’ (IWGIA 2003: 220).
Against this background, and in addition to Japan's ratification of the International Convention on the Elimination of All Forms of Racial Discrimination in 1995 (IWGIA 2001: 329), the Ainu Association of Hokkaido ‘were stimulated by the increasing involvement of Japanese civil groups in human rights activities of the United Nations to take their case to international bodies. . .Within the UN Centre for Human Rights, the Ainu are regarded as the indigenous people of Japan’ (Siddle Reference Siddle1996: 185–186). This was the case in the early 1990s when Japan did not recognise the Ainu as indigenous people. Nomura Giichi, who had served as the executive director of the Ainu Association of Hokkaido for 32 years from 1964 to 1996, answered in an interview that the Ainu claim independence of the authorities, and the establishment of indigenous policy for the Ainu instead of the existing social welfare-based Ainu policy (Web-magazine Kamui Mintara 1990). In other words, the Ainu have an intense desire for indigenous rights in order to revitalise their culture and language and to protect their human rights in accordance with international laws.
UN special rapporteur Doudou Diene (Reference Diene2006: 13–14) also reports on the New Ainu Law as follows. The 1997 law is not considered to be sufficient since it is only on the promotion of culture. The Ainu want to see included in this law the recognition of their status as indigenous peoples, the promotion of their indigenous rights in conformity with international law, and the fight against the discrimination they face. However, the Government has not acceded to this request. . . .They are among the few indigenous peoples in the world who have no land recognised as their indigenous land.
Diene (Reference Diene2006: 22), therefore, urges the Japanese Government to recognise the Ainu as indigenous people. Under the New Ainu Law ‘the protection of Ainu culture is for the good of Japanese society as a whole, “to realize a society in which the ethnic pride of the Ainu people is respected and to contribute to the development of diverse cultures in our country” (Article 1)’ (Siddle Reference Siddle2003: 457).
It was in March 1997 that the Ainu were, for the first time in Japanese history, recognised as indigenous to the northern part of Japan, in particular Hokkaido, by the Sapporo District Court on the Nibutani Dam Case and their right to culture was recognised. This case concerned the benefits of flood control by the dam as against Ainu rights (Maruyama Reference Maruyama2012: 72–73). The defendants including the Japanese Government did not appeal to a higher court because the decision admitted the completion of the Nibutani Dam, located in the Iburi Subprefecrure in Hokkaido (Fig. 1) as a fait accompli. Kaizawa Koichii, who carried on his deceased father Tadashi's will to continue fighting in court against the authorities as one of the two Ainu plaintiffs, was filled with warm emotion on hearing the decision that the Ainu fall under the definition of indigenous people (Kaizawa Reference Kaizawa, Kayano and Tanaka1999: 31). Thus the decision by the Sapporo District Court was confirmed. In the case of indigenous peoples, their human rights are protected by the guarantee of collective rights such as the right to self-determination, land, culture and language because their identity and life are closely associated with those collective rights. The Constitution of Japan has individualism and liberalism at its core. However, ‘the Japanese court in the Nibutani Dam Case was able to view individual rights and collective rights as not being mutually exclusive’ (Porter Reference Porter2008: 210).
Map of the population distribution of the Ainu in Hokkaido, courtesy of the Ainu Association of Hokkaido.
It is evident that the New Ainu Law is much weaker than the decision in the Nibutani Dam Case let alone the original draft by the Ainu themselves in terms of indigenous rights. The Japanese Government is fundamentally to be blamed for this, but the court is also reluctant to promote the indigenous rights of the Ainu. In the wake of the 1997 court's decision on the Nibutani Dam Case, there have been two cases on Ainu issues that represent the court's reluctance to move forward.
The Ainu Communal Property Litigation was commenced by 24 Ainu plaintiffs in May 1999, and challenged the legality of the procedure to return Ainu communal property managed by the Hokkaido Governor under the Hokkaido Former Aborigines Protection Act (Stevens Reference Stevens2008: 144). The decision of the Sapporo District Court was upheld by the Sapporo High Court in May 2004 and by the Supreme Court in March 2006. The Ainu group defamation case ‘was brought against Kono Motomichi, cultural anthropologist, based on provisions of the International Convention on the Elimination of Racial Discrimination to support their argument that medical documents reproduced in Kono's Collection of Ainu Historical Documents series slandered the Ainu people as a group and the plaintiffs as individuals’ (Stevens Reference Stevens2008: 148). Although having made a final appeal, the four Ainu plaintiffs lost the case, in reaching these decisions, the courts chose neither to rely upon the recent international developments in indigenous rights or the international conventions nor to build on the jurisprudence of the Nibutani Dam decision (Stevens Reference Stevens2008: 151). Instead, they stayed within the bounds of exisiting domestic legal precedents, using them to dispose of the Ainu plaintiffs’ claims without engaging with jurisprudence on indigenous rights (Stevens Reference Stevens2008: 151–152).
Japan's recognition of the Ainu as indigenous people
In September 2007 the Japanese Government voted in favour of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) with an overwhelming majority of states at the General Assembly of the United Nations. Following the adoption of the UNDRIP, the Ainu organizations, including the Ainu Association of Hokkaido, petitioned the Japanese Diet to implement the Declaration domestically (IWGIA 2009: 280). In June 2008 the Japanese Government finally recognised the Ainu as indigenous to the northern part of the Japanese archipelago, especially Hokkaido, in support of the unanimous resolution to designate the Ainu an indigenous people by both Houses of the Diet. Further, it declared it would make efforts to facilitate existing Ainu policy and implement comprehensive measures with reference to the relevant provisions of the UNDRIP. It should be noted, however, that while acknowledging Ainu minority status under Article 27 of the ICCPR [International Covenant on Civic and Political Rights] the government strategically continued to refer to Ainu no hitobito, or [Ainu persons], rather than Ainu Minzoku [the Ainu people], in Japanese translations of their third and fourth periodic [report] under the ICCPR reports (Stevens Reference Stevens2008: 156).
In fact, ‘in the first vote of 2006, which took place in the Human Rights Council, the representative from Japan stood firm with the same point of view that was presented eleven years earlier, asserting collective rights could not be recognized within Japan’ (Porter Reference Porter2008: 206). Before the aforementioned resolution, ‘the Ministry of Land and Infrastructure indicated that the Japanese Constitution guarantees equality before the law of each Japanese. Therefore, the demands of the Ainu people to get recognition of the rights as indigenous peoples cannot be satisfied, as this would be in breach of the Constitution’ (Diene Reference Diene2006: 9). Even after the resolution had been adopted, the Japanese Government ‘expressed the view that the current situation prevented a conclusion as to whether the term “indigenous peoples” used in the Diet resolution was synonymous with “indigenous peoples” under UNDRIP because the UNDRIP lacked a defining clause’ (IWGIA 2009: 281). As far as the definition is concerned, through many years of debate at the Working Group on Indigenous Populations, ‘in 1997, the Working Group concluded that a definition of indigenous peoples at the global level was not possible at that time, and this did not prove necessary for the adoption of the Declaration on the Rights of Indigenous Peoples. Instead of offering a definition, Article 33 of the United Nations Declaration on the Rights of Indigenous Peoples underlines the importance of self-identification’ (UN 2009: 5).
In July 2009 a report was issued by the Advisory Council for Future Ainu Policy that was expected to draw up a blueprint for the future Ainu policy of the Japanese Government. It differs little from the 1996 report by the High-Level Panel of Experts on Ainu Policy as the Japanese Government said earlier that it would enhance the Ainu policy taken so far. The biggest difference between the two reports is that the 2009 report explicitly regards the Ainu as an indigenous people from the northern part of the Japanese archipelago especially Hokkaido, while the 1996 report merely reaffirmed the historical facts of the Ainu and yet did not link the cultural promotion measures with the indigenousness of the Ainu. In terms of granting political rights to Ainu, the 2009 report mentions briefly in its last paragraph that this issue should be studied ‘prudently’ as mid- and long-term policy issues (Bukh Reference Bukh2010: 50). In other words, it defers a decision to enact a law directed at the indigenous rights of the Ainu. The 2009 report also adheres to the Constitution of Japan rather than the UNDRIP as well as the voices of the Ainu. Tellingly, the Advisory Council was made up of eight members of whom only one was Ainu from the Ainu Association of Hokkaido.
In December 2009 the Council for Ainu Policy Promotion, hosted by the Chief Cabinet Secretary, started on the basis of the report of the Advisory Council for Future Ainu Policy. In order to work effectively on the realisation of the recommendations of the Advisory Council, the members were divided into two working groups: one for the symbolic space for ethnic harmony and another for research on living conditions of Ainu people outside Hokkaido. The Ainu are still in the minority at these meetings because only five out of the fourteen members are Ainu. In addition, the symbolic space for ethnic harmony includes Iwor. It can be argued that ‘the concept of Iwor helped to overcome administrative and legal red tape that restricted Ainu access to natural resources necessary for traditional practices and arts. Both hunting and inland salmon catching, for example, were regulated by license systems, with some limited provision of exceptional one-off permits for traditional deer-hunting or ceremonial salmon-harvesting by people of Ainu descent’ (Stevens Reference Stevens2008: 138–139).
According to the latest survey of the actual conditions of life for the Ainu in Hokkaido by the Hokkaido Prefectural Government (2006), the Ainu population of Hokkaido is conservatively estimated at 23,782 due to self-identification (Fig. 1). No national-level survey of them has been carried out yet, although the Committee on the Elimination of Racial Discrimination urges the Japanese Government to do so. The rate of the Ainu households that go on welfare is 1.6 times higher than that of the other Japanese in Hokkaido. The rate of the Ainu children who go on to university is nearly half of that of Japanese children. Furthermore, one in five Ainu have directly experienced being discriminated against for their ethnicity.
Conclusion
The Japanese Government should immediately accept all of the latest recommendations by the Human Rights Committee (2008: 10): to recognise Ainu as indigenous people in domestic legislation, to adopt special measures to protect, preserve, and promote their cultural heritage and traditional way of life, to recognise their land rights, to provide adequate opportunities for Ainu children to receive instruction in, or of, their language and about their culture and to include education on Ainu culture and history in the regular curriculum. The Japanese Government also should fully abide by the latest recommendations of the Committee on the Elimination of Racial Discrimination (2010: 6): to take further steps in conjunction with Ainu representatives to translate consultations into policies and programmes with clear and targeted action plans that address Ainu rights and that participation of Ainu representatives should be increased, to consider in consultation with Ainu representatives the establishment of a third working group with the purpose of examining and implementing international commitments such as the UNDRIP, and to consider ratifying the ILO convention No. 169 under which the state should guarantee the collective rights of indigenous peoples, including the Ainu, over their traditions, cultures, languages and identities etc.
