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Valuing terra nullius: Dealing with the impact of pipeline and infrastructure

projects in the Arctic

Mikhail M Soloviev

National Research University,

Higher School of Economics,

Moscow, Russian Federation

Vasilisa Platonova

Far East Federal University,

Yakutsk, Russian Federation

Natalia Yakovleva

Winchester Business School,

University of Winchester,

UK

Richard Grover

Oxford Brookes

University, OxfordUK

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REPUBLIC SAKHA / YAKUT in the RF

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Samples of industrial program’s influence to the town-planning development (2):Mirny (Sakha / Yakut) - Diamonds

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Samples of industrial program’s influence to the town-planning development (1)

• Nerungry (coal extraction centre)

Samples of mineral resources program’s influence to town-planning development (1):Nerungry (Sakha / Yakut)- Coking Coal

NERUNGRY

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European settlement in the Arctic

• 1630s Russian forces reach the lower Lena River• 1670 King Charles II grants the Hudson Bay Company control

over Price Rupert Land (North West Canada)• Attractions of natural resources that could be exported from the

region not settlement• Oil discovered in Mackenzie River (Canada) in 1920s but large

scale commercial production starts in Alaska 1968 • Russian exploitation of the Arctic resources from 2nd Five Year

Plan of 1932-7 – command economy so not bound by economic viability

• Strategic position of region from 1940

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Industrial development of Circumpolar region: Comparative development of Russia and North America

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Economy of Circumpolar region

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Pressures from development

• Large distances from centres of population and industry

• Limited local demand for energy and area too remote for energy-intensive industry

• Fragile ecology takes time to recover• Extreme climatic conditions• Permafrost and shifting ground conditions• Flooding in spring and icebergs on rivers• Growing damage to ecology – impact on livelihoods

of indigenous peoples

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n Frozen Ground Influence

Buildings - on “Legs”

Communications - on “Air”

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1)Frozen Ground (depth ~ 6 m)Problems for foundations

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2) Flood Dangerous (see level of river)

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Flood Dangerous(see level of river)

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Environmental Impact of development (United Nations Environment Programme)

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Problem of valuing Arctic lands

• Terra nullius – no man’s land – a land with few people, no agriculture, no formalised rights, no obvious boundaries

• Valuation is about a exchange value – willing buyer and willing seller. Land had a use value but not commodified

• Evidence from Labrador of development of property rights with the commercialisation of hunting for furs – externalities that needed to be controlled – previously no hunter impacted on another

• Valuation is about valuing property rights – what are the rights of the indigenous peoples?

• Problem indigenous peoples throughout the world have in asserting claims to the lands they traditional use – often regarded as having permissive use rights over public lands as long as the will of the state permits

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Valuing land rights- the historic approach

• 1941 and 1951 American-Danish defence agreements – construction of Thule Airbase and Ballistic Missile Warning System in Greenland

• 1953 Inughhuit people of Uummannaq ordered to leave area and resettled 90 miles away –left homes and hunting grounds with whatever they could carry, shortly before granted citizenship and expropriation would have required statutory approval

• 1999 Eastern High Court of Denmark ruled that Danish Government had acted illegally

• No specific recovery – compensation of 500,000 kroner (£44,500) for loss of income from poorer hunting area – no compensation for loss of homes as grants and loans given to build new ones – individual payments of 15,000 or 25,000 kroner because of unlawful action

• Compensation for disturbance but not loss of land

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Valuing land rights: some fundamental principles• Specific protections for indigenous and tribal peoples from

International Labour Organization Conventions C107 (1957) and C169 (1989)

• UN Declaration on Rights of Indigenous Peoples (2007)• General protection of property rights under Universal Declaration of

Human Rights and regional conventions and right to have breaches of human rights determined by independent tribunals

• FAO Voluntary Guidelines on Responsible Governance of Tenure (2012)

• States should acknowledge the social, cultural, spiritual, economic, environmental and political value of land to indigenous peoples with customary tenure systems

• States should recognise and protect legitimate tenure rights of indigenous peoples to the ancestral lands on which they live

• Those with customary tenure should not be forcibly evicted from their ancestral lands

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Searching for a way ahead: Mackenzie Valley

• Berger Inquiry 1975-77• Conflict of interest between businesses and

indigenous communities• Adverse impact of industrial development on lands of

indigenous peoples and their communities• Environmental degradation would destroy the

livelihoods of communities• Future of North should not be determined by

southern ideas of frontier development but by those who live there

• Pipeline development should be halted until after native land claims had been settled

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Oil wells of Mackenzie region

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Current and potential development of Mackenzie Basin

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Mackenzie Valley development• Land claims with indigenous groups settled by Canadian

government in 1980s and 1990s – last agreement 2001• Claims settlements encouraged by court cases

1973 Supreme Court ruling on Calder (Nisga’a) case that colonisation did not extinguish native tenure

1997 Delgamuukw v British Columbia decision of the Supreme Court of Canada established that native title can only be surrendered to the Crown and determined what evidence can be used to substantiate claim to title, including oral evidence

• 2001 Memorandum of Understanding between 4 production companies and Mackenzie Valley Aboriginal Pipeline Corporation – 2003 full participant in project

• Aboriginal Pipeline Group owns 33.3% share in consortium• Individual aspects of development need consent of each

aboriginal group through whose land the pipeline passes• Degree of aboriginal control over development and financial

beneficiary from it

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Nunavut

• Surrender and land grant• Creation of public government for the area – 85% of

population Innuit• De facto autonomous homeland for Innuit though de

jure government for everyone• 80% of land Crown land; 18% Innuit surface rights;

2% Innuit sub-surface and surface rights• Direct benefit from mineral extraction where Innuit

own sub-surface rights• Access agreements where Innuit own surface rights• Potential for planning gain

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Eastern Siberia – Pacific Ocean Pipeline

• 2001 revival of project to link Russian oilfields with China• 2006 environmental concerns meant route changed to include

Republic of Sakha (Yakutia). • Potential impact on Evenki reindeer herders, supposedly under

special protection – Evenki a minority in region where Sakha are majority

• Route determined by RF Government and Transneft• Evenki and other local communities asked to comment on

environmental impacts assessment but not consulted about the overall decision about the pipeline.

• Poorly developed mechanisms for compensation of affected land users led to small amounts of compensation being awarded to affected groups

• Gap between Russian legislation on protection of indigenous minorities and reality

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Conclusions

• Valuation is about valuing property rights not land• Problem for indigenous peoples that their ancestral

lands seen as terra nullius• Developments can cause environmental degradation

and loss of livelihoods whilst no benefits from the development

• In Canada change in attitudes (indicated by the Berger Report) and legal cases have provided a framework in which indigenous populations can exercise a degree of control over development and share in its benefits.

• In Russia legal protections exist for indigenous peoples but the way in which major projects are planned mean that limited account is taken of their concerns