1. RECOGNITION OF LAND RIGHTS / TITLE
|Recognition of Land Rights/ Title Scores|
- The Ainu are among the few indigenous peoples in the world who have no land recognized as their indigenous land (UN 2006c).
- After the Meiji Restoration of 1868, Ainu land was appropriated as terra nullius, under the Land Regulation Ordinance, 1872.
- Under the Hokkaido Former Aborigines Protection Act of 1899, individual Ainu were granted parcels of land with the stipulation that it be used solely for farming, but the governor of Hokkaido maintained administrative authority over this property (Larson, Johnson and Murphy 2008, 57).
- After the adoption of the UN Declaration on the Rights of Indigenous Peoples (UN DRIP), Japan stated that it viewed indigenous rights to land and resources as restricted within due reason in light of harmonization with third party rights and other public interests (UN 2007b). This is in spite of Article 26 of the UN DRIP that affirms the right of indigenous peoples to the lands and territories which they have traditionally owned or occupied.
- The 1997 legislation on Ainu cultural promotion [Ainu Shinpo (Culture Promotion Law)] does not explicitly detail Ainu land rights or title. At the time of drafting this legislation, the Japanese government stated that the Ainu are only indigenous to Japan's "inalienable land" (Siddle 2002, 408). However, a supplementary provision (Art. 3.1) stipulates that the Governor of Hokkaido "shall control the communal properties of the indigenous people of Hokkaido " until the Communal Properties are restored to its owners."
- Since 1997, some communal property has been returned to the Ainu (Stevens 2008).
2. RECOGNITION OF SELF-GOVERNMENT RIGHTS
|Recognition of Self-government Scores|
- The Japanese government has been consistently dismissive of any talk regarding Ainu self-government. In the preliminary discussions on the Ainu Culture Promotion Law, the Japanese government refused to entertain the Ainu's calls for provisions in the new legislation that would entail self-government (Porter 2008).
- Speaking after the adoption of the text of the UN Declaration on the Rights of Indigenous Peoples, the Japanese representative clarified that the right of self-determination did not give indigenous peoples the right to be separate and independent from their countries of residence, and that this right should not be invoked for the purpose of impairing sovereignty of a state, its national and political unity, or territorial integrity (UN 2007b).
3. UPHOLDING HISTORIC TREATIES AND / OR SIGNING NEW TREATIES
|Upholding Treaties Scores|
- The Ainu have never entered into a consensual juridical relationship with either Japan or any other state (Holland 2009, 87; see also Stevens 2008).
4. RECOGNITION OF CULTURAL RIGHTS (LANGUAGE, HUNTING / FISHING, RELIGION)
|Recognition of Cultural Rights Scores|
- The Culture Promotion Law makes no mention of fishing and hunting rights and other activities that may be part of the Ainu culture despite the Ainu Association's own Proposed Legislation (Stevens 2001, 130).
- The Culture Promotion Law does not, in fact, stipulate cultural rights. Rather, the act concerns itself with the need to promote Ainu culture defined as "Ainu language and cultural properties such as music, dance, crafts, and other cultural properties which have been inherited by the Ainu people, and other cultural properties developed from these."
- According to the UN, the Ainu are still greatly restricted in their freedom to fish salmon, their ancestral traditional food. Ainu fishing is limited and under the authorization of the Japanese government (UN 2006c). As well, the Hokkaido governor regulates the Ainu traditional hunting (Stevens 2008, 139).
- The Ainu Policy Promotion Act of 2019 sets aside funds for cultural revival. The government was scheduled to open Upopoy, also known as the “Symbolic Space for Ethnic Harmony,” in May 2020 (*the opening appears to have been delayed due to the global pandemic). Upopoy will be the national center for the revival and development of the Ainu culture, and houses the National Ainu Museum and the National Ainu Park.
- The 2019 Policy also includes special provisions to protect and promote Ainu culture, moving to provide for the establishment of measures concerning harvesting of forest products from state-owned forests and freshwater salmon fishing (Articles 16 and 17). However details of implementation are as yet limited (Tsunemoto 2019).
5. RECOGNITION OF CUSTOMARY LAW
|Recognition of Customary Law Scores|
- The situation of the Ainu practice of customary law has been severely eroded. Years of intense assimilationist policies have forced the Ainu to give up their distinct legal system (Roy 2005, 11).
- The Ainu Policy Promotion Act of 2019 does not include any specific language regarding the recognition of Ainu customary laws.
6. GUARANTEES OF REPRESENTATION/CONSULTATION IN THE CENTRAL GOVERNMENT
Partial, but very limited.
|Guarantees of Representation Scores|
- There is no domestic legislative or policy base that stipulates any requirement on the part of the Japanese government to consult the Ainu.
- Despite the 1997 decision in Kayano et al v. Hokkaido Expropriation Committee, where the Sapporo Court recognized the need for government bodies to involve minority groups in decision-making processes where the outcome has a considerable impact on their cultural practices, there is no obligation to even consider Ainu culture where Hokkaido development projects may have an impact (Stevens 2001, 125, 129).
- The Council for Ainu Policy Promotion, established in 2009, has a mandate to promote Ainu policy and cultural promotion. As a policy group engaged on issues related to the Ainu people, it has procedures in place to consult with and engage the Ainu in developing recommendations. The Council itself is comprised of 14 members, of which five are Ainu representatives (other members include academics working on Ainu culture and human rights, as well as leaders of local and national government).
7. CONSTITUTIONAL OR LEGISLATIVE AFFIRMATION OF THE DISTINCT STATUS OF INDIGENOUS PEOPLES
|Affirmation of Distinct Status Scores|
- The first acknowledgement of the Ainu as a distinct and indigenous people occurred in 1997 with a decision by the Sapporo District Court. In Kayano et al v. Hokkaido Expropriation Committee (the Nibutani Dam case), the court ruled that the Japanese government had illegally taken Ainu land to build a dam and failed to consider "the unique culture of the indigenous Ainu minority."
- After the Nibutani Dam ruling, the Japanese government repealed the Hokkaido Former Aborigines Protection Act of 1899, a statute that renounced the indigenous status of the Ainu and implemented measures for the assimilation of the Ainu; this legislation was replaced by the Ainu Shinpo (Culture Promotion Law) on 1 July 1997.
- On June 6, 2008, the upper and lower houses of the Japanese Diet unanimously passed a resolution urging the government to recognize the Ainu as an indigenous people to Japan. The resolution states that the Ainu have a distinct language, religion and culture.
- The 2008 resolution imposed no statutory obligations on the Japanese government and has been described as primarily symbolic. Dr. Richard Siddle, author of Race, Resistance and the Ainu of Japan, has stated that, "Very little will change for the Ainu because of this. It's a step forward, but not an epoch-making step as some people are portraying" (BBC 2008).
- Following the submission of the resolution, in July 2008, the government established the Advisory Council for Future Ainu Policy.
- In 2019, the Japanese parliament passed the Ainu Policy Promotion Act which recognizes the Ainu as indigenous, and enshrines that recognition in legislation (Article 1).
8. SUPPORT / RATIFICATION FOR INTERNATIONAL INSTRUMENTS ON INDIGENOUS RIGHTS
Partial, but limited.
|Support for International Instruments Scores|
- Japan has not ratified ILO Convention 169 Indigenous and Tribal Peoples Convention, 1989.
- Japan voted in favour of adopting the UNDRIP. This declaration is non-binding and does not impose duties or obligations on the Japanese state.
9. AFFIRMATIVE ACTION
Yes, based on a combination of existing policies and legislation.
|Affirmative Action Scores|
- The Utari Welfare Measures, first implemented in 1971 and still in force today, were created to improve the social welfare of the Ainu through education and public works projects. The measures make available scholarships for Ainu students for high school and higher education (Okano 2013).
- There is no statute or legislation devoted explicitly to Ainu affirmative action. Rather, the Ainu fall under the purview of employment equity legislation, the Equal Employment Opportunity Act of 1985, that guards against discrimination of any kind (i.e., on the grounds of race, creed, sex, social status or family origin, etc.).
- The Ministry of Social Welfare, Health and Employment has a program of professional orientation for Ainu, a recruitment service, and lends money to allow Ainu to find employment. The ministry also briefs managers on the discrimination of the Ainu and promotes their recruitment (UN 2006c, 9).
- The Hokkaido government has promoted fundamental measures, aimed at stable employment for the Ainu, under a program called A Promotion Policy for the Improvement of Ainu Life, 2002-2008 (Hokkaido Bureau 2010).
- The Ainu Policy Promotion Act of 2019 bans discrimination against Ainu on the basis of ethnicity.