What Rights Do the Ainu People Have as an Indigenous Group in Japan, and How Should Businesses Approach Projects Potentially Affecting Their Cultural Heritage?

Japanese Attorney at Law - Bengoshi L.L.

• 8 min read

The recognition and protection of the rights of indigenous peoples have become a significant aspect of international human rights law and a key consideration for responsible business conduct globally. In Japan, the Ainu people are an indigenous group primarily residing in the northern island of Hokkaido, as well as historically in parts of northern Honshu, Sakhalin, and the Kuril Islands. For businesses undertaking projects, particularly in Hokkaido, understanding the evolving legal status of the Ainu people and their rights related to culture, land, and heritage is crucial for ethical operations, legal compliance, and sustainable development.

Historical and Cultural Context of the Ainu People

The Ainu possess a distinct culture, language (Ainu Itak), spiritual traditions, and a deep historical connection to their ancestral lands. Their traditional way of life revolved around hunting, fishing, gathering, and unique artistic expressions, such as intricate wood carvings and textile designs.

However, from the Meiji Restoration (1868) onwards, the Japanese government pursued policies of assimilation, aimed at integrating the Ainu into the dominant Japanese society. These policies included the promotion of Japanese language and agriculture, and often involved the dispossession of Ainu from their traditional lands and restrictions on their cultural practices, such as salmon fishing and bear hunting, which were central to their livelihoods and spiritual beliefs. The Hokkaido Former Aborigines Protection Act of 1899 (Hokkaidō Kyūdojin Hogohō), while ostensibly aimed at providing relief and education, effectively promoted assimilation and the shift to an agricultural lifestyle, often on less fertile lands, leading to profound socio-economic and cultural disruption for Ainu communities.

The latter half of the 20th century and the early 21st century have witnessed a gradual but significant shift in the legal and political landscape concerning the Ainu people in Japan.

Early Steps and Cultural Promotion

The Act for the Promotion of Ainu Culture and for the Dissemination and Advocacy of Traditions Concerning the Ainu and Ainu Culture (Ainu Culture Promotion Act), enacted in 1997 (Ainu Bunka Shinkō Hō), marked an important turning point. This law was the first national legislation specifically focused on the Ainu. Its objectives were to promote Ainu culture, language, and traditions through funding for cultural activities, research, and education. While a positive step, the Act was criticized by some Ainu representatives and scholars for focusing primarily on cultural promotion and stopping short of recognizing broader indigenous rights, such as rights to land, resources, or self-determination as understood in international law.

The Landmark Nibutani Dam Judgment

A pivotal moment in the legal recognition of Ainu rights came with the Sapporo District Court judgment in the Nibutani Dam case on March 27, 1997. Ainu plaintiffs had challenged the expropriation of their land by the Hokkaido Development Bureau for the construction of the Nibutani Dam, arguing that the dam would submerge culturally significant sites and infringe upon their rights as an indigenous people to enjoy their culture.

The court made several groundbreaking findings:

  1. It explicitly recognized the Ainu people as an indigenous people of Japan, with a distinct culture that had been historically oppressed.
  2. It affirmed that Article 27 of the International Covenant on Civil and Political Rights (ICCPR), which guarantees minorities the right to enjoy their own culture, profess and practice their own religion, and use their own language, is applicable to the Ainu.
  3. It ruled that the government authorities, in approving the land expropriation for the dam, had failed to give adequate consideration to the unique cultural impact the project would have on the Ainu people. The court found the expropriation process to be illegal in this respect.

Although the dam construction itself was not halted due to overriding public interest considerations (a judicial principle known as jijō hanketsu, or judgment on circumstances, as the dam was nearly complete), the Nibutani Dam judgment was highly significant. It was the first time a Japanese court had officially recognized the Ainu as an indigenous people and affirmed the importance of their cultural rights in the context of development projects. It underscored the need for authorities (and by extension, project proponents) to seriously consider the cultural dimensions of projects affecting indigenous communities.

Formal Recognition and New Legislation

Building on this momentum and growing international awareness:

  • In 2008, the Japanese Diet (both houses) unanimously adopted a resolution formally recognizing the Ainu people as an indigenous people of Japan and urging the government to develop comprehensive policies reflecting this status. This resolution also referenced the UN Declaration on the Rights of Indigenous Peoples (UNDRIP), which Japan had supported in 2007.
  • This led to the enactment of the Act on Promoting Measures to Realize a Society in which the Pride of the Ainu People is Respected (Ainu Policy Promotion Act) in April 2019 (Ainu Shisaku Suishin Hō). This landmark legislation, for the first time in Japanese national law, explicitly states that the Ainu are an "indigenous people."

Key provisions and aims of the 2019 Ainu Policy Promotion Act include:

  • Prohibition of Discrimination: Prohibiting discrimination against Ainu people on the basis of their ethnicity.
  • Promotion of Ainu Culture: Supporting initiatives for the revitalization and promotion of Ainu language, culture, and traditions.
  • Regional Development and Tourism: Implementing measures for regional development centered on Ainu culture, including promoting Ainu-themed tourism.
  • Establishment of the "Symbolic Space for Ethnic Harmony" (Upopoy): This national Ainu museum and park, which opened in Shiraoi, Hokkaido, in July 2020, is a flagship project under this Act.
  • Grants and Subsidies: Providing financial support for Ainu cultural activities, community projects, and certain traditional livelihood activities (e.g., permitting traditional salmon fishing in designated areas under a licensing system, which was previously heavily restricted).

While the 2019 Act is seen as a significant advancement, some Ainu groups and advocates argue that it still falls short of fully realizing the rights outlined in UNDRIP, particularly concerning collective land rights and genuine self-determination.

International Law and the Rights of the Ainu People

International human rights law provides an important framework for understanding and advocating for Ainu rights:

  • ICCPR Article 27: As established in the Nibutani Dam case, this article is directly relevant. The UN Human Rights Committee, which monitors the ICCPR, has also consistently addressed Ainu issues in its concluding observations on Japan's periodic reports, emphasizing the need to protect their cultural rights and traditional livelihoods.
  • UN Declaration on the Rights of Indigenous Peoples (UNDRIP): Adopted by the UN General Assembly in 2007 with Japan's support, UNDRIP is a comprehensive instrument articulating the individual and collective rights of indigenous peoples. Key rights include:
    • The right to self-determination (Art. 3).
    • Rights to their lands, territories, and resources traditionally owned, occupied, or otherwise used or acquired (Art. 26).
    • The right to maintain, control, protect, and develop their cultural heritage, traditional knowledge, and traditional cultural expressions (Art. 31).
    • The principle that states shall consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free, prior, and informed consent (FPIC) before adopting and implementing legislative or administrative measures that may affect them (Art. 19), and before approving any project affecting their lands or territories and other resources (Art. 32).
      While UNDRIP is a declaration and not a legally binding treaty in itself, its principles are increasingly influential and are seen as setting important standards.
  • ILO Convention No. 169 (Indigenous and Tribal Peoples Convention, 1989): This is the primary legally binding international instrument specifically addressing the rights of indigenous and tribal peoples. It emphasizes rights to land, consultation, participation in decision-making, and respect for indigenous cultures and institutions. Japan has not ratified ILO Convention No. 169.

Implications for Businesses: A Rights-Based Approach to Projects

Businesses planning or undertaking projects, especially in Hokkaido but also in other areas with historical Ainu connections, must be cognizant of this evolving legal and social context. A failure to respect Ainu rights and cultural heritage can lead to significant operational, legal, financial, and reputational risks. A proactive, rights-based approach is therefore essential.

Key Considerations for Businesses:

  1. Identifying Potential Impacts on Ainu Rights and Heritage:
    • Conduct thorough due diligence and impact assessments that specifically address potential effects on Ainu culture, lands, traditional livelihoods, and intangible heritage. This should go beyond standard environmental impact assessments.
    • Potential impacts could include disturbance of sacred sites, disruption of traditional fishing or gathering areas, loss of access to culturally significant resources, impacts on the Ainu language, or misrepresentation of Ainu culture in tourism initiatives.
  2. Meaningful Consultation and Engagement:
    • Early and Continuous Dialogue: Engage with representative Ainu organizations and relevant Ainu communities at the earliest stages of project planning and throughout the project lifecycle. This consultation should be conducted in good faith, with the objective of achieving agreement or consent.
    • Identifying Legitimate Representatives: Take care to identify and engage with the appropriate and legitimate representatives of the Ainu communities potentially affected. This may involve contacting established Ainu organizations like the Ainu Association of Hokkaido, as well as local community groups.
    • Culturally Appropriate Consultation: Ensure that consultation processes are culturally appropriate, conducted in a transparent manner, and provide Ainu communities with sufficient information (including in the Ainu language where feasible and desired) and adequate time to understand the project and its implications.
  3. Adhering to the Spirit of Free, Prior, and Informed Consent (FPIC):
    • While FPIC is not yet a universally binding legal requirement in Japanese domestic law for all projects, its importance is growing internationally, as articulated in UNDRIP.
    • Businesses should strive to achieve the FPIC of affected Ainu communities for projects that may significantly impact their lands, resources, or cultural heritage. This means seeking their consent freely (without coercion or manipulation), obtained prior to the commencement of activities, and based on full and accurate information.
  4. Cultural Heritage Impact Assessments (CHIA):
    • Undertake specific CHIAs, ideally in collaboration with Ainu experts and community members, to identify tangible and intangible cultural heritage that may be affected by a project.
    • Develop mitigation measures to avoid or minimize adverse impacts, and explore ways to protect and promote Ainu cultural heritage in connection with the project where appropriate.
  5. Respect for Traditional Knowledge and Practices:
    • Recognize and respect Ainu traditional knowledge concerning the environment, land use, and natural resource management.
    • Where projects impact traditional Ainu livelihoods (e.g., fishing, forestry), explore ways to accommodate or provide alternatives in consultation with the affected communities.
  6. Benefit Sharing and Community Development:
    • Where projects generate significant benefits, consider mechanisms for equitable benefit-sharing with affected Ainu communities, or contribute to Ainu-led community development initiatives, as agreed through consultation. This should not be seen as a substitute for avoiding harm or obtaining consent.
  7. Avoiding Discrimination and Promoting Inclusion:
    • Ensure that company employment practices, procurement policies, and community engagement activities are non-discriminatory and promote the inclusion of Ainu people.

Managing Risks

Failure to adopt such a proactive and respectful approach can lead to:

  • Project Delays and Opposition: Resistance from Ainu communities and advocacy groups can lead to significant project delays, increased costs, and even project cancellation.
  • Legal Challenges: As demonstrated by the Nibutani Dam case, legal challenges based on infringement of cultural rights under international and domestic law are possible.
  • Reputational Damage: Negative publicity surrounding conflicts with indigenous communities can severely damage a company's brand and reputation, affecting relationships with customers, investors, and other stakeholders.
  • Difficulties in Accessing Finance: Many international financial institutions and responsible investors have adopted stringent environmental and social safeguard policies that include requirements for respecting indigenous peoples' rights and conducting proper consultation.

Current Support Structures and Looking Ahead

The 2019 Ainu Policy Promotion Act has led to increased government funding for Ainu cultural promotion, regional revitalization projects focused on Ainu heritage, and educational initiatives. The Upopoy National Ainu Museum and Park in Shiraoi, Hokkaido, is a major initiative under this Act, aiming to serve as a national center for Ainu culture and ethnic harmony.

Various Ainu organizations, with the Ainu Association of Hokkaido being the largest, continue to play a crucial role in advocating for Ainu rights, preserving and promoting Ainu culture, and engaging with government, businesses, and the wider society.

Despite these positive developments, challenges remain in fully realizing the rights of the Ainu people, particularly concerning land rights, resource management, and meaningful participation in decision-making processes that affect them. The interpretation and implementation of the 2019 Act are still evolving.

Conclusion

The legal and political landscape concerning the Ainu people in Japan has undergone a significant transformation, with formal recognition as an indigenous people and new legislative measures aimed at promoting their culture and prohibiting discrimination. International law, particularly ICCPR Article 27 and the principles of UNDRIP, provides an important normative framework for these developments.

For businesses, especially those involved in development projects in Hokkaido or other areas of Ainu significance, this evolving context necessitates a shift towards a more rights-based, culturally sensitive, and consultative approach. Engaging early and respectfully with Ainu communities, striving for their free, prior, and informed consent for projects that impact them, conducting thorough cultural heritage impact assessments, and exploring opportunities for mutual benefit are not just ethical imperatives but also critical components of sustainable business practice and risk management. By doing so, businesses can contribute to a future where the pride and cultural heritage of the Ainu people are respected and thrive alongside economic development.