Kayano v Hokkaido Expropriation Committee

• Jurisdiction: Japón
• Court: District Court (Japan)
• Date: 27 March 1997

Japan (Sapporo District Court)

(Kazuo Ichinomiya, Chief Judge; Akira Horiuchi and Kazuto Ohara, Judges)

Kayano et al.

and

Hokkaido Expropriation Committee (The Nibutani Dam Decision)

Human rights Indigenous peoples Dam construction allegedly affecting indigenous people Nibutani Dam in Saru River system, Japan Land acquisition Demand for compensation for Ainu people Project documentation made available for public inspection Project plan summarily approved by Minister of Construction No opposition to project authorization Administrative rulings confiscating land ownership rights and ordering surrender

Human rights Minorities Inherent right of minorities to enjoy their culture International Covenant on Civil and Political Rights, Article 27 Interests of indigenous minorities requiring greater consideration than those of other minorities Value of ethnic diversity to all citizens of Japan recognized

Human rights Property Confiscatory administrative rulings not unconstitutional Rulings must ensure propriety of administrative procedures impacting rights and interests of citizens Project authorizations and confiscatory administrative rulings representing a sequence taking land Legality of antecedent project authorization affected by confiscatory administrative ruling

Environment Dam Balancing of public benefits with private and public detriments Detriments including effect on culture of Ainu people Insufficient investigation of dam's impact on Ainu culture

Summary: The facts:On 24 March 1983, plans to construct the Nibutani and Biratori dams in the Saru River system were adopted at the instigation of the Japanese Minister of Construction, with the stated purposes of flood control, maintaining correct functioning of the river flow, securing irrigation, municipal, and industrial use water service, and electrical power generation. The Hokkaido Development Bureau entered voluntary land acquisition negotiations with owners of land situated on the proposed dam site. However, a particular group of land rights holders including the plaintiffs were dissatisfied with the offering price and demanded compensation for the Ainu people who inhabited the area. The plaintiffs demanded reversal of these rulings on the basis of illegality stemming from the failure to consider the impact of the dam construction on the Ainu people and culture.

The defendant, Hokkaido Expropriation Committee, was an independent administrative committee established pursuant to Article 51 of the Land Expropriation Law.1 The Minister of Construction, the responsible Government Minister, was a third party intervenor. In the wake of the demands of the Ainu people, the Hokkaido Development Bureau, acting as agent for the Minister of Construction, applied to the Minister of Construction for recognition of the Nibutani Dam Project Plan (the Project Plan). The Minister of Construction transmitted the Project Plan documentation to the mayor of the township of Biratori, head of the municipality where the project was to take place. The mayor made these materials available for public inspection from 19 June to 3 July 1986, at which time certain non-litigants complained to the Governor of Hokkaido claiming compensation and restoration of rights in the land lost by the Ainu people. The Minister of Construction authorized the project on 16 December 1986 and gave public notice thereof. No opposition to the project authorization was filed within the limitation period prescribed or otherwise.

On 30 November 1987, the participating party applied to the defendant for administrative rulings confiscating land ownership rights and ordering vacation and surrender, pursuant to the Land Expropriation Law. The defendant issued these rulings on 3 February 1989. On 4 March 1989, the plaintiffs requested examination of these Confiscatory Administrative Rulings. The Minister of Construction rejected this request by a ruling delivered to the plaintiffs on 28 April 1994. The dam had been substantially completed during this five-year interval during which the plaintiffs exhausted their administrative remedies, a prerequisite to legal action in Japan. Thereupon the plaintiffs initiated this action before the Sapporo District Court.

The plaintiffs argued that the Confiscatory Administrative Rulings violated the Japanese Constitution; alternatively they argued that the Project Authorization did not comply with Article 20(3) and (4) of the Land Expropriation Law and that such illegality affected the Confiscatory Administrative Rulings. The defendant argued that the expiration of the limitation period for opposing the Project Authorization precluded any challenge to the legality of the Confiscatory Administrative Rulings.

Held:(1) Since the Land Expropriation Law was undoubtedly constitutional, the only possible challenge to the Confiscatory Administrative Rulings was their conformity to the Land Expropriation Law (p. 183).

(2) As project authorizations and confiscatory administrative rulings under the Land Expropriation Law represented a sequence of acts which together effected the taking of land, the legality of the antecedent project authorization

was a condition for subsequent confiscatory administrative rulings. In a suit for a reversal of a confiscatory administrative ruling, there had to be the ability to argue for the reversal of the underlying project authorization, even if the limitation period for opposing the project authorization had expired. In any event the project authorization did not provide individual notice to landowners, nor was it sufficiently specific to alert all affected landowners to the seriousness of the circumstances affecting their land (pp. 1846)

(3) Article 20(3) required that a project plan shall contribute to the appropriate and rational use of land. This required a comparative balancing of the public benefits of the project with the detriment to public and private interests in the land. The project had undeniable benefits in terms of flood control and industrial and urban water supply. On the other hand, the plaintiffs were Ainu people, a minority within the meaning of Article 27 of the International Covenant on Civil and Political Rights (ICCPR), to which Japan was a party.2 Indeed a significant proportion of people in the Nibutani area were Ainu. The traditional culture of the Ainu people revolved around communal living and nature worship. As the Project Plan involved submersion of a broad area of the Nibutani vicinity, its execution would impose hardship on the Ainu people living in the area, or at least greatly impact upon their lifestyle and culture. But there was no reference to the influence of the project on Ainu culture in any of the project planning documentation; indeed there was no written decision for the Project Authorization, which was granted without amendment (pp. 186204).

(4) Although, as the defendants argued, the Land Expropriation Law did not confer any special status on these considerations, the inherent right of the Ainu people to enjoy their distinct culture was addressed in Articles 2(1), 26 and 27 of the ICCPR. The Government of Japan, in its third report to the UN Human Rights Committee under ICCPR Article 40 in 1991, had recognized the Ainu people as a minority within the meaning of Article 27. Japan had an obligation to observe the Article 27 guarantee by virtue of Article 98(2) of the Japanese Constitution,3 subject to the limits for public welfare in Articles 124 and 135 of the Constitution. Any limits on this guarantee of rights should be no broader than was absolutely necessary (pp. 2058).

(5) Although Article 27 addressed several kinds of minorities, the interests of indigenous minorities warranted particular consideration. The Ainu people were an indigenous people as they had inhabited Hokkaido since before the extension of Japanese rule to the region, and they had forged their own culture

and identity which had not been lost. Historically the Japanese Government had subjected the Ainu people to assimilationist policies which forced upon them the culture of the majority. Moreover ethnic diversity was of value to all citizens of Japan, and consequently the importance of the maintenance of the Ainu culture (pp. 20919)

(6) The decision to construct the Nibutani Dam should have been based on the results of a thorough investigation of the impact of the project on Ainu culture, rather than simply an examination of ground form, structure and economic factors. It was the legal obligation of the Minister of Construction as the authorizing entity to ensure that a careful comparative balancing was carried out, which he failed to do. Accordingly, the Project Authorization exceeded the administrative discretion conferred on the authorizing agency by Land Expropriation Law Article 20(3), and was unlawful. This illegality tainted the Confiscatory Administrative Rulings (pp. 21921).

(7) The subsequent decisions to reconstruct one of the Chashi ruins and preserve part of another, and to investigate holding the key Ainu festival on the riverside grounds below the dam did not cure this illegality (pp. 2212).

(8) However, the Nibutani Dam had already been completed at a cost of tens of billions of yen. One of the Chashi ruins and two places of worship had already been demolished and could not be restored. Accordingly, reversal of the Confiscatory Administrative Rulings was not in the public interest. Thus under Article 31(1) of the Administrative Litigation Law,6 the plaintiffs would be limited to a declaration of the illegality of the Confiscatory Administrative Rulings; their other claims would be rejected (pp. 2224).

The following is the text of the judgment of the Court:7

TABLE OF CONTENTS

page
Formal ruling	177
Findings and rationale	178
A. Complaint	178
B. Case overview	178
1 Undisputed facts, etc.	178
a Parties, etc.	179
b Overview concerning the Saru River	179
c Background regarding the confiscatory administrative rulings	179
2...