Legal regulation of the use and protection of the Arctic Zone of the Russian Federation: certain relevant issues

Samonchik Ol'ga Anatolevna PhD in Law Senior Scientific Associate, Institute of State and Law of the Russian Academy of Sciences 119019, Russia, g. Moscow, ul. Znamenka, 10 raps-07@mail.ru

The Arctic region is a unique ecological system, an indicator of climatic processes, most noticeably experiencing the negative effects of global changes, where the dynamics of natural processes is slowed down, the absorption capacity of natural objects is reduced, as a result of which the Arctic ecosystem is particularly vulnerable ^[1]. At the same time, the Arctic region of Russia has huge reserves of minerals, their development began in the second half of the XVIII century and has been expanding all the time, today about 85% of Russian gas, 14% of world nickel production, 41% of palladium, etc. are being extracted here.

However, only since the end of the last - the beginning of this century, in the light of the environmental problems that have arisen and under the influence of international efforts, the Arctic region of Russia has been considered as a single territory with a unique and resource-rich ecosystem, in relation to which a legal basis for development and protection is gradually being created. A significant number of political and legal documents of strategic planning have been adopted, defining general political approaches and long-term directions of practical actions ^[1], more and more laws and other legal acts in this area are appearing.

One of the most important documents adopted recently is the Fundamentals of the State Policy of the Russian Federation in the Arctic for the period up to 2035, approved by Presidential Decree No. 164 of March 05, 2020 ^[2] (hereinafter referred to as the Fundamentals until 2035).  Among the priority national interests of the Russian Federation, the Foundations call the development of the Arctic Zone (AZ) as a strategic resource base and its rational use in order to accelerate the economic growth of the country (paragraph 5, paragraph "d"), as well as environmental protection and protection of the ancestral habitat and traditional way of life of indigenous small peoples living in on this territory (item 5, item "e").

The inclusion of the latter two areas among the priority national interests is explained by the fact that the steady growth of mining in the Arctic territories of minerals and, above all, hydrocarbons and gas, the increasing activity of business, the development of entrepreneurial activity in this region lead to an increase in the risk of harm to lands, other natural resources and the generally fragile and vulnerable environment of the AZ. The uniqueness of this region also lies in the fact that the Arctic acts as a place of life and activity of indigenous small-numbered peoples (KMN), who are the keepers of invaluable historical experience of survival in extreme natural conditions ^[1], conducting traditional, ecologically balanced nature management. At the same time, the socio-economic situation of the indigenous peoples of the region remains difficult, including in connection with cases of deprivation of their places of traditional residence and traditional nature management as a result of the allotment of land for industrial development or as a result of pollution of lands, waters, and other natural resources carried out by various economic entities.

As noted in the literature, by the early 2000s, vast territories of the tundra had degraded as a result of the destruction of soil and vegetation by mining, the development of mining, the movement of vehicles, construction, and in some places - due to excessive grazing of reindeer ^[3], and this process has only been increasing since then.

The fundamentals of the state policy of the Russian Federation in the Arctic for the period up to 2020 and beyond (approved by the President of the Russian Federation on September 18, 2008, No. Pr-1969) ^[4] among the main measures for the implementation of state policy in this region, in particular, are: ensuring rational use of natural resources; the establishment of special environmental management regimes and environmental protection in the Arctic zone of the Russian Federation (item 8). In relation to the lands of the AZ land territories ^[5], this means the establishment of a special regime for their use and protection. The need to establish such a regime is due to the peculiarities of the Arctic lands – increased vulnerability and a long period of restoration of disturbed lands and soils, in general, specific natural and climatic conditions of the region, as well as specific social, economic and other factors.

It should be noted that a significant number of political and legal acts of strategic planning, laws and by-laws have been adopted to regulate relations in the Arctic today. However, as it is rightly pointed out in the literature, the current legislation does not sufficiently protect the unique natural features of the Arctic zone and does not fully minimize environmental damage to its vulnerable nature, especially in the conditions of the upcoming intensive exploitation of the Arctic natural potential ^[6]. This also applies to the regulation of relations on the use and protection of Arctic lands.

Let us dwell in more detail on the question of the legal status of the lands of the territories of traditional nature use (TPP) of the indigenous small peoples of the AZ and the rights of small peoples to them. Representatives of 19 KMN live in the Arctic zone, the number of which in 2010 was 102 thousand people. The legislation identifies 13 types of traditional economic activities of the KMN, most of which are related to the use of land. These are animal husbandry, including nomadic (reindeer husbandry, horse breeding, yak breeding, sheep breeding); dog breeding (breeding of reindeer, sled dogs and hunting dogs); beekeeping; agriculture (horticulture), as well as breeding and processing of medicinal plants; construction of national traditional dwellings and other buildings necessary for the implementation of traditional economic activities activities; etc. ^[7].

For indigenous peoples, land is not just a natural object and a natural resource, a means of production, but also the main content basis of their habitat and, consequently, one of the most important elements that determine their special legal personality. For indigenous peoples, the right to land as the basis of their life and activities means the right to the territory, place, and habitat of their habitat ^[8].

In order to protect the native habitat and traditional economic activities of the KMN, the legislation provides for the creation of territories of traditional nature use of indigenous peoples. According to Federal Law No. 49-FZ of May 7, 2001 "On the Territories of Traditional nature Use of indigenous small-numbered peoples of the North, Siberia and the Far East of the Russian Federation" ^[9] (hereinafter referred to as the TPP Law), the territories of traditional nature use are specially protected territories (Article 1), respectively, their lands belong to the category of specially protected lands territories (OOT).

The category of OOT lands, in turn, consists of several types of lands, which are listed in Article 94 of the CC (lands of specially protected natural territories, lands of environmental protection, etc.). TTP lands are mentioned in paragraph 5 of Article 97 of the CC, dedicated to lands of environmental protection (in Article 95 of the CC RF in the earlier version of the TTP land were listed among the lands of protected areas, but were excluded from this article by Federal Law No. 406-FZ of December 28, 2013 ^[10]). Paragraph 5 states that in the places of traditional residence and traditional economic activity of the KMN, territories of traditional nature use can be formed. From this provision, in my opinion, it can be concluded that the legislator refers the TPP lands to environmental lands, but this is not specified specifically. It seems necessary in the RF CC to determine which type of OOT lands the TTP lands belong to, or to single them out as an independent type by analogy with the lands of health-improving areas and resorts (Article 96 of the CC).

The Law on the TPP stipulates that territories of traditional nature use of federal, regional and local significance are formed, respectively, by decisions of the Government of the Russian Federation, executive authorities of subjects of the Russian Federation or local self-government on the basis of appeals from persons belonging to small peoples and communities of small peoples or their authorized representatives (art. 6-8). However, a clear procedure for the formation of the TPP, as well as the establishment and modification of their borders (especially if it concerns the reduction of the area of the TPP) or the abolition of territories is not defined in the legislation, and there is even a contradiction between the laws regarding borders. Thus, in accordance with Article 9 of the TPP Law, the boundaries of a particular TPP are approved by the same body that made the decision on its formation. The norm of clause 5 of Article 97 of the CC does not coincide with this provision, according to which the boundaries of the TPP are determined by the Government of the Russian Federation. It seems that in this part, paragraph 5 of Article 97 of the CC should be brought into line with the provision of the Law on the TPP.

Since the provisions of paragraph 5 are in Article 97 of the RF CC, which is devoted to nature conservation lands, it can be assumed that the norms of other paragraphs of this article also apply to the TPP lands. Thus, according to paragraph 4, a special legal regime for the use of land is introduced within the boundaries of nature conservation lands, restricting or prohibiting activities that are incompatible with the main purpose of these lands. Land plots within these lands are not seized or redeemed from land owners, land users, landowners and tenants. It seems that in order to exclude the possibility of a different interpretation of the provisions of Article 97 of the CC in relation to the TPP lands, it is necessary to make appropriate clarifications to this article.

Further. The issues of the legal regime of the TPP lands need more detailed regulation by the federal legislator, since the current federal laws contain only general provisions that are rather declarative in nature. The establishment of the legal regime of the TPP, including the regime of lands, has been transferred to the subordinate level. In accordance with paragraph 1 of Article 11 of the Law on the TPP, it is established in the regulations on the territories of traditional nature use approved by the relevant authorized federal, regional, local bodies with the participation of persons belonging to small peoples and communities of small peoples or their authorized representatives.

Given that such a provision has not yet been approved by the federal executive authority, the main regulation of this issue is shifting to the regional and local levels, which cannot be assessed positively. It seems that the Law on the TPP should define common principled approaches to the content of the legal regime of the TPP, establish the main prohibitions and restrictions on the use of natural objects, in particular land, by entities not related to the CMN, and also provide for the main responsibilities of these entities for the protection of land.

An important issue of legal regulation of relations in the field of Arctic zone lands is the issue of rights to these lands. The Law on the TPP contains a reference rule that land plots and other isolated natural objects within the boundaries of the TPP are provided to small peoples and their communities in accordance with the legislation of the Russian Federation. Lands and land plots in places of traditional residence and traditional economic activity may also be used by these persons on the basis of a permit issued by a state authority or a local self-government body in the case and in accordance with the procedure established by land legislation (Article 11).

In contrast to the Law on the TPP with its actually declarative norm, Article 8 of Federal Law No. 82-FZ of April 30, 1999 "On Guarantees of the Rights of indigenous small-numbered peoples of the Russian Federation" ^[11] contains an important norm on the right of small-numbered peoples and their associations to use lands of various types free of charge in places of traditional residence and traditional economic activity categories necessary for the implementation of this activity (highlighted by me – O.S.).

This norm is implemented in the RF CC, in clause 13 of clause 2 of Article 39.10 of which it is stipulated that land plots may be provided to persons belonging to indigenous small-numbered peoples and their communities on the right of gratuitous use for up to 10 years for the placement of buildings, structures necessary for the preservation and development of traditional lifestyles, economic activities and crafts. From this formulation, it can be concluded that the norm of clause 13 applies to all land plots, both located within the boundaries of the TPP, and located in the places of traditional residence and management of the KMN, which are not formed as TPP. However, it remains unclear how these sites can be used after the specified 10-year period.

Further. According to Article 39.34 of the RF Land Code, land plots can be used free of charge by the CMN on the basis of a permit from a state authority or a local self-government body. The permit is issued for the purpose of preserving and developing traditional lifestyles, economic activities and crafts in the places of traditional residence and traditional economic activity of the KMN without a time limit (paragraph 4, paragraph 1) ^[12]. However, the validity of the permit may be terminated at any time as a result of the provision of this plot on the property right to another citizen or legal entity (paragraph 2).

It is difficult to agree with this norm, because unlike other cases provided for in the article, when the use of land plots is temporary (for example, for engineering surveys or repairs of a linear object for a period of no more than one year; for the construction of temporary or auxiliary structures (fences, cabins), etc.), the permission of the CMN is issued for the purpose of preservation and development of the traditional way of life, economic activity and crafts, which implies a stable and long-term nature of the use of land. Therefore, it seems that the termination of the permit for the CMN in connection with the provision of plots on real rights to other entities can be carried out only in strictly limited cases indicated in the CC, for which it is necessary to make appropriate changes to paragraph 2 of Article 39.34 of the CC RF.

The next question is related to the possibility of securing the ownership of the KMN on land in the places of their traditional residence and management. It should be borne in mind that there are no explanations in the legislation on this matter, while in the literature there are points of view both for and against the application of the institution of land ownership in relation to KMN. Thus, some authors agree that there is no ownership right of indigenous peoples to natural resources in Russian legislation ^[13]. Others express a noteworthy opinion that representatives of small indigenous peoples may be owners of land plots ^[14].

Note that the Constitution of the Russian Federation guarantees the rights of indigenous minorities in accordance with the generally recognized principles and norms of international law and international treaties of the Russian Federation (Article 69). Convention No. 169 of the International Labour Organization of 1989 "On Indigenous Peoples and Peoples leading a Tribal Lifestyle in Independent Countries" ^[15] in Article 14 stipulates that these peoples are recognized as the right of ownership and ownership of the lands they traditionally occupy. The current Russian legislation does not directly prohibit, but also does not speak about the possibility of granting land plots to representatives of indigenous small-numbered peoples of the North, Siberia, the Far East or their communities on the right of private ownership. This is probably, among other things, the reason why Russia has not yet ratified this Convention.

Based on the above, it can be concluded that the current legislation does not fully clarify the issue of the types of rights to the land of KMN in places of traditional residence and conducting traditional economic activities. At the same time, it should be borne in mind that TPP may be formed in these places with the establishment of a special protective regime, or they may not be formed, which determines the presence of certain features in the regulation of relations on the use and protection of land.

As mentioned above, one of the main national interests of the Russian Federation in the Arctic zone is the development of this region as a strategic resource base and its rational use in order to accelerate the economic growth of the country. The development of the wealth of AZ is impossible without the participation of the business community, entrepreneurs, in order to increase their interest in financing the region, it is necessary to use preferential systems for each form of management, within which investors will be attracted ^[16].

In order to activate investment and entrepreneurial activity, Federal Law No. 193-FZ "On State Support for Entrepreneurial Activity in the Arctic Zone of the Russian Federation" ^[17] (hereinafter referred to as Law No. 193–FZ) was adopted on July 13, 2020, which provides for a special procedure for investment activities of AZ residents (an individual entrepreneur or a legal entity whose state registration has been carried out on the territory of the Arctic zone and which has concluded an agreement on the implementation of investment activities and is included in the register of residents of the Arctic zone (paragraph 2, part 1 of art. 2); tax incentives for residents, as well as a special procedure for granting them land plots and issuing permits for construction facilities. Let's consider this special order in more detail.

In accordance with Law No. 193-FZ (paragraphs 6 of Article 5, Part 1 of Article 15), land plots are provided to residents of the AZ for the implementation of investment projects by an authorized federal body (the Ministry of Regional Development of Russia), if the plots are federally owned, or a management company (plots that are state or municipal owned), and not the executive a public authority or a local self-government body, as is the case under the general rule of land legislation.

It seems that such delegation (in accordance with Article 15 of the Law) of the administrative powers of the management company carries certain risks, since the company is a party directly interested in expanding business activities in the Arctic zone, which may affect the objectivity of taking into account the social and environmental characteristics of the region when making decisions on the provision of land.

According to the Land Code of the Russian Federation, land plots are leased to residents in a preferential mode without bidding for the duration of the agreement on investment activities, unless a resident has declared a shorter period (Clause 39, clause 2, Article 39.6) ^[18]. The Decree of the Government of the Russian Federation No. 91 dated February 01, 2021 approved the Rules for the Provision by the management company of the Arctic Zone of the Russian Federation of land plots owned by the state or municipal and located in the Arctic Zone of the Russian Federation ^[19].

Law No. 193-FZ provides that in case of termination of the agreement on the implementation of investment activities, an individual entrepreneur or a legal entity loses the status of a resident of the AZ, but retains the right to carry out entrepreneurial activities and dispose of real estate belonging to him in accordance with civil legislation (Article 12). It follows from this that the lease right is reserved for the former resident and its renewal is not required.

It should be noted that a simplified procedure is also established for issuing permits to residents for the construction of facilities on the territory of the implementation of investment projects. Part 15 of Article 16 of Law No. 193-FZ provides that the documentation on the planning of the territory is approved by the authorized federal body without public discussions or public hearings (paragraph 3).

However, according to the general procedure established by the Urban Planning Code of the Russian Federation (Article 5.1, Part 13.1 of Article 45), territorial planning projects and land surveying projects before their approval by local self-government bodies of the municipal district are subject to mandatory consideration at public discussions or public hearings. Thus, Law No. 193-FZ restricts the rights of the local population in making decisions, the implementation of which may have an impact on the condition of the lands when they are used, which violates one of the basic principles of land legislation enshrined in Article 1 of the Land Code of the Russian Federation.

Further. In Part 15 of Article 16 of the Law under consideration, it is provided that the land plots provided to residents of AZ in the territory of implementation of investment projects are not subject to urban planning regulations (paragraph 4), and the types of permitted use of land plots and capital construction facilities located in the territory of implementation of investment projects are established in accordance with the documentation on the planning of the territory regardless of the rules of land use and development and the belonging of such land plots to a particular category of land (paragraphs 6). These norms also run counter to the general requirements of the GRK of the Russian Federation on urban planning regulations and rules of land use and development (Articles 30, 36).

Despite the fact that the main purpose of Law No. 193-FZ is to provide legal support for the economic development of the Arctic zone, stimulate and activate investment and entrepreneurial activity, at the same time, it is worth paying attention to some elements of legal mechanisms laid down in it aimed at preserving lands, protecting the environment of the Arctic, taking into account the interests of the local population, including the number of indigenous minorities in the implementation of investment projects.

We are talking about the standard of responsibility of residents in relations with indigenous peoples (part 3 of Article 28). The standard of responsibility, which is understood as a list of principles recommended for use by residents of the Arctic zone when organizing interaction with indigenous small-numbered peoples in places of their traditional residence and carrying out traditional economic activities, was approved by Order No. 181 of the Ministry of Regional Development of Russia dated November 23, 2020 ^[20].

Among the principles specified in the standard, I would like to highlight, for example, the principle of promoting the sustainable development of small indigenous peoples, improving their quality of life and preserving their ancestral habitat. It includes: conducting an environmental assessment by a resident of AZ in cases stipulated by law, taking into account the special vulnerability of the Arctic nature and the peculiarities of traditional nature management of the CIS; compensation for damage caused as a result of economic and other activities carried out by a resident that affect the habitat of indigenous peoples; etc.

Another principle concerns the participation of representatives of small indigenous peoples in decision-making on issues affecting their rights and interests in the development of natural resources in places of traditional residence and traditional economic activity. This principle presupposes, in particular, the preliminary approval of the resident's project with representatives of the CMN and consultations prior to the implementation of industrial development projects in places of traditional residence and traditional economic activity.

It seems that the standard of responsibility, although it is advisory in nature, can have a certain positive impact on the formation of a certain balance of business interests in the process of developing the natural resources of the Arctic zone and indigenous peoples interested in preserving their native habitat while improving their quality of life.