Criminalising Rituals and Traditional Occupations: The Struggle of Ainu in Japan, A Century Hence

Catching salmon is an essential part of it. But Hatakeyama-Ekashi did not secure a permit prior to the ceremony, a process he has been against for decades. He believes the Ainu, as indigenous peoples of Japan, should have their fishing rights respected and protected. He contends that they should be able to fish salmon and freely observe their rituals without the authorities of Hokkaido Prefecture intervening. But a few days after the ceremony, the police took Hatakeyama-Ekashi from his home to their station for questioning. He endured hours of interrogation each day for three consecutive days. His mobile phone was also confiscated.

Tracing the struggles of Ainu and Japan’s institutional changes

Ainu broadly refers to the indigenous peoples of present-day Hokkaido Prefecture, including Russia’s Sakhalin Island and the Kuril Islands. They were caught between these powerful nation-states during the Second World War, neither of which gave the Ainu the choice to be their own people.

Since Japan’s Meiji period (1868 – 1912), the Ainu have suffered gravely from the government’s assimilation policy. They have not been allowed to embrace their identity without fear of discrimination. They struggled to maintain their language and culture. Hunting and fishing practices are integral part of their culture but they were forced to abandon them for farming.

After more than a century of being ignored, the Sapporo District Court decision in 1997 involving Hokkaido Development Agency’s expropriation of Ainu lands finally brought Ainu identity and their struggles out in the open. Underlining Article 13 of the Constitution of Japan and Article 27 of the International Covenant on Civil and Political Rights (ICCPR) – to which Japan is a signatory— the Court stated that “as the indigenous people of Hokkaido, and thus a minority group in Japan, the Ainu had the right to enjoy their own culture.”

Following this unprecedented victory, the 1899 Hokkaido Former Aborigines Protection Act, which ultimately denied the Ainu’s self-identity, was replaced with the Ainu Cultural Promotion Act in the same year. But the 1997 Promotion Act fell short of recognising their indigenous rights; it focused mainly on the promotion of their culture. Then in 2008, the parliament of Japan passed the Resolution on Recognition of Ainu as Indigenous People (sic). The resolution states, “the government shall recognize that the Ainu are indigenous people who have their own language, religion and culture.” But it was criticised for being weak in recognising historical discrimination against the Ainu. Shortly after, the Council for Ainu Policy Promotion was established. But this, too, was a disappointment.

In an article, Mashiyat Zaman of Centre for Environmental and Minority Policy Studies (CEMiPoS) shares the evaluation of CEMiPoS director Professor Maruyama Hiroshi to the Council. “[T]he structure of the Council itself reveals little interest in considering the opinions of the Ainu. Not only is the majority of the Council ethnically Japanese, but only Ainu organizations directly tied to the government are represented.”

Furthermore, although considered successes in their own right, none of these institutional changes were able to erase the outcomes of the deeply-rooted discrimination and neglect towards the Ainu. Majority of Ainu’s everyday lives have remained dire. Like their fellow indigenous Ryūkyūans mostly living in Okinawa and Kagoshima Prefectures, they remain to be the most vulnerable, poorest and with least access to quality education, health care or employment compared to the Japanese majority.

The recently passed 2019 Ainu Promotion Act, which replaces the 1997 Ainu Cultural Promotion Act, seems to offer yet another opportunity for reconciliation between the Japanese government and the Ainu. But the threat and intimidation of the Hokkaido Prefecture police on Hatakeyama-Ekashi conveys an ominous horizon. It spells a lack of progress towards the full recognition of the collective rights of the Ainu people, particularly their rights to cultural integrity, self-determination and right to their lands and territories.

The 2019 Ainu Promotion Act has been criticised for failing, among other things, to resolve issues relating to their cultural rights. The new law merely simplifies the procedures in obtaining permission from authorities to conduct traditional salmon fishing in rivers. That is also the case if they wish to collect timber and other items in national forests for rituals. Meanwhile, the new National Museum of the Ainu, which opened on 12 July 2020 and is supported by specific codification within the Ainu Promotion Act, has been deemed by the Japanese government as “the hub of Ainu cultural revitalisation.” But for the Ainu, it is an embodiment of Japan’s assimilation policies and its reluctance to sincerely recognise their collective rights as indigenous peoples.

Japan’s initiatives at the national level mirror its conduct in the international arena. In the latest Universal Periodic Review (UPR) in 2017, Japan merely noted recommendations that refer to “strengthening measures so the Ainu, and other minorities fully enjoy their economic, social, cultural rights” or to “deepening the implementation measures to avoid and prevent discrimination against indigenous peoples through consultation.” It also just noted the recommendation on ratifying ILO 169 or the Indigenous and Tribal Peoples Convention of 1989.

Similarly, the concluding observations of the Committee on Elimination of Racial Discrimination (CERD) in 2018 highlighted the need for Japan to do better with regards to protecting and promoting the rights of Ainu. CERD called on Japan, among other specific recommendations, to “adopt measures to protect the land and natural resource rights of Ainu people” and “increase the proportion of Ainu representatives in the Council of the Ainu Policy Promotion and in other consultative bodies.”

Treading Onwards

Hatakeyama-Ekashi is not alone in demanding the repeal of Article 52 of the Hokkaido Regulations in the Freshwater Fishing Industry, which has “allowed the Ainu to catch salmon only for the purpose of performing cultural ritual if they get prior permission from the authorities.” He has been condemning Article 52 for infringing indigenous rights of the Ainu as stipulated in the UN Declaration on the Rights of Indigenous Peoples (UNDRIP), in the ICCPR or as clearly guaranteed in Article 13 of the Japanese Constitution.

Despite all the effort of the Japanese government to address the demands of the Ainu, the authorities are unable to depart from their “colonising attitude.” They have almost always disregarded the importance of sincere consultation and participation of the Ainu community. That has been among the salient gaps and points of criticism on the supposedly life-changing decisions of the government towards rectifying the impacts of its historical and systematic discrimination against the Ainu.

But just like the salmon that habitually brave the upstream current to spawn, the Ainu are not wavering in their tenacity to move forward until full recognition of their rights is achieved. At the start of this year, 13 members of the Ainu community, both young and old, were set to file a lawsuit in April 2020 against the Japanese government to assert their fishing rights.

Hatakeyama-Ekashi suffered a stroke several months after his encounter with authorities of the Hokkaido Prefecture, which has likely been used as the excuse for officially suspending the charges against him last 30 June. But neither his medical condition nor the suspension of charges will stop him from fighting for Ainu rights. In a recent phone interview with NHK from the hospital on 6 July, he reiterated, “It’s not an issue of this ending with no charges being pressed. The issue is that I cannot accept the situation in the first place. I plan to continue taking salmon for this ceremony as long as I am alive, and I am going to fight even harder for our indigenous rights.”

But with the threat of impending indictment still looming, and Hatekeyama-Ekashi in a hospital, the plan of Monbetsu Ainu Association to stage another protest this September is not likely to occur. Nevertheless, according to Jeffry Gayman, a professor at Hokkaido University and member of the Citizens’ Alliance for the Examination of the Ainu Policy, together with supporters of Hatakeyama-Ekashi, they plan to lobby Hokkaido politicians and bring the issue to the media. They aim to keep Hatakeyama-Ekahi’s story and the struggle of Ainu alive and keep it from slipping into oblivion. They are certain the government does not want to incite an outcry, either within Japan or from the international community, and let the world realise that Japan’s initiatives toward the Ainu have been wanting, if not outright futile.

*IPRI extends gratitude to Jeffry Gayman for his help in this article.