Features of the legal regulation of the use of aquatic biological resources by indigenous minorities

Semenova Irina Vladimirovna Junior Researcher; Department of Environmental, Land and Agrarian Law; Institute of State and Law of the Russian Academy of Sciences 10 Znamenka str., Moscow, 119019, Russia ssem.irina@gmail.com Other publications by this author

Russia is a multinational country, which is reflected in the Constitution of the Russian Federation. According to its provisions, the bearer of sovereignty and the only source of power in our country is its multinational people (Article 3). According to the All–Russian Population Census of 2020 (Results of the VPN 2020. Volume 5 National composition and language proficiency. // Official website of the Federal State Statistics Service [Electronic resource]. URL: https://rosstat.gov.ru/vpn/2020/Tom 5_Nacionalnyj_sostav_i_vladenie_yazykami (accessed: 09/10/2024)). Representatives of 194 nationalities live in the Russian Federation. The policy of our state is aimed at preserving the language, culture, and traditions of each ethnic group living there. At the same time, a separate social group of the population is singled out, which needs special state support and protection, including due to the small number of representatives of certain nationalities. Russian legislation provides for certain measures of protection and legal guarantees for such a part of the country's population as indigenous small peoples (hereinafter – KMN), which have their own special legal status. In particular, it is determined by the special way of life of these peoples. Thus, legal measures are aimed at preserving the traditional way of life of the KMS, conducting traditional crafts and economic activities in the territories of settlement of their ancestors.

Federal Law No. 82-FZ of April 30, 1999 "On Guarantees of the Rights of Indigenous Small–numbered Peoples of the Russian Federation" (hereinafter - the Law on Guarantees) (Federal Law of the Russian Federation. 1999. No. 18. St. 2208.) gives the following concept to the indigenous small–numbered peoples of the Russian Federation - peoples living in the territories of the traditional settlement of their ancestors, preserving traditional lifestyles, economic activities and crafts, numbering less than 50 thousand people in the Russian Federation and realizing themselves as independent ethnic communities (paragraph 1 of art. 1).

The specificity of the legal status of the KMN is manifested in the fact that persons belonging to these peoples, as citizens of the Russian Federation, fully enjoy all human and civil rights and freedoms, but at the same time they have additional collective and individual rights in the political, economic and socio-cultural sphere ^{[1, p. 16]}.

A decree of the Government of the Russian Federation established a Single list of indigenous small–numbered Peoples of the Russian Federation (hereinafter referred to as the Single List) (NW RF. 2000. No. 14. From vol. 1493.). Among the CIS included in the Single List, 40 have a special legal status of indigenous small–numbered peoples of the North, Siberia and the Far East (hereinafter referred to as the CIS or peoples Of the North). By an order of the Government of the Russian Federation, these peoples were allocated to a separate list (Federal Law of the Russian Federation. 2006. No. 17 (2 hours). Since 1905.). This particular approach is due to a number of reasons. According to V.A. Shtyrov, the peoples of the North, in accordance with Russian legislation, are guaranteed a special legal status and priority of using natural resources due to the special vulnerability of their traditional way of life and habitat. The KMNS still lead a traditional lifestyle associated with nomadic farming and traditional nature management, and represent ancient communities of fishermen, hunters, gatherers and reindeer herders that have survived to this day. The remaining 7 small indigenous peoples – Abazins, Besermans, Vodians, Izhorians, Nagaibaks, Setu (seto), Shapsugs – do not live in the circumpolar zone, but also enjoy special rights in the field of preserving ethnic identity, traditional lifestyle and traditional economic activities ^{[1, p. 9]}. Therefore, the need for the allocation of KMNS is caused by the peculiarities of the climate of their territories, which significantly complicate the living conditions and the possibility of using other ways to provide the population with food. The climate on our planet is currently changing inexorably, and the international community is taking measures to adapt to such changes, both jointly and within the framework of national regulation. I.I. Matvienko notes that climate changes can endanger the habitual way of life of the CIS, affect the economic stability of their habitat ^{[2, p. 154]}. In this regard, the study of the economic life of the CIS deserves special attention. A.A. Tranin also pointed out that ensuring the security and improving the socio-economic situation of the peoples of the North are considered as one of the priorities of the state national policy ^{[3, p. 24]}.

In addition to the acts we have already considered, specialized norms also apply to the CMNS. In particular, these include the Federal Law "On the general principles of the organization of communities of indigenous small-numbered Peoples of the North, Siberia and the Far East of the Russian Federation" (SZ RF. 2000. No. 30. St. 3122.), the Federal Law "On the territories of traditional Nature Management of indigenous small-numbered Peoples of the North, Siberia and the Far East of the Russian Federation" (Federal Law of the Russian Federation. 2001. No. 20. St. 1972.), The Concept of Sustainable Development of indigenous small peoples of the North, Siberia and the Far East of the Russian Federation (hereinafter – the Concept) (Federal Law of the Russian Federation. 2009. No. 7. St. 876.), Order of the Ministry of Agriculture of the Russian Federation dated September 1, 2020 No. 522 "On approval of the Procedure for fishing in order to ensure the traditional way of life and the implementation of traditional economic activities of the indigenous small-numbered peoples of the North, Siberia and the Far East of the Russian Federation" (Official Internet portal of legal information www.pravo.gov.ru 2020. No. 0001202010050066.) and others. Thus, the legal status of the indigenous peoples of Russia is a complex multilevel structure ^{[4, p. 160]}.

Next, we will focus in more detail on the specifics of the legal regulation of relations on the use of aquatic biological resources (hereinafter referred to as UBR) by indigenous peoples.

The Federal Law "On Fisheries and Conservation of Aquatic Biological Resources" provides for fishing as a separate type in order to ensure the conduct of a traditional lifestyle and the implementation of traditional economic activities of the indigenous small-numbered peoples of the North, Siberia and the Far East of the Russian Federation (paragraph 7, part 1 of Article 16) (hereinafter – traditional fishing). It is worth noting that in this case, it is the CMNS that stands out in a special position. This means that the remaining 7 indigenous peoples carry out fishing on a common basis. As we noted earlier, this largely depends on the geographical location of their places of residence. After analyzing the lifestyle of the CIS that are not included in the list of CIS, we came to the conclusion that for the most part fishing is not the main type of economic activity for them or is not carried out by these peoples at all. The indigenous peoples of the North have lived and are living in difficult climatic conditions. Fishing, as well as the sale of fish products, is one of the main types of traditional economic activity for them. In addition, the recognition of the right of the indigenous peoples of the North to priority access to fishing grounds and hunting grounds, to biological resources in their traditional places of residence and traditional economic activity is one of the principles of sustainable development of the CISN (Part III of the Concept).

The legislative regulation of traditional fishing is carried out at the federal and regional levels. The procedure for providing VBR is established by subordinate regulatory acts of the Government of the Russian Federation and federal executive authorities of the Russian Federation (Ministry of Agriculture of the Russian Federation, Federal Agency for Fisheries). It is noteworthy that the concept of "traditional fishing" is not defined at the legislative level, however, this term is used in the text of the Order of the Ministry of Agriculture of the Russian Federation No. 522, as well as on the official website of Rosrybolovstvo. In our opinion, Part 1 of Article 1 of the Law on Fisheries should be supplemented with a paragraph containing the definition of the concept of "traditional fishing" in the following wording – activities for the search and extraction (catch) of aquatic biological resources, as well as for the acceptance, processing, transshipment, transportation, storage and unloading of catches of aquatic biological resources, production of fish products for the purpose of ensuring the conduct of a traditional lifestyle and the implementation of traditional economic activities of the indigenous small-numbered peoples of the North, Siberia and the Far East of the Russian Federation. And, accordingly, to amend the remaining articles of the Law on Fisheries and other regulations. The current designation of traditional fishing is quite cumbersome and voluminous, which may make it difficult for representatives of the CMNS to understand their rights.

Article 25 of the Law on Fisheries is devoted to traditional fishing. It defines the subjects of this type of fishing: these include persons belonging to the CMNS and their communities, as well as the forms of its implementation – with or without the provision of a fishing area. At the same time, for traditional fishing without providing a fishing area, a production permit (catch) is not required VBR, with the exception of the extraction (catch) of rare and endangered species, and when carrying out traditional fishing with the provision of a fishing area, it is prescribed to keep a fishing log. Special attention should be paid to the procedure for the implementation of traditional fishing, which is currently being established by the Ministry of Agriculture of the Russian Federation. In accordance with it, the indigenous peoples of the North and their communities, when carrying out traditional fishing, use extraction (catch) tools permitted by the fishing rules of the relevant fisheries basins, and also have the right to use traditional methods of extraction (catch) of aquatic biological resources, if such methods do not directly or indirectly lead to a decrease in biological diversity, do not reduce the number, sustainable reproduction of objects of the animal world, do not violate their habitat and do not pose a danger to humans. Thus, KMNS can use traditional fishing gear, as long as they do not harm the environment and do not cause damage to the harvested fish. The specifics of the implementation of traditional fishing are also detailed in the rules of fisheries basins, in particular for the Northern, West Siberian, Far Eastern, East Siberian, Baikal fisheries basins.

Exceptions are also provided for the extraction of rare and endangered species of IBD for indigenous peoples both at the international ^[5] and national levels.

International agreements can protect threatened species of both terrestrial and aquatic animals and plants. For example, bowhead whales (Balaenoptera musculus), whose traditional nature management will be discussed in more detail below, are included in the list of "Migratory species in danger of extinction" of Annex I to the Convention on the Conservation of Migratory Species of Wild Animals of 1979. (Convention on the Conservation of Migratory Species of Wild Animals, 1979 [Electronic resource]. URL: https://docs.cntd.ru/document/1902129?ysclid=m1gjn3g3xk332509374 (accessed 08.09.2024)). And the Convention on the Conservation of Antarctic Marine Living Resources (CCAMLR), 1980 (Convention on the Conservation of Antarctic Marine Living Resources, 1980 [Electronic resource].URL: https://www.ccamlr.org/en/document/publications/basic-documents-december-2011 (date of reference: 09/17/2024)) all Antarctic populations of fish, shellfish, crustaceans and seabirds are protected, with the exception of whales and seals, whose protection is regulated by other international treaties ^{[6, p. 11]}.

In the Russian Federation, according to the Decree of the Government of the Russian Federation dated December 24, 2008 No. 1017 "On the extraction (catch) of rare and endangered species of aquatic biological resources" (NW RF. 200 8. No. 2. C. 223.) their extraction is allowed in exceptional cases, including "in order to ensure the conduct of a traditional way of life and the implementation of traditional economic activities of the indigenous small peoples of the North, Siberia and the Far East of the Russian Federation." The extraction of these types of VBR is carried out on the basis of special permits. In particular, the indigenous peoples of Chukotka carry out the extraction of bowhead and gray whales listed in the Red Book of the Russian Federation. According to its provisions, the CMN and representatives of other ethnic communities in the places of their traditional residence and traditional economic activity on the territory of Chukotka are allowed to extract UBR data for conducting traditional aboriginal fishing according to quotas established by the International Whaling Commission ^{[7, p. 11]}. Chukotka is the only region of Russia in which this fishery is allowed. So, in 2024, Rosprirodnadzor issued a permit to the Association of Indigenous Peoples of Chukotka for the extraction of 135 gray and 5 bowhead whales (See : Up to 140 whales will be able to extract the sea whales of Chukotka in 2024. // Official website of the Association of Indigenous Peoples of the North, Siberia and the Far East. [electronic resource]. URL: https://raipon . info/press-tsentre/novosti/do-140-osobey-kitov-smogut-dobyt-morzveroboi-chukotki-v-2024-godu/ (accessed: 10. 09. 2024)). At the same time, it is noted that sea lions have complained over the past few years about the late issuance of permits – in May, when whales no longer enter some places (for example, the village of Sireniki). However, earlier obtaining permits (in early April) contributes to an increase in whale production. So, according to statistics, in 2022, when production began in May, 122 whales were caught, and in 2023 there were already 131 individuals – 130 gray whales and one Greenland whale. At the same time, it is noted that "whale quotas" undergo a thorough scientific justification, and the extraction itself is carried out according to strict rules and under multilateral control (Marine hunters of Chukotka received permission to harvest 135 gray and 5 bowhead whales in 2024. // GoArctic portal. [electronic resource]. URL: https://goarctic. ru/korennye-narody-severa/morskie-okhotniki-chukotki-poluchili-razreshenie-na-dobychu-135-serykh-i-5-grenlandskikh-kitov-v-202/?ysclid=m 0 ww 83 ud 3 l 228126135 (date of request: 10. 09. 2024)). Despite numerous calls for a complete ban on whaling, experts note that this is impossible. For the population of Chukotka, this fishery is an important source of food – marine hunters provide them with meat for more than nine thousand residents of the district. Due to the geographical location, cereals, vegetables (carrots, potatoes, tomatoes, etc.) that are brought to the peninsula are usually last year's (since ships depart in May and arrive at the place only in July), and, accordingly, they have lost most of their nutritional properties and taste qualities. Therefore, the only source of fresh food remains the tundra and the sea ("We will not survive without them" Whales have been hunted in Russia for centuries. How does the life of indigenous peoples depend on the sea giants? // Lenta. Ru. [Electronic resource]. URL: https://lenta. ru/articles/2023/08/03/whale/?ysclid=m0wuugddhp907578454 (date of request: 10. 09. 2024). The KMN of Chukotka has been mined for these VBR for more than 2.5 thousand years The purpose of this fishery is to satisfy the personal needs of the population, not commercial gain, therefore, the distribution of meat and fat of marine mammals is allowed among residents of coastal national settlements, exchange with reindeer herders for venison is allowed ^{[8, p. 228]}. In the course of research, it was found that the transition of the indigenous inhabitants of Chukotka to another type of diet leads to an increase in morbidity and a reduction in life expectancy (Why not completely ban whaling among the Chukchi? // This is Siberia! [electronic resource]. URL: https://etosibir. ru/stoit-li-zapretit-polnostyu-kitobojnyj-promysel-u-chukchej/?ysclid=m 0 wv 5 ja 7 dt 621494955 (date of request: 10. 09. 2024)).

In the field of legislative regulation of traditional fishing, there are certain gaps that interfere with the implementation of the rights of the CMNS. Currently, the procedure for applying for quotas for traditional fishing is an urgent problem. At the moment, the "declarative principle" is in effect, creating unnecessary administrative barriers for the CMNS ^{[9, p. 186]}. Thus, many representatives of families and even communities of the peoples of the North were left without the opportunity to conduct legal fishing due to the difficulties associated with the application and approval process - missing deadlines for submitting documents due to the inability to get there on time due to bad weather, lack of communication, etc. (Fishing and KMNS: new rules for traditional farming. // Investment portal of the Arctic zone of Russia [Electronic resource]. URL: https://arctic-russia.com/article/rybolovstvo-i-kmns-novye-pravila-dlya-traditsionnogo-khozyaystva / (date of access: 09/10/2024)). To solve the problem, the State Duma of the Russian Federation is considering a draft law adopted in the first reading, providing for the abolition of this principle in the implementation of traditional fishing by individuals from among small indigenous peoples (Bill No. 309477-8 On Amendments to the Federal Law "On Fishing and Conservation of Aquatic Biological Resources" (in terms of clarifying the fishing procedure in order to ensure the traditional image the life and implementation of traditional economic activities of the indigenous small-numbered peoples of the North, Siberia and the Far East of the Russian Federation). // CREATION of the GAS "Lawmaking" [Electronic resource]. URL: https://sozd.duma.gov.ru/bill/309477-8?ysclid=m 0 wzivessg 237824100 (accessed: 09/10/2024)). In accordance with the draft law, access to the VBR to the peoples of the North will be provided on the basis of the Register of Persons Belonging to Indigenous Minorities. At the same time, the so-called "annual production rate" is introduced, which represents the amount of UBR that a person who is a representative of the CMNS can catch during the specified period. That is, instead of quotas, a slightly different regulatory mechanism is being established, limiting the volume of fishing by the peoples of the North. Its advantage lies in the absence of the need to go through a complex procedure of the "declarative principle". At the same time, the question arises how the specified annual rate will be fixed, as well as the methods of extraction of aquatic biological resources, which were previously reflected in the application. In our opinion, the solution to this problem consists in the provision by representatives of the CMNS of annual reports to the territorial departments of Rosrybolovstvo indicating the volume of fishing for fish, the fishing area and fishing gear used for traditional fishing. It is also necessary to carry out control measures at the fishing sites in order to verify the information provided to the agency.

In addition, representatives of the peoples of the North want to obtain permission to conduct commercial activities within the limits of the quotas provided. The activities of the communities are mainly aimed at fishing, collecting wild plants, hunting, they belong to those types of economic activities that require state financial support for profitability. For example, fishing accounts for more than 50% of the representatives of the CIS working in this field in the Khanty-Mansiysk Autonomous Okrug ^{[10, p. 765]}. In 2021, the Association of Indigenous Peoples of the North, Siberia and the Far East of the Russian Federation prepared amendments to the legislation, which proposed dividing fishing quotas into two types: to ensure a traditional lifestyle and economic activity (For the CMNS, it is proposed to introduce quotas for fishing for economic activities. //TASS News Agency [Electronic resource]. URL: https://tass.ru/ekonomika/13164737 (date of application: 09/18/2024)). Unfortunately, at the moment, this bill has not been submitted to the State Duma for consideration and its further development is not mentioned in any sources. However, in our opinion, the proposed changes can not only favorably affect the improvement of the economic situation of the CIS, but also develop regional business activities.

As part of the expedition "Clean Arctic - Vostok 77", which took place from August 15, 2023 to August 15, 2024, its participants conducted research on the current state of traditional fishing in the CIS in order to study it in detail and identify regional and territorial differences in technologies and organizational mechanisms of this fishery. The ichthyofauna of the Arctic zone of the Russian Federation is diverse, while most species are of commercial importance ^{[11, p. 98]}. Separate research on the project will continue until December 15, 2024 (The results of the Arctic expedition have been published: southern spiders have been found, permafrost has been measured. // Electronic periodical "MK.ru " [Electronic resource]. URL: https://www.mk.ru/science/2024/08/30/obnarodovany-rezultaty-ekspedicii-po-arktike-naydeny-yuzhnye-pauki-izmerena-merzlota.html?ysclid=m 0 wtx 56 pk 5466558051 (accessed: 09/10/2024)). This work is of great importance for the above-mentioned draft law. As the participant of the expedition, Veronika Simonova, noted, during the research, certain wastes from the fishing technologies of the ancestors of the peoples of the North were recorded, but this does not negate the provision of the rights of the KMNS to traditional fishing. The draft law under consideration should also take into account the regional peculiarities that were revealed during the expedition (How will representatives of the indigenous peoples of the North fish in the future? // kmns.ru [Electronic resource]. URL: https://kmns.ru/blog/2023/10/24 / (date of access: 09/10/2024)). In our opinion, a comprehensive study of the needs of the CMNS arising in connection with the conduct of a traditional lifestyle and traditional economic activities contributes to the introduction of changes, the need for which is caused by practice. Scientists (A.M. Tortsev, I. I. Studenov, A. P. Novoselov) wrote about the need for comprehensive research back in 2017 ^{[12, p. 275]}. At the same time, in our opinion, in this case, complexity means in addition to collecting statistical data and analyzing various reports and information provided to departments, Also, specialists are studying the mechanisms of implementing traditional fishing in the field, identifying difficulties in its implementation, through "involvement" in the process under consideration, conducting surveys among representatives of the CMNS, analyzing climatic conditions and the state of populations of the UBR. The results of such diverse work by scientists of various specializations will undoubtedly improve not only the legal status of the peoples of the North, but also allow preserving and protecting the biological diversity of aquatic biological resources and their habitat.

Summing up the above, it is worth noting once again that respect for the rights of indigenous minorities of the Russian Federation is a priority of the state national policy of the Russian Federation. The distinction among the indigenous minorities of the North, Siberia and the Far East is determined by the peculiarities of the geographical environment of their residence. The occupation of traditional economic activities, including fishing, is the basis for the livelihood of these peoples. According to research, traditional nutrition (primarily fish and venison) for the peoples of the North has a great impact on their health ^{[13, p. 144],[14, p. 210],[15, p. 610]}. In the field of extraction of aquatic biological resources, KMNS have special rights that allow them to lead their traditional way of life and provide the population with food (provision of separate quotas for the extraction of UBR, special rules for the extraction of rare and endangered species of aquatic biological resources, etc.).

Currently, there are certain gaps in the legislative regulation of these aspects, for which the following proposals have been outlined. Firstly, in order to unify concepts and simplify the perception of the provisions of the law, we propose the introduction of the term "traditional fishing" into the Law on Fisheries. Secondly, one of the main problems of the CMNS in the implementation of fishing is the declarative procedure for obtaining quotas for traditional fishing. A bill providing for its repeal is under consideration by the State Duma. In our opinion, it requires details regarding the implementation of the new mechanism in practice, especially regarding the fixation of the volume of catch of IBD and the tools used for their extraction. Thirdly, in order to develop entrepreneurial activity among the representatives of the CIS, it seems advisable to provide them with preferential quotas for conducting business activities. However, at the moment this idea has not received support. In our opinion, the existence of a real need for these measures or its absence can be concluded when the results of the expedition "Clean Arctic - Vostok 77" are published, in terms of studying the current state of traditional fishing, in order to identify aspects requiring legal regulation to improve the situation of the CMNS and the development of their fishery.

In conclusion, I would like to draw attention to the fact that the traditional way of life of indigenous peoples, to one degree or another, is subject to legal protection in those countries in which they live. In this regard, it is necessary to intensify interstate cooperation in this direction, since the environment has no borders, and its protection cannot be carried out exclusively in isolation. This is especially true of the traditional use of aquatic biological resources, the overexploitation of which by some countries can lead to the reduction or loss of certain biological species and pose a threat, including the preservation of the traditional way of life by indigenous peoples.