1 Assistant Professor of Law, The William S. Richardson School of Law, The University of Hawai'i at Mānoa, Honolulu, Hawai'i.

2 GyōSei Jiken Soshō Hō[Administrative Litigation Law], Law no. 139 of 1962, art. 31(1).

3 Tochi Shuyō Hō, [Land Expropriation Law] Law No. 219 of 1951, art. 20(3).

4 “All of the people shall be respected as individuals. Their right to life, liberty, and the pursuit of happiness shall, to the extent that it does not interfere with the public welfare, be the supreme consideration in legislation and in other governmental affairs.” Kempō, art. 13.

5 “In those States in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practise their own religion, or to use their own language.” Iccpr Art. 27.

6 “The treaties concluded by Japan and established laws of nations shall be faithfully observed.” kempō, art. 98, para. 2.

7 Sekimu (translated here as “obligation“) and gimu (translated here as “duty“) differ in nuance. “Sekimu” is narrower and indications“a responsibility plus duty“; i.e., there must be a responsibility (sekinin) which creates the duty. “Gimu” [i.e., duty] is broader and implies legal and ethical or moral imperatives together. Ruigo Reikai Jiten [Illustrated Dictionary Of Usage] under tsutome (Microsoft / Shogakukan Bookshelf CD-ROM Version 2.0 1998) (1994)

8 GyōSei Jiken Soshō Hō,supra note 2.

1 I.e., third party intervenor. Note that because the defendant and the participating party are aligned in interest in the case, the Court occasionally refers to them collectively as “defendants”. To make this usage a bit clearer, this translation uses “defendant” for the defendant alone and “defendants'’ to collectively indicate the defendant Expropriation Committee and the intervening participating party, i.e., the Government of Japan.

2 Tochi Shuyō Hō, [Land Expropriation Law] Law No. 219 of 1951.

3 See Tochi SHUYō Hō,supra note 2, Art. 8(1), which defines the term as the party that undertakes a project relating any of the See Tochi Shuyō Hō, supra note 2, Art. 8(1), which defines the statutorily designated purposes which necessitates the expropriation or use of land.

4 Tokutei Tamokuteki Da-Mu Hō[Designated Multi-purpose Dam Law], Law No. 35 of 1957.

5 The Hokkaido Development Bureau (Hokkaido Kaihatsu-kyoku) is the local base of operations for the Hokkaido Development Agency (Hokkaido Kaihatsu-chō) a cabinet-level national agency charged with the oversight of Hokkaido's growth and development. The agency operates independent of the government of Hokkaido.

6 This “Project Plan” was the national government's formal application to carry out the dam project, put forward by the Hokkaido Development Bureau to the Minister of Construction who summarily approved it (in the “Project Authorization“).As will be seen infra, the Court's decision in the case ultimately turns on whether this Project Plan was in compliance with the Land Expropriation Law's requirements.

7 Not necessarily related to the Plaintiff Koichi Kaizawa.

8 See generally Tochi ShuyōHō,supra note 2, ch. 4 § 4.

9 The dam was substantially completed during the five year interval which passed while the plaintiffs exhausted their administrative remedies. One might question whether there was intentional delay in the administrative process in order to moot the issue before it could be heard in court. Under Japanese law, it is virtually impossible to preliminarily enjoin administrative action not only before administrative remedies are exhausted but also during the pendency of judicial proceedings. See e.g. John O.Haley, Japanese Administrative Law: Introduction, 19 Lawin Japan 1, 6 (1986).

10 Reprinted at 1598 Hanrei Jihō 49.

11 The Japanese term used here, “tōdōfuken” includes Hokkaido, Metropolitan Tokyo, Osaka, and Kyoto, and the 43 prefectures. In Japanese, the term reveals Hokkaido's unique political status as a “dō as distinguished from Tokyo (-tō), Osaka and Kyoto (fu), and the 43 prefectures (-ken), but the standard English translation amalgamates these various political units into “prefectures”. 12 Literally, “the brine that the decision was pickled in”.

13 This term, “indirect evidence” (kansetsu jijitsu), derives from the German legal concept “indirekte Tatsache”. Yuhikaku Shin Hōritsugaku Jiten (Yuhikaku's New Scholarly Dictionary Of Law) 195 (3rd ed. 1989).

14 In March 1978, roughly 733 million U.S. dollars. 15 A low-lying, primarily wetland, portion of Tomakomai City facing the Pacific Ocean.

16 Hokkai Hydroelectric Corporation is a wholly-owned subsidiary of Hokkaido Electric Power, Inc., Hokkaido's regulated monopoly electric utility.

17 Note that the court never describes the Ainu as an “ethnic minority” using the precise Japanese language term seen in ICCPR Art. 27 (shūzoku teki shōsū minzoku), but instead describes the Ainu either as a “minzoku” (ethnic group) or “shōsū minzoku” (minority group). Some confusion arises since the term “shōsū minzoku” literally means “minority ethnic group”, but is used throughout the opinion to refer to minority groups of any variety, blurring a linguistic distinction that is commonly preserved in English. Accordingly, it is sometimes unclear when the court intends to include the notion of ethnicity in its analysis. This confusion unfortunately derives from the original Japanese and is unavoidable. This translation adopts the following conventions: on one hand, Ainu minzoku - the Ainu people; minzoku -ethnic group; minzokusei - ethnicity or ethnic status; minzoku koyūbunka - distinct ethnic culture; but otherwise, shōsū minzoku - minority (no distinction as to the basis for minority status) and tasūminzoku - majority. In some instances, the usage may be drawn from the surrounding context.

18 The ioru describes a single unit of geographic vicinity, larger than the village, including the village's hunting, gathering, and fishing grounds, and its sacred places.

19 The linguist Kindaichi (1882 - 1971) was the pioneer scholar of Ainu language and culture, studying yukar and other genres of Ainu literature.

20 “Dances performed annually in either the middle of July or the middle of August as part of the Bon Festival celebrations to welcome the ancestor spirits on their annual return to the world of the living, and to bid them farewell at their departure. … [It] is usually performed by large groups of men, women, and children of all ages. … ” Frank Hoff, Bon odori, in 2 Kodansha Encyclopedia Of Japan 75 (1983).

21 Wa-jin is a standard Japanese language usage which refers to the majority ethnic Japanese people as distinguished from the Ainu, and for which there is no suitable English translation. The term “Japanese” (“Nihonjin“) is categorically rejected because is it generally accepted that both Ainu and Wa-jin may be “Japanese” in the most common usage referring to Japanese nationality. On the other hand, a sizable population of Ainu people live in the Russian Far East (including territories held by Russia but claimed by Japan) and these individuals are presently Russian nationals.

22 In Japanese historical usage, “early modern times” indicate the late feudal Azuchi Momoyama (1573-1603) and Edo (1603-1868) periods.

23 Shigeru Kayano, Ore No Nibutani [My Nibutani](1975).

24 I.e., the Court deems the slight discrepancy to be de minimus.

25 At this point, the Court inserts an extended parenthetical presenting additional support from the evidence in the plaintiffs’ favor: (Moreover, plaintiffs’ evidence item no. 7 makes it indeed questionable that all of the local people, apart from Plaintiffs Kayano et al., had been unaware of these chinomishir. “Subsequently, in the course of the construction progress, one chinomishir site has been leveled for a placement of a construction crane. Because of this work that reflects outrageous treatment of a sacred place, local elders have anticipated that in due time a construction accident will occur.“)

26 Bunkazai Hogo Hō[Cultural Assets Protection Law], Law no. 214 of 1950.

27 An Ainu-style fishing net. See infra at Part C.3.B.iv.

28 The Meiji period extended from 1868 -1912.

29 I.e. the issue raises a matter of first instance before the Japanese courts.

30 Shiminteki oyobi seijiteki kenri ni kan sum kokusai kiyaku [International Covenant on Civil and Political Rights], Treaty No. 7 of 1979.

31 “The treaties concluded by Japan and established laws of nations shall be faithfully observed.” Kempō, art. 98, para. 2.

32 Sekimu (translated here as “obligation“) and gimu (translated here as “duty“) differ in nuance. “Sekimu” is narrower and indicates “a responsibility plus duty“; i.e., there must be a responsibility (sekinin) which creates the duty. “Gimu” [i.e., duty] is broader and implies legal and ethical or moral imperatives together. Ruigo Reikai Jiten [Illustrated Dictionary Of Usage] under tsutome (Microsoft / Shogakukan Bookshelf CD-ROM Version 2.0 1998) (1994).

33 “Article 12: The freedoms and rights guaranteed to the people by this Constitution shall be maintained by the constant endeavor of the people, who shall refrain from any abuse of these freedoms and rights and shall always be responsible for utilizing them for the public welfare.” Kempō, art. 12 (emphasis added). Re. Article 13, see infra, text accompanying note 62. For authoritative guidance on Japan's public welfare limits in the Japanese constitution, see Nobuyoshi Ashibe, Kempō [Constitutional Law] §6(1) (new ed. 1997).

34 In Japanese historical usage, the “middle feudal period” refers to the Kamakura (1180 - 1333) and Muramachi (1336 - 1573)eras. “Early modern” is explained supra at note 44.

35 Tthe Court's use of the place name “Hokkaido” conforms to modern usage, however that name did not come into existence until 1868. Prior to that time, the island had been known to wa-jin as Ezochi and to the Ainu as Ainu Moshiri. Siddle supra note 64, at 53. 36 It is roughly 225 kilometers (140 miles) from the Saru area to Akkeshi. At the time, the journey would have been by foot through rugged mountainous areas.

37 Matsuura (1818-1888) was a famed Japanese explorer who made six trips through the Ainu lands. “Much of the information that exists on labour practices, the mistreatment of Ainu women, and the plight of those left behind in the villages in the early nineteenth century comes from his writings.” SIDDLE supra note 64, at 212 n.99.

38 These were the principal rivers flowing through the newly urbanized colonial capital of Sapporo.

39 Hokkaidō KyūDojin Hogo Hö [Hokkaido Former Aboriginals Protection Act], Law No. 27 of 1899. The title of this statute is sometimes translated with “Natives” or “Aborigenes” in the place of of “Aboriginals”. See e.g. Siddle supra note 64, at 70. Aborginals is selected here to evoke the obsolescence and political incorrectness of the Japanese term KyūdōJin

40 One chobu is approximately one hectare.

41 “Sekimu“; see supra note 60.

42 Gyōsf.I Jiken Soshō Hō[Administrative Litigation Law], Law no. 139 of 1962, art. 31(1).

43 MlNSOHō.