How the Russian state agent in the UN, Alexey Tsykarev, propagandizes the Nornickel company and the Russian indigenous rights legal practice at the international level
According to the World Bank, it is estimated that there are between 370 and 500 million indigenous people spread across 90 countries worldwide. Although they make up just 5 percent of the global population, they account for about 15 percent of those in extreme poverty. Indigenous peoples’ life expectancy is up to 20 years lower than the life expectancy of non-indigenous people worldwide. They often lack formal recognition over their lands, territories and natural resources, are often last to receive public investments in basic services and infrastructure, while facing multiple barriers to participate fully in the formal economy, to enjoy access to justice, and to participate in political processes and decision making. Alexey Tsykarev, Vice Chair of the United Nations Permanent Forum on Indigenous Issues, comments on how the world’s indigenous peoples fight for their rights and how governments and business react, writes Louis Auge.
Mr Tsykarev, do you yourself feel like a representative of an indigenous people?
I grew up in small city in an industrial Russian-speaking environment, and was introduced to my indigenous culture later in my life. It is hard to preserve culture in an urban environment. Also, previous inadequate policies did not allow my grandparents and parents to transfer the language and the culture to us properly. I discovered my roots and got deeper into the culture in my university days, and now I cannot imagine myself without it. I also decided to devote my career to defending the rights of my people – the Karelian, and other indigenous peoples.
I learned the language, I am an active member of my community and share its values. This helps assure me about the future of my people and indigenous peoples worldwide.
Europe today is more concerned with the rights of migrants from Middle East and Africa. It looks like indigenous peoples are now on the periphery of public attention. How are things currently going with respect to their rights in Europe?
There is no perfect country in the world in of the rights of indigenous peoples. Western Europe is not an exception. The Sami people, who are officially the only indigenous people of the EU and who reside throughout the Nordic countries, have been subject to a number of disturbing cases of violations of their rights. Interestingly, this contradicts the international image of the countries in question, because we all know how much Finland, Sweden and Norway invest in the human rights and indigenous peoples’ rights agenda in the UN, climate negotiations and sustainable development discussion. However, the same governments sometimes undermine the value of consultation and the principle of FPIC domestically.
A few years ago, Finland and Norway ratified a Teno river agreement that suspended the salmon fishing opportunities for the Sami that live on both sides of the border. The noble goal of preserving the population of salmon violated the right of the Sami to preserve their identity, traditional way of live and challenged their access to livelihoods that have been exercised for centuries.
Many conflicting situations between the Sami and the mining companies in Sweden are in news on a regular basis. Most recently, in Norway the Sami Parliament won a court case against the construction of the windmills in the reindeer husbandry areas that are important for the Sami people. In all these situations, the main problem is the lack of prior consultations and the lack of involvement of indigenous peoples in decision-making.
The most well-known case comes from Finland, where the Supreme administrative court ruled to add tens of people in the Sami Parliament electoral roll, in contradiction with the decision of the Sami Parliament. UN Treaty bodies considered this a violation of the right to self-determination, which is the key for the rights of indigenous peoples. In 2018, the UN Expert Mechanism on the Rights of Indigenous Peoples was invited to Finland to assist in reforming the Sami Parliament act. And just a few weeks ago the Sami Parliament and the Sanna Marin’s government established Truth and Reconciliation Commission to investigate the past injustices against the Sami, including assimilation policies.
Is business somehow involved in interaction with indigenous peoples? Are there any positive examples?
The practices of relationship between business and indigenous peoples in the world vary from advanced and constructive to extremely negative. Among the most well-known failures is the Dakota Access Pipeline in the United States that caused a long-term conflict and multibillion losses for the investors. Another pipeline construction example in the United States is Ruby pipeline through Oregon, Nevada, Utah, and California. Even though some lawsuits occurred, this is still a more positive example: the company invested in the relationships with indigenous tribes, made necessary assessments and considered indigenous sacred and cultural places and important spots relating to flora and traditional knowledge. On this project, the route of the pipeline itself was changed, and the company also came up with a large-scale support programme for indigenous peoples, including providing opportunities in education and employment.
There are many examples in Latin America where companies explore opportunities for direct relationships with indigenous communities and seek their cooperation. This does not only concern cases where FPIC (free, prior and informed consent) is required, but even more often a long-term relationship is in question. Companies across the globe have finally started to understand that non-financial risks should not be undermined, and cooperation is a much more sustainable means of development than conflict.
You recently returned from Russia where you visited the village of Tukhard in Taimyr. You reported that for the first time in the Russian Arctic, the FPIC principle has been applied for the Nenets indigenous people. What did you find out there?
Indeed, a unique process is now underway in the village of Tukhard on the Taimyr Peninsula. It is also the first case in Russia when FPIC has been applied to relocation (Russian law provides for consulting with indigenous peoples on relocation, but not as part of the FPIC procedure). The UN Declaration on the Rights of Indigenous Peoples states that no relocation shall take place without the free, prior, and informed consent of the indigenous peoples, obtained as part of their customary procedures. Since Soviet times, the residents of the village of Tukhard and local gas workers have been coexisting in this place, and the living conditions of the local indigenous people have long been far from ideal. Although this is their territory and their ancestral lands, the buildings they live in were built chaotically and exactly where the industrial facilities of Norilsk Nickel and Norilsktransgaz are concentrated.
Russian law has been changing, and decisions have been made that people should not live in dangerous proximity to industrial facilities, as their basic rights to life and health cannot be guaranteed in this case. At the same time, there is an understanding of the need to ensure comfortable living conditions for people, and to relocate them from the hazardous area, avoiding anything that would make them lose their indigenous lifestyles, culture, and identity. To this end, Norilsk Nickel has decided to launch the FPIC procedure on its own. Russian law does not require this, but the company decided that this gesture of goodwill was both fair and good for its reputation.
The other thing is how this procedure will be implemented. Independent experts have been invited into the project precisely for this: to ensure its proper delivery. I am one of these experts. This is a very demanding task, because this is one of the first cases of FPIC being applied in Russia. It is one thing to discuss FPIC at the UN, and quite another to personally participate in the process and take some responsibility for its proper delivery. I do not want to just call for something to be done – I want to help both people and the company in a real-world situation.
We visited Tukhard as part of the first round of consultations. An awareness-raising campaign was underway among the local residents. The FPIC principle hinges on three key elements: free refers to a consent given voluntarily and without coercion; prior implies that consent to participate in the procedure is sought from the community in advance, with sufficient time to analyse the proposed activity and make their own decisions; and informed implies that the consent is based on reliable and full information. If a consensus is reached, the company and the people of Tukhard will sign an agreement to participate in the relocation and have the village developed.
It is not a question of simply moving from bad houses to good ones; there will be a process of building trusting and long-term relationships between the company and the residents, where residents have the right to participate in all decision-making phases, from drafting the terms of reference for the architectural competition to choosing the winner. They will also be able to choose the site for the new village. Indigenous residents will be able to control the construction process, integrate their people into the project, monitor its progress, and, where necessary, go directly to the company with their complaints, suggestions or advice, while independent experts will also oversee the process.
Eventually, the project aims to create a comfortable environment for living and promoting the indigenous culture. The project envisages building homes for indigenous residents, as well as social infrastructure facilities, cultural centres, workshops for processing reindeer meat, craft shops, and so on. This needs to be an environment where people will not just live, but will be able to express themselves, foster their culture, and pass it down to future generations. I think this is exactly what this project is about – to help indigenous peoples to survive, and ensure the presence of indigenous people in this area, so that these people are able to sustainably coexist with a local industrial enterprise without their culture being jeopardised.
What is the uniqueness of the Tukhard FPIC?
The resettlement and development plan in the village of Tukhard in Taimyr is a unique case – the first one in the Russian Arctic when the company decided to apply international standards and the principle of free, prior and informed consent, even though the national legislation does not require that. Overall, according to the UN Declaration on the Rights of Indigenous Peoples, it is the responsibility of state authorities to ensure FPIC. But it does not prevent the private companies from volunteering and proposing indigenous communities directly to apply this procedure. And there are many examples in the world of such direct corporate – indigenous relationships.
One could say – resettlement will happen anyway since the sanitary law requires to protect people from the dangerous proximity with industrial objects, which is the case in Tukhard. However, in my view, all three elements of FPIC can be met. First of all, nothing has been decided yet, the very preliminary proposal for finalisation of resettlement is 2026. The boundaries of the sanitary zone around industrial objects will not be set by 2022. And most importantly, these sanitary zone is a very tiny area close to the gas pipes and other infrastructure. So the resettlement would happen, if agreed by the local indigenous population, within the traditional lands of Tukhard: 1,5 – 5 km from the current place.
One crucial element, and I will always insist on this: FPIC process is eligible when people have a choice: to say yes or no. In this case: people do have the choice: whether to stay in the traditional land and get the new improved housing, or to be resettled to other villages or cities. Indigenous people can also say no to the resettlement plan proposed by the company altogether: in that case the sate will have to guarantee their rights to housing according to the national law. If a collective decision to stay and agree with the plan is made, local people will participate in all stages of decision making on all aspects of this resettlement programme. They can also withdraw their consent if the negotiated conditions and demands will be ignored further in the process. All these issues need to be described in the FPIC agreement. The important task right now is to ensure that local indigenous peoples have the entire information in a prior manner and can make their decision freely, independently and basing on their own judgement.
Apparently, in Russia, FPIC is not used as often as in the rest of the world. What is the reason for this? Are there any prospects for expanding this practice in Eastern Europe and Asia?
Russian legislation, being pretty detailed and firm in the commitment to protect the rights of indigenous minority peoples, does not use the provision of FPIC. The practices of obtaining FPIC in Russia therefore are very limited. However, there are signs of growing interest from Russian companies in using international principles and standards in their relationships with indigenous peoples. Indigenous peoples of course share this interest. I believe this bottom-up approach will finally lead to the legislative reform.
But even now, it seems to me, that the government, as a guarantor of the rights of indigenous peoples, has the political will to invest in the standardization of corporate–indigenous cooperation according to the international standards. There will be an international forum convened in the spring 2022 in Taimyr to discuss how FPIC and other international standards can be more widely used in Russia.
In the meantime, some companies are already updating their policies of engaging with indigenous peoples, providing for more respect for indigenous peoples that live in the territories of these companies’ operations. However, it would be more accurate to say that the companies operate in the territories of traditional residence of indigenous peoples.
At the same time, there are requests to improve approaches to sociocultural impact assessments of industrial projects. In fact, in the Republic of Sakha (Yakutia), the law on ethnological examination has been in force for almost ten years already.
In the modern world, indigenous people’s rights are no longer in internal issue of individual states. That’s why companies and states in Eastern Europe, Asia, Africa and elsewhere consider applying internationally agreed minimum requirements for the rights of indigenous peoples as set by the UN Declaration on the Rights of Indigenous Peoples.