Professional Documents
Culture Documents
Business?
Rethinking Indigenous
Self-determination
A choice to do what?
To live a life in vain.
To live a life of oppression,
while all the time remaining sane.
v
You’ll never understand what you have taken away.
For the scar wounded deeply, even for us today.
So when you stop and think about times gone by and by,
think about what you’ve done and why my people cry.
vi
Preface
Jean T Fournier
vii
Unfinished Constitutional Business?
viii
Preface
them. That too is one of the hallmarks of Nunavut, as it has been of other
successful Indigenous governance structures.
Turning to the other side of the world, the Nordic countries also offer
examples of thoughtful interpretations of what might be termed Indigenous
autonomy, such as the Saami Parliaments in Finland, Norway and Sweden.
These national assemblies have been established over the last twenty years
to deal with matters of special importance to the Saami people, including
the situation of reindeer herding and fishing, language, culture and educ-
ation, as well as Indigenous rights, economic activities and the environ-
ment. Norway, like Canada and New Zealand, has provided a measure of
constitutional recognition to its Indigenous peoples. The Saami Parliament
of Norway has been particularly active and sufficiently autonomous to
advance policy initiatives and positions on global developments such as
the International Labour Organisation Convention concerning Indigenous
and Tribal peoples in Independent Countries.
In the South Pacific, island countries such as Palau have shown that
even with a small and spread out population, they can run a modern
government and deliver public services. This demonstrates the extent to
which there are many models of governance, and each of them has value
in itself, and will work in specific contexts. The values of the specific
model must reflect the unique needs, requirements and aspirations of the
relevant Indigenous community and be understood and accepted by the
broader community.
What these and other examples around the world tell us is that there is
no single path to self-determination. Individual situations vary signifi-
cantly depending on whether Indigenous peoples live in large cities or in
small or remote communities, on the existence of employment opportuni-
ties, and on the social conditions that vary considerably from community
to community. More work is required on alternative self-determination
and governance models to evaluate what works and what does not, and
why. Comparative studies are invaluable if Indigenous peoples are to
manage their own affairs effectively and to close the unacceptable social
and economic gap that continues to separate them from other citizens.
This edited collection of chapters—from places as diverse as Hawaii,
Sweden, Canada, New Zealand, Australia, Norfolk Island and Solomon
Islands, similarly suggests that in fact, issues of Indigenous governance
and Indigenous self-determination are far more complex than are often
portrayed in the media. They demonstrate that what is needed is a greater
knowledge among decision-makers and the larger population about the
concept of self-determination, and broader understanding of interpreta-
tions both in Australia and abroad. This timely book makes an important
contribution to that understanding and knowledge.
Jean T. Fournier
Former Canadian High Commissioner
to Australia, July 2000 to July 2004
ix
Acknowledgements
I would like to thank all the contributors to this volume for their patience
in waiting for its publication and their courtesy in returning revised
manuscripts to me when required, once publication was in train. I thank
them also for their prompt and considerate attention when asked to provide
details and ideas for the introductory and bibliographical sections.
Having thanked the contributors in particular for their efforts in
assisting me to finalise the manuscript, I thank Anne Overell, who was
employed as a research assistant for the project in 2003, and who provided
absolutely sterling work in collating and co-ordinating the manu-scripts
from each contributor, and in assisting many of them to complete or refine
their contributions.
Many thanks also to Nicole Williams for so generously providing the
wonderful poem as a Foreword.
An Australian Research Council Large Grant greatly assisted the initial
development of this project in 2001, particularly the holding of the
conference from which many of the papers are drawn. I thank my
Australian colleagues on the ARC Large Grant project, Geoff Stokes and
Peter Jull, for their generosity in bringing me on the team. In Canada,
Peter Russell has also been a valued member of that team and provided
valuable insights both at the conference and throughout this book’s
gestation. Thanks are due also to the two reviewers of the manuscript for
their insightful comments. I also thank Aboriginal Studies Press, AIATSIS,
for deciding to publish the manuscript and for their support throughout
the process, particularly at the final publication stages.
On behalf of all the contributors I gratefully thank the Australian
Academy of the Humanities for their publication subsidy and most
especially the former Canadian High Commissioner to Australia, Jean
Fournier, for his generosity in writing the Preface.
x
Contributors
xi
Unfinished Constitutional Business?
on the US, Canada, Australia and NZ). He has acted for clients in the
Maori land court and Waitangi Tribunal. <Andrew_erueti@yahoo.com>
Barbara Ann Hocking has been with the School of Justice Studies at the
Faculty of Law at Queensland University of Technology since 1995. She
is a Visiting Teaching and Research Fellow at the Raoul Wallenberg
Institute of Human Rights and Humanitarian Law in Lund, Sweden, and
a recipient of the Australian Academy of the Humanities Swedish Exchange
Award (2003) and of the Lilian Penson Fellowship of the Institute of
Commonwealth Studies, University of London (2004). Barbara was
appointed Vice-President of the Association of Canadian Studies in
Australia and New Zealand (ACSANZ) in 2003, and is also a member of
the International Commission of Jurists (ICJ) Queensland Chapter.
<b.hocking@qut.edu.au>
xii
Contributors
xiii
Unfinished Constitutional Business?
Helena Whall was at the time of writing the Project Officer for the
Indigenous Rights in the Commonwealth Project of the Commonwealth
Policy Studies Unit at the Institute of Commonwealth Studies, University
of London. She is now a consultant to the Gender Section, Social Trans-
formation Programmes Division at the Commonwealth Secretariat, and
Associate Fellow of the Commonwealth Policy Studies Unit, University of
London. <helenajwhall@hotmail.com>
xiv
Introduction: Can Indigenous Peoples’ Experiences
of Colonisation Reshape Our Constitutional
Language?
The ‘international fellowship’ that has emerged from the WGIP has
helped foster both inter- and intra-Indigenous knowledge of the condi-
tions they mostly share. It has also provided the momentum whereby
Indigenous peoples are seeking to regain, at least in part, some of what
they have lost through the imposition of colonialism. This book recog-
nises from the outset that Indigenous peoples are still facing what many
describe as genocide with the destruction of ‘their land and their own
physical destruction’ (Cunneen 2001). It starts from the premise that the
common thread—a recognition of the human right of land ownership and
political participation post-colonialism—reflects ‘the nature of the
political community on which the constitution is based’ (Russell 2005) in
the countries from which chapters are drawn in this book.
In searching for the nature of that political community, this collection
continues upon the Australian path paved by Garth Nettheim, Gary D.
Meyers and Donna Craig (Nettheim et al 2002) While their focus was
on the design of governance structures rather than upon the principle of
self-determination per se, they included discussion of the principles of
intenational law which support notions of self-determination, self- govern-
ment and political participation as well as questions of the design of
interface structures.
The approach is also that of Paul Havemann, who suggested that a
major technique for facilitating comparison and contrast is to assemble
country-specific essays on a common topic, explore it in the specific setting
and to then draw out key themes and points of comparison (Havemann
1999). Comparisons of key commonalities and specific differences across
colonised and settler societies has characterised human rights legal research
xv
Introduction
xvi
BA Hocking
xvii
Introduction
xviii
BA Hocking
xix
Introduction
xx
BA Hocking
xxi
Introduction
References
Ashcroft B 1994, Commentary: Africa and Australia: The post-colonial connec-
tion, Research in African Literature 25 (3) p 161.
Bartolomei M-L and H Hyden (eds) 1999, The Implementation of Human Rights
in a Global World, Lund University.
Cunneen C 2001, Review of Shelly Wright, International Human Rights,
Decolonisation and Globalisation: Becoming Human, Routledge, London.
Foley D 2003, Indigenous epistemology and Indigenous standpoint theory, Social
Alternatives, Summer Vol 22, no 1, pp 45–6.
Havemann P 1993, Indigenous peoples’ rights in Australia, Canada and New
Zealand, Oxford University Press, Oxford.
Hazlehurst KM (ed) 1995, Introduction: unyielding domains in the post-colonial
relationship, Legal Pluralism and the Colonial Legacy, p viii, Avebury, Sydney.
Keating M 2001, Nations against the state. The new politics of nationalism in
Quebec, Catalonia and Scotland. 2nd ed. UK: Palgrave.
xxii
BA Hocking
xxiii
1 Indigenous Self-determination in the
Commonwealth of Nations
1
Helena Whall
Abstract
At the United Nations Working Group session on the Draft
Declaration on the Rights of Indigenous Peoples in 2000, there
was a view that negotiations on the core issues had reached a
critical stage and that there was a need to move toward a
consensus, in particular on the right of self-determination (Article
3 of the Draft Declaration).
This paper analyses the process of consensus building on the
issue of Indigenous self-determination and examines the role
played by the Commonwealth of Nations in this process.2
Given the commitment by Commonwealth states to the
promotion and protection of human rights (Commonwealth
Harare Declaration, 1991), it is essential to assess the part
played by Commonwealth states in this important and emerging
area of human rights.3
While the Declaration, if and when it is adopted, will not be
legally binding on states, it will nevertheless have moral force
and will provide minimum standards to guide states, including
Commonwealth states, in their dealings with Indigenous peoples.
Over the past decade Indigenous peoples worldwide have been lobbying
tirelessly to ensure that the right to self-determination, which is a basic
principle of international law, is applied uniformly and universally. Since
the establishment of the Working Group on Indigenous Peoples (WGIP)
in 1982, Indigenous peoples have routinely asserted the collective dimen-
sion of their rights as peoples in the work of the United Nations, partic-
ularly at the Working Group on the Draft Declaration (WGDD). Indigenous
peoples have the right of self-determination. By virtue of this right, they
freely determine their political status and freely pursue their economic,
social and cultural development.
The unqualified right to self-determination set out in common Article
1 of both the International Covenant on Economic, Social and Cultural
Rights (ICESCR) and the International Covenant on Civil and Political
Rights (ICCPR), is the foundation of the international human rights system.
1
Unfinished Constitutional Business?
2
Whall
3
Unfinished Constitutional Business?
4
Whall
5
Unfinished Constitutional Business?
6
Whall
7
Unfinished Constitutional Business?
Commonwealth Foundation
The Commonwealth Foundation, an inter-governmental organisation
resourced by and reporting to Commonwealth governments, has
8
Whall
9
Unfinished Constitutional Business?
10
Whall
11
Unfinished Constitutional Business?
12
Whall
At the sixth session of the WGIP in 1988, a working paper was tabled
by the Chairperson containing a draft Universal Declaration on Indig-
enous Rights. A year later, a Revised Draft Universal Declaration on the
Rights of Indigenous Peoples was published for discussion. During
1990–93, the Declaration underwent much revision and re-drafting. In
1993, the Position of the Indigenous Delegates on Self-Determination
was stated as follows:
13
Unfinished Constitutional Business?
At its eleventh session in 1993, the members of the WGIP agreed upon
a final text of the Draft Declaration, which included a provision on self-
determination in the language of common Article 1 of the International
Covenant on the Civil and Political Rights and the International Covenant
on Economic, Social and Cultural Rights.
At the close of its twelfth session in 1994, the WGIP submitted the text
of the Draft Declaration to the UN Sub-Commission. The members of the
WGIP were confident that the text was comprehensive and reflected the
legitimate aspirations of Indigenous peoples as a whole, as well as a
number of suggestions and concerns advanced by observer Governments.
The text of the Draft Declaration recognises the right of Indigenous
peoples to self-determination, as well as to equal rights, freedom from
discrimination, participation in the life of the State, and nationality (Part
I). The key clause is Article 3:
14
Whall
With the submission of the final text of the Draft Declaration to the
CHR, the process of securing Indigenous peoples’ right to self-determina-
tion entered a new phase. The evolution of the Draft Declaration on
Indigenous Rights and the inclusion of Article 3 on the right to self-deter-
mination had been a lengthy and politically fraught process. As Mick
Dodson, Aborginal and Torres Strait Islander Social Justice Commissioner,
writes:
15
Unfinished Constitutional Business?
16
Whall
Australia
Australia was the first state to support the unqualified inclusion of the
principle of self-determination in the Draft Declaration. Indeed, the
Australian government was at the forefront of the international comm-
unity in recognising the right to self-determination of its Indigenous
population. However, with the election of the Howard Liberal and
National Parties government in 1996, Australia’s position on the right to
self-determination at the Working Group changed dramatically. Since the
third session of the Working Group in 1997, Australia has been categor-
ically opposed to the inclusion of Article 3, as currently drafted, in the
Draft Declaration.
The sudden shift in the position of the Australian government illus-
trates well how the process of consensus building at the WGDD can be
seriously affected by changes in national policy. Reporting on the WGDD
in 1996, IWGIA commented:
17
Unfinished Constitutional Business?
Canada
Canada has traditionally opposed Indigenous rights reforms at the inter-
national level lest they become precedents for Quebec separatism. Since
the early 1960s, Canada has been insecure about ‘separatism’ and the
distinct political agendas of regions and minority peoples. Many Canadians
feared that Quebec’s desire to become a new nation-state would have a
disastrous impact on Canada as a nation and as an international player.
After the revision of ILO Convention 169 in 1989, Canada consistently
referred to ‘Indigenous people’, rather than ‘Indigenous peoples’, and did
not accept the notion of self-determination in its collective sense.
However, at the second session of the Working Group in 1996, the repre-
sentative of Canada made a dramatic statement:
18
Whall
19
Unfinished Constitutional Business?
20
Whall
Pakistan
The Pakistan delegation fully supported Article 3 and opposed any
dilution or change of the concept. Pakistan considered the concerns of
some states in relation to territorial integrity to be ‘ill founded’. The
delegation reaffirmed that self-determination was one of the fundamental
principles of international law, as enshrined in the Charter, the realisation
of which was the foundation for the enjoyment of all other rights. The
IWGIA report on the sixth session comments:
Canada
In its intervention, the Canadian delegation commented that the issue
raised by the Draft Declaration was whether the right of self-determina-
tion applies to Indigenous peoples living within existing states and, if so,
what this right consists of. At this session, as at previous sessions,
‘Canada reiterated that it accepted a right to self-determination for
Indigenous peoples which respects the political, constitutional and terri-
torial integrity of democratic States’.33 In other words, Canada accepts
that the traditional view of self-determination, as limited to the colonial
context and equated with a right of statehood, has been overtaken, and
21
Unfinished Constitutional Business?
22
Whall
New Zealand
At the sixth session, the New Zealand delegation announced that it was
prepared to accept the inclusion of the right of self-determination for
Indigenous peoples in the Declaration, ‘if the meaning of the term was
clearly elaborated in a manner consistent with New Zealand domestic
understanding of the relationship between Mäori and the Crown.’34 In
other words, New Zealand would accept an article on self-determination
if it implied the right to ‘internal’ self-determination and included a
respect for the territorial integrity of democratic states and their constitu-
tional frameworks, specifically an existing treaty with an Indigenous
people, where those met current international human rights standards.
The IWGIA report on the sixth session comments:
Bangladesh
At the sixth session the Bangladesh delegation made reference to the right
of self-determination as enshrined in the two international Covenants,
23
Unfinished Constitutional Business?
implying that territorial integrity must be respected above all. The delega-
tion supported the Chairman’s observation that the right of self-determi-
nation included the right of Indigenous communities to respect and preserve
their identities. However, the delegation stressed that the Indigenous/non-
Indigenous dichotomy does not apply in Bangladesh. According to the
IWGIA report, ‘Bangladesh has decided to put aside the debate on the
definition of Indigenous peoples at the present time.’36 Bangladesh stressed
the need to define ‘Indigenous peoples’.37
After the Bangladesh war of liberation, the Jumma people of Bangladesh,
who live in the Chittagong Hill Tracts (CHT), in the south-east of the
country, had hoped for political recognition and some form of autonomy
within the new state of Bangladesh. However, this was denied them. After
twenty-five years of struggle for self-determination, a peace agreement
was finally signed in 1997 between the Bangladesh government and the
CHT People’s United Party (JSS). However, many Jumma felt that the
agreement did not meet their demands and have continued with their
struggle for full autonomy. Today, the Jumma people face continuing
human rights violations by the security forces and Bengali settlers in the
Chittagong Hill Tracts.38
Australia
At the sixth session, the Australian government delegation reiterated its
opposition to the inclusion of the principle of self-determination in the
Draft Declaration. In the most uncompromising of all government inter-
ventions on self-determination, Australia reaffirmed its inability to accept
the inclusion of the term self-determination in the Draft Declaration,
since for many people it implied the establishment of separate nations and
separate laws.39 In other words, the Australian government linked the
right strictly and only to a process of decolonisation.
Australia’s current position on self-determination is in marked contrast
with its previous position. In 1972, the newly elected Whitlam Labor
government proclaimed a policy of ‘self-determination’, which for the
first time enabled Aboriginal and Torres Strait Islander people to identify
their needs and priorities and the best ways of meeting them. The federal
government established the Department of Aboriginal Affairs (DAA) to
meet the special needs of the Indigenous community, and important
Indigenous organisations in the areas of health, legal services and housing
were established. In the 1990s, the DAA evolved into the Aboriginal and
Torres Strait Islanders Commission (ATSIC), a statutory authority with
increased Indigenous control. In 1992, in the landmark Mabo decision,
the High Court rejected the principle of terra nullius—that Australia had
no inhabitants when the British arrived in 1788—and accepted that the
Mer Islanders had native title to their lands. This led to the Native Title
Act of 1993, which enabled many Aboriginal and Torres Strait Islander
people to make and secure claims to their ancestral land.
24
Whall
Since 1996, however, these hard earned gains have been largely
reversed. With the election of the conservative Howard government the
Native Title Amendment Act was passed, which limited native title rights,
against the express wishes of Indigenous and environmental groups. The
NTA prevented claims over large areas of land by redefining the nature of
pastoral leases, increased the powers of the mining and pastoral industries
and State governments at the expense of native title claimants, imposed
new and unrealistic requirements on native title claimants, and largely
replaced the right to negotiate about future developments with a right to
be consulted.
The Convention on the Elimination of all Forms of Racial Discrim-
ination (CERD) has since found that the Native Title Amendment Act
1998 is inconsistent with Australia’s international legal obligations under
CERD. In March 2000, at its fifty-sixth session, following its considera-
tion of Australia’s report on how it has implemented the provisions of the
International Convention on the Elimination of All Forms of Racial
Discrimination, the CERD stated in its ‘Concluding Observations’, that:
25
Unfinished Constitutional Business?
Summary
Despite the fact that several states shifted their positions on Article 3 at
the sixth session of the WGDD, including the Nordic States, some of the
Latin American states (most notably Brazil), and Spain and Switzerland,
the sixth session of the Working Group did not see the adoption of Article
3. This was due in part to the intransigence displayed by certain states, in
particular, Commonwealth states, on the issue of self-determination.
Indeed, the sixth session did not see the adoption of a single article of the
Draft Declaration.
While numerous state delegations expressed an ability to live with the
text of the articles in the Draft Declaration, as drafted, including Article
3, other states proposed further alterations to the text of various articles.
As discussed, Canada, New Zealand and Bangladesh insisted on amend-
ments to the current text of Article 3, while Australia challenged the
concept of self-determination. In an effort to build consensus, supportive
states shifted to accommodate the more inflexible of state positions. As a
result, the text of the Draft Declaration adopted by the WGIP and Sub-
Commission for re-drafting was opened up further and the process of
negotiating the Draft Declaration was again slowed down.
States have now proposed alternative text to more than 10 articles in
the Draft Declaration. Only two of the 45 draft articles have been
adopted by the Working Group: Article 5 on the right to nationality for
Indigenous peoples and Article 43 on gender equality. It is worth noting
that these principles are already enshrined in international human rights
treaties.
At the conclusion of the general debate on the process and self-deter-
mination, the Chairperson, Mr Luis-Enrique Chavez, concluded that,
‘most of the debate had involved repetition of previous positions without
providing any new material.’42 This was particularly evident in the debate
on Article 3. However, the Chairperson acknowledged that there were
‘some positive aspects’ including: ‘greater flexibility, willingness to listen
and to take into account positions of other participants, as well as recog-
nition that formal, rigid dialogue will not enable progress in the
CHRWG.’43 The Chairperson suggested that there needed to be a
commitment to an approach which:
26
Whall
Conclusion
The issue of collective rights, including self-determination, was the theme
of the seventh session of the Working Group in January–February 2002.
It is clear from the Report of the Working Group on the seventh session
that while none of the government delegations denied the existence of
collective rights, as such, there was no agreement as to which rights are
collective and which are individual, including self-determination.46 As a
result, it was decided that the Working Group would examine the specific
27
Unfinished Constitutional Business?
28
Whall
Notes
1. This paper was prepared for presentation at the ‘Roundtable on the
Collective Rights of Indigenous People’, Foreign and Commonwealth Office
(FCO), 22 November 2002. An original version of this paper was presented
at ‘Re-thinking Indigenous Self-Determination’, University of Queensland,
25–28 September 2001. The views expressed in this paper are the author’s
own and do not necessarily reflect the position of the Commonwealth Policy
Studies Unit (CPSU). The author wishes to thank the following people for
their comments on this paper: Peter Jull, Paul Havemann, Fergus MacKay,
Margot Salomon, and Lyndon Ormond-Parker.
2. For a list of the fifty-four members of the Commonwealth and a background
to the association see the Commonwealth Secretariat website: http://www.
thecommonwealth.org
3. The Harare Declaration (1991) can be found on the Commonwealth Secre-
tariat website at: http://www.thecommonwealth.org/whoweare/declarations/
4. This question was posed by Dr. Erica-Irene Daes, who has been the
Chairperson-Rapporteur of the WGIP for many years, in her working paper,
The concept of ‘indigenous people’, UN Doc E/CN.4/Sub.2/AC.4/1996/2.
5. Article 8 of the Draft United Nations Declaration on the Rights of
Indigenous Peoples reads: ‘Indigenous Peoples have the collective and
individual right to maintain and develop their distinct identities and charac-
teristics, including the right to identify themselves as indigenous and to be
recognised as such.’
6. Annex II of the draft report, ‘Proposals by Indigenous Representatives:
Explanatory note on the collective rights of indigenous peoples’, p.1.
Prepared at the seventh session of the Working Group.
29
Unfinished Constitutional Business?
30
Whall
31
2 Self-determination or ‘Deep Colonising’:
Land Claims, Colonial Authority and
Indigenous Representation
Post-Colonial Problematics
There is a wider area of discussion that presents Australia as both a
colonial and a de-colonising nation, or perhaps more accurately a nation
that is colonising and de-colonising at the same time. There is also literature,
32
Bradley & Seton
‘Deep Colonising’
Through a discussion of two land claim case studies2, we argue that
regardless of the seemingly benign intent of the Aboriginal Land Rights
(Northern Territory) Act 1976 (ALRA) legislation, that is, as a process for
Indigenous people to obtain land, the legislation and the land claim
process are still artifacts of a colonial system. We borrow a term espoused
by Rose (1996a:6) — ‘deep colonising’ — to elucidate the process of
conquest that remains embedded within institutions and practices (such
as land claims) aimed at reversing the effects of colonisation. Rose uses
this term with particular reference to the erasure of women from the
process of claiming lands. Whilst we agree with Rose (1995, 1996a) on
this process, particularly in earlier claims, we present a case study where
women were in control and demonstrate how this control lead to the
incorporation of previously dispossessed Indigenous people as claimants.3
This incorporation, insisted on and orchestrated by Aboriginal women,
demonstrates an instance of self-determination at a local level, whilst
extending the meaning of ‘deep colonising’ beyond gender issues to the
general inequalities engendered by land rights legislation. However, it can
only be considered an ‘instance’ of self-determination when viewed in
light of the whole claims process and the legislative requirements
embodied in the ALRA.
33
Unfinished Constitutional Business?
• the names of the persons who, in the opinion of the Council, are the
traditional owners of Aboriginal land in the area of the Council; and
• in relation to each group of traditional Aboriginal owners, a map or
other references showing the sites belonging to them in so far as can be
done without breach of Aboriginal usage.
The Act made provision for certain areas, listed as Schedule 1, to be
transferred immediately to Aboriginal Land Trusts without requiring the
traditional owners of those areas to be named. The best example of
Schedule 1 land is North East Arnhem Land. The Act also set up the
machinery whereby individuals might seek to establish their status as
traditional owners of other areas through a land claim process. Section 24
applies to traditional owners both of land listed as Schedule 1 and of land
granted on the recommendation of the Aboriginal Lands Commissioner.
In the latter case, the Land Councils have available to them the names of
claimants judged to be the traditional owners by the Commissioner.8 In
the former case, however, they lack such a basis. Traditional Aboriginal
owners of Schedule 1 land become identified and ‘registered’ on a need
basis usually associated with mining exploration proposals, road develop-
ments and other economic considerations.
In effect then, there are two distinct kinds of traditional Aboriginal
owners: those who must arrive at such status via the land claim process
and those who already have their land declared via the Schedule 1 grants
34
Bradley & Seton
Surely neither justice nor reason (to use Gumbert’s (1984) words) can
be said to prevail under a system that offers ‘rights’ only in the context of
power: power to create a discourse of authenticity, to require conformity
35
Unfinished Constitutional Business?
Warnarrwarnarr-Barranyi Claim
The repeat claim came to be known as Borroloola 2 or the Warnarrwarnarr-
Barranyi claim. Land Commissioner Justice Gray heard the claim in
1992. After both the traditional evidence and the detriment evidence had
been heard, Justice Gray reached a decision in 1996 in which he stated
that the actions of the Northern Territory Government were improper,
and that he found the Yanyuwa people to be the traditional owners of the
36
Bradley & Seton
land that they claimed. Justice Gray made his recommendation to the
Commonwealth Government. The then Minister for Aboriginal Affairs
refused to make the grant of land until the issues of the beach allotments
had been solved. There have been, and continue to be, numerous meetings
at which the recognised traditional Aboriginal owners have requested the
land back, without the beach, so that it can be dealt with as a separate
issue. The Commonwealth Government has not agreed. It believes that
the people who brought the blocks in good faith will suffer detriment. It
could be argued that it is not the Indigenous people making the detriment,
but rather it has been the actions of the Northern Territory Government,
yet it is the Indigenous people who are being created as the troublesome
group. One is left with feelings that suggest both the Northern Territory
Government and the Commonwealth Government wish the traditional
owners would just give the land up—after all it is only a little beach—
surrounded, however, by some very important sites.
At a meeting with the Minister for Indigenous Affairs in June 2000, the
Yanyuwa people were told that the Minister, while sympathetic to their
plight, could not interfere. Firstly, it should be mentioned that this
Minister is in charge of the legislation and it is in their power to make the
grant, however the Minister continued to speak of processes of law over
which they have no power. As discussed earlier, claimants have stated
their ‘frustration’ with the land claims process and expressed sentiments
of ‘tiredness’, being ‘tricked’, and ‘not paid back’ in connection with the
claims process. The distinct impression is that this is a process of wearing
down the Indigenous people.
We suggest, what is in practice are embedded marginalising processes
that seek to continue the portrayal of Indigenous people as ‘problematic’.
What is also present are two systems of law—Aboriginal Law and the law
of the Commonwealth of Australia.We are finding, with few surprises,
that in some respect these ‘two laws’10 are incommensurate. While
Indigenous people would like to believe they gain some form of power
through the winning of land, they can see that this authority is limited by
both their legal representation (embedded as it is in the Land Councils),
the authority and actions of the Commonwealth Government as the
controllers of the Act, and other representative bodies such as ATSIC. As
one of the young claimants commented after meeting with the Minister:
‘It is like taking us back to the days of welfare…we are names in a book
for nothing’ (Graham Friday). This comment reflects the powerless
situation of a people who have found themselves as registered owners of
land by law, but are having to deal with legal issues that are not of their
making and over which, prior to the land claim, they had had no dealings.
Lhukannguwarra Claim
Undeterred by these government actions, the same group of Indigenous
people, the Yanyuwa has undertaken another hearing for 120 kilometres
of the littoral zone. This land claim hearing involved two claims, the
37
Unfinished Constitutional Business?
McArthur River Region Land Claim (Claim No. 184) and part of the
Manangoora Region Land Claim (Claim No. 185), and came to be
known as the Lhukannguwarra (People of the Mangroves) Claim. It is
‘unique’ in two aspects: It is the first claim made where (a) a part of the
intertidal zone (the area that lies seaward of the high water mark and
landward of the low water mark of the coast) and the bed and banks of
a river have been claimed, and (b) the claimed areas do not border
Aboriginal land or land under claim (thus, the detriment to bordering
areas needs to be considered). This claim was also heard in a climate
when there was (and still is) anger and frustration that the Minister has
not yet handed title back to the community for their island country. In
this claim, John Bradley again acted as the senior anthropologist. During
the fieldwork required before the land claim hearing, the Indigenous
people involved in the claim requested that members of the Stolen
Generation be incorporated back into the land owning groups. The very
term, ‘Stolen Generation’, in the Australian political climate is cause for
passionate debate.
38
Bradley & Seton
39
Unfinished Constitutional Business?
back to her country for 72 years. Whilst Hilda remembered her mother’s
country, to be ‘made straight’ she had to be incorporated into an adoptive
father’s country, although she still retained important rights in her
mother’s country. This process had to take place ‘if she was to be officially
recognised as having any country at all’ (Muir in press) under white
jurisprudence. The Land Council labeled the attempt as an ‘issue’ and
‘problematic’. When asked why, they suggested they had no problems
with the people concerned but it was more of a ‘generic issue.’ It would
appear institutions such as the Land Council have a set idea about what
a land owner should be, and educated Indigenous people were or are in a
sense problematic (even if their education of Indigenous matters was also
quite substantial).
Your Honour would no doubt take judicial notice of the fact that
Aboriginal tradition is an oral tradition. The language has gone
and in our submission, so too has the tradition (Northern Territory
Government (1990:61) in Walsh (1995:97)).
40
Bradley & Seton
Such a comment belies the complexity of the issues, and indeed many
so-called traditional people are educated, have degrees and qualifications
and are in a position to sense quite clearly the ideological differences
between Indigenous and non-Indigenous people. It needs to be said that
the time is yet to come when Indigenous people involved in land claims
can articulate with ease their views, using literacy, to speak of identity and
traditional knowledge without fear of rebuke and disdain from certain
quarters.
41
Unfinished Constitutional Business?
within their own community. Such is the case with land claims where only
some claimants are judged by the court to be ‘real landowners’ and the
others suffer the humiliation of being left landless. Memory and remem-
bering become critical points of this process. It is memory which becomes
judged, and this is problematic because we know that remembering is not
a steady state, it is perhaps as Barthes (1981:70) says ‘a frequent waking
out of forgetfulness.’
Working with Indigenous people who are preparing information for
land claims is to see that memory as a process; it is not an object to be
frozen. This is, again, an issue with land claim documentation that wishes
to see tradition on paper. Words on paper, made though they are out of
human experience and human emotion, present us with an illusion of
solidity which denies and conceals the original demands behind their
origins, and that these demands are an external force. Land claims do not
ultimately allow for a steady, careful transmission of knowledge with all
its attendant intricacies, for in instances such as land claims, memory
becomes frozen as evidence. Instead of each generation discovering the
history of its parents and grandparents for themselves, there becomes one
history trapped and encapsulated. The court demands that we deal with
certainties without ever acknowledging who judged and made the
certainty. However, much Indigenous knowledge is never certain and
therein lays its power.13 Such documentation as is created by the land
claim process becomes the scripts of a theatre that also become important
and powerful to Indigenous people.
Conclusion
There has never been a point in the 20-year history of the Land
Rights Act where we have been able to sit back and enjoy the
recognition of our rights as we should (Yunupingi 1994:9–10).
42
Bradley & Seton
References
Barthes R 1981. (Translated by R. Howard). Camera Lucida: Reflection on
Photography. Hill and Wang, New York.
Bell D 1984/5. Aboriginal women and land: Learning from the Northern
Territory experience. Anthropological Forum 5(3): 353–63.
Bern J & J.Larbalestier.1985. Rival constructions of traditional aboriginal
ownership in the Limmen Bight Land Claim. Oceania 56: 56–76.
Bradley J 2002. Mapping the Sacred. Cultural Survival Quarterly. Summer 8–10.
Brock P (ed) 2001. Words and Silences: Aboriginal Women, Politics and Land.
Crows Nest, Allen & Unwin, New South Wales.
Brough M 1989. Indigenous Social Movements: A Theoretical Perspective.
Bachelor of Arts with Honours, Department of Anthropology and Sociology,
(unpublished manuscript), University of Queensland, Brisbane.
Cavadini A, C Strachan and the Borroloola community (eds).1981. ‘Two Laws,’
in Picturing Black Australia. [video recording]. Australian Film Institute
assisted by the Department of Aboriginal Affairs, New South Wales.
Cowlishaw G 1998. Erasing culture and race: Practising ‘self-determination’.
Oceania. 68(3): 145–69.
Fabian J 1983. Time and the Other: How Anthropology Makes its Objects.
Columbia University Press, New York.
Fletcher C 1999. ‘Living together but not neighbours: Cultural imperialism in
Australia’, in Indigenous People’s Rights in Australia, Canada, and New
Zealand. Edited by P. Havemann, pp 335–50. Oxford University Press,
Auckland.
Gale F (ed) 1983. We are Bosses Ourselves: The Status and Role of Aboriginal
Women Today. Australian Institute of Aboriginal Studies, Canberra.
Gelder K & JM Jacobs 1998. Uncanny Australia: Sacredness and Identity in a
Postcolonial Nation. Melbourne University Press, Victoria.
Goodall H 1992. ‘“The whole truth and nothing but...”: Some intersections of
Western law, Aboriginal history and community memory,’ in Power,
Knowledge and Aborigines, Journal of Australian Studies (special edition). B
Attwood & J.Arnold (eds), pp 104–19, La Trobe University Press, Bundoora,
La Trobe University in association with the National Centre for Australian
Studies, Monash University.
Gray P 1997. Warnarrwarnarr-Barranyi (Borroloola No. 2) Land Claim: Report
and Recommendation of the Aboriginal Land Commissioner to the Minister
43
Unfinished Constitutional Business?
for Aboriginal and Torres Strait Islander Affairs and to the Administrator of
the Northern Territory. Australian Government Publishing Service, Canberra.
Gumbert M 1984. Neither Justice nor Reason: A Legal and Anthropological
Analysis of Aboriginal Land Rights. University of Queensland Press, Brisbane.
Hiatt LR (ed) 1984. Aboriginal Landowners: Contemporary Issues in the
Determination of Traditional Aboriginal Land Ownership. Vol. 27. Oceania
Monograph. University of New South Wales, Sydney.
Keely A 1996. Women and land: The problems Aboriginal women face in
providing gender restricted evidence. Aboriginal Law Bulletin. 3(87): 4–7.
Langton M 1997. ‘Grandmothers’ law, company business and succession in
changing Aboriginal Land Tenure Systems’, in Our Land is Our Life: Land
Rights—Past, Present and Future. Edited by G Yunupingu, pp 84–116.
University of Queensland Press, Brisbane.
Lilley R 1989. Gungarakayn women speak: Reproduction and the transformation
of tradition. Oceania 60: 81–98.
Ludwig W 1983. ‘Women and land rights’, in We are Bosses Ourselves: The
Status and Role of Aboriginal Women Today. Edited by F Gale, pp 78–83.
Australian Institute of Aboriginal Studies, Canberra.
Maddock K 1981. Walpiri land tenure: A test case in legal anthropology. Oceania
52: 85–102.
—— 1983. Your Land is Our Land: Aboriginal Land Rights. Victoria: Penguin
Books Australia Ltd.
—— 1989. ‘Involved anthropologists’, in We Are Here: Politics of Aboriginal
Land Tenure. Edited by EN Wilmsen, pp 155–76. California: University of
California Press.
Muir H (in press). Kidnapped Back Home.
Olney J 2002. McArthur River Region Land Claim (Claim No. 184) and Part of
Manangoora Region Land Claim (Claim No. 185): Report by the Aboriginal
Land Commissioner, Mr Justice Olney, to the Minister for Multicultural and
Indigenous Affairs and to the Administrator of the Northern Territory.
Australian Government Publishing Service, Canberra.
O’Neill, N & R Handley 1994. Retreat From Injustice: Human Rights in
Australian Law. New South Wales: The Federation Press.
Rigsby B 1995. ‘Anthropologists, land claims and objectivity: Some Canadian and
Australian cases’, in Native Title: Emerging Issues for Research, Policy and
Practice. Edited by J Finlayson & D Smith, pp 23–38. Centre for Aboriginal
Economic Policy Research, Australian National University for the Academy of
Social Sciences in Australia, Canberra.
Rose DB 1987. Review of Marc Gumbert, Neither Justice Nor Reason. Journal of
Pacific Studies. 11(1): 181–7.
—— 1995. Women and land claims. Land, Rights, Laws: Issues of Native Title.
Issue paper no. 6, pp 1–8. Canberra: Native Title Research Unit, Australian
Institute of Aboriginal and Torres Strait Islander Studies.
—— 1996a. Land rights and deep colonizing: The erasure of women. Aboriginal
Law Bulletin. 3(85): 6–13.
—— 1996b. ‘Histories and rituals: Land claims in the Territory’, in In the Age of
Mabo: History, Aborigines and Australia. B Attwood (ed), pp 35–53. New
South Wales: Allen & Unwin.
—— 1996d. Nourishing Terrains: Australian Aboriginal Views of Landscape and
Wilderness. Australian Heritage Commission, Canberra.
44
Bradley & Seton
Notes
1. Cowlishaw G, ‘Erasing culture and race: Practising “self-determination”’,
Oceania, vol 68(3), 1998, p. 145–69 at p. 148.
2. These case studies are derived from two separate land claims where one of
the authors, Dr Bradley, was senior research anthropologist for the
claimants.
45
Unfinished Constitutional Business?
3. There are a number of other publications dealing with issues of women and
land claims, including Gale (1980); Rowell (1983); Bell (1984/5); Lilley
(1989); Langton (1997); Brock (2001).
4. ‘He’ is used here as, to date, no Land Commissioners have been women. See
Keely (1996); also Toussaint, Tonkinson & Trigger (2001: 163–64)) for a
discussion of the need for female Land Commissioners to deal with circum-
stances of restricted female evidence.
5. Goodall (1992: 104–5) alludes to these issues when she states ‘the process of
memory, the way in which individuals recall and reanalyze the past, and then
recount their understandings in relation to an audience, are all complex
aspects of the way societies create cultural meaning.’
6. For instance, Maddock (1981, 1983); Hiatt (1984); Bern and Larbalestier
(1985); Rumsey (1989).
7. Both Gale’s (1980) and Yunupingu’s (1997) edited collections stand out in
this regard.
8. Whilst land councils may have regard to any findings of traditional
ownership made by a Commissioner, they are not bound by these findings.
Indeed, as Justice Olney (2002: 4) observed, ‘with the passage of time, the
Commissioner’s findings will inevitably become progressively irrelevant.’
9. From an anthropological point of view, this co-operative venture is far from
unproblematic. Rosen (1977), Maddock (1989), Rigsby (1995) and
Rummery (1995) all discuss various aspects of anthropological bias and
objectivity in land claims and the differing roles anthropologists play (i.e.
expert witnesses, Land Commissioner advisors, claimant anthropologists,
etc.) in these processes.
10. The Yanyuwa (see Cavadini, Strachan and the Borroloola Community
(1981)) have themselves made a movie surrounding this intersection of legal
systems which they term ‘two laws.’
11. Sutton (1998) also discusses aspects of changing social organization, land
tenure and native title with reference to ‘classical’ and ‘post-classical’
Aboriginal society.
12. The concept of ‘forensic anthropology’ has been applied to the increasing
body of anthropological knowledge that has grown out of the land claim
process (i.e. anthropological knowledge used in legal pleadings) and Sutton
(1995) provides an interesting analysis of the implications this growth has
for anthropologists operating in judicial and administrative settings.
13. See for instance Bradley (2002) and Rose (1996d).
46
3 Consensus and Sovereignty: Rethinking
Policing in the Light of Indigenous Self-
determination
Chris Cunneen
47
Unfinished Constitutional Business?
48
Cunneen
49
Unfinished Constitutional Business?
50
Cunneen
Sovereignty
Sovereignty is an oft-repeated claim in the political repertoire of
Indigenous peoples. It can have multiple meanings. It can refer to the
historical claim that Indigenous people have never relinquished sover-
eignty—particularly pertinent in Australia where there were no written
treaties recognised by the Crown. Or it can be used to refer by Indigenous
people to the residual and unextinguished rights to self-government and
51
Unfinished Constitutional Business?
52
Cunneen
53
Unfinished Constitutional Business?
Self-determination
Policing and the exercise of criminal jurisdiction in Indigenous communi-
ties is inevitably bound-up with issues of sovereignty, and claims of right
to self-determination and self-government. A widespread view among
Indigenous peoples is that their sovereignty has never been extinguished
in Australia. Such claims can derive from challenges to the legal basis of
the acquisition of the Australian colonies through occupation and settle-
ment, to the view that sovereignty continues to be exercised by Indig-
enous communities in many parts of Australia where modes of governance
have continued despite the formal declarations of Anglo-Australian law.
Ultimately these claims rest on the view that Indigenous people have pre-
existing rights to self-government and contemporary rights to self-deter-
mination. Such claims have profound implications for the right to police,
to enforce the law and to maintain order in Indigenous communities.
Thus a central component of the Indigenous critique of policing and
the criminal justice system more generally has been that Indigenous rights
have been ignored, in particular the right to self-determination. The best
place to begin to understand the emerging human rights norms which
reflect the aspirations of Indigenous peoples internationally is in the
United Nations Draft Declaration on the Rights of Indigenous Peoples.
This Declaration contains a number of basic principles, including self-
determination, which directly impact on policing (Cunneen 2001).
In Australia by the 1990s, appeals to the principle of Indigenous self-
determination permeated all the key national discussions by Indigenous
organisations. Here I want to consider the concept specifically in relation
to criminal justice issues. The importance of self-determination was reflected
in the work of the Royal Commission into Aboriginal Deaths in Custody.
The Royal Commission formulated a specific recommendation on self-
determination that provides the context for the other 338 recomm-
endations. That Governments negotiate with appropriate Aboriginal
organisations and communities to determine guidelines as to the proce-
dures and processes which should be followed to ensure that the self
determination principle is applied in the design and implementation of
any policy or program or the substantial modification of any policy or
program which will particularly affect Aboriginal people. This recom-
mendation encompasses the philosophical and political basis of action to
implement the recommendations of the Royal Commission. It also
indicates actual processes to be used.
54
Cunneen
Michael Dodson (1993) in the first annual report in the then newly
created federal position of Aboriginal and Torres Strait Islander Social
Justice Commissioner stated that:
55
Unfinished Constitutional Business?
56
Cunneen
57
Unfinished Constitutional Business?
58
Cunneen
References
Aboriginal and Torres Strait Islander Social Justice Commission 1995, Indigenous
Social Justice, Submission to the Parliament of the Commonwealth of
Australia on the Social justice Package, Aboriginal and Torres Strait Islander
Social Justice Commission, Sydney.
Anderson B 1996. Imagined Communities, Verso, London.
ATSIC 1995, Recognition, Rights and Reform, ATSIC, Canberra.
ATSIC 1999, Aboriginal and Torres Strait Islander Peoples and Australia’s
Obligations under the United Nations Convention on the Elimination of All
Forms of Racial Discrimination, A Report submitted by ATSIC to the UN
Committee on the Elimination of Racial Discrimination, Canberra.
Brown D and Wilkie M, 2002 (eds). Prisoners as Citizens, The Federation Press,
Sydney.
Chesterman J and Galligan B, 1997. Citizens Without Rights, Cambridge
University Press, Melbourne.
Cunneen C, 2001. Conflict, Politics and Crime, Allen and Unwin, Sydney.
Dodson M 1993. Aboriginal and Torres Strait Islander Social Justice
Commissioner First Annual Report, HREOC, Sydney.
Ericson R and Heggarty K, 1997. Policing The Risk Society, University of
Toronto Press, Toronto.
Havemann P 1999. Indigenous Peoples, the State and the Challenge Differentiated
Citizenship in Havemann P (ed) Indigenous Peoples in Australia, Canada and
New Zealand, Oxford University Press, Auckland.
Jull P and Craig D, 1997. Reflections on Regional Agreements: Yesterday, Today
and Tomorrow, Australian Indigenous Law Reporter, Vol 2, No 4, pp 475–93.
59
Unfinished Constitutional Business?
Notes
1. While the 1967 referendum provides a symbolic marker in the process, it was
not necessarily a legal watershed. Indeed, oppressive state legislation which
restricted the citizenship rights of Aboriginal and Torres Strait Islander
people living on reserves in Queensland remained in place until the 1980s
(see generally Chesterman and Galligan 1997).
2. The 1937 Native Welfare Conference had accepted the idea that Aboriginal
people’s destiny would be their ‘ultimate absorption by the people of the
Commonwealth’. By the third Native Welfare Conference in 1951 the
rhetoric of assimilation had been adopted. ‘Assimilation means, in practical
terms, that, in the course of time, it is expected that all persons of aboriginal
blood or mixed blood in Australia will live like other white Australians do’
(Sir Paul Hasluck quoted in NISATSIC 1997, p. 34).
60
4 Patriarchal Whiteness, Self-determination
and Indigenous Women: The Invisibility
of Structural Privilege and the Visibility of
Oppression
Aileen Moreton-Robinson
61
Unfinished Constitutional Business?
cultural differences and social pathology. These factors inhibit the realisa-
tion of the state’s policy of self-determination—not the democratic means
itself. However, as other scholars have amply demonstrated, the political,
social, economic and civil rights of citizenship whether formalised or
sanctioned through convention are not shared equally by all.6 In white
patriarchal heterosexual post-colonising societies, the white heterosexual
middle class male is the norm, the epitome of citizenship and the legal
personality within law.
The legal and political institutions that control and maintain the social
structure under which Australians now live was not designed or estab-
lished by Indigenous men and women or white women. Social markers
such as race, gender, class, sexuality and abledness continue to be the
discriminatory means whereby some people are made less equal than
others and are the main indexical criteria used for enforcing differential
resource allocation decisions. In this chapter I focus on the way in which
race and gender intersect to hinder the self-determination of Indigenous
women as an effect of the operations of patriarchal whiteness. I have
argued elsewhere that patriarchal whiteness is Anglicised, institutionalised
and culturally based; it is an invisible unnamed organising principle that
surreptitiously shapes the Australian social structure and national
culture.7 Patriarchal whiteness was synonymous with citizenship and in
law it defined who was and who was not white, while conferring privi-
leges and entitlements to those categorised as white. Up until the 1960s
the white Australia policy adhered to this principle and since its disman-
tling Australia’s national white identity has been in crisis because of the
perceived threat of multiculturalism, even though patriarchal whiteness
continues to hold the centre through its unnamed and invisible constituency.
It is not surprising then that politicians, the media, some academics
and religious leaders who adhere to liberal democratic ideals continue to
tell us that racism has declined in countries such as Canada, New
Zealand, the United States and Australia. They assert that these societies
have shifted to being more race-blind societies because the racial barriers
and laws that explicitly reinforced the privileged position of white people
have been eliminated. They point to the end of slavery, the achievement
of civil rights by Indigenous and other minority groups, the existence of
treaties and the end of apartheid laws in South Africa. These forms of
differential inclusion are perceived as evidence that racial exclusion has
ended. Such a perception is based on the belief that racism is associated
with racial hatred and oppression and does not include ‘the culturally
sanctioned beliefs which, regardless of the intentions involved, defend the
advantages whites have because of the subordinated position of
[Indigenous peoples]’.8 White race privilege and advantage are unearned
invisible assets that benefit white people in their everyday practice. Such
assets range from not having to educate white children about systemic
racism for their protection, to having white superiority and normality
62
Moreton-Robinson
63
Unfinished Constitutional Business?
64
Moreton-Robinson
We hunger for the loss of our lands and we continue to struggle for
repossession. We continue our demands for our birthrights. We
struggle for the rights of our children to their own culture. They
have the right to learn about our religion and our struggle and they
need to be instructed by us in the ways in which this world makes
sense to us. We’ll tell them the stories about our ancestor spirits,
their travels and their adventures. And about morality and the
attitudes that we have towards all living things in our world. We
can make them strong.18
65
Unfinished Constitutional Business?
66
Moreton-Robinson
67
Unfinished Constitutional Business?
the definition of racism to individual acts. The restriction masks the way
that such a definition works in the interests of white male discriminators
because it separates the individual behaviour from its broader institu-
tional and culturally sanctioned contexts. In such contexts, patriarchal
whiteness governs the agenda; it has set the criteria for complaints and
the standards for credibility. The legal form of the RDA and the proce-
dures under it reduce racial discrimination to individual behaviour; in
effect, it sanctions racial oppression and reinscribes white race privilege
because power and partiality are denied. Legal form is both race blind
and power evasive. Thornton argues:
68
Moreton-Robinson
69
Unfinished Constitutional Business?
Conclusion
The purpose of focusing on the Racial Discrimination Act 1975 was to
make a connection between white race privilege and racism in practice, to
reveal what is not necessarily obvious in our theorising and dialoguing
about racism, gender and self-determination. Indigenous women are
oppressed on the basis of their race and their gender. The present failure
to incorporate white race privilege and its symbiotic relationship to
racism within the Act’s definition of racism inadvertently reinforces the
status quo. This means that the Act does not in any real sense address the
racism experienced by Indigenous people in this country. What the Act
solves is the contradiction that racism represents for white people and an
Australian egalitarian ideology—white people benefit from it. The Act
allows white people to acknowledge that there is a problem and a need
for change without that change affecting them in important ways. As long
as racism is reduced to individual acts of discriminatory behaviour, white
people in this country can put distance between themselves and the
problem, ‘explain the situation without implicating themselves, justify
their position in non-racist or unprejudiced terms and avoid the impera-
tive for social change’.29 In essence, they can abdicate responsibility and
deny their race privilege—an unearned asset conferred generationally
through the process of colonisation—because structurally their position is
supported and reinforced.
It should be clear that Indigenous women’s perceptions of self-determi-
nation and sovereignty are not consistent with the liberal idea that,
through citizenship, self-determination can be realised. Indigenous
women’s conference resolutions, which were sent to government depart-
ments, had little impact on changing policies and programs. And where
resolutions were acted on, they were reconfigured to fit white policy
models already operating in a gendered and culturally biased system. The
democratic process and the law, as they currently operate, do not enable
the exercise of Indigenous rights. This is why our rights need to be
enshrined in a formalised document through a treaty or by constitutional
means. A formalised agreement will not change the fundamental struc-
tural power of patriarchal whiteness, but it would provide a mechanism
whereby Indigenous women could challenge its credibility and circum-
scribe its effects.
Racism clearly extends beyond prejudice, discrimination and oppres-
sion because it is intrinsically connected to the race privilege that patriar-
chal whiteness confers. Current definitions of racism that permeate
conventions, legislation, policies and everyday practice continue to locate
the ‘problem’ with, and focus the gaze on, those it most disempowers.
Racism is indivisible from our lives as Indigenous people, but it is not our
‘problem’. As Monture-Angus argues ‘all definitions [that] have deve-
loped within [Australian] legal and political systems must be considered
suspect as they were all developed on presumptions of [Anglo Australian]
70
Moreton-Robinson
superiority and/or the rules of [the British] legal order’.30 Politics, law,
culture and consciousness have created the nation as a white patriarchal
possession. These same processes can divest white Australians of their
burden of stolen property to formalise Indigenous self-determination and
sovereignty. The beginnings of this process lie in an open and honest
admission that the patriarchal white nation state is predicated on
retaining the spoils of colonial theft on the one hand, while exalting a
national sense of tolerance and fair play on the other.
Notes
1. Pritchard S, ‘Declaration on the Rights of Indigenous Peoples’, (1993) Vol 3
No 71 (December), Aboriginal Law Bulletin, pp 6–8.
2. Wellman DT, Portraits of White Racism, (Cambridge University Press, New
York, 2nd ed, 1993), p 210.
3. See Havemann P, Indigenous Peoples’ Rights in Australia, Canada and New
Zealand, (Oxford University Press, Oxford, 1999).
4. Ivison D, Patton P, and Sanders W, Political Theory and the Rights of
Indigenous Peoples, (Cambridge University Press, Cambridge, 2000).
5. Rowse T, ‘Indigenous Citizenship and Self-Determination: the Problem of
Shared Responsibilities’, in Citizenship and Indigenous Australians:
Changing Conceptions and Possibilities, eds. Peterson N & Sanders W (eds),
(Cambridge University Press, Melbourne, 1998) pp 79–100 at p 98.
6. See Turner B, Citizenship and Capitalism: The Debate Over Reformism,
(Allen and Unwin, London, 1986); Pateman C, The Sexual Contract, (Polity
Press, Cambridge, 1988); Barbalet J, Citizenship, (Open University Press,
Milton Keynes, England, 1988).
7. Moreton-Robinson A, Talkin’ Up to the White Woman: Indigenous Women
and Feminism, University of Queensland Press, St Lucia, 2000, p 64.
8. Wellman op cit, p xi.
9. MacIntosh P, 1992. ‘White Privilege and Male Privilege: A Personal Account
of Coming to See Correspondences Through Work in Women’s Studies
(1988)’, In Race, Class and Gender: An Anthology, Andersen M, & Collins
PH, (Wadsworth Publishing, Belmont, 3rd ed, 1992), pp 94–105 at p 97.
10. See Dyer R, White, (Routledge, London, 1997); Delgado R, & Stefancic J,
Critical White Studies: Looking Behind the Mirror (Temple University Press,
Philadelphia, 1997); and Frankenberg R, White Women, Race Matters: The
Social Construction of Whiteness, (Routledge, University of Minnesota
Press, Minneapolis, 1993).
11. Rains F, ‘Is the Benign Really Harmless?: Deconstructing Some “Benign”
Manifestations of Operationalized White Privilege’, in White Reign:
Deploying Whiteness in America, Kincheloe J, Steinberg S, Rodriguez N and
Chennault R (eds), (St Martin’s Griffin, New York, 1998). pp 77–102 at p
78.
12. Moreton-Robinson A, ‘Unmasking Whiteness: A Goori Jondal’s Look at
Some Duggai Business’, Queensland Review, Vol 6, No 1, 1999 (May), pp
1–7 at p 1.
71
Unfinished Constitutional Business?
13. See Gale F, We Are Bosses Ourselves: The Status and Role of Aboriginal
Women Today, (Australian Institute of Aboriginal Studies, Canberra, 1983),
p 175.
14. Huggins J, Allen I, Murphy J, Davies D, Hammond R, Repin Y & Saunders
S, Finding Common Ground: First Indigenous Women’s Conference Report,
(South Australian Government Printer, Adelaide, 1989), p 8.
15. Aboriginal and Torres Strait Islander Commission, Aboriginal and Torres
Strait Islander Women—Part of the Solution: National Conference Canberra
Act 6–10 April 1992: Report, (ATSIC, Canberra, 1992) p 7.
16. See ATSIC, 1992, op cit; Huggins et al 1989, op cit; Gale 1983, op cit;
Daylight P & Johnstone M, Women’s Business: Report of the Aboriginal
Women’s Task Force, (AGPS, Canberra, 1986); Omond A, Federation of
Aboriginal Women, Aboriginal Women’s Action Group Report,
Unpublished manuscript, 1983; Renouf E, Remote Area Aboriginal and
Torres Strait Islander Women’s Meeting July, 1991 Report. (Women’s Policy
Unit, Queensland Office of Cabinet, North Quay, Brisbane, 1991).
17. Langton M, ‘The Getting of Power’, Australian Feminist Studies, Vol 6,
Autumn 1988, pp 1–5 at p 4–5.
18. Flick B, ‘Colonization and Decolonization: An Aboriginal Experience’, in
Playing the State: Australian Feminist Interventions, Watson S (ed), (Verso,
London, 1990) pp 61–6, at p 65.
19. Watson I, ‘Surviving as a People’, In Breaking Through: Women, Work and
Careers, Scutt J (ed), (Artemis Publishing, Melbourne, 1992), pp 177–86 at
p 180–81.
20. Behrendt L, ‘Aboriginal Women and the White Lies of the Feminist
Movement: Implications for Aboriginal Women in Rights Discourse’, The
Australian Feminist Law Journal, Vol 1, 1993, pp 27–44, at p 32; Dudgeon
P, Oxenham D & Grogan G, ‘Learning Identities and Difference’, In
Feminisms and Pedagogies of Everyday Life, Luke C (ed) (State University
of New York Press, Albany, 1996) pp 31–55 at p 54.
21. Flick 1990 op cit, p 65; Jarro N, “The Socialisation of Aboriginal Children”,
The Olive Pink Society Bulletin, Vol 3, No 1, 1991, pp 15–18, at p 16;
Smallwood G, ‘Demanding More Than a Great Vocabulary’, In Breaking
Through: Women, Work and Careers, Scutt J (ed) (Artemis Publishing,
Melbourne, 1992), pp 71–80 at p 75; Felton C & Flanagan L,
‘Institutionalised Feminism: A Tidda’s Perspective’, Lilith, No 8, Summer,
1993, pp 53–9 at p 59.
22. McGlade H, ‘Aboriginal women and the Commonwealth Government’s
response to Mabo—an international rights perspective’, in Words and
Silences: Aboriginal Women, Politics and Land, Brock P (ed), (Allen &
Unwin, Crows Nest, 2001), pp 139–56 at p 152.
23. Jim MJ, Vice-Chief 2001, ‘Racism and the Alteration of the Role of
Indigenous Women in Decision-Making’, in Indigenous Peoples, Racism and
the United Nations, Nakata M (ed), (Common Ground Publishing Pty Ltd,
Canberra, 2001), pp 123–30, at p 129–30.
24. Thornton M, ‘Revisiting Race’, in Racial Discrimination Act 1975: A
Review, Antonios (ed), Australian Race Discrimination Commissioner,
(AGPS, Canberra, 1995) pp 81–100, at p 88.
25. Ibid, p 85.
72
Moreton-Robinson
26. Lipsitz G, The Possessive Investment in Whiteness: How White People Profit
from Identity Politics, (Temple University Press, Philadelphia, 1998) p vii.
27. Calita Murray v Ann Forward and Merit Protection Review Agency 1993
HREOC Decisions, H92/53, para 16.
28. Harris C, ‘Whiteness as Property’, in Black on White: Black Writers On
What It Means To Be White, Roediger D (ed), (Schocken Books, New
York,1998) pp 103–18 at p 111.
29. Wellman op cit, p 210.
30. Monture-Angus P, Journeying Forward: Dreaming Aboriginal Peoples’
Independence, (Pluto Press, Annandale, 2000), p 33.
73
5 Trust, Truth and Fatuity
Philip Morrissey
True this be a mad place, in some ways. But we can fix that.
Maybe. This one was a real story, but should not be.
(Kim Scott 1993)
In Hegel’s often quoted epigraph, the Owl of Minerva only takes wing at
the approach of twilight (Hegel 1981). I had my own experience of that
flight several days before the 1998 Federal election while walking at dusk
beside a busy road near my home: car headlights gloomed out of the
smoky night air, as the Esso gas disaster reduced Melbourne to the status
of a newly modernising nation replete with inadequate fuel for heating
and cooking.1 The atmosphere was tense and atmospheric, and more
appropriate for a troubled third world nation seething under a military
curfew. This confluence of perceptions and imagination produced an apt
representation of Australia after two years of John Howard’s Prime
Ministership, and an ominous prediction of the future. That epiphany
was the inspiration for this essay, one of whose aims is to fix and entex-
tualise the lived experience of race in John Howard’s Australia.
Prime Minister Howard’s self-conscious symbolic acts, in reference to
Aboriginal people, deserve to be analysed and evaluated beyond the
evanescence of media reportage. The disjunction of words and reality, and
the conjunction of phantasmagoria and cant, are consistent features of
Howard’s Prime Ministership, and are now mirrored in Aboriginal affairs.
Disturbing allegations and exposés of violence and sexual abuse by male
Aboriginal elders and leaders are counterbalanced by the banal and
ineffectual reality of so many contemporary Aboriginal affairs social
policies and programs.
Michel Foucault suggests a way in which we might think about this
disjuncture of word and reality and its resulting social effects. Foucault
writes of heterotopias which
74
Morrissey
If words and things don’t hold together, how does one speak within an
authentic discourse of Aboriginal affairs? What possible guiding princi-
ples can be identified?
Howard’s actions vis-à-vis Aboriginal have always come out of a
dispositional surplus—performed with an intensity not connected to the
facts at hand. We can say, with hindsight, that there was a pattern to his
anti-Aboriginal animus that went beyond any specific Liberal government
policy and the strategies of ‘wedge politics’. Howard began a program of
calculated diffidence with respect to Aboriginal issues during the 1996
election campaign. Within weeks of assuming office as Prime Minister,
Aboriginal/settler relations had returned to the level of distrust and ill-will
of an earlier time. In rejecting the Aboriginal community, the newly elected
Howard Government made no distinctions: Aboriginal moderates were
out, as well as Aboriginal leaders politically and ideologically linked to
the previous Labor Government. The Prime Minister marked each point
in this deterioration of relations with an intervention, symbolic action, or
performative silence.
Pauline Hanson’s first speech2 in the Commonwealth Parliament
produced a well-known instance of Howard’s disengagement from reason-
able ethical imperatives, when it suits his own interests or prejudices. In
choosing to link her words to an abstract notion of free speech, and its
triumph over political correctness, he turned his back on what may have
been a critical opportunity to bring Hanson’s concerns into a reasonable
and informed debate. The fact that Ms Hanson and her party have self-
destructed doesn’t diminish the gravity of the Prime Minister’s act. If the
elected members of Pauline Hanson’s One Nation Party had been able to
articulate a reasoned and coherent discourse of race and resentment, the
party’s voter support would have been maintained, and it would have
continued to exercise a corrupting influence on conservative politics and
on Australian life. As it is One Nation’s elected members represent unambi-
guously the most ugly group of individuals ever to grace Australian
politics (Robbins 2002). Howard’s link to Hanson was dissolved by his
assumption of aspects of her grievance policies—not by any clear and
unequivocal rebuttal of Hanson and One Nation on his part. Howard
dealt with the challenge of Pauline Hanson by adopting her ideas. His
great affinity with Ms Hanson can be found in a fundamental disrespect
for ‘social fabric’, that weaving of trust, obligation and affinity which
includes as many citizens as possible in the public sphere. In practice this
meant a willingness to encourage and provoke ill will and division
amongst Australians.
As racial tension grew, cuts to the funding of the Aboriginal and Torres
Strait Islander Commission (ATSIC) (announced at the same time as news
of the retention of the diesel fuel rebate for the benefit of farmers) were
interpreted by Aboriginal as another symbolic gesture of exclusion and
rejection. This fed the anger which led to the Old Parliament House riots
75
Unfinished Constitutional Business?
76
Morrissey
77
Unfinished Constitutional Business?
South Wales, Frances Peters-Little quotes an elder Mr Harry Hall: ‘If you
had any brains you wouldn’t get into the jobs, as window dressers. All
the money is taken up by just running the organisations like cars, photo-
copiers etc, it’s just about running the organisations and not the services’
(Peters-Little 2000). In instances like this Aboriginal organisations and
processes have become ends in themselves requiring perpetual ATSIC
funding.
Behind the official face lie damning reports on some Aboriginal leaders
and elders. In August 2002 the acting Chief Executive Officer of ATSIC
had been stood down charged with sexual assault; one ATSIC
Commissioner was an alleged rapist; one ATSIC regional councillor had
been named in Parliament as having sexually assaulted the children of
another prominent Aboriginal leader. Another ATSIC politician had been
charged yet again with assault.
In most cases those accused deny the accusations—as individuals they
have every right to, and they may well be innocent—but as a class there
are too many instances of serious accusations directed at male elders and
leaders within the Aboriginal community. Chilling reports in the press
add to public perceptions of infamy’ (Barass 2002). The now matter-of-
factness of newspaper reports suggests that even the media is no longer
scandalised. In the report of a vicious sexual assault, one Aboriginal
enclave is referred to as ‘the infamous Swan Valley Noongar Community’
(Tucak 2002).There is nothing to be argued: the community is infamous.
But it is also an example of a dysfunctional community that was once
romanticised as a bastion of Aboriginal resistance.
There is an element of pathos in all this—reputations sullied, years of
work on behalf of the Aboriginal community called into question—but it
is in the public interest to know of these allegations. And there is no need
to engage in false generalisations: the roles Aboriginal leaders and elders
play constitute in some form an Aboriginal public life; as in the wider
community, they enjoy power and privilege as a result of their positions.
As a consequence, such accusations destabilise Aboriginal identification
with an Aboriginal public sphere in exactly the same manner in which
reports of the statements and actions of Prime Minister Howard alienate
individuals from the wider public sphere. As with Howard the question
arises: what sort of men represent us and define the Aboriginal public
sphere?
There is now something approaching a debate on the direction of
Aboriginal affairs—uneven though the quality of that debate is. Is the
Aboriginal community (and communities) at the point where it is also
willing or able to address the issue of trust in its own leaders and question
authority structures that are apparently conducive to sexual abuse, or
organisational structures that produce fatuous outcomes or the wrong
sort of leaders? Aboriginal novelist Kim Scott captured the unreality of
representations of contemporary Aboriginal affairs in his 1993 novel
78
Morrissey
I see now. I see it’s a funny place. It’s how people would like to
think of Aboriginal people. Still some hunting, still bush tucker,
some dancing, some art. Even a mission still with power. Clout.
And then there’s this gambling. And drinking. And fighting.
Kids running wild and sleeping with dogs. The huts and the
campfires in the yard. I reckon the people, the government and the
bureaucrats, the white mums and dads battling with their
mortgages, the sports coaches and the teachers, all the wide world
want to see the Aboriginal people like this. But wanting to be
helped, wanting to better themselves. Able to be helped even. (Scott
1993)
the basis of an implicit collusion among all the agents who are
products of similar conditions and conditionings, and also of a
practical experience of the transcendence of the group, of its ways
of being and doing, each agent finding in the conduct of all his
peers the ratification and legitimation (‘the done thing’) of his own
conduct, which in return, ratifies and, if need be, rectifies, the
conduct of the others. (Bourdieu 2000)
79
Unfinished Constitutional Business?
But Fox also suggested that the solution might be to turn the clock
forward a few hundred years—to a point where self-perpetuating errors
and dispositions have vanished. In the words of Kim Scott’s omniscient
narrator, ‘We can fix that. Maybe.’
References
Barass T 2002, Sexual Assault, Taboo and Death, The Age, Insight, 16 February
2002, p 2.
Bourdieu P 2000, (trans R Nice), Bodily Knowledge, Pascalian Meditations, p
145, Polity Press, Cambridge.
Foucault M 1982, Preface, The Order of Things: An Archaeology of the Human
Sciences, p xviii, Tavistock, London
Garran R 2000, PM Backs Herron’s Hard Line, The Australian, 3 April, 2000, p
1.
Koori Grapevine: Community Newsletter from ATSIC Victoria. Issue 3, April,
2002.
Leech G 1996, A Nation Gripped by Madness, The Australian, 25 October 1996,
p 13.
Pascoe B 1999, Shark, Magabala Books, Broome.
Peters-Little F 2000, The community game: Aboriginal self-definition at the local
level, Research Occasional Paper No 10, p 15, Aboriginal Studies Press,
Canberra.
Rintoul S 2002, Black issues redefined, The Australian, 28 March 2002, pp 1, 4.
Robbins M, 2002, Binned Band of 11 with Nothing to Show, The Australian, 16
February 2002, p 2.
Scott K 1993, True Country, Fremantle Arts Centre Press, South Fremantle
Seccombe M 2000, The PM’s Man who is Master at Massaging Words, The
Sydney Morning Herald, 13 April 2000, p 6.
ibid, p 6.
Steketee M 2002, ‘Unstoppable’ force halted by immovable PM, The Australian,
21 January 2002, p 11.
Tucak L 2002, Activist’s Nephew Jailed for Rape. The Australian, 15 May 2002,
p 18.
Notes
1. After a gas explosion at the Esso Gas Refinery at Longford in regional
Victoria in September 1998 Melbourne was left without gas for two weeks.
In 2001 Esso was convicted of eleven breaches of Victoria’s Occupational
Health and Safety Act 1985, and in 2002 a coroner’s report found that Esso
was responsible for the deaths of two workers killed in the blast.
80
Morrissey
81
6 Why Norfolk Island but not Aborigines?
Michael Mansell
The Mabo High Court decision is said to have changed the face of race
relations in Australia. It was also said that the Aboriginal All Stars
football games in Darwin have had the same effect. Whilst these events
are positive moves in the right direction, we should not get carried away
by exaggerating their significance.
Name calling of Aborigines in sport will continue. It would be naïve to
believe that the sporting arena is to be the one section of Australian
society to be rid of racist taunts while the rest of the society practices it
as a part of its heritage and culture. For donkeys’ years the police have
been trying unsuccessfully to do it, as has the education system, the
prisons and so on. And the mere acceptance by the common law of the
right of some Aborigines to claim native title is unlikely to up end the long
time injustices suffered by Aborigines. Native title offers little to those
who can claim it, other than insecure tenancy while governments are
prepared to tolerate Aboriginal use and connection with an area, and,
when that tolerance is exhausted, the Aboriginal groups are to be left
with what I predict will amount to token compensation. Even then it is
widely accepted that these meagre forms of protection are available to
merely ten percent of the Aboriginal population.
Native title does represent a small bargaining tool for Aborigines. But
for what purpose? If neither native title, nor reforms at the Collingwood
Football Club, nor even ATSIC’s massive waste of scarce resources on
public relations exercises is enough, does that mean all is doom and
gloom? I think not. The real task is to find the options that may offer the
solutions, and sort them out once and for all.
The future for Aborigines is limited to three options: Aboriginal sover-
eignty, self-government, or Australian citizenship. The distinction between
self-government and Australian citizenship will be blurred in practice.
Both allow for those activities so eagerly sought by Aboriginal communi-
ties—greater control over Aboriginal education, access to Aboriginal
lands and control over what behaviour is acceptable should access be
granted. Many of these things already take place in Aboriginal communi-
ties, mostly in communities well away from white townships. Still, there
are rights allowed under self-government which do not naturally flow
from citizenship.
82
Mansell
83
Unfinished Constitutional Business?
shores with the idea of starting afresh, accepting a new identity, new
values and lifestyle, so too would Aborigines have to enter the new
contractual arrangement to build a nation.
The concept is hardly new. It has been the official policy now for over
a hundred years. While it is difficult to find Aboriginal speakers upholding
their view, which perhaps reflects the change taking place within the
Aboriginal community, there are many white do-gooders who advocate
the policy in the strongest of terms. Frank Brennan has written often on
the subject and argues that the only hope for Aboriginal advancement is
within the ‘life of the nation’, and readily dismisses as being unrealistic
any ideas which go beyond self-government. Apparently Brennan, like
other critics, believes that the reasons for rejecting Aboriginal self-deter-
mination out of hand must be self-evident. He has not once advanced an
argument of substance against sovereignty other than saying, ‘I believe it
is two hundred years too late for this in Australia as there are no longer
two separate contracting parties; there is not an Aboriginal nation…’
(Brennan 1993), and believes negotiations with Aborigines on this level
would be ‘unworkable’ due to our geographical diversity. Having aban-
doned the cool perspective of the academic commentator, Brennan shifts
to becoming opinionated, judgemental and dismissive of any Aboriginal
viewpoint not in line with those of his own.
Other prominent groups advocate a similar line. The Council for
Aborginal Reconciliation adopted the view that we are ‘Aboriginal
Australians’. Under its charter, it believes that everything is headed in the
right direction and that Aborigines can achieve equality so long as we
overcome the prejudiced attitudes. For that reason, its emphasis is to
change attitudes in Australia.
The High Court decision in Mabo also reflects this notion that we are
Australians and not an independent Indigenous people. The Mabo High
Court decision is based on the idea that any rights of Aboriginal people
to land must be given under Australian law and not on the basis of
Aborigines being a separate, independent people.
The problem with this approach is that Aborigines can be regarded
only as a minority within the Australian nation. Whenever we come into
a conflict with the rights of ‘other Australians’, it means that because of
our small numbers, we must always give way.
84
Mansell
85
Unfinished Constitutional Business?
view that ‘we do not want to be part of Australia…we are not Australians’
(Hansard p 39).
Kerr summarised his Government’s support for Australian law accom-
modating the Norfolk Islander’s view:
86
Mansell
(how could they)?; to the ridiculous: will all Aborigines have to live tradi-
tional ways? Aboriginal sovereignty may have its legal and political
foundation in prior ownership. That does not require that a contempo-
rary Aboriginal nation has to provide the lifestyle of an earlier era. An
Aboriginal nation today requires the basics of a modern world for
survival: government, an economy, a way of dealing with other govern-
ments and appropriate structures through which the people can rise
above despondency and despair.
While there is a standard in these matters, Aboriginal cultural diversity
would ensure that these bodies—governments, civil servants, enterprise
and education bodies—were dominated by an Aboriginal flavour. For
instance, democracy has its good points and has a part to play in the
election of Aboriginal leaders to local and national Aboriginal govern-
ments. Equally important, however, is the need to accept that the wisdom
of the elders also has a role in the making of important decisions. Hence
a body of elders, perhaps similar to the Fijian Council of Chiefs, would
be part of the government structure of an Aboriginal nation.
The second apparent reason for rejecting alternatives is that these
options could not possibly have widespread Aboriginal support.
Australians hold to the premise that everyone must want to be a part of
Australia. Any bold assertions for Aboriginal sovereignty are dismissed as
being wishful thinking and unrepresentative of the broader Aboriginal
community.
Take the Norfolk Islander issue again to illustrate the point. The
Committee took direct evidence from Norfolk Islanders which left an
indelible impression on the Committee that the majority of Norfolk
Islanders wanted nothing to do with the Australian political system. At
the moment, there is no acknowledgment by politicians of evidence that
Aboriginal desires for sovereignty reflect broad Aboriginal opinion, even
though the evidence is readily available and appearing to be on the
increase.
Another argument concerns the extent to which a community calling
for some form of independence can already display an ability to operate
alone, a factor which appears to have huge bearing on Australia’s attitude
to Norfolk Island on this question. As Michael Lavarch, the Attorney-
General at the time, recognised during debate on the Norfolk Island
Electoral Bill, the island had a relatively buoyant economy, a great deal
of self-determination and self-management, its own tax system and does
not rely on the Australian Social Security system. There was a range of
basic pieces of legislation run purely from the Island’s own government
and its own resources (Hansard p 47).
Aborigines cannot, admittedly, show a similar form of self-government.
That is hardly surprising given our circumstances. Governments have
refused to allow any Aboriginal self-management in the past. The fault
was not of our making.
87
Unfinished Constitutional Business?
Aboriginal Sovereignty
The shortfalls of citizenship and self-government are becoming increas-
ingly more obvious to a growing number of Aborigines. Each of these
options permit, at best, limited self-regulation for Aboriginal people.
More important decisions such as who decides which laws shall apply to
which Aboriginal communities, and who may enforce them; who decides
the limits of the powers of self-regulation; who decides which lands are to
be given back; and why Aborigines cannot control all activity over the
lands and waters, including access to natural resources, are all ignored by
those who advocate these options.
We have to give up the idea that a sacred site here and a small reserve
over there can form the basis of an Aboriginal government. The only way
we can survive as a people is to have enough land to provide for a quality
living standard, and with hard work, a thriving and lively set of
Aboriginal communities. The High Court of Australia has set the scene by
laying down that some crown lands in Australia should be claimable by
Aborigines under native title. That probably covers about 10% of the
crown land areas of Australia. All of the crown lands should be returned
to Aboriginal people so that we can exercise our own government control
over them.
It would not matter that in between the crown land territories are areas
that would be under the control of the Commonwealth Government. A
common sense arrangement could simply allow for the two nations to co-
exist.
88
Mansell
Government
There would need to be at least two tiers of government. At the national
level, the government would be made up of representatives from each
community on Aboriginal land. The national government would control
finances to make sure that all Aborigines had equal access; would work
out arrangements for the Australian government to ensure that criminal
behaviours by Aborigines on Aboriginal land would not escape punish-
ment by people running across the border and vice versa; and would
allow the Aboriginal government to pay for Aboriginal access to
Australian universities, hospitals and other facilities that we may believe
do not need to be duplicated on our territory. These are only examples of
many matters which the Aboriginal government would need to resolve.
At the local level, Aboriginal groups would need to retain almost
absolute control over their own legal system, including those things could
and could not take place in their region. They would elect their own
representatives to the national body. There would undoubtedly be some
argument between Aborigines at the local level and Aborigines outside
that region. For example, under the Aboriginal Provisional Government’s
model, most of the control over what happens in an Aboriginal comm-
unity is to remain in the community itself. So, if a community wishes to
build a casino and the National Aboriginal government was opposed to
it, we couldn’t stop it. The whole thrust of the APG’s model is to provide
Aboriginal people at the local level with control.
89
Unfinished Constitutional Business?
The Economy
The Australian Government receives approximately six billion dollars
annually from royalty payments, lease payments, company tax and
taxation paid by employees working on crown lands. It currently costs
the Federal and State governments less than two billion dollars to pay for
all of the costs associated with Aboriginal people today. This includes the
Aboriginal Affairs budget, all housing, health and other welfare facilities
including Social Security payments. It means then that if we change
nothing we will have an extra 4 billion dollars available to us. It would
mean for the first time in two hundred years that Aborigines would no
longer be the poorest people in the country but probably would be the
richest.
The whole idea of an Aboriginal government is not to put up brick
walls or barbed wire fences to keep whites out and blacks in. That is
apartheid. This model is based on the idea that Aborigines have the right
to choose whether we want our own government or not. If we choose our
own government then we have outlined how it can work.
It can only work if there is a mutual arrangement between the govern-
ments of Aborigines and the governments of Australians. We would need
to allow free movement between the two countries.
90
Mansell
91
Unfinished Constitutional Business?
radio listening to how the Aboriginal runner fared. If the runner came
last, then image the many thousands of Aboriginal children who would
say ‘I can do better than that’ and would therefore be motivated to get
their lives in order and compete under the Aboriginal colours at the next
Olympic Games. For the first time these kids would have something to
aim for: to become athletes capable of competing at a world level—a hope
which is not being provided while we are forced to remain part of
Australia. Just how well would they perform under the Aboriginal flag!
References
Brennan F 1993, Reconciliation in the Post-Mabo Era, Aboriginal Law Bulletin
Vol 3, No 1, April 1993, p 18.
Hansard, June 1992, p. 38, 39, 42, 47.
92
7 Maori Legal Forum: Representation Issues
and the Maori Land Court
Andrew Erueti
An issue of great importance for Maori especially over the last 15 years
is the appropriate representation of hapu and iwi for the purposes of
Treaty settlement negotiations and consultation with Crown agencies.
The Maori Land Court has played an important role in resolving repre-
sentation issues by adjudication under section 30 of the Maori Land Act
1993 but with mixed success. Recent amendments to section 30 now
allow the court to channel representation issues into a mediation process.
This paper reviews the Maori Land Court’s new mediation power and
comments on traditional forms of Maori dispute resolution; the factors
that give rise to representation issues; the suitability of the Maori Land
Court as a forum for resolving representation issues with tikanga; and the
role of Maori custom in mediating representation issues under section 30.
Muru, a form of utu, was an important means of resolving disputes
amongst close kin. Muru involved the aggrieved seeking utu for some
transgression of tikanga. Typically, a party of warriors would go to the
community of those who had offended them in some way. There, the war
party would plunder the village, taking items of personal property (food,
waka, tools, clothing and weapons). One muru carried out in Taranaki
left the plundered village with next to nothing, no food or material
possessions and no habitations.
A candid and colourful account of ‘The Great Muru’1 was written by
a Pakeha settler in 1873:
93
Unfinished Constitutional Business?
94
Erueti
Maoris to their former position and attitude and the enemy to their
hiding places in the fax and scrub.
The war party entered the village, headed by an old fighting
chief by the name of Tamihana, and took up their position—
squatting, with their guns between their knees—opposite to our
Maoris, a space of about ten yards separating them…the chief
marched up and down this path in a slow and dignified
manner…he carried in his hand a splendid taiaha, which he used to
give point and force to his speech; he soon worked himself up to a
pitch of frenzy…at times he would revile the Maoris, at others he
would lament in pathetic terms the disgrace they—through Te
Kahui—had brought upon, not themselves, but Parihaka.
At last having exhausted both his subject and himself, he sat
down at the head of and in front of his men; and then the wives of
our Maoris brought forward food that they had cooked, and
actually waited upon and feasted the wretches who had burnt them
out of house and home. None but the enemy touched the food, our
men sat perfectly still…and when the food was consumed the
enemy, without a word to our party or even a look at them, rose
and departed by the way they has come.
Everything had been done in perfect order and in accordance
with the best of their old traditions.
A few days later Kahui returned with Lydia ‘very pleased at
having been able to confer lasting honour upon his hapu, in
making them the victims in such a splendid muru.’ When asked
what was to become of Lydia, Kahui replied that he had bought her
with the muru—the muru had in fact dissolved Kahui’s marriage
with Betty and consecrated his new marriage to Lydia.
95
Unfinished Constitutional Business?
• Then there’s the highly ritualised and theatrical nature of the process.
Everyone is aware of their respective roles and responsibilities. The
plundered parties know that they are not allowed to resist muru—to
do so could result in the escalation of hostilities and the spilling of
blood. And once blood was shed, outright warfare often followed.
• And there’s the muru’s gradual escalation—with those with closer
kinship links to Te Namu arriving on day one to take less precious
possessions, and those with a more remote link to Te Namu but a
closer link to the aggrieved Parihaka coming on day two to take more
prized possessions and so on until the dramatic arrival of the Parihaka
taua muru itself. The final act of feasting, the whaikorero—all of this
is part of the performance. That’s made quite evident when the parties
suspect someone may be in one of the burning whare—both ‘friends
and foes’ rushed to save the koroua from the burning whare. To restore
the mana of the aggrieved, then, it was important that ‘justice be seen
to be done’. All of this is carried out in public—all of Te Namu village
are there.
• Through the practice of muru, utu was exacted. Utu restored the mana
of Parihaka. It also restored the mana of Te Namu village. Everyone
walks away with their mana intact.
Maori Representation
The many years of European settlement, the loss of land (via direct sale,
confiscation legislation and the work of the Maori Land Court), and
modern urbanisation has taken its toll on Maori traditional forms of
social and political organisation. But why have Maori in recent years been
forced to take a closer look at our organisational structures? A number of
factors have combined to make representation such an important issue —
the modern treaty settlement process, government devolution policies,
plus the need for various crown agencies and local governments to consult
with iwi.
Maori who had opted for re-organisation as iwi corporate bodies
under mainstream corporate legislation soon found that the mandate of
these iwi and pan-iwi bodies was under challenge. For example, treaty
claims initially brought before the Waitangi tribunal by a Trust Board or
by a runanganui representing a broad area, several iwi and many hapu,
began to be overtaken by claims brought on a hapu or even a whanau
basis. And hapu sought to negotiate directly with the Crown, rather than
as a larger iwi grouping.
What emerged from all this then, were in fact the traditional values
that had always been there—the resistance to centralised iwi or pan-iwi
decision-making bodies and a strong desire for decision-making at a more
local level, that is, by hapu and whanau.
But the Crown has consistently stated its preference for dealing with
iwi (these days known as large natural groupings) and not hapu. That has
96
Erueti
required hapu to join together under an iwi umbrella or, if they already
have an iwi corporate body, to look closely at whether that body fairly
represents the interests of each of its constituent hapu.
Two legislative measures were adopted to address this problem: the
Runanga Iwi Act 1990 and section 30 of the Maori Land Act 1993.
97
Unfinished Constitutional Business?
Chief Judge Durie (as he then was) described the purpose of the
provision:
The idea then, was that outside parties—the Crown and local govern-
ment—would be able to determine with some certainty with whom they
should be talking. It was possible then, for these outsiders to initiate an
application for a determination as the original section 30 was silent on
who could apply for a determination (that in fact remains the case under
the revamped section 30; see section 30C(1)). However, I’m aware of only
one instance in which an external party (a local authority) itself applied
for a determination.6 Also the power was to be used sparingly to address
important matters that required a quick result where efforts by the
relevant Maori grouping to appoint leaders had failed.
The original section 30 determination power has been used in a
number of cases, but with mixed success. The most obvious problem with
a section 30 determination was that the court’s inquiry and final decision
on representation exacerbated divisions and distrust amongst Maori
participants. And Maori were not exactly stumbling over one another to
seek a determination—the idea of asking a court to determine your
leaders obviously undermined hapu and iwi rangatiratanga.
A further problem was that it simply wasn’t clear who was bound by
a Maori Land Court determination. The original section 30 adjudicative
power did not bind the Crown or agencies such as Te Ohu Kaimoana.7
Indeed it seems that a determination did not bind the Chief Executive or
Chief Judge who referred the application to the Maori Land Court—the
original section 30(4) said expressly that determinations may be accepted
as conclusive by the Chief Executive and Chief Judge.
The most significant issue which will face the Maori Land Court in
the next five years or so will be whether it should remain as a court
which deals only with Maori land. A proposal which appears to be
gaining momentum is for the court to become the primary dispute
resolution forum in respect of all assets held by traditional kin
groups—that is, a forum for most Maori disputes inter se. This
would extend the role of the court into the new class of kin-owned
assets arising as a result of treaty of Waitangi settlements.9
99
Unfinished Constitutional Business?
100
Erueti
with respect to representation issues that arise for the purpose of (current
or intended) proceedings, negotiations, consultations, allocations of pro-
perty, or other matters. But the bulk of the new section 30 now focuses
on the mediation of representation issues. The mediation process involves:
• Referral to mediation: upon receipt of a written application for a deter-
mination, a Maori Land Court judge addressing the matter (the
‘addressing judge’) may direct the application to a mediator for
mediation (section 30C(3)(d)).12
• Appointment of mediator: once a matter is referred to mediation, the
parties may agree amongst themselves as to who to appoint as a
mediator and may, if they wish, nominate a Maori Land Court judge
as a mediator (section 30D(2) and (5)). If there is no agreement on who
to appoint as a mediator, the addressing judge, in consultation with the
parties, may appoint a mediator with relevant experience (section
30D(3) and (4)).
• Conduct of mediation: Once a mediator is appointed, the addressing
judge may advise the mediator of the issues that need to be addressed
at mediation. The mediator is then free to do whatever they feel is
appropriate to resolve the issues referred to the mediator promptly.
Only the Maori group affected by the representation proceedings and
their representatives are entitled as of right to attend the mediation.
Other parties, for example a local authority, may be admitted with
leave of the addressing judge (section 30E).
• Confidentiality: All material (written and oral) presented for the medi-
ation must be kept confidential unless the person who produces the
material consents to its disclosure. Also, statements made and materials
presented at mediation cannot be used in later judicial proceedings
unless those participating in mediation provide their consent to its
admission; and a person may not be sued for defamation for state-
ments made in mediation (section 30E).
• Mediation successful: If mediation is successful, the mediator must
record the terms of the resolution and refer it to the addressing judge.
The addressing judge may then include the terms of the resolution in a
Mäori Land Court order (section 30F).
• Mediation unsuccessful: If mediation is unsuccessful, the mediator
sends a report to the addressing judge outlining the issues that were,
and were not, resolved. At this stage, it is possible for the Maori parties
participating in the mediation to withdraw and discontinue an applica-
tion for determination (section 30G).
• Upon receipt of the mediator’s report, the addressing judge must either
refer the matter back to mediation or refer the matter to the Maori
Land Court for a determination hearing and Maori Land Court deter-
mination (section 30G again).
101
Unfinished Constitutional Business?
Issues
The new section 30 mediation provisions throw up a number of inter-
esting issues. There is scope for employing principles of tikanga Maori in
the new section 30 mediation mechanism:
And there’s no scope for providing the mediator with access to a panel
of pukenga as envisaged by the Maori Land Court submission on the
draft section 30.
The mediation process contains the standard provision on confiden-
tiality. That is, all material presented at or for the mediation must be kept
confidential by the mediator and those participating in the mediation
unless the person who produces the material consents to its disclosure.
That requirement is intended to promote a free and frank discussion of
the issues.
But this provision would I think run counter to the customary idea of
openness. For example, if representatives of various groupings attend the
mediation, are they able to report back to kin who were unable to attend?
There may therefore need to be a general agreement at the commence-
ment of mediation that anything said in mediation may be shuttled back
to all interested parties.
Still, section 30E, which outlines how a mediation is to be conducted,
is sufficiently broad to allow a mediator to incorporate principles of
tikanga Maori:
(2) A mediator may—
(a) follow those procedures (structured or unstructured) and do
those things the mediator considers appropriate to resolve the
issues referred to the mediator promptly and effectively; and
(b) receive any information, statement, admission, document, or
other material, in any way or form the mediator thinks fit,
whether or not it would be admissible in judicial proceedings.
That will mean that the responsibility for filling in the gaps and giving
content to the mediation process will rest with the mediator and the
parties to mediation. Appropriate principles of tikanga may therefore be
called upon to resolve differences.
In this way, it is likely that the Maori Land Court mediators will over
time develop a set of principles to guide participants in the mediation
process —perhaps principles such as those seen in ‘The Great Muru’
102
Erueti
103
Unfinished Constitutional Business?
members who feel frustrated with their iwi leadership may see section 30
as a way to appoint new representatives in place of those appointed under
processes established by iwi settlement legislation.
The new section 30 is unlikely to supplant appointment procedures in
any tribal settlement legislation. That is because the new section 30C(4)
of the Maori Land Act 1993 provides that:
Notes
1. A love story. See Journal of Polynesian Society, Vol 28, 1919, p 97–102.
2. See Te Urupare Rangapuu, Te Raarangi Kaupapa, Noema 1988, Department
of Maori Affairs.
3. Iwi were plainly given primacy: the preamble to the first draft of the Bill
described iwi as ‘the single enduring form of social organisation of the Maori
people’. This statement was later removed but the Act retained a static
simplified view of Maori social organisation, describing the ‘essential charac-
teristics of iwi’ as: shared descent from tupuna; hapu; marae; belonging
historically to a takiwa; and existence traditionally acknowledged by other
iwi.
4. See the former section 30(2) of the Maori Land Act 1993.
5. Memorandum of Chief Judge Durie attached to letter of 22 November 1993
from Deputy Chief of Maori Land Court.
104
Erueti
105
8 Indigenous Political Representation:
Identified Parliamentary Seats as a Form
of Indigenous Self-determination
106
Iorns-Magallanes
107
Unfinished Constitutional Business?
108
Iorns-Magallanes
109
Unfinished Constitutional Business?
50,000 Maori, whereas only 3,500 settlers elected each general parlia-
mentary seat. Maori voters could have significantly altered election results
in some general electorates. The second reason is that Maori thought that
their interests were better protected by separate, guaranteed representa-
tion. Maori wanted their separate seats; and they wanted more than four
MPs. For example, at 3,500 electors per seat, Maori could have had 14
seats.
In what is commonly called the ‘second phase’ of Maori electoral
representation, there were various suggestions for the abolition of the
seats, but they were retained.15 Interestingly, in 1896, the property quali-
fication for the general roll was abandoned, but instead of thereby
allowing Maori to go on the general roll, Maori were required by law to
vote in Maori electorates. In terms of the representatives and methods for
election in the second phase, most noticeable was that English-speaking
Maori were elected. This greatly increased the ability of the Maori MPs
to participate in Parliamentary proceedings and influence government
policy. Further, the show-of-hands voting in groups was abolished. However
voting was still not completely by secret ballot: oral declaration of votes
(with interpreter) was required. There was still no Maori electoral roll.
From 1935 the Maori seats became part of mainstream politics. The
Labour Party began to endorse candidates for Maori seats; party politics
entered the choice and campaigning of the Maori MPs; the Maori
electoral roll was established and secret ballot papers were used. Notably,
however, it was not until 1975 that Maori got the option of enrolling on
the general roll, and it was not until the 1990s that the number of Maori
parliamentary seats became proportional to the number of Maori electors.16
So the system of separate Maori seats in New Zealand effectively
began as a means to disenfranchise Maori. Early selection of representa-
tives was a solely internal Maori affair—more according to Maori, than
to settler politics and processes. And delegates were ambassadors to,
rather than part of the Parliament. This Parliamentary representation was
not seen by either Maori or settlers as a form of Maori self-determination.
But both the features of the system of representation and the perceived
part that the representation plays in Maori self-determination have
changed slowly over time. Today:
• candidates may or may not be affiliated to the area they stand in;
• the choice of candidates to run is often made for national political
strategic reasons;
• voting is individualised;
• voters’ choice is based much less on tribal politics and more on
individual candidates’ qualities and party affiliations.
In terms of the features of the system of Maori representation, what we
have now is not a traditionally Maori system but a mainstream system for
choice of the Maori seat representatives. Yet, conversely, the perception at
least among Maori is that the system of Maori seats plays an important
part in Maori self-determination today.
110
Iorns-Magallanes
There has been one major review of the Maori seats and two more
minor ones, all of which have assessed the desirability of the system of
Maori representation. First, the Royal Commission on the Electoral
System in 1986 listed the advantages and disadvantages of the Maori
seats. In their favour were that:
• Maori wanted to retain them (this was a clear result of submissions by
Maori);
• the seats had symbolic significance through having a special position
under the Treaty of Waitangi; and
• Maori interests were best protected by Maori decision-makers.
The Maori seats were seen as contributing to Maori self-determination
largely through being a symbol of Maori’s special status as a Treaty
partner and thus partner in government, though the Royal Commission
did not actually refer to the standard of self-determination.
However, the results in practice suggested that this form of self-deter-
mination was purely symbolic and not effective. For example:
• the then current representation was ineffective at actually protecting
Maori interests;
• there were various practical issues that contributed to the ineffective-
ness, such as the unwieldy size of Maori electorates making them
difficult for the Maori MPs to service;
• Maori MPs were blamed for problems of the system; and
• it gave the appearance that mainstream MPs therefore only represented
non-Maori.
Further, the lack of proportionality of seats to the Maori population
clearly showed that the symbolic significance of the Maori seats was
limited: the Treaty partners were clearly not equal.
For these reasons, the Royal Commission recommended the abolition
of the Maori seats and their replacement with the system of Mixed
Member Proportional representation (MMP) that it was recommending
for the general electoral system. The Commission considered that this
would require all political parties to look to Maori interests in order to
get elected. The predicted results were that Maori would be better off
because their interests would be better protected and because society
would become more cohesive as a result of all MPs being responsible for
outcomes for Maori. Notably, the Royal Commission did expect that
more Maori would become MPs and thus become decision-makers in
Parliament even without the Maori seats. This was because, under MMP,
the party lists would have to become more representative of the popula-
tion as a whole, with Maori therefore appearing on the lists and entering
Parliament at least that way, if not also through being elected to electorate
seats. The standard of Maori self-determination was not referred to, but
it appears that the Royal Commission was focusing on effective protec-
tion of Maori interests, while also keeping in mind that there would be
Maori decision-makers assisting in that protection.
111
Unfinished Constitutional Business?
112
Iorns-Magallanes
Nations to the State. They are not elected through state election processes
and they are not members of the state Parliament.19 They get paid the
same sitting allowances and have access to the same Parliamentary
resources; they can speak on the floor, sponsor legislation and serve on
parliamentary committees. However, because they are not MPs they
cannot vote on legislation.20
There are mixed feelings among the Indian First Nations about the
value of this system. They agree that participation in and influence on
laws and policies that affect them has been valuable. So has the increase
in visibility of Indian issues. But there is a debate between, on the one
hand, those who consider that, to be really effective, they need to have
full voting powers as Members of the State Parliament, and on the other
hand, those who stress the recognition of Indian sovereignty. The
delegates themselves would like more power—they want full voting rights
and Parliamentary membership, but as tribal delegates rather than having
to be elected through the general electoral system.21 However, this would
fall foul of the US Constitution.22 Other avenues for increased represen-
tation are being evaluated, but one legally acceptable method—that of
gerrymandering electorates to include, for example, all of an Indian
nation’s reservation within an electorate—is impractical in this particular
situation. The number of Indian voters is too small to provide a majority
of Indian voters in either a Senate or House district, and certainly too
small to ensure that a First Nation candidate is elected through the
general state electoral process.23
An alternative view posed is based on First Nation sovereignty and
self-determination. Sovereignty is relevant here for two reasons. First,
sovereignty to the Indian First Nations suggests government-to-govern-
ment relations with other nations. That is, the Indian representatives are
delegates to the Maine Parliament, rather than members, because the
state Parliament is the legislative body of a separate nation. Thus,
membership of the Parliament, whether through special appointment or
election under the state’s electoral system, is completely inappropriate.
Second, sovereignty suggests that the Indian Nations choose their own
delegates through internal processes, rather than through state-run
elections or other state processes. According to these arguments, Indian
self-determination is achieved by respecting First Nations’ inherent sover-
eignty, which means keeping the appointment of First Nations delegates
to state legislatures outside the state electoral system. The First Nation
delegates currently have more rights and privileges in the House than they
have had historically, but this debate is unresolved.
113
Unfinished Constitutional Business?
114
Iorns-Magallanes
Conclusion
The New Zealand/Aotearoa system of identified Maori seats was initially
designed to disenfranchise Maori. But today it is performing well in
protection of Maori interests. In practical terms it is a better system than
anything else that could be agreed upon now. However, the principled
base or justification for the current system is unclear, and I suggest that
the New Zealand system needs to be reviewed comprehensively: a review
that considers the aim, purpose and theoretical coherence, and then
evaluates alternatives according to a set of principles. Comparisons with
alternative models are instructive if only for helping to find our principal
aims and/or objectives.
This recommendation applies similarly to any proposal in Australia for
separate Aboriginal representation.25 Before such a system is devised, at
the state or federal level, the kinds of issues I have identified have need to
be discussed and resolved. As the NSW Parliamentary Inquiry identified,
the preliminary step that must be taken, consistent with Aboriginal self-
determination, is to establish an Aboriginal body to discuss the best method
of improving Aboriginal political representation.26 If the body then
chooses to develop a more detailed proposal for separate political repre-
sentation, it should first thoroughly assess the various models already in
existence. Such assessment should include their advantages, shortcomings
and social and legal context.
The second step should be consideration of the issues specific to Australia
and Aboriginal self-determination. For example: what are Aboriginal
visions of self-determination and what are the aims to be achieved
through establishment of separate Aboriginal representation? Is it making
Aboriginal opinion heard, and counted? Is it recognition of Aboriginal
sovereignty? Is it both of these things? These issues all affect the numbers
and powers of representatives or delegates. Another issue is the method
by which the delegates will be elected or chosen. Will it be through
internal Aboriginal processes or public ones? Then there are the practical
issues such as the numbers of voters, concentration in existing electoral
districts, and development of appropriate electoral rolls. The NSW
Inquiry report raised a number of issues to be discussed, but further work
is still to be done, both at the level of detail and overall concept. If all of
this is done well, separate political representation will be able to be used
as an effective component of Aboriginal self-determination in Australia.
Notes
1. The 1998 New South Wales Parliamentary Inquiry found that there was an
agreed need for better Aboriginal political representation at all levels and
argued that steps be taken to improve it in NSW. The final recommendations
related to a system for dedicated parliamentary seats as well as other
115
Unfinished Constitutional Business?
116
Iorns-Magallanes
117
9 Indigenous State Relations in Aotearoa/
New Zealand: A Contractual Approach to
Self-determination
John Buick-Constable
The contemporary realities of international law and politics are such that
if Indigenous peoples are to peacefully and effectively realise self-determi-
nation, they will most likely have to exercise it within existing state struc-
tures and orders. This argument is premised on the proposition that
Indigenous peoples’ claims for self-determination amount, in essence, to
demands for sovereignty (i.e., varying degrees of control over their own
political, social, economic and cultural affairs) and justice (i.e., redress for
past wrongs and present inequality, and arrangements for future security),
and that these claims can be accommodated without the need for
independent statehood.1 This requires a (re-)establishing and (re)orienting
of Indigenous-state relations away from policies of assimilation and
integration, and towards a process of ‘belated State-building’.2 An inter-
national legal right of self-determination for Indigenous peoples would
provide a significant step in this direction as a politico-legal mechanism
by which Indigenous self-determination can be legitimately advanced at
the international level. Another significant step in this direction would be
to establish, at the domestic level, a coherent framework under which the
international legal right can be implemented, and Indigenous self-determi-
nation can be exercised and realised, within the existing politico-legal
structures and orders of the state. The purpose of this chapter is to
explore one such domestic framework: that of the contractual approach
to Indigenous-state relations in Aotearoa/New Zealand.3
118
Buick-Constable
identity and territoriality), and make its careful and nuanced achieve-
ments all the more remarkable. Secondly, the history of Maori-Crown
relations shares much with the history of Indigenous-State relations in
North America and elsewhere, rendering it a useful test case, by
extension, for other jurisdictions.4
Relations between the Indigenous Maori and the New Zealand Crown
have been formalised, in respect of all Maori, in a founding international
treaty and, in respect of particular Maori tribes and peoples, in contem-
porary domestic legislative agreements. These are the Treaty of Waitangi
1840, the Waikato Raupatu Claims Settlement Act 1995, the Ngai Tahu
Claims Settlement Act 1998, the Ngati Turangitukua Claims Settlement
Act 1999 and the Pouakani Claims Settlement Act 2000 respectively
(with the Te Uri o Hau Claims Settlement Bill 2001 and the Ngati Ruanui
Claims Settlement Bill 2002 currently before Parliament). There exists an
interrelationship between these contractual forms of treaty-making and
legislative agreement: contemporary legislative agreements are the
product of Maori grievances and claims against the Crown for the latter’s
breaches of the original founding treaty between Maori and the Crown.
Thus, to examine these particular contractual instances of treaty-making
and legislative agreement is to examine much of the history of Maori-
Crown relations and the struggles of Maori for self-determination in
Aotearoa/New Zealand.
As a first grounding, the history of Maori-Crown relations may be
placed within the broader context of Indigenous-state relations in North
America, Australasia and elsewhere.5 It is beyond dispute that before the
arrival of European powers, Indigenous peoples were sovereign, self-
determining peoples in their territories.6 From the outset of encounter,
states sought to found and legitimate their colonial enterprise in the terri-
tories they ‘discovered’, as against other colonial powers, through treaty-
making with the Indigenous inhabitants as the appropriate juridical
method between sovereign entities at the time. The subject-matter of these
treaty agreements concerned the locus of sovereignty over territory,
resources and people (imperium), and/or title to, and appropriation of,
land and related resources (dominium).7
Initially, at least, states sought to conduct themselves in accordance
with their treaty agreements with Indigenous peoples.8 This may have
been simply because, at the time of contracting and for some time after-
wards, Indigenous peoples, on the whole, outnumbered or at least
challenged numerically states representatives and settler populations in
the territories. But as a result of a rapid and growing influx of state
bureaucrats and settlers into the territories, parity numerically was
reached and then reversed. With a consequential increase in demands for
the lands and resources of Indigenous peoples, states began to renege on
their contractual obligations to Indigenous peoples. In fact, for most of
the post-treaty-making history of Indigenous-state relations in North
119
Unfinished Constitutional Business?
120
Buick-Constable
121
Unfinished Constitutional Business?
122
Buick-Constable
123
Unfinished Constitutional Business?
their grievances and claims.35 Further, section 6 of the Ngai Tahu Act
provides an affirmation of the tribe as Tangata Whenua (Indigenous
people) of their lands. All of this, in effect, goes beyond the normal
positivist functions of legislation in performing ‘a memorialising task of
inscribing the past into the laws of the country’.36
For ensuring present equality and the future security of the tribes, the
major Parts of each Act provide for the transfer and vesting of land,
forests and other properties and assets to tribal ownership and control.
This was intended to enhance the mana (power; authority; prestige) of the
tribes and permit the restoration of the tribal community by providing the
necessary resources and cultural properties for that restoration. There is
thus symbolic and material property exchange in the legislation.37 Justice
has thereby been met with the pain of raupatu or loss of resources having
been assuaged, and the beginnings of a sound financial future ensured.
The Acts also provide in their Parts for measures of sovereignty in the
significant redistribution of resources and authority, in relation to resource
management, to the tribes. The legislated return of rangatiratanga, in
terms of ownership and control over their own resources, provides the
tribes with the opportunity to be self-determining in directing their own
tribal destiny through this economic base. The establishment of tribal
corporate bodies under the Waikato Act and the provisions of the Te
Runanga O Ngai Tahu Act 1996 provide the tribes with representative
bodies to restore the tribes’ legal personalities and to receive and manage
settlement assets. In this way, the tribes will have a degree of sovereign
authority over the application and management of the significant public
assets under their ownership and control.
In particular, with regard to the Ngai Tahu Act, there is a redistribu-
tion of sovereignty for the tribe in reverse of the Treaty exchange. Part 9
of the Ngai Tahu Act provides the tribe with a permanent right of refusal
of relevant Crown properties that are to be put on the market. Such a pre-
emptive right is regarded as an aspect of the Crown’s sovereignty under
the Treaty and in common law. Further, section 1 of the Ngai Tahu Act
provides that the legislative agreement was to be brought into force upon
recommendation of the Prime Minister whom ‘must not recommend the
making’ of that commencement order unless ‘advised by Te Runanga o
Ngai Tahu in writing that this Act is acceptable’. In effect, the legislation
is brought into force only when enacted by Parliament and agreed by
Ngai Tahu. Additionally, throughout the Act, the emphasis is on joint
participation in the resource management domain, extending Ngai Tahu
relations beyond that of the Crown to cover all resource managers who
have the capacity to affect the tribe’s interests. As John Dawson points
out, this equates, at the constitutional level, to joint decision-making
procedures in the resource management domain, and a shift towards
shared governance of cultural and public resources of particular signifi-
cance to the tribe.38 In other words, it is a powerful example of belated
124
Buick-Constable
125
Unfinished Constitutional Business?
Conclusion
The contractual approach to Indigenous-state relations would vary on a
case-by-case basis in deference to the nature of the relations, situations
and issues involved. In the Aotearoa/New Zealand setting, Tribe-Crown
contractual relations provide merely one possibility. Maori have had
certain grievances and claims recognised and addressed that have seen
some tribes achieve measures of sovereignty and justice in their pursuit of
self-determination within the domestic context of the Aotearoa/New
Zealand state. But more successful products may yet emerge there and
elsewhere, especially in the wake, and under colour, of an international
legal right of self-determination for Indigenous peoples.
In essence, the contemporary legislative agreements in Aotearoa/New
Zealand (re-)establish and (re-)orient Maori-Crown relations on terms of
greater equality by providing administrative and property law solutions
to constitutional problems that arose from the signing of the Treaty of
Waitangi and its subsequent history. In this sense, the legislative agree-
ments go some way to remedying the deficiency of the Treaty by putting
in place appropriate infrastructures regarding resources of particular
significance to the tribes within their regions. Despite the significance of
this achievement, it is important to emphasise the fact that the peaceful
and effective self-determination of Indigenous peoples does not rest solely
on negotiated agreement. The contractual approach merely provides a
method and source for (re-)establishing and (re-)orienting Indigenous-
state relations in terms of the past, present and future of those relations.
What is additionally required is political will from the parties to give
committed and ongoing effect to any contractual settlement reached. For
Indigenous peoples, this means the internal ability to effectively
decolonise and commit themselves to a pro-active strategy for the future.
For the state, this means the honouring of agreements and receptivity
towards the continuity of relational coexistence. Where such political will
is present, then a contractual approach, along the lines of that more
recently exhibited in Aotearoa/New Zealand, where backed up by legal
sanction, can provide a new, peaceful and effective foundation for
Indigenous-state relations into the future.
126
Buick-Constable
References
Brookfield FM 1992, ‘The Treaty, the 1840 Revolution and Responsible
Government’ 5 Canta LR 59.
Brookfield FM 1999, Waitangi and Indigenous Rights: Revolution, Law and
Legitimation, Auckland University Press, Auckland.
Brownlie I 1992, Treaties and Indigenous Peoples: The Robb Lectures 1991,
Clarendon Press, Oxford, 1–27, 77–100.
Joseph PA 1993, Constitutional and Administrative Law in New Zealand, The
Law Book Company Ltd, Sydney.
Kawharu and C Orange 1987, The Treaty of Waitangim Allen & Unwin,
Wellington.
Martinez MA 1999, Study on Treaties, Agreements and Other Constructive
arrangements between States and Indigenous Peoples (1999) UN Doc
E/CN.4/Sub.2/1999/20.
Martinez Cobo JR 1987, Study on the Problem of Discrimination Against
Indigenous Populations, E/CN.4/Sub.2/1986/7/Add.1–8, para 55, 104, 110,
McGinty JS 1992, ‘New Zealand’s Forgotten Promises: The Treaty of Waitangi’
25. (trans Vand J)L 681.
McHugh P 1991, The Maori Magna Carta: New Zealand Law and the Treaty of
Waitangi, Oxford University Press, Oxford.
McHugh P and PG McHugh ‘Constitutional Theory and Maori Claims’ in
Kawharu, 25, 37–46 [‘Constitutional Theory’].
McLay G (ed), 1995, Treaty Settlements: The Unfinished Business, New Zealand
Institute of Advanced Legal Studies and Victoria University of Wellington Law
Review, Wellington.
Pocock JGA 1998, ‘Law, Sovereignty and History in a Divided Culture: The Case
of New Zealand and the Treaty of Waitangi’, 43 McGill LJ 481
Renwick W (ed) 1991, Sovereignty & Indigenous Rights: The Treaty of Waitangi
in International Contexts, Victoria University Press, Wellington.
Sharp A 1997, Justice and the Maori: The Philosophy and Practice of Maori
Claims in New Zealand Since the 1970’s, 2 ed, Oxford University Press,
Auckland.
127
Unfinished Constitutional Business?
Notes
1. For support for this proposition, see James Tully Strange Multiplicity:
Constitutionalism in an Age of Diversity (Cambridge University Press,
Cambridge, 1995) 4–5.
2. This phrase is adopted from Erica-Irene A. Daes ‘Some Considerations on the
Right of Indigenous Peoples to Self-Determination’ (1993) 3(1) Transnat’l L
& Contemp Probs 1, 8–9. Miguel Alfonso Martinez Study on Treaties,
Agreements and Other Constructive arrangements between States and
Indigenous Peoples (1999) UN Doc E/CN.4/Sub.2/1999/20. The process of
‘belated State-building’ is a far cry from, and in fact seeks the opposite of,
the assimilative or integrationist processes that Indigenous peoples are
reacting against in their claims for self-determination nationally and interna-
tionally. The notion of belated State-building is instead a vision for realistic
and necessary compromise between Indigenous peoples and states in
contemporary international law and politics which, if successful, can provide
a peaceful and effective settlement of issues satisfactory to both parties and
to world order.
3. The exclusion of judicial procedures in this analysis is not to deny the efficacy
of ‘judicial law-making’ as a form of empowerment of Indigenous peoples in
terms of self-determination. For the efficacy of this approach, see, for
example, in the Aotearoa/New Zealand context, the recognition of
customary fishing rights and Treaty of Waitangi principles in Te Weehi v
Regional Fisheries Officer [1986] 1 NZLR 680 (HC) and New Zealand
Maori Council v Attorney-General [1987] 1 NZLR 641 (CA) [‘the 1987
Lands case’] respectively.
4. See Peter Spiller, Jeremy Finn and Richard Boast A New Zealand Legal
History (Brooker’s, Wellington, 1995) 134.
5. For excellent accounts of this history, see, generally, Maivan Clech Lam At
the Edge of the State: Indigenous Peoples and Self-Determination
(Transnational Publishers, New York, 2000), Siegfried Wiessner ‘Rights and
Status of Indigenous Peoples: A Global Comparative and International Legal
Analysis’ (1999) 12 Harv Hum Rts J 57, Paul Havemann (ed) Indigenous
Peoples’ Rights in Australia, Canada, & New Zealand (Oxford University
Press, Auckland 1999), S. James Anaya Indigenous Peoples in International
Law (Oxford University Press, Oxford, 1996), Russel Lawrence Barsh
‘Indigenous Peoples in the 1990’s: From Object to Subject of International
Law?’ (1994) 7 Harv Hum Rts J 33, Robert A. Williams Jr ‘Encounters on
the Frontiers of International Human Rights Law: Redefining the Terms of
Indigenous Peoples’ Survival in the World’ (1990) Duke LJ 660 and Glenn
T. Morris ‘In Support of the Right of Self-Determination for Indigenous
Peoples Under International Law’ (1986) 29 GYIL 277.
6. For Indigenous peoples generally, historical treaty-making provided recogni-
tion not only of their juridical capacity as subjects of international law, and
128
Buick-Constable
thus sovereign entities, but also of their collective rights as peoples in inter-
national law in confirming their autonomy, self-government and self-deter-
mination: This was in accordance with the contemporary non-Indigenous
states-based international law whose ideal instrument for recognition or
transfer of sovereignty was the treaty. A reasonable conclusion is that at the
time of treaty-making (that is, during the era of the Law of Nations), there
was widespread recognition by both parties, state and Indigenous, that each
party was a sovereign entity juridically capable of concluding treaties: Jose
R. Martinez Cobo Study on the Problem of Discrimination Against
Indigenous Populations (1987) E/CN.4/Sub.2/1986/7/Add.1–8, para 110.
Martinez, above n 2, para 55, 104 and 110. Although, in Australia,
sovereign status for the Aboriginal and Torres Strait Islander people was
disputed at the politico-legal level until the decision of the High Court of
Australia in Mabo v State of Queensland (No 2) (1992) 107 ALR 1.
7. See Paul McHugh ‘Crown-Tribe Relations: Contractualism and Coexistence
in an International Context’ in Glyn Davis, Barbara Sullivan, and Anna
Yeatman (eds) The New Contractualism? (MacMillan, South Melbourne,
1997) 198.
8. In the early Aotearoa/New Zealand context, ‘the colonial government
conducted land sales with Maori in a manner that acknowledged the
equality of the participants. Under the direction of tribal leaders, the bound-
aries were walked by all concerned and a price agreed’: Robert Mahuta
‘Tainui, Kingitanga and Raupatu’ in Margaret Wilson and Anna Yeatman
(eds) Justice and Identity: Antipodean Practices (Bridget Williams Books,
Wellington, 1995) 18, 22.
9. See, in particular, Anaya, 39–41, 43, 50 and 55.
10. This can be seen from the time of the early writings of James M. Buchanan
and John Rawls in the 1970s and the contemporaneous and subsequent
legislative agreements reached between states and First Nations in North
America, including the Alaska Native Claims Settlement Act 1971, the
Rhode Island Indian Claims Settlement Act 1978, the Cree-Naskapi (of
Quebec) Act 1984, the Sechelt Indian Band Self-Government Act 1986 and
the Nunavat Act 1993. See, in particular, McHugh, above n 8.
11. I. H. Kawharu (ed) Waitangi: Maori and Pakeha Perspectives of the Treaty
of Waitangi (Oxford University Press, Auckland, 1989) xi.
12. However, treaty-making has only been narrowly applied in States relations
with some of the tribes of the First Nations of Canada and the United States,
the Mapuche in Chile and the Maori in Aotearoa/New Zealand: Treaty-
making was not applied, to take a classic example, to state relations with the
Aboriginal people of Australia. Incidentally, the Treaty of Waitangi,
although purportedly a pan-Maori agreement with the Crown, was not in
fact signed by all Maori tribes. Martinez presents a sceptical view of treaty-
making. For him, the states-based motivation behind treaty-making has had
little to do with Indigenous peoples themselves, but rather was a means to
legitimise (via the acquiescence of the autochthonous sovereign of the terri-
tories in question) any ‘right’ (real or intended) with which they could
counter opposing claims advanced by other colonial powers vying for the
control of those lands: Martinez, above n 4, paras 111, 187. This required
that they seek the agreement of the legitimate holder of the original title (i.e.,
129
Unfinished Constitutional Business?
130
Buick-Constable
131
Unfinished Constitutional Business?
32. In 1995, Queen Elizabeth II gave the Royal Assent personally in Wellington.
33. Alves, above n 33, 135. The claim was known in the Waitangi Tribunal as
the ‘Nine Tall Trees of Ngai Tahu’ involving the Crown purchase between
1844 and 1864, at artifically low prices, of the Otakou Block, the Kemp
purchase of Canterbury and Otago, Banks Peninsula, Murihiku, North
Canterbury, Kaikoura, Arahura and Rakiura, comprising a total of 34.6
million hectares, and the depletion and loss of mahinga kai: Durie, above n
14, 200. See the Preamble of the Ngai Tahu Act.
34. Despite the fact that Ngai Tahu had signed the Treaty, the South Island was
deemed as belonging to the Crown by ‘discovery’ in the Treaty.
35. The settlement of claims is ‘final’, all future progress on the claims are
statute-barred and any associated litigation is discontinued: section 9 of the
Waikato Act; section 461 of the Ngai Tahu Act. The Acts do not, however,
block any claims outside the legislative agreement: Durie, above n 14, 196
and Alves, above n 33, 127.
36. McHugh, above n 8, 201.
37. Dawson, above n 33, 215.
38. Dawson, above n 33, 222.
39. Dawson, above n 33, 223
40. For an in-depth discussion on the right of self-determination in international
law, see Antonio Cassese Self-Determination of Peoples: A Legal
Reappraisal (Cambridge University Press, Cambridge, 1995). For useful
discussions on the connection between the right and Indigenous peoples, see,
in particular, Daes, above n 1, and Morris, above n 6.
41. Mahuta, above n 9, 82.
42. This point is made in particular regard to the Waikato-Tainui and Ngai Tahu
settlements which themselves were not free from controversy. In Waikato-
Tainui’s case, concerns arose over the mandate of the Tainui Trust Board to
negotiate on behalf of all Tainui hapu (families): In Ngai Tahu’s case,
counter-claims were made by the ancient Waitaha tribe regarding settlement
assets in the lower South Island and a ‘turf war’ ensued with various Nelson
and Marlborough tribes in the upper South Island. See Durie, pp. 197, 203.
Waitaha Taiwhenua o Waitiki Trust v Te Runanga o Ngai Tahu (High Court,
Christchurch, CP 41/98, 17 June 1998, Panckhurst J), The Dominion,
November 27, 2001, at 15, col. 1, Te Runanga o Ngai Tahu v Waitangi
Tribunal [2001] 3 NZLR 87 and Ngati Apa ki te Waipounamu Trust v The
Queen [2000] 2 NZLR 659.
43. For example, the fisheries settlement between all Maori and the Crown and
attempts at reaching settlement between the Whakatohea tribe and the
Crown. The so-called ‘full and final settlement’ of fisheries has yet to occur.
Nonetheless, the ‘fiscal envelope’ is being successfully pushed in various
areas. In Canada, the practice of so-called ‘comprehensive land claims settle-
ments’ and ‘modern treaties’ are examples of such successful extinguishment:
Martinez, above n 2, para 146.
44. The 1987 Lands case, 656.
132
10 Kanaka Maoli: Right of Self-determination
Joshua Cooper
I will review the denial of and the demand for recognition and realisa-
tion of this fundamental freedom in international human rights law. The
second paragraph is quite foremost for spiritual and subsistence purposes
while often forgotten in international debates. It notes,
‘All peoples may, for their own needs, freely dispose of their
natural wealth and resources without prejudice to any obligations
arising out of international economic cooperation, based upon the
principle of mutual benefit, and international law. In no case may
a people be deprived of its own means of subsistence.’
133
Unfinished Constitutional Business?
This chapter will look at the first part of paragraph one focusing on
determining the political status, because throughout colonial conquest the
political structures are the main tools to enforce oppressive laws and
prejudicial policies upon the colonised peoples. All of the core cultural
concepts and creative expressions of language and land interconnected-
ness are illegal through immoral laws of cultural denial by the colonial
power.
The second focus will be on the political consciousness evolving from
active participation in cultural resistance reclaiming the right of self-
determination. The culture throbbing in the language and the land are
able to overcome the powerful weapons of the coloniser. The most
powerful weapon is described by Kikuyu author and activist Ngugi Wa
Thiongo,
The prejudicial policies are very successful in the court rooms and also
in the minds of the colonised people. Yet a chord of resistance in the core
conscience resonates deep although often ignored until the right of self-
determination is realised in the collective conscience of the oppressed
peoples in the quest for freedom.
I will also illustrate how Kanaka Maoli have continued to defuse the
cultural bomb and other weapons from nuclear weapons to academic
research in the name of scholarship through an arsenal of non-violent
activism rooted in Indigenous values and a vision for an alternative future
for the Indigenous peoples of Ka Pae Aina.
Kanaka Maoli have organised on the taro roots and the global level for
justice. This chapter will outline different campaigns coordinated through
peaceful protest for a Hawaii reflecting the ways and wisdom of the host
culture based on belief of malama aina (take care of the land).
134
Cooper
135
Unfinished Constitutional Business?
benefit the new arrivals aiming for a different Hawaii, based on beliefs of
Western society from the religion to the monetary model. All had an
impact on the land, pushing from a philosophy of familial property to one
of private property and profit.
The ahupuaa model was a basis for sustainable society recognising
spiritual significance and providing natural resources for cultural
practices.
All of this was changed with the introduction of animals in the area as
well as the larger ideas of influence in the interests of the settler society
arriving in Hawaii. Captain Vancouver introduced cannons toward warfare
in Hawaii and in return desired to make Hawaii a territory of the United
Kingdom as it provided a significant base in the Pacific. Captain George
Vancouver ‘envisioned the Hawaiian Islands as a mid-Pacific link between
British possessions along the west coast of Canada and the new colony of
Australia.’5
As the imperial powers punctured the serenity of self-determination of
the Pacific Island Indigenous peoples, the Western actors and aspirations
began to dominate the economic, social and cultural development of the
region. The existing exercises of self-determination were challenged
through religious orders, the market economy and political practices of
laws denying cultural survival of Indigenous peoples.
The ahupuaa model provided the nexus for the right of self-determina-
tion where the political structure and the economic, social and cultural
development were practised. ‘Working with the rhythms of nature and the
bounty of ahupuaa, Hawaiians regulated their use of its natural resources
and practised forms of conservation that would sustain these resources
for future use.’6
136
Cooper
The arrival of Cook changed the core ideas and influences from culture
and principles of the Polynesian perspective of Hawaii to the emerging
international arena. Kanaka Maoli began to disappear, with diseases
introduced decimating the population while also destroying the cultural
principles. As Haunani Kay-Trask, noted:
For the past two centuries, virtually from the time that Western
ships began to call regularly at Hawaii, the Islands have been under
the influence. Under the influence of sea captains, fur traders,
sandalwood merchants, whaling ship owners, sugar planters, presi-
dents, congressmen, admirals, banks, life insurance companies,
land developers and airlines. Under the influence of powerful
metropolitan forces, which have profoundly shaped the course of
the Islands’ economic, political, and social development, and have
molded it in their image. Hawaii’s development for the last two
hundred years has been peripheral in nature, a reflex of expan-
sionist needs in some metropolitan centre.8
137
Unfinished Constitutional Business?
138
Cooper
The impact of the United States can be felt through treaties that
recognise the independence of the Hawaiian nation, yet attempt to
influence its role to assist the US in its dominance in the Americas and its
ever increasing presence in the Pacific.
While there are many significant dates and acts of defiance in the
struggle for self-determination, the history of Hawaii is a tragedy of
diplomacy and international law. The values of traditional culture were
reasserted with the coronation of King David Kalakaua, who balanced
tradition with technological advances to promote Hawaii as leader in the
Pacific. The hula flourished again and Iolani Palace, headquarters of the
Hawaiian government, obtained electricity before the White House.
However, there were not many bright points in Kalakauas diplomacy
efforts under his motto of ‘Hawaiian Primacy in the Pacific.’
Lorrin Thurston, a missionary descendant, wrote the ‘Bayonet
Constitution’ immediately imposed on King David Kalakaua. This consti-
tution undermined the right of self-determination with significant consti-
tutional changes impacting lives of Kanaka Maoli in their own homeland,
allowing foreigners to vote for representatives without being citizens of
Hawaii and only needing one year of residency in Hawaii to participate
in government. The structure of the political system also altered, so most
of Kalakaua’s authority as executive was removed. In addition, the voting
power of Kanaka Maoli was taken away, when income or property
ownership were instituted as necessary qualifications before people could
have a voice in government with the simple act of voting. The financial
requirements left the house of the nobles to non-Kanaka. The Bayonet
Constitution was a response to Kamehameha V Constitution. Queen
Liliuokalani’s proposal was to restore power to the monarchy as well as
to repeal such laws as those giving the right to vote to foreigners who
were not citizens of Hawaii.
139
Unfinished Constitutional Business?
over a hundred fifty officers and men from the USS Boston landed
in Honolulu. They bivouacked across the street from the palace.
On January 17, the Committee of Safety announced the establish-
ment of the Provisional Government of Hawaii. The proclamation
was read in public with US military troops standing guard.13
The next day, Jan 17, 1893, an American citizen who had arrived
in Hawaii the year before mounted the steps of the Government
Building and declared the overthrow of the Queen’s government. In
its place an all-white provisional government was established, to
govern until union with the United States of America could be
accomplished.14
140
Cooper
Now to avoid any collision of armed forces and perhaps the loss of
life, I do this under protest and impelled by said force, yield my
authority until such time as the Government of the United States,
shall upon the facts presented to it, undo the action of its represen-
tatives and reinstate me in the authority which I claim as the consti-
tutional sovereign of the Hawaiian Islands.17
The United States took the path of imperial power with the annexation
of Hawaii, denying the basic right of self-determination, failing the vision
of international law and good governance. As President Cleveland said,
141
Unfinished Constitutional Business?
This failure to live as a model nation in pursuit of peace and rule of law
is in the headline of the Advertiser newspaper, HAWAII BECOMES THE
FIRST OUTPOST OF A GREATER AMERICA.
The annexation of Hawaii on 12 August 1898 was the next step
toward statehood of Hawaii as a member of the United States of America.
As international affairs took place, more and more US leaders moved
away from President Cleveland’s commitment to the right of self-determi-
nation.
Sanford Dole, President of the Republic of Hawaii, took an oath of
allegiance to the US as the republic was transferred to the US with annex-
ation. Dole also imprisoned Queen Liliuokalani for eight months and
established a provisional government known as the Republic of Hawaii.
In 1898, the Hawaiian Islands were formally annexed to the United States
and in 1900, Hawaii became a US territory. As Gavan Daws noted, ‘The
Hawaiian population existed to be dominated and the Hawaiian govern-
ment existed to be humiliated.’21 Every step of the way, Kanaka Maoli
followed the leadership of the Queen. There was a petition against annex-
ation signed by nearly the entire voting population for independence.
One voice for the rule of law was US President Woodrow Wilson. Not
only did Wilson promote this principle of international law concerning
Europe but also the Pacific. As noted,
142
Cooper
143
Unfinished Constitutional Business?
The law of nations is founded upon reason and justice, and the
rules of conduct governing individual relations between citizens or
subjects of a civilized state are equally applicable as between
enlightened nations. The considerations that international law is
without a court for its enforcement, and that obedience to its
commands practically depends upon good faith, instead of upon
the mandate of a superior tribunal, only give additional sanction to
law itself and brand any deliberate infraction of it not merely as a
wrong but as a disgrace. On the same ground, if a feeble but
friendly state is in danger of being robbed of its independence and
its sovereignty by a misuse of the name and power of the United
States, the United States can not fail to vindicate its honour and its
sense of justice by an earnest effort to make all possible repara-
tion.24
144
Cooper
145
Unfinished Constitutional Business?
the time, Hawaiians were keenly aware of what was taking place.
However, a lack of legal protection limited their ability to prevent
the desecration.26
The primary goal of Hui Malama is the care of the ancestral Native
Hawaiian remains through repatriation and reinterment and the
protection of burial sites. The Hui Malama mission is to restore
and maintain the ancestral foundation of Native Hawaiians by
assisting families and communities to resume the responsibilities of
care and protection of the ancestors, thus strengthening our sense
of Hawaiian self-identity and perpetuating our culture.27
146
Cooper
147
Unfinished Constitutional Business?
148
Cooper
Many classes today begin with a chant to enter the arena of education.
The chant is an important component of the culture. It is crucial for the
149
Unfinished Constitutional Business?
150
Cooper
151
Unfinished Constitutional Business?
152
Cooper
and Haleakala, Maui to the beaches such as Barking Sands on Kauai, the
lands are in the hands of military, denying traditional use on the land.
The words of George Helm speak truth to power as many military
bombs continue to fall and desecrate the sacred earth. Helm said in his
reason for occupying Kahoolawe in 1977,
153
Unfinished Constitutional Business?
the staple diet of Kanaka Maoli: taro. The battle cry provided by one
farmer in the area against development on the Waianae coast was, ‘No
can eat golf balls’. This model of farming provides basic necessities for
one of the largest Kanaka Maoli communities in present day Hawaii. On
top of subsistence, an important contribution of sustainable economy is
the sharing of traditional values through skills incorporated in creating
the ahupuaa, including stories shared during the work that exemplify the
philosophy of ecological and elder respect. The Makaha model is very
important as it also displays what could take place if a neighbouring
valley would be returned from its current military use as a bombing target
practice. Makua Valley is an important area that could be a living comm-
unity where philosophy and practices come together to provide essential
purpose for Indigenous peoples.
More models are being developed and improved upon to create a
Hawaii model that fits the values and visions of Kanaka Maoli and not
that of foreign investors and invaders. Near Hilo, Hawaii, Jim Albertini
created the Malu Aina Center for Non-violent Education and Action.
Malu Aina is a place of peace where taro is planted and provided free to
all in need. Albertini also plants indigenous plants that provide medicinal
purposes. Albertini organised peace protests against the military use of
aina. He dived into Hilo Harbor against nuclear ships docking in Hilo
bay; earlier, he had organised with the community to have Hilo County
pass the first resolution in the United States declaring Hawaii County to
be nuclear-free. Albertini continues to work with Nuclear Free and
Independent Pacific for an independent Hawaii, based on traditional
values and a vision of equality for all living in peace. Albertini believes
non-violence has to be tested in the public arena and continues with
weekly protests against the militarisation of Hawaii. This man connects
the struggle for self-determination in Hawaii with the global movement
against imperialism and military aggression. Albertini notes, ‘Kalo is
Gandhi’s spinning wheel in Hawaii. The national consciousness will be
the contribution of all people to the community and this is realized
through farming kalo together.’39 Albertini continuously works against
the further militarisation and commercialisation of Hawaii, such as
Moana Kea, while also recognising the power of living in parallel political
systems such as Malu Aina. Albertini said, ‘We are living in an
independent nation. The parallel institutions set up now also provide
transition forum to a better world.’40
Another important ahupuaa model was established on Kauai, by
family with long ties to the land. The Sproat ohana is a multi-generational
effort, driving the preservation and protection of aina to provide for
future generations a system balancing Indigenous philosophy with
cultural practices through educational actions in Waipa. As noted, ‘Mai
uka a I kai, from the mountains to the sea, describes the setting of a lush
and fertile land called Waipa, on the North Shore of Kauai. We’re building
154
Cooper
Conclusion
E malama I ka aina! E malama ka aina ia oe! (Take care of the land, the
land will take care of you.) This exemplifies the relationship of people
with the land as one of reciprocity and kinship. This balance is not even
a stewardship let alone a colonial concept of land as a commodity for
purchase instead of prayer, reverence.
Kanaka Maoli continue to learn about their cultural relationship with
all elements of the earth and to understand the world through their own
cosmology, based on respect for the planet and all life forms. This
knowledge provides intellect and intuition for future generations. The
restoration of ahupuaa and creation of the canoe voyaging society,
helping to restore values and skills through travelling across the liquid
continent with discovered knowledge of their ancestors’ abilities, helps
guarantee self-determination for the Indigenous peoples of Hawaii.
Lilikala Kameeleihiwa, Director of the Center for Hawaiian Studies,
said of Hokulea on the cultural development of Kanaka Maoli,
155
Unfinished Constitutional Business?
As the taro terraces replace the tourist room terraces over sacred sites,
as Peles lava rolls into oceans creating future islands more than concrete
flows and the traditional culture erodes the military and merchant
control, the true direction of the people and the land will once again
illuminate over the islands with the intensity of the sun in the Pacific.
A proverb says that Kanaka Maoli will thrive as more loi kalo (taro
pond fields) continue to grow. More and more ahupuaa are being
restored to their original purpose of providing nutrition and traditional
knowledge to instill wisdom of elder ways for a balanced future based in
principles of pono (righteousness, justice). The taro plants are growing
with the work of youth and elder standing side by side in the taro terraces
in ahupuaa on all the islands. Self-determination is being realised on the
land and in the soul of Kanaka Maoli, soon it will be recognised in the
halls of decision-making at the White House in Washington DC and
United Nations General Assembly in New York and the United Nations
Human Rights Committee and Sub-Commission on the Protection and
Promotion of Human Rights in Geneva.
The important question for advocates of the right of self-determination
asked by Lilikala Kama Kameeleihiwa is ‘Pehea La E Pono Ai’? The
question of ‘How Shall We Be Pono’? is an important focus to ask in
actions of advocacy. Future campaigns for the realisation of self-determi-
nation as a human right with a collective component with the possibili-
ties for a peaceful independence are the forefront of the taro roots level in
Hawaii and the global level at the United Nations.
156
Cooper
The peoples’ movements for peace, ecology and human rights are
identifying and implementing values in education and empowerment to
realise the right of self-determination. While many know about aloha,
there are many other values that can contribute to a global culture of
peace in international civil society such as laulima (cooperation), huikala
(forgiveness), hoomanawanui (patience), kupono (honesty), koa
(courage) and lokahi (unity).
Notes
1. Ngugi Wa Thiongo, Decolonizing the Mind (London: James Curry Ltd,
1994) p 3.
2. Melody Kapilialoha MacKenzie, (ed) Native Hawaiian Rights Handbook
Honolulu, Hawaii: Native Hawaiian Legal Corporation, 1991, p 3.
3. Priscilla Perez Billig, ‘Waipa: A Living Ahupuaa,’ Spirit of Aloha,
November/December 2002, p 35.
4. Rose Schilt, Subsistence and Conflict in Kona, Hawaii An Archeological
Study of the Kuakini Highway Realignment Corridor, 1984.
5. Noel J Kent, Hawaii: Islands Under the Influence, (Honolulu: Hawaii:
University of Hawaii Press, 1993) p 15.
6. Priscilla Perez Billig, ‘Waipa: A Living Ahupuaa,’ Spirit of Aloha.
November/December 2002, p 35.
7. Haunani-Kay Trask, From A Native Daughter, (Monroe, Maine: Common
Courage Press, 1993) p 7.
8. Noel J Kent, Hawaii: Islands Under the Influence, (Honolulu: Hawaii:
University of Hawaii Press, 1993) p 5.
9. Haunani-Kay Trask, From A Native Daughter, (Monroe, Maine: Common
Courage Press, 1993) p 7–8.
10. Noel J Kent, Hawaii: Islands Under the Influence, (Honolulu: Hawaii:
University of Hawaii Press, 1993) p 5.
11. See Haunani-Kay Trask, From A Native Daughter, (Monroe, Maine:
Common Courage Press, 1993) p 8.
12. Theon Wright, The Disenchanted Isles, (New York: Dial Press, 1972) p xiii.
13. Glen Grant and Bennett Hymer, Hawaii Looking Back, (Honolulu, Hawaii:
Mutual Publishing, 2000) p 163.
14. Harlan Cleveland, ‘Hawaiis Shotgun Wedding,’ Star Tribune, 24 January
1993, A27.
15. Rhoda Hackler, ‘The Overthrow of the Hawaiian Monarchy,’ Foreign
Service Journal, June 1993, p 48.
16. See Noel J. Kent, Hawaii: Islands Under the Influence, (Honolulu: Hawaii:
University of Hawaii Press, 1993) p 63.
17. Quoted in YN Kly and D Kly, (eds) In Pursuit of the Right to Self-determi-
nation, (Atlanta, Georgia: Clarity Press, 2001) p 151.
18. Lorrin Thurston, Statement of Reasons From an American Standpoint,
Washington DC: Gibson Brothers Printing, 1897) p 25.
19. President Grover Cleveland, ‘President’s Message to Congress Relating to the
Hawaiian Islands’ (Honolulu, Hawaii: Office of Hawaiian Affairs, 1993) p 12.
20. Denis Lynch, Grover Cleveland: A Man Four Square, (New York: Horace
Liveright, 1932) p 501.
157
Unfinished Constitutional Business?
21. See Dwight Dumond, Roosevelt to Roosevelt, (New York: Henry Holt &
Co., 1937) p 103.
22. Josephus, Daniels, The Life of Woodrow Wilson, (Philadelphia,
Pennsylvania: The John C. Winston Co, 1924) p 193.
23. Glen Grant and Bennett Hymer, Hawaii Looking Back, (Honolulu, Hawaii:
Mutual Publishing, 2000) p 349.
24. President Grover Cleveland, ‘President’s Message to Congress Relating to the
Hawaiian Islands’ (Honolulu, Hawaii: Office of Hawaiian Affairs, 1993) p
12.
25. Randy Johnson, ‘United Inflight,’ Hemispheres November 2002, p 57.
26. Edward Halealoha Ayau, ‘Native Burials: Human Rights and Sacred Bones,’
Cultural Survival, Spring 2000, p 35.
27. Ibid, p 36.
28. Dana Hall, ‘Hawaii Politics,’ [Lecture] 11 October 2002.
29. Ibid
30. Curt Sanborn, ‘Buried Treasure,’ Spirit of Aloha, 2002, p 55.
31. Ibid, p 54.
32. Ibid, p 54.
33. Haunani-Kay Trask, From A Native Daughter, (Monroe, Maine: Common
Courage Press, 1993) p 52–53.
34. Jan TenBruggencate, ‘Hokulea Preparting to Teach New Lessons,’ The
Honolulu Advertiser, 23 December 2002, A1.
35. Jan TenBruggencate, ‘Hokulea Preparting to Teach New Lessons,’ The
Honolulu Advertiser, 23 December 2002, A1.
36. Rodney Morales, (ed) HOIHOIHOU. (Honolulu, Hawaii: Bamboo Ridge
Press, 1984) p 55.
37. As a political science, peace studies and international human rights law
professor, I have taken out classes to bring the words on pages in textbooks
alive through hands-on practice in the taro patch. The philosophy discussed
in the classroom blossoms in the brain and the students hearts during the
weekend of work in Kahakuloa. Uncle Oliver Dukelow uses humor and hard
work to bring the legal concepts into reality as students spend hours in the
mud realizing who they are and what they can become in our Hawaii.
38. Jim Albertini, ‘Non-violence or Violence? Lecture at Hawaii Instittute for
Human Rights Summer Seminar, 10 June 2002.
39. Ibid
40. Priscilla Perez Billig, ‘Waipa: A Living Ahupuaa,’ Spirit of Aloha,
November/December 2002, p 36.
41. Ibid
42. Ibid, p 50.
43. Jan TenBruggencate, ‘Hokulea Preparting to Teach New Lessons,’ The
Honolulu Advertiser, 23 December 2002, A1.
44. A Mau A Mau. Produced and directed by Nalani Minton. 60 min. Na Maka
O Ka Aina Productions 2000. Videocassette.
158
11 The Search for a More Appropriate Form
of Government in Solomon Islands
159
Unfinished Constitutional Business?
Central Government
The Constitution established a Westminster style of government. The
separation of powers is underlined in the Preamble to the Constitution,
which declares that:
160
Corrin Care
161
Unfinished Constitutional Business?
162
Corrin Care
Provincial Government
The idea of central government was alien to the traditional style of
government in Solomon Islands. In fact, the only Melanesian country to
have anything resembling this prior to colonisation was Fiji Islands,
where, in 1865, a confederacy of native kingdoms was negotiated and
Fiji’s first constitution drawn up and signed by seven paramount chiefs.
This arrangement collapsed in 1867, although a former President of the
confederacy subsequently purported to issue constitutions for the whole
country.10 These constitutions came to an end when Fiji was ceded to
Great Britain as a colony on 10 October 1874.11
In Solomon Islands, the colonial administration, headed first by a
Resident Commissioner and then the High Commissioner, had provided
an introduction to central government, but had acknowledged tribal links
by dividing administration between four districts. The Local Government
Act was enacted in 1964 to provide for the establishment of local councils.
Section 114 of the Constitution provided that, ‘…Solomon Islands
shall be divided into Honiara city and Provinces’. However, the details of
this arrangement were left to Parliament, which was directed to:
(a) prescribe the number of provinces, and the boundaries of Honiara
City and the provinces after considering the advice of the
Constituency Boundaries Commission;
(b) make provision for the government of Honiara City and the
provinces and consider the role of traditional chiefs in the provinces.
Until this power was exercised, the existing local government system
continued in force, with Local Councils being renamed Provincial
Assemblies and Area committees being renamed Area councils.12 More
specific provision was made in 1981, when the Provincial Government
Act was passed, which provided for a Provincial Assembly for each
Province, consisting of elected members and appointed members. In
1996, this Act was repealed by the Provincial Government Act 1996,
which in turn departed from the principles of government by democracy,
setting up new Provincial Councils, consisting not of elected members,
but of Chairpersons of Area Assemblies. Moreover, Area Assemblies were
to be made up of equal proportions of elected members and members
appointed from chiefs and elders in the area. As a consequence, if all the
Chairs of the Area Assemblies were appointed members, the Provincial
Council could be made up wholly of non-elected chiefs and elders.
However, this interesting experiment in extended involvement of tradi-
tional leaders in provincial government was not to be. The 1996 legisla-
tion survived a challenge by the Guadalcanal Provincial Assembly on the
163
Unfinished Constitutional Business?
164
Corrin Care
The Constitution
Acts of Parliament of Solomon Islands
United Kingdom Acts of Customary law
general application, in force
on 1 January 1961 (if there is
no local legislation on point)
People do not have the time to talk about law reform. It is too
abstract and technical. They tend to have this attitude because
there are already local customs to regulate their daily lives.
Whiteman law is not their business. (para 10.11)
Where the two systems come into contact, it would be unfair to suggest
that no attempts have been made to harmonise them. An important
example is the Local Courts (Amendment) Act 1985, which introduced a
prerequisite to the exercise of jurisdiction by Local Courts in customary
land disputes. It became necessary for the applicant to show that:
• the dispute has first been referred to the chiefs;
• all traditional means of resolving the dispute have been exhausted; and
• the chiefs have made no decision wholly acceptable to both parties.
This landmark piece of legislation seeks to divert disputes over custom-
ary land from introduced courts, with inappropriate procedures, to Indig-
enous tribunals decided in a customary way, rather than in a ‘custo-mary’
court established on a Western model. However, there are difficulties with
the procedure, not least the unwillingness of unsuccessful parties to abide
by the chiefs’ decision. There have also been difficulties in ascertaining
who are the ‘chiefs’ in some areas. Both the right of appeal to the High
Court (via the Local Court and the Customary Land Appeal Court) on
matters of law and the identity of chiefs have been used to divert questions
of customary land ownership away from tribunals better able to deal with
them.15 Sadly, the end result appears to be more litigation involving
customary land cases than before the introduction of this Act.
165
Unfinished Constitutional Business?
Whilst Solomon Islanders use the courts when it suits them, they do
not regard them as the only, or even the dominant, means of dispute
resolution. When introduced law is not favourable or time or cost rule
out resort to the formal system, more immediate means of dispute resolu-
tion may be employed.
166
Corrin Care
A Federal System
Provincial Government was discussed during the Townsville negotiations,
and the resulting agreement included a clause committing the Govern-
ment to rewrite the Constitution in such a way as to give more power to
the provinces. Devolution of power also dominated discussion at the
Premiers Conference in Buala in November 2000, where a Communique
was signed calling for constitutional amendments to implement a ‘home
grown’ ‘State government system’, with each Province to become a state
with its own constitution and legislature.
The Buala Communique was submitted to Cabinet, which responded
by establishing a Task Force to revisit the 1987 Constitutional Review
Committee. That Committee, which had included political heavy weights
such as Sir Peter Kenilorea and Solomon Mamaloni, had called for the
abolition of foreign value systems and concepts and the introduction of a
home grown, more traditional system in a new national Constitution. The
Task Force presented a report in May 2000, proposing that Solomon
Islands become a Sovereign Democratic Federal Republic. The Head of
the State would be the President, elected from amongst Indigenous
citizens by Members of the Federal Parliament and the Congress of
Governors, made up of State Governors. Provinces would become States,
headed by State Governors, elected by State Parliament members and a
newly formed Council of Chiefs. The possibility of the formation of three
more States was included in the Report.
167
Unfinished Constitutional Business?
There are two obvious problems with this. The first is the cost of a
system that multiplies the cost of a Head of State by between nine and
twelve (depending on whether only the existing nine provinces become
states or the option to add up to three more is exercised). The second is
whether a federal system, any more than a unitary system, is appropriate.
There is little evidence of consultation and those involved might be
regarded as having a vested interest in trading in their provincial member-
ship for the grander mantle of state office.
Provincial Autonomy
Meanwhile, Malaita Province has rejected the idea of a federal govern-
ment system.17 The aim is for the province to have its own executive
Governor and Legislative Assembly, and more autonomy over natural
resources and utilities. A Bill was proposed that transferred income tax
and customs and excise responsibility to the province to meet running
expenses and help the province be self-reliant. An income in excess of $30
million a year is projected, which is six times what is currently received
from the national government.
Conclusion
The foreword to the Government’s Programme of Action of January 2002
states that, ‘The Government is fully mindful of its clear mandate from
the electorate to chart a new direction for the country’s Political and
Constitutional Development.’18 Part Three of the Programme deals with
priorities and proposals for constitutional, legislative, political and struc-
tural reform. On 5 November 2002, in accordance with this Programme,
the Prime Minister signed an agreement on Constitutional Reform
Government, committing the government to creating a state government
system. The system was reported to be ‘homegrown’ and to be based on
sharing of ‘powers, functions, costs, and decision-making between central
and federal government’.19 The agreement involves conducting assess-
ments in all provinces, to be followed by drafting of a federal constitution
resting on five principles, namely, inclusive development, the rule of law,
transparency, accountability and fiscal responsibility.
Whilst the subsistence economy in rural areas has been a lifeline for
many people, government through customary groups is probably an
unrealistic dream. The country must begin again on the road to economic
self-sufficiency and economic prosperity requires a national identity to
represent the country. What is required now is investigation of all the
interests and issues and an informed debate on the best way of
proceeding. Rather than papering over the cracks, a system should be
sought which is relevant to, and consequently accepted by, people from
all parts of the country.
168
Corrin Care
Notes
1. Surprisingly, this Order still governs religious marriage by expatriates in
Solomon Islands.
2. Report of Solomon Islands Constitutional Conference, London, September
1977, Cmnd 6969, Misc 22 (1977).
3. Exchange of Notes between Governments of United Kingdom and France
(23 October 1979).
4. Constitution of Nauru 1968, brought into force by a Constitutional
Convention in Nauru; Constitution of Samoa 1962, brought into force by a
Constitutional Convention in Samoa (then called Western Samoa).
5. Hou, Rick N. ‘An overview of Solomon Islands economy: The effects of the
ethnic tensions and policy implications’, Paper presented at the State, Society
and Governance in Melanesia Workshop, 24 to 26 October, 2001,
Australian National University, Canberra.
6. SIBC Online, 3 October 2002. The ten remaining ministries are Office of the
PM and Cabinet; Ministry of Police, National Security & Justice; Ministry
of Finance, National Reform and Planning; Ministry of Education &
Human Resources Development; Ministry of Health and Medical Services;
Ministry of Foreign Affairs, Commerce and Tourism; Ministry of
Agriculture and Lands; Ministry of Infrastructure Development; Ministry of
Natural Resources; Ministry of Provincial Government, Home Affairs,
National Reconciliation and Peace.
7. Sections 47(2), 55 and 56.
8. See further Alasia, S, ‘Party Politics and Government in Solomon Islands’
Discussion Paper No 97/7, Australian National University State, Society and
Governance in Melanesia Project.
9. Courier Mail, 10 July 2002, p 17.
10. See further, Corrin Care, J, ‘Fiji Islands’, in Kritzer (ed) Vol II Legal Systems
of the World, 2002, ABC-CLIO: California, 533.
11. See, Royal Charter establishing the Colony of Fiji, 2 January 1875.
12. Solomon Islands Independence Order 1978, s 13(1).
13. Unreported, Court of Appeal, Solomon Islands, CAC 3/97, July 11, 1997.
14. SIBC Online, 31 October 2002.
15. See, for example, Nelson Lauringi and Others v Lagwaeano Sawmilling and
Logging Limited and Others, unreported, High Court, Solomon Islands, cc
131/97.
16. For examples of such events, see Corrin Care, J, ‘Off the Peg or Made to
Measure’: Is The Westminster System of Government Appropriate in
Solomon Islands?’ (2002) 27(5) Alt LJ 207 at p 210.
17. SIBC Online, 16 August 2002.
18. SIG, Programme of Action,: Policy, Objectives, Strategies and Targets
2002–2005, January 2002.
19. SIBC Online, 7 November 2002.
169
12 Indigenous Self-determination: Is Canada
as Good as it Gets?
Peter H. Russell
These words were written in 1996 by the seven men and women, four of
them Aboriginal and three non-Aboriginal, who constituted Canada’s
Royal Commission on Aboriginal Peoples. The Commissioners grounded
their understanding of the core meaning of the right of Indigenous self-
determination in Article 3 of the United Nations Draft Declaration on the
Rights of Indigenous Peoples, which states that:
170
Russell
171
Unfinished Constitutional Business?
172
Russell
173
Unfinished Constitutional Business?
174
Russell
175
Unfinished Constitutional Business?
176
Russell
177
Unfinished Constitutional Business?
178
Russell
179
Unfinished Constitutional Business?
180
Russell
1993 by Canada, Yukon and the Council of Yukon Indians, each of the
fourteen First Nations represented by the Council can negotiate agree-
ments to assume a range of governmental responsibilities in its homeland
area. So far four have done so.32 The Yukon agreement demonstrates the
flexibility possible under a regional agreement.
Less progress has been made in what is left of the Northwest Territories.
In this still vast central northern territory, running the length of the
Mackenzie River Valley to the Beaufort Sea, a diverse group of Aboriginal
peoples including the Inuvialuit in the Beaufort Delta area, the Sahtu,
Gwich’in, Dogrib, Deh Cho Dene and various Metis peoples, constitute
almost half of a total population of 40,000. But, as in the Yukon, native
peoples remain by far the dominant peoples on the lands and waterways
outside the major urban centres. Negotiations on land and self-govern-
ment with various Aboriginal communities have been going on for nearly
30 years, but thus far final agreement has been reached only on land
issues and only with the Inuvialuit, Sahtu, Gwich’in and Tichlo (Dogrib).
Complicating factors are the existence of two historic treaties, on the
meaning of which the descendants of the native signatories and Canada
profoundly disagree, and the challenge of restructuring a territorial
government in a manner acceptable to the native and non-native halves
of the population. The most likely outcome, still some years away, is a
federally structured territory, in which Aboriginal peoples share power
with non-Indigeneous people in a territorial government while operating
their own governments on traditional homelands. Efforts at accommo-
dating both Aboriginal and non-Aboriginal claims to self-determination
may produce some innovative, albeit messy, governmental arrangements.33
The major break-through in the provinces is the Agreement of the
Nisga’a Nation with Canada and British Columbia. This is the first
modern Canadian treaty covering land and self-government which, in its
entirety, has formal constitutional status. It is the result of decades of
effort by the Nisga’a people of the Nass Valley to gain recognition by
Canada and British Columbia of ownership of their land and of their
right to govern themselves. From the time British Columbia became a
province of Canada in 1871, it has behaved in Aboriginal affairs like
Australia. Its governments refused to recognise Aboriginal title and
resisted any attempt by the federal government to comply with the
process, set out in the 1763 Royal Proclamation, of acquiring land for
new settlement by making treaties with Indigenous owners. By 1973 the
Nisga’a had pushed the issue to the Supreme Court of Canada and were
rewarded with a decision in the landmark Calder case that recognized
native title in British Columbia.34 Even then the BC Government refused
to take part in the comprehensive land claims process established by the
federal government after Calder to settle land claims with Aboriginal
peoples on unceded traditional lands. Finally in the 1990s, BC govern-
181
Unfinished Constitutional Business?
ments, first on the right and then on the left, abandoned the policy of
strict terra nullius and agreed to join Canada in negotiating a comprehen-
sive agreement with the Nisga’a, and to set up the BC Treaty Process
through which agreements on land and self-government could be negoti-
ated with all of the province’s First Nations.
Though the Agreement recognises Nisga’a ownership of only 8 to 9 per
cent of lands they claimed, other Aboriginal nations have still unsettled,
overlapping claims over much of the remainder.35 The territory secured by
the Nisga’a does include areas where their villages have traditionally been
located and where they carry on forestry, farming, fishing and other
essential economic activities. The Agreement recognises the authority of
the Nisga’a Lisims Government, the nation’s central political authority,
and the Nisga’a Village Governments.36 This system of Nisga’a gover-
nance has jurisdiction over a wide range of matters, including public order,
environmental protection, education, health, social welfare, language and
culture. In most areas of law-making, federal and provincial laws prevail
over conflicting Nisga’a law. But in matters essential to their collective life
as a people or nation, including management of their own lands, their
constitution, citizenship in the Nisga’a Nation, the maintenance and
fostering of their language and culture, Nisga’a laws prevail over
conflicting federal or provincial laws. In effect, through the Agreement,
the Nisga’a are recognised as having a share of sovereign law-making
authority in Canada.
A bitter ratification process followed the signing of the Agreement in
1998 by the three governments, Nisga’a, British Columbia and Canada.
Many members of the Nisga’a Nation opposed the Agreement as surren-
dering too much of the Nisga’a’s land and sovereignty. There was also
great concern about a clause, insisted upon by Canada and BC, stating
that the Agreement was ‘the full and final settlement in respect of the
aboriginal rights, including aboriginal title, in Canada of the Nisga’a
Nation’.37 The Agreement was approved in a Nisga’a referendum but by
a majority of just over 50 percent. In ratification debates in the British
Columbia legislative assembly and the federal parliament, the Agreement
came under vigorous attack from the opposite direction—above all for
allowing the Nisga’a Nation to pass laws that could prevail over federal
or provincial laws. Even though the areas in which Nisga’a laws are
paramount are surely the absolute minimum for Indigenous self-determi-
nation, this part of the Nisga’a Agreement was still too much for many
Canadians to swallow. In British Columbia, an NDP government had to
invoke closure to overcome the Opposition Liberals’ obstruction of ratifi-
cation. Ratification was completed in Ottawa early in 2000, but not
without anxious examination of the Agreement’s implications for
Canadian sovereignty by the government’s own supporters in the Senate.
Gordon Campbell, the BC Liberal leader, with the support of two
former justices of the Supreme Court of Canada challenged the Nisga’a
182
Russell
183
Unfinished Constitutional Business?
eventually settle for something close to the terms of the Nisga’a Agreement,
it is doubtful that even the most moderate would accept anything less.
Aboriginal peoples in British Columbia that have stayed out of the BC
Treaty process, and many, perhaps most, First Nations in other
provinces—particularly those who have historic treaty relations with the
British Crown—are unwilling to participate in a process that, in the
words of the Kahnawake Mohawk scholar Taiaiake Alfred, ‘submits to
Canada’s claimed sovereignty over indigenous peoples’.40
Despite what appears to be an ideological impasse, federal, provincial
and Aboriginal representatives continue to participate in self-government
and land claim negotiations. At most tables there is little progress. But the
occasional break-though does occur. For instance, in March 2001, an
agreement with the Nuu-chah-nulth Tribal Council on Vancouver Island,
heralded as ‘the richest package ever offered in British Columbia’s often-
troubled treaty talks’,41 was announced. In May 2001 the Canadian
Government and leaders of the 7000 Mohawk people at Kahnawake near
Montreal announced agreements on recognising significant powers of
Mohawk self-government.42 In June at a ceremony in Nain, Labrador,
representatives of the Canadian and Newfoundland Governments and of
the 5000 Labrador Inuit signed an agreement-in-principle on land and co-
management of the region’s resources.43 All of these agreements have a
long way to go before details are negotiated and ratified. One agreement
that is immediately operational occurred as an Interim Measures
Agreement entered into in May 2001 by my Deh Cho Dene friends in the
Mackenzie Valley.44 Interim measures are conditions that must be
observed during what is bound to be the many years it will take to
negotiate and ratify a comprehensive agreement on land and self-govern-
ment. A key condition is that the Deh Cho will be joint partners with
Canada in managing their region’s resources. This is a very pragmatic
Burkean type of agreement. Though it does not recognise Deh Cho sover-
eignty, it does provide them with more effective leverage on resource
decisions on their lands than they have had since the arrival of the white
setters. Canada’s willingness to lessen its absolute control over Mackenzie
Valley resources was spurred by the prospect of building a pipeline
through Deh Cho territory to bring Arctic natural gas southwards
towards US markets. Where there is no major economic incentive, the
federal government’s interest in treaty negotiations seems rather
desultory. The principle initiative of Prime Minister Chretien’s last
Minister of Indian Affairs, Robert Nault, is to make governments on
Indian reserves operating under the Indian Act more democratic and
accountable.45 It is an approach to Aboriginal policy closely paralleling
the Australian Howard Government’s decision to abolish the Aboriginal
and Torres Strait Islander Commission, and responds to right-wing
criticism of Aboriginal governance.
184
Russell
Conclusion
In the process of moving towards a post-colonial condition in Aboriginal
relations, we may well have reached a stage analogous to the decolonisa-
tion process around the time the United Nations adopted its 1960
Declaration on Granting Independence to Colonial Countries and
Peoples.49 By that point, momentum for initiating important decolonising
initiatives had shifted to the colonised peoples. I believe we are now—at
least in present day Canada—at a similar point in Aboriginal relations.
From now on, most of the initiatives that will have long-term significance
will come from the Aboriginal side.
This is not to say that non-Aboriginal governments will not try to
initiate policy changes. Of course they will, but their efforts will now aim
primarily at arresting de-colonisation or reversing gains that Aboriginal
peoples have made. We can see that now in Canada, with the Canadian
government’s current proposal to reform the governments the colonisers
imposed on Indian reserves,50 and in the BC Liberal Government’s threat-
ened referendum to restrict what can be negotiated with Aboriginal
peoples in modern treaties.
Nor do I mean to suggest that in the past all important initiatives came
from the non-Aboriginal side. Since their earliest contact with Europeans,
Aboriginal peoples in what is now Canadian territory have been pressing
for structural relationships that will preserve their interests in land and
self-government. There was never a time when they did not wish to self-
determine their relationship with the newly arriving peoples and their
governments. But after the early period of rough equality with the new-
comers, it was not until the 1960s when the ethical justification of
decolonisation began to influence (though not permeate) settler-society
culture, that Indigenous peoples began to recover some capacity and some
185
Unfinished Constitutional Business?
186
Russell
advanced and recognised will I think have the most beneficial relations—
collectively and individually—with Canada.
Indigenous self-determination in Canada could and should advance
beyond the Nisga’a Agreement, but only if Canada’s governments and
their popular supporters can overcome their claim to the right to exercise
sovereignty over native peoples, and come to embrace a multi-national
understanding of their country. A true sharing of sovereignty in a multi-
national federation is the final destination. Fortunately I believe that for
this century and this millennium, sharing sovereignty or political
authority in multi-national political communities is the destiny not only
of Canada but of most of humankind.
Notes
1. Canada, Royal Commission on Aboriginal Peoples, Report, (Canada
Communications Group, 1996) Vol 2, Part One, p 169.
2. Draft Declaration as Agreed upon by the Members of the Working Group at
Its Eleventh Session, UNESCO, E/CN4/Sub2/1994/Add 1, 20 April 1994.
3. Canada, Royal Commission on Aboriginal Peoples, Report, p 172.
4. See J Ferdinand Tanquay, Canada 125—Its Constitutions, 1763–1982
(Ottawa; Canada Communications Group, 1992) pp 85–8.
5. For an account of how fundamental human interests come to be claimed as
rights, see Jeremy Webber, ‘Beyond Regret: Mabo’s Implications for
Australian Constitutionalism’ in Duncan Ivison, Paul Patton, and Will
Sanders, (eds), Political Theory and the Rights of Aboriginal Peoples
(Cambridge, Cambridge University Press, 2000), ch 4.
6. For an account of the Niagara meeting, see John Borrows, ‘Wampum at
Niagara: The Royal Proclamation, Canadian Legal History, and Self-
Government,’ in Michael Asch (ed), Aboriginal and Treaty Rights in
Canada: Essays on Law, Equality and Respect for Difference (Vancouver,
University of British Columbia Press, 199?), pp. 161–5.
7. Cherokee Nation v Georgia 30 US (5 Pet) 1 (1831), at 17.
8. Johnson v McIntosh 21 US (8 Wheat) 543 (1823), at 591–2.
9. Quoted in John S Milloy, A National Crime: The Canadian Government and
the Residential School System, 1879 to 1986 (Winnipeg, University of
Manitoba Press, 1999), p 277.
10. A leading example is Connolly v Woolrich (1867), 17 Rapports Judiciaires
Revises de la Province de Quebec, 75.
11. For an account, see Sidney L Harring, White Man’s Law: Native People in
Nineteenth-Century Canadian Jurisprudence (Toronto, University of
Toronto Press, 1998).
12. St Catherine’s Milling Company v The Queen (1888) App Cas 46, at 54.
13. This is the boiler-plate language used in the pre-Confederation Robinson
Treaties and the post-Confederation ‘numbered’ treaties. See Alexander
Morris, The Treaties of Canada with the Indians of Manitoba and the
North-West Territories (Toronto, Belfords, Clarke & Co, 1880).
14. See Melville Watkins, The Dene Nation: The Colony Within, (Toronto,
University of Toronto Press, 1976).
187
Unfinished Constitutional Business?
188
Russell
38. See Peter H Russell, ‘A Case in Point: The Proposed British Columbia
Referendum on Aboriginal Treaties,’ in Bridging the Divide between
Aboriginal Peoples and the Canadian State (Ottawa, Centre for Research
and Information on Canada, 2001).
39. See Alan C Cairns, Citizens Plus: Aboriginal Peoples and the Canadian State
(Vancouver, University of British Columbia Press) and Tom Flanagan, First
Nations: Second Thoughts (Montreal, McGill-Queens University Press).
Cairns ignores the principle of Indigenous self-determination and Flanagan
rejects it on the basis of the traditional white racist view that Aboriginal
peoples are too primitive to be recognised as peoples or nations. Both books
were widely and favourably reviewed in the Canadian media.
40. Taiaiake Alfred, Peace, Power, Righteousness: an indigenous manifesto,
(Toronto, Oxford University Press, 1999), p 100.
41. Rod Mickleburgh, ‘Indians get rich land deal on Vancouver Island,’ The
Globe & Mail, March 7, 2001, p A7.
42. BBC World News, ‘Mohawks move to self-government’, May 31, 2001
43.CBC Newsworld, ‘Inuit Step Closer to Self-Government’, June 25, 2001.
44. Indian and Northern Affairs Canada, ‘Representatives of Deh Cho, Canada
and GNWT sign framework and interim measures agreement’, Media
Release 2-01150, May 23, 2001. For background on the Deh Cho
agreement, see: to ‘Deh Cho First Nations Framework Agreement and
Interim Measures Agreement’, (2001) 6 Australian Indigenous Law Reporter
p 109.
45. See Paul Barnsley, ‘Two new initiatives for reforming aboriginal governments
in Canada,’ Federations, summer 2001.
46. R v Marshall (1999) 3 SCR 456.
47. R v Marshall II (1999) 3 SCR 333.
48. Another example of the backlash affect on the Supreme Court is its decision
overruling rulings of the Federal Court and the Federal Court of Appeal that
had recognised the traditional immunity of the Akwesasne Mohawk to
paying duty on goods crossing the Canada/USA border. Montreal Gazette,
May 25, 2001, p. A1.
49. For a discussion, see S James Anaya, Indigenous Peoples in International
Law, (New York, Oxford University Press, 1996) p 60.
50. Steven Chase and Kevin Cox, ‘Plan to by bypass chiefs could lead to
defiance’, Globe and Mail, July 19, 2001, p A1.
189
13 Indigeneity, Self-determination and
Sovereignty
Anne Waters
A Need to Decolonize
Allegations exist that nation state, church, and corporate colonisers of the
earth’s recources have no inherent or created morally justified right to the
takings of local resources from land based Indigenous peoples. Yet legal
and religious institutions purport to justify past colonial takings that were
backed by a brute power force of militarised institutions. Who has a
moral right to determine the outcome of global material, spiritual, and
communal resources? Is the United Nations, now comprised of nations
held over from an era of colonial theft, an adequate place to bring
challenges to colonial powers? Although it may be helpful to investigate
historical grounds of colonial takings, to see what peoples might othewise
be sitting at that great table, it may also be helpful initially to analyse the
meaning of a few terms being used by Indigenous Peoples of the Americas
in our Indigenous struggles. The purpose of this analysis then is to dispel
some of the key rhetorical terms of colonial rights discourse.
In what follows I investigate conceptual meanings of three terms:
indigeneity; self-determination; and sovereignty. My context for relating
these concepts to one another is American Indian sovereignty issues. In
the Americas each of these concepts has a multicultural history and
tradition unique to specific cultural land based groups. Similarities of
PanIndian historical experience and cultural meaning of our ontological
and environmental being in the world, however, are enough to talk about
a PanIndian or American Indigenous experience(s), concept(s), and value(s).
My purpose is to develop a theoretical account of sovereignty common
to Indigenous peoples of the Americas that would ground principles of
Indigenous sustainability. One such principle of sustainability is self-
determination of cultural creations and continuance. This paper consti-
tutes a theory about grounding Indigenous rights to self-determination.
I argue that self-determination, in the context of America’s historical
Indigenous sustainability cultures, requires a principle of valuing equal
moral worth among individual human beings, and all our relations, and
rejecting as moral principle that ‘might makes right’. This latter principle,
190
Waters
that the strongest has a right to prevail, has historically presented itself to
Indigenous peoples of the Americas in both our historical and contempo-
rary experiences. It continues to operate covertly as landowners join with
corporate and governmental power bases to pursue personal economic
interests to the exclusion of other humans and human interests.
What is needed is a thorough historical analysis of America’s Indig-
enous relations to an historical colonial government as it created (and
continues to create) legislative statutes and Supreme Court interpretive
decisions of those statutes, as it appears from the eyes of the colonised. This
history needs to be explained in a context of an Indigenous perspective of
self-determination, and methods of Indigenous reasoning employed in the
struggle against the colonial powers of Europe. Because American Indig-
enous notions of societal self-determination and individual self-determi-
nation are interdependent, it is important to look at the history of how
American English law impacted (and impacts) this interdependency among
Indigenous nations, on both an individual and society level. Fallacious
reasoning practices by the colonial government by way of legal decision
has worked, and continues to work, to benefit colonial power, and against
the rights and power to self-determination of Indigenous peoples.
This chapter is not intended as historical documentation, but rather as
analysis of deeply held philosophical notions about concepts of indig-
eneity, self-determination, and sovereignty in the meaning context of
America’s Indigenous peoples, with special attention given to a Pan
Indian understanding of Indigenous ideas, and the need to decolonise
colonial relations with hegemonic powers.
Clarification of Terms
These concepts: indigeneity, self-determination, and sovereignty, bear
meanings particular to Indigenous experience in the Americas. Indigeneity,
self-determination, and sovereignty are ideas people hold about ourselves,
and about social, economic, religious, and legal communities. To be
Indigenous to a particular geographical area is to have origins in a partic-
ular place, as distinguished from other places.
Indigeneity is an attribute. A person has indigeneity by virtue of holding
Indigenous status. People’s indigenous status inheres to particular places
of the earth. Indigenous people of the Americas share indigeneity with all
others who find their place of origin to be on turtle island, that is, in the
Americas, as geographical place distinguished from other places. Indig-
eneity is also an aspect of personal self-identity, and as such, carries
special meaning about particular places. Identity of an Indigenous person
or communal indigeneity to a particular geographical location may
historically be controversial. But indigeneity as self-identity is a matter of
personal self-determination and self-affirmation in the context of a partic-
ular community. Because of the political nature of defining Indigenous
191
Unfinished Constitutional Business?
192
Waters
193
Unfinished Constitutional Business?
194
Waters
Notions of Indigeneity
The meaning of the word indigeneity, according to common usage, is to
have origin in a particular geographical area or place—to be ontologically
at least, tied to a landbase. What constitutes a contemporary geogra-
phical place, however, as laid out by legal borders and/or social territorial
lines of nation states, is very different from what constitutes a traditional
geographical place for sustainable communities; that is, communities survi-
ving through interdependence with a land base and other peoples. Thus
the meaning of ‘indigenous’ as it relates to an area or place of origin,
differs in connotative meaning for Indigenous American Indians, than it
does for non-Indigenous people of the Americas.
Specifically, when particular Indigenous areas/places of long term
association by cultures indigenous to the area, come into question regard-
ing a particular community, boundaries of nation states created by
abstracting lines of demarcation onto a geographical spacemap, may not
match the area or place as articulated by people indigenous to that area
or place. Quite simply, articulations of areas and places by people indige-
nous to those areas and places are neither connotatively nor denotatively
similar to those of one who has politically colonised the region. Among
other reasons, Indigenous places connote, for Indigenous people, the sacred.
An example of connotative difference is what the phrase ‘Indian
Country’ means for different Indian and Non-Indian groups. The phrase
can denote a geographical region of ‘Indian Country’, which for American
Indians, extends throughout the Americas. ‘Indian Country’ sometimes
denotes a particular geographical locale (e.g. North and South American
continents) or large concentrations of Indigenous populations (for
example, in southwestern USA). Still, at other times it connotes a mind
space-place occupied by an American Indian orientation—something like
a shared ontology of being.
I know of no similar terms used by those non-indigenous to the
Americas that have similar connotative meaning in relation to the
American continents. The English countryside is of course in England; the
Sacred Mountains of the Himalayas are in Asia; the religious site of
Jerusalem is in Israel; the Holy Church in Rome; the Great Pyramids in
Egypt, etc. There are no sites sacred to these groups in the Americas. With
non-indigenous groups in the Americas, the geographical denotation of
homeland shifts, though the connotative meaning remains ‘the land of my
people’. Newcomers to the Americas may admire the Grand Canyon, but
it is not sacred to them; they may admire Niagara Falls, but it is not
sacred to them; they may admire many mountains, but the mountains will
not be sacred to them; and so also even burial grounds will not be sacred
in the same way as they are for Indigenous people.
195
Unfinished Constitutional Business?
196
Waters
197
Unfinished Constitutional Business?
198
Waters
belief. Indigenous people have been and continue to be denied the ability
to practise our cultural beliefs. A government backed by a militarised
prison holds brute power over anyone attempting to change this
situation. One can only wonder what fear of native spirituality rests in the
hearts of those who would deny spiritual practices to others.
Given the long history of ineffectual law enforcement against European
settlers, when compared to the use of the law system to break down
Indigenous being, it is inviting to think that it is easier for a European
American to engage in serial murder in America, than it is for American
Indians to practise traditional spiritual religions. For when colonising
actions encourage religious practices of the colonising culture, while at
the same time denying the colonised a right to practise their own religion,
an insidious arrogance manifests itself on our continent. These types of
religious inequities operate as breeding grounds for horrendous racism,
sexism, classism, heterosexism, and other oppressive behaviours of the
colonial culture against the colonised. Yet for Indigenous people, every-
thing must eventually turn its tide, such that the laws that enable
commodity traders to try to leach the spirit of America’s natural resources
may in time be undone.
In the meantime however, genocidal and ecocidal practices of govern-
ment-supported corporations engage in the commodification of all valued
natural resources, including Indigenous people. New global commodity
classes continue to enforce and create discriminatory institutions of social,
economic, legal, political, and spiritual global injustices among nation
states. Because these unfair discriminatory practices operate as breeding
grounds for racist and ethnocentric genocide and ecocide of the world’s
resources, including all her people, it is in response to this fear of destruc-
tion, that Indigenous nations are joining forces and operating globally
against these despicable and intolerable commodity practices.
The use of the word ‘racism’ here is especially appropriate because the
actions involve using theories of alleged racial differences among humans,
and using species difference against non-human beings to justify inequal-
ities. There seems to be a general failure in popular culture to see, much
less recognise, the existence and reality of Indigenous peoples’ political
struggles. Even when these struggles are recognised in print, they are not
linked to an overall global Indigenous movement. Moreover, the
dominant global political powers, themselves products of vicious coloni-
sation, almost totally disregard Indigenous political actions that address
inequalities of colonial regimes. Such actions are generally reported as
isolated incidents, having no bearing on dominant global economics.
In the Americas, ‘indigenous’ denotes many different ways of being
among those whose origins are in and near the North and South
American continents. Yet, common to these ways of being is acceptance
of human interdependence with all world being. Contrary to popular
appropriations of native cultural images, there is nothing romantic about
199
Unfinished Constitutional Business?
Notions of Self-determination
There are at least four Indigenous notions regarding the meaning of the
term self-determination (or free will) that are rooted in an Indigenous
metaphysics; they operate as metaphysical context to understanding
Indigenous notions of self-determination. Once these concepts are articu-
lated, it will become more clear what self-determination is and what it is
not in the history of colonial government-imposed American Indian tribal
activities.
An American Indigenous metaphysic is a metaphysic of change, of non-
discrete boundaries, of non-binary dualisms, and of constant interdepen-
dencies.3
Whereas European Western thought might distinguish between a
mental and physical world, in Indigenous thought there is no such distinc-
tion other than for pragmatic reasons: mind is not placed outside of or
behind nature, but is nature exemplified. Consider the characteristics of
an indigenous metaphysic:
Changing Nature. Rather than static non-changing gaps demarcated by
discrete boundaries between physical reality and human mind (where
human mind is determined by laws of nature), in Indigenous thought
human mind is part of an always changing nature, and hence is subject to
all laws of nature, including those of self-creativity interacting interde-
pendently with, and sometimes changing, the laws of nature.
Non-discrete Boundaries. As subject to the principle of change, an
Indigenous conception of free will would view all nature which encom-
passes material and ontological being as interdependent, non-discrete,
and continuous, to be constantly changing, and thus having non-discrete
boundaries.
Non-binary Dualist. This conception of free will would view all nature
as being of nature herself, and existing interdependently with all of nature;
it rejects any form of binary dualist metaphysics which would require
discrete boundaries, in favour of non-binary dualist metaphysics having a
non-discrete ontology; this metaphysic and ontology would reject notions
200
Waters
of free will that could be inferred from a binary dualist metaphysic and
ontology. Notions of a non-discrete, non-binary dualist metaphysical and
ontological understanding of free will would be informed by and be inter-
dependent with a free universe.
Finally, an Indigenous metaphysic and ontology embeds an assumption
that all of nature is always engaged in constituting and reconstituting
relations of constant interdependent changes. This constant interdepend-
ency in the context of change, non-discrete boundaries, and non-binary
dualism, creates an ontology that is always composed of combining new
creations while, at the same time, combining the old creations in the acts
of self creation, that fill the otherwise empty gaps of meaning. Because of
the constant creative blending, any ontological and metaphysical gaps
and boundaries that might otherwise exist, are always interdependently in
flux and change. This interdependence mirrors the interdependence of
human beings with other beings of the universe.
It is hoped a self-determined Indigenous politics would be interde-
pendent with an ontology of Indigenous metaphysics; and an Indigenous
metaphysic would lead to an acceptance of self-determination that allows
for free will, within the confines of an ontology of the laws of nature.
Accepted laws of nature are such that it is believed that humans will
operate according to these laws; this would include the ability to engage
in creative aspects of human intention that may ultimately change the
laws of nature, including laws of consciousness, as consciousness is
nature exemplified, and an ontology of consciousness is an organisation
of nature as exemplified. In Indigenous thought there is no creation from
nothing, no ex nihilo creation, because everything always is, and is
animate in its constant creative meaning brought about through
thought—through consciousness. Thought is creation amplified, and
coming into being, as thought creates the universe and all things in it;
nothing can be which has not been first thought.
A fundamental principle of Indigenous ontology, in consonance with a
non-discrete non-binary dualist metaphysical understanding, is that
nothing comes from non-being, or rather, everything that is, including
thought, already exists interdependently with phenomenal reality.
Interactions among non-discrete energies, not binary though perhaps
dualist, operate in tandem. To think is to have existence of something
(ontology), which is being (relational); and because it (the being) is
relational with the thinking, it is alive. This ontology explains a funda-
mental assumption of a non-discrete non-binary dualism: that everything
that is in relation must be alive, that is animate. And, since all things are
in relation, all things are animate. Hence a universe manifesting relations
is a live universe.
This understanding of what is in the universe means that in order for
Indigenous nations to attain autonomy and self-determination, it must
first be thought into the world among all its relations. Only then can self
201
Unfinished Constitutional Business?
202
Waters
Thus we see that thinking thoughts about communal action that can be
autonomously self-determined, or thought into being by a community, is
also the first step toward bringing about an equality of autonomously
self-determined communities or nations. Such self-determined creative
thought actions, to exemplify freedom, must be accompanied by the
ability to be manifested in the world of being, ontologically, metaphysi-
cally, and in visceral reality.
The notion of valuing individual exercise of choice, is consistent with
a notion of valuing free will that respects autonomous self-determination
as essential to the well-being of communities and individuals. Hence, we
may surmise that an individual exercise of self-determination, for Indig-
enous people, is a health issue, and in the context of communal self-deter-
mination, is a communal health issue. To exercise self-determination then,
in the context of community, is to struggle against community depression
in favour of healthy communities.
I claim the ability to exercise self-determination to be a health issue
because once thought into being by a human nature given at birth, to be
manifested and retained in the phenomenal world, self-determination
must also be activated to think into being a pragmatic exercise of its
communal being in the world. However, if the communal thinking into
being of a particular pragmatic exercise of self-determination first requires a
visionary, then the purpose of the vision is to heal the community, so that
we will be capable of thinking in a self-determining way.
To do anything less is to relegate the notion of self-determination
outside a community, and outside thinkers of a community. Only the
sincere and devoted thinker, thinking in consonance with seeking genuine
assistance from the universe (because the thinker understands interde-
pendence with the universe, including interdependence with any quasi-
universal laws of nature and being that informs these laws) can envision
communal self-determination. An ability to manifest such a self-determi-
nation into being becomes an active exercise of self-determined human
activity. To think this way is to engage in self-determined and commu-
nally inspired practices of human creative thought.
Notions of Sovereignty
To clarify the meaning of the term sovereignty, we can look to the inter-
dependence of individual and community sovereign relations. Consider
the example of the interdependence of individual self-determination, and
community self-determination. Self-determination can be thought about
by considering the practice of an individual person making a decision
either to go along with, or not to go along with, for example, tribal policy
or a declaration of war. Individual self-determination is interdependent
with communal self-determination. If not enough individuals decide to
support a communal decision to go to war, there cannot be a self-deter-
mined communal decision about the policy.
203
Unfinished Constitutional Business?
204
Waters
205
Unfinished Constitutional Business?
206
Waters
Conclusion
In summary, having clarified the ontology and metaphysic of self-deter-
mination in the context of Indigenous sovereignty, this conclusion
considers what it might minimally mean to exercise self-determination.
For example there was a challenge in South Dakota to tribal sovereignty
to determine use of tribal lands, as against the sovereignty of the state and
sovereignty of the federal government. In this case, for environmental
reasons, a holder of real estate sells some land (which the government
wants to take) to the tribe for minimal monetary value, in a show of
solidarity with the tribal decision to protect the lands against govern-
mental intrusion.
If we were to sit in a court of international jurisdiction, which included
representation by all Indigenous nations of the world, to make decisions
about tribal sovereignty, four important questions would need a genuine
response:
1. Was the tribal decision autonomous and self-determined, or did it have
elements of a decision made under the stress of colonial attack, where
decision-making was being limited by colonisers?
2. Was the decision made in a context of meaning as appropriate to the
tribal experience and needs of individuals and members of the tribal
community?
3. Has jurisdiction to decide the case been consonant with decolonisation
measures of colonised peoples, considered as subject to a colonial state
court, to a colonial nation court, or to a global united nations
Indigenous court?
4. Has the tribal action arisen from a ‘will of people’ that is recognised to
be in the best interests of the tribes collectively and individually?
These questions are considered in turn.
1. Autonomy and Self Determination. We have already seen how the
principle of autonomous self-determination operates interdependently
among individuals and their community, and among several communities
in a united confederacy. In the instant case, the tribes are united not only
with one another, in a confederacy of unity, but are also united with
decisions made by those standing outside of the tribes, to support the
tribal decisions.
One of the biggest fears of a nation may be the dissolution of fealty
to that nation. In the instant case we appear to have the situation of the
real estate holder who sells land which the government wants to take, to
207
Unfinished Constitutional Business?
the tribe, in a show of solidarity with the tribal decision to protect the
lands against governmental intrusion. I suggest the requirements of
autonomy and self-determination are met by the united tribal decision.
2. Context of Meaning of Action or Community. It seems to me that
minimally any notion of self-determination means the ability to exercise
decision-making in a context of understanding the meaning of the action.
Adopting this notion of self-determination allows for the analysis of
particular actions in search of this criterion of validity. The meaning of
this recent case involving the government taking of lands in South
Dakota, is one of intrusion upon the landbase of the tribes in unity. This
intrusion does not appear to be justified by any principle of sovereignty
over Indigenous peoples, even if it did meet a criterion of survival need
for colonised entities.
The self-determination of the Indigenous community (the most directly
affected player) is not being respected, is being ignored, and ultimately
disregarded in any future decision-making processes which allege to be
‘fair’ decision-making processes of the land. The meaning of the proposed
colonial act of taking reflects the historical militarisation of land-based
takings. This intrusion by military force is not justified by any act on the
part of the Indigenous nations. The meaning of the need to exercise self-
determination among the peoples whose homeland is being affected must
be respected. Disrespect for the autonomy of the Indigenous nations
would affect individual and communal health of the nation, psychologi-
cally, socially, politically, and as representatives of a free and self-deter-
mined human species. Disrespect for these concerns of the Indigenous
communities undermines federal obligations to respect survival health
needs of Indigenous peoples.
3. Jurisdiction Respecting Decolonisation. In a fair court, upholding
principles of decolonisation to intentionally undo the genocide and
ecocide of Indigenous peoples must be a political reality. Any protective
status applied to the situation in the instant case would not support
principles of self-determination and sovereignty for Indigenous peoples.
Global sovereignty for Indigenous peoples must trump commodification
decisions regarding Indigenous-based lands. This is in accordance with
United Nations sovereignty principles. Ceteris paribus, these principles
must apply to Indigenous nations as against corporate and alien govern-
ment intrusions.
There is a need to dissolve the contradictions inherent in the alleged
protective status of Indigenous peoples in the Americas, in favour of
respecting Indigenous nations’ rights to autonomous and self-determined
decision-making in accordance with traditional tribal principles of unity
and confederacy. Dissolving these contradictions, and healing the interde-
pendent relations between Indigenous nations of the world and their
colonial governments must trump the calling card that asks for special
privileges to extract and benefit from the world’s global resources. The
208
Waters
welfare of the Indigenous nations must trump any concern with the
welfare of commodifiers if self-determination principles are to be respe-
cted. So long as the alien forms of government, on previously Indigenous
landbases, are engaged in militarily upholding protective principles with
respect to Indigenous peoples, fair decisions about world resources
cannot be had in any court of law. The protective status must dissolve and
with it, the paternalistic arguments of self-serving commodified cultures.
Fair jurisdiction would be an international court for Indigenous peoples.
4. Will of People is in Community Self-Interest. Traditions of Indigenous
self-determination coincide with notions of how a will of the people is
preserved. It is healthy for individuals to feel a part of a community that
is thought to count no less, and is respected no less than other world
communities. Oppressive colonial actions do not contribute to the health
of Indigenous peoples. The ability to freely determine community values,
traditions, law—in essence, culture and survival—is necessary for
autonomy and self-determination of a community. A community cannot
exist without a landbase for physical, psychological, spiritual, cultural,
and economic self-preservation, and without respect and recognition of
mutual autonomy by other nation states, and human beings.
The question remains then: what are we to make of the South Dakota
decision with respect to efforts of decolonisation and fairness of decision-
making among all nations?
Notes
1. Vine Deloria 1973, God is Red, Grosset & Dunlap, New York.
2. See for example: ‘I AM indigenist: notes on the ideology of the fourth world’,
in: Ward Churchill 1993, Struggle for the Land, p 403–51.
3. Robert Bunge, Lakota philosopher, suggests such a metaphysic in his work.
See American Indian Thought: A Philosophical Reader, A Waters (ed) 2002,
Blackwell, Boston.
4. See Jack Weatherford 1988, Indian Givers: How the Indians of the Americas
Transformed the World, Crown, New York.
209
14 Indigenous Self-determination: Dispute
Management
Cleopatra Magwaro
This chapter investigates the impact that international human rights law
should have within the legal dynamics of Indigenous communities
generally. This essay attempts to explore the pivotal aspects behind
safeguarding Indigenous dispute management systems protected under
international human rights laws. I illustrate why Indigenous methods of
managing disputes should be internationally guaranteed so that commu-
nities can retain their cultural identity whilst administering and managing
their own disputes.
Dispute management for the purpose of this argument refers to the
Indigenous systems and methods used by communitarian peoples to settle
and manage disputes within their cultural contexts. Concepts in this essay
are examined from the perspective of an Indigenous communitarian society
and must be distinguished from a Western capitalist understanding of
dispute management. Management of Indigenous disputes must accord-
ingly be under the supervision and guardianship of the community itself.
There seems to be empirical evidence that shows that Indigenous commu-
nities are the most prudent guardians of their disputes and this should be
internationally recognised.
According to the United Nations, there are approximately 300 million
Indigenous people in the world.1 Recognition of the rights of Indigenous
people in relation to dispute management therefore demands interna-
tional attention. Consequently, I agree that Indigenous laws and customs
that relate to dispute management are an integral aspect of Indigenous
‘property’ and ‘self-determination’.
The term ‘Indigenous’ peoples has been defined as:
210
Magwaro
211
Unfinished Constitutional Business?
norms have not traditionally been viewed as being capable of being stolen
or usurped. Perhaps this is merely an illustration of cultural genocide that
accords with other losses of Indigenous resources including land, water
and minerals.
It is on this premise that the assertion that national and international
safeguards presently existing in Westernised nations are ineffective in
guaranteeing the specific right to ‘property’ and ‘self-determination’ in
respect of dispute management for Indigenous peoples.
Donegan emphasised that historically early Saxon-American ‘settlers’
managed their conflicts without imposing legal processes that would have
potentially formalised and increased access to justice.8 The latter had
escaped an English culture of formalism in search of ‘self governing
independence’.9 It is ironic that this same escape from formalism towards
‘self-governance’ or more aptly, ‘self-determination’ is now the plight of
Indigenous peoples that were in turn colonised by Saxons in north
America and Australia.
Christie draws our attention to conflict management in the Tanzanian
community of Arusha where it was observed that the parties involved in
the dispute management were in the center of the room with the attention
of an audience who were in effect experts on customary norms. Christie
observed that the judges remained inactive and the proceedings were
generally a community event and a community effort towards settle-
ment.10 In Gulliver’s anthropological study of dispute management in
certain regions in Tanzania, it seems that kinship and community relation-
ships influence the structure of dispute management.11 For instance, a
meeting called a ‘mkutano’ is convened by one of the disputants who
intends for the matter to be made ‘active’ and open for ‘public consider-
ation’; this is conducted as a discussion as all gathered are assumed to be
equal.12
It is thought that the ‘amoeba-like’ way of thinking amongst Afrikan
Indigenous peoples means that their ‘cultural consciousness’ manifest in
their legal cultures are beyond the ambits of Western formal systems of
law.13 I tend to agree with this view and believe that it applies to Indigenous
communitarian societies generally. For instance, Othman states that in
Malaysian pre-colonial societies the family was the ‘instrument of social
control’ and played the main role in dispute management.14 A family
elder was both police and judge since judgment and punishment could not
be made with ‘interference’ from wider society. In this context, conflict
was the property of the family and as a resource would have been funda-
mental in keeping close kinships and passing on contemporary values.
Songsamphan illustrates how Thai society has historically depended on
elders and monks to manage village conflicts; in certain cases Buddhist
monks known within the community are called upon to be mediators.15
This communitarian approach maintains religious and social coherence
212
Magwaro
213
Unfinished Constitutional Business?
than minimises disputes16 and the courts are not viewed as ‘problem
solving bodies’.17
However, Western administration of justice under the Human Rights
forum is useful to Indigenous communities so far as it increases equitable
access to justice and resource management. This is useful whether the
legal forum is Indigenous or formal as there are instances where it is
appropriate to use both systems. Jandt and Pedersen state that, ‘conflict
management strategies that are insensitive to each culture’s unique
context are not likely to succeed.’18 I would agree; alternatives to ‘formal
justice’ in an Indigenous context need to be alternatives that encompass
Indigenous cultural dynamics unique to their socio-legal milieus.
I have illustrated a communitarian model with relevant international
law protection (Figure 2). This model differs from the Western model
because all aspects of community existence are recognised as interactive
and in unity. Different Indigenous communities will have different struc-
tures according to their cultural context; this model does not purport to
include all possible cultural facets.
Conflict and dispute management are defined by cultural values and it
is these values that will be decided by community consensus.19 The model
combines community and individual interests where law as property is a
shared resource.
214
Magwaro
Participants are at the centre of the dispute and although they are
individuals they belong to a whole which is realised when the dispute is
resolved and managed. The nature of a communitarian society is such
that the elders or council actively interpret norms passed down orally and
applied to the appropriate scenario. Furthermore, Indigenous cultures are
not static and as such they can only effectively evolve when they make
and determine their own customs and laws from time to time. It is
therefore possible for Indigenous peoples to inherit aspects of interna-
tional laws and domestic treaties and bills or rights in their management
of disputes within the community.
An important distinction between most formal systems of justice and
communitarian systems is in the management of commonly used resources.
Rice states that in Australia, ‘legal aid is available to the poor at the
pleasure of the government of the day.’20 However, Indigenous communi-
ties can access justice in a way that does not demand great expense or
formalism, hence increasing access to justice. It is for these reasons that
national instruments should strive to safeguard Indigenous dispute manage-
ment as far as possible. In essence, allowing Indigenous people to manage
their disputes allows them access to an essential cultural property that has
not been traditionally protected under the formal legal system. It is
asserted that this will further impact on the ability of these communities
to re-conciliate disputants.
215
Unfinished Constitutional Business?
If Indigenous people are to have any meaningful rights then these are
to stem from an inherent right to self-determination. This will mean that
they can still retain ownership of their legal systems and cultures in order
to preserve their identities as peoples, communities and nations.
A 1995 Aboriginal and Torres Strait Islander Commission report
recommended that the Australian Government protect Indigenous rights
by way of ‘recognition of customary law’.25 It was the view of that report
that there is no right ‘more fundamental for Indigenous people than self-
determination’.26 Self-determination will allow Indigenous people in
Australia to manage their own disputes through customary law and direct
disputants to communitarian ways of re-conciliation and access to justice
due to the inexpensive nature of community dispute management and
minimise double jeopardy through punishment being administered by
both Indigenous and formal systems.
216
Magwaro
217
Unfinished Constitutional Business?
218
Magwaro
219
Unfinished Constitutional Business?
220
Magwaro
221
Unfinished Constitutional Business?
Conclusion
The incorporation of international rights law into Indigenous laws should
not be viewed as being overly onerous where these rights afford obliga-
tions to the community. It may be that with the globalisation of human
rights law as opposed to its westernisation, formalistic and communi-
tarian laws may need to become bi-legal.54 Traditionally, legal anthropol-
ogists have restricted the meaning of ‘bi-legal’ to that where customary
laws married with formal legal structures, such as in India where British
law remains influential.55
However, in order to exploit the rights guaranteed in the rights regime,
Indigenous communities need to be instrumental in their development
and importantly, incorporate the relevant laws where their own laws need
to develop due to the modern context in which they now operate.
Indigenous groups have practiced customary law with disregard to
Western laws, which have categorically overshadowing their right to self-
determination at the domestic level. What remains is a positive integra-
tion of customary law with international human rights laws entrenched
in domestic legislation.
Essentially, this chapter asserts that communitarian cultural rights to
dispute management must be protected by international rights laws. This
paper supports incorporation of Indigenous laws in a global framework.
Indigenous laws and customs by their very nature are part of an interna-
tional community and should be accorded the rights of Western and
formal systems of law.
The challenge is to strengthen the protection of communitarian dispute
management into human rights law. Indigenous rights to self-determina-
tion should be safeguarded with respect to the dynamics within which
they operate since communitarian societies are unified by the outcome of
their management of disputes. For this reason, dispute management is an
important property resource for Indigenous people.
Indigenous societies have to maintain unique means of conflict
management reflective of their cultural milieu. These rights must be
safeguarded within the broader spectrum of international human rights
222
Magwaro
laws and such laws should be clarified by re-visiting ‘human rights’ across
various cultural facets.
References
Arambulo, K, (1999), Strengthening the Supervision of the International
Convenant on Economic, Social and Cultural Rights: Theoretical and
Procedural Aspects, INTERSENTIA: Oxford.
Ayton-Shenker, D, The Challenge of Human Rights and Cultural Diversity,
United Nations Background Note, http://www.un.org/rights/dpi1627e.htm:
UN Department of Public Information DPI/1627/HR: March 1995, sited April
2002.
Bailey, P, (1990), Human Rights: In an International Context, Butterworths:
Brisbane.
Bayles, M D, Procedural Justice: Allocating to Individuals, Kluwer Academic
Publishers: Boston.
Brownlie, I, (editor), (1995), (4th ed), Basic Documents in International Law,
Oxford University Press: Oxford.
Burke, P, (editor), (1995), The Skills of the Native Title Practice, The Unit:
Canberra.
Burton, J, and Dukes, F, (1990), Conflict: Practices in Management, Settlement
and Resolution, Macmillan: England.
Chiba, M, (1989), Legal Pluralism: Toward a General Theory Through Japanese
Legal Culture, Tokyo: Takai University Press.
Christie, N, (2000), (2nd edition), Crime Control as Industry: Towards Gulags,
Western Style, Routledge: London.
Cobo, M J, (1993), Australian Department of Foreign Affairs and Trade,
Canberra: Australian Government Publishing Service.
Coulter, R, (1995), ‘The Draft UN Declaration on the Rights of Indigenous
Peoples: What is it? What does it mean?’, 13 Netherlands Quarterly of Human
Rights, Vol. 2 p 128.
Crawford, J, (ed), (1992), The Rights of Peoples, Oxford University Press:
Melbourne.
Cunneen, C, (1998), Reforming Juvenile Justice and Creating the space for
Indigenous Self-Determination, In: http://www.austlii.edu.au/au/other/unswlj/
forum/1998/vol4no3/cunneen.html#fn5, sited April 2002.
Davies, M, 2nd edition (2001), Asking the Law Question, Thomson Legal and
Regulatory Ltd: Pyrmont.
Dodson, M, and Pritchard, S, (editor), (1998), Indigenous Peoples, the United
Nations and Human Rights, Federation Press: NSW.
Fleras, A, and Elliott, L J, (1992), The ‘Nations Within’: Aboriginal-State
Relations in Canada, the United States and New Zealand, Oxford University
Press: Toronto.
Gardiner-Garden, J, (1992), Aboriginality and Aboriginal Rights in Australia,
Department of the Parliamentary Library: Canberra.
Grose, P, (1997), Affirming Indigenous Rights: A Queensland Frieze, 4 (1), AJHR
70.
Gulliver, P H, (1979), Disputes and Negotiations: A Cross-Cultural Perspective,
Academic Press: New York.
223
Unfinished Constitutional Business?
224
Magwaro
Notes
1. http://www.un.org/ecosocdev/geninfo/indigens/dpil608e.htm.
2. Cobo, M J, DAFT, (1993), Federation Press: Canberra p 106.
3. See Bailey, P, (1990), Human Rights: In An International Context,
Butterworths: Brisbane.
4. Christie, N, (2000), 3rd ed, Crime Control as Industry: Towards Gulags,
Western Style, Routledge: London. Ibid. pp 1–4.
5. Davies, M, (2001), 2nd ed. Asking the Law Question, Thomson Legal and
Regulatory Ltd: Pyrmont.
6. Christie, N, 2000, op cit.
7. Ibid. pp 3–4.
8. Donegan (1993), p 14–16.
9. Ibid p 16.
10. Ibid p 2.
11. Gulliver, P H, (1979), Disputes and Negotiations: A Cross-Cultural
Perspective, Academic Press: New York pp 11–68.
12. Ibid. p 32.
13. Chiba, M, (1989), Legal Pluralism: Toward a General Theory Through
Japanese Legal Culture, Tokyo: Tokai University Press pp 152–7.
14. Othman, N, ed Bauer, R J, and Bell, A D, (1999), The East Asian Challenge
for Human Rights, UK: Cambridge University Press. p 34.
15. Songsamphan, ed Bauer, R J, and Bell, A D, (1999), The East Asian
Challenge for Human Rights, UK: Cambridge University Press. pp 136–7.
16. Bayles, M D, Procedural Justice: Allocating to Individuals, Kluwer Academic
Publishers: Boston p 64.
17. Burton, J, and Dukes, F, (1990), Conflict: Practices in Management,
Settlement and Resolution, Macmillan: England pp 88–9.
18. (1996:249).
19. Jandt, F, and Pedersen, P, (editors), (1996), Constructive Conflict
Management: Asia-Pacific Cases, Sage Publications: Thousand Oaks, Ca. p
250.
20. Stavenhagen, R, (1998), Cultural Rights: A Social Science Perspective in:
Cultural rights and Wrongs, Institute of Art and Law, UNESCO Publishing:
London, p 5–6. (1993:277).
21. See Haveman, P, (editor), (1999), Indigenous Peoples’ Rights in Australia,
Canada and New Zealand, Oxford Press: Auckland. pp 250–1.
22. Coulter, R, (1995), ‘The Draft UN Declaration on the Rights of Indigenous
Peoples: What is it? What does it mean?’ 13 Netherlands Quarterly of
Human Rights 2. p 128.
23. Brownlie, I, (editor), (1995), (4th ed), Basic Documents in International
Law, Oxford University Press: Oxford and Umozurike, U O, (1997), The
225
Unfinished Constitutional Business?
226
Magwaro
227
15 Sovereignty as a Trojan Horse: How the
Convention on Biological Diversity
Morphs Biopiracy Into Biofraud
228
Vogel
genetic resources while the North would share the resultant benefits with
the country of origin. Indeed, the CBD gives the appearance of economic
theory: the alignment of incentives and the internalisation of externalities.
However, appearances can deceive. The tools of neoclassical economic
science can expose the inconsistencies of the CBD while also suggesting a
logical alternative. This chapter will make recommendations that would
render the CBD consistent with its chief objectives: benefit sharing and
conservation. Hopefully, the arguments presented will be deployed in the
political arena where the broad interests of the public are now being
pitted against the narrow interests of industry.
229
Unfinished Constitutional Business?
230
Vogel
231
Unfinished Constitutional Business?
In the years since Rio’92, the political climate toward ratification in the
US Congress appears worse, not better. What should the economist now
advise the delegates to the COP? Practising ‘the universal grammar of
social science’ (Hirshleifer, 1985, 53), the economist may be tempted to
write off ‘sovereignty’ as a ‘sunk cost’ and persuade delegates to delete
such language and replace it with a multilateral accord that fixes royalty
rates and redistributes rents among countries that share the same habitat
for the species bioprospected regardless of where collected (including US
jurisdiction thereby obviating its ‘safe haven’ status for biopirates). Albeit
intellectually honest, such advice would ignore the non-rational
behaviour that caused the problem. The delegates at the COP meetings
are so heavily invested in the concept of ‘sovereignty’ that it may prove
politically impossible to reverse that position. A way out of this morass
may be a corollary to the opening salvo from de Talleyrand: an important
art of politicians is to find new meanings for respected institutions, which
under the old meanings have become detrimental to the public. To achieve
benefit sharing and conservation, the economist should advise the
adoption of a new meaning for the respected institution of sovereignty:
232
Vogel
233
Unfinished Constitutional Business?
234
Vogel
235
Unfinished Constitutional Business?
biotechnology simply because that country has become a ‘safe haven’ for
bioprospecting/biopiracy/biofraud. Therefore, the calculation of the
distribution of economic rents should also apply to genetic resources
collected in any non-ratified CBD country whenever the patented
biochemical is not unique to that non-ratified country but diffused over
taxa or habitats in the ratified CBD countries. The principles that should
be addressed in a Special Protocol are:
1. The amendment of national laws on intellectual property rights to
require Certificates of Origin (see Tobin, 1997) on products that utilise
biological diversity. Because the patented biochemical may be diffused at
various taxa, scientific analysis must determine the taxon at which the
biochemical is found. The Clearing House Mechanism of the Secretariat
to the CBD must then determine the range of the habitat for those taxa
in order to identify the commoners (see Article 18 ‘Technical and
Scientific Cooperation’).
The establishment of a fund to receive 13 percent on net sales of
biotechnologies that use biological diversity and their distribution to
cartel members according to the representation of individuals in the taxon
in which the biochemical is found. The country that provides the physical
samples will receive whatever the market will bear for adding this value
to the genetic information (typically 2 percent).
2. A tracking of holders of intellectual property that use biological
diversity and determination as to whether the economic rent has been
paid. A filtration of a list of Certificates of Origin with a list of economic
rents paid to permit a clouding of title on biotechnology exports from
non-ratified CBD countries to ratified CBD countries whenever the econ-
omic rent has not yet been paid to the fund.
Such a protocol would force the industrial end users in the non-ratified
CBD countries to pay voluntarily the royalty or risk losing the export
market through challenges to ownership of the exported biotechnology.
236
Vogel
237
Unfinished Constitutional Business?
marginal cost of being interviewed. The third problem is the ‘joint owner-
ship’ over genetic resources associated with traditional knowledge. Under
the aforementioned articles of the CBD, the state is sovereign over the
genetic resources while the communities can only withhold approval from
accessing knowledge associated with those genetic resources. This means
that the state can collect randomly without the consent or participation
of the communities but the communities cannot perform ethnobiopros-
pecting without the consent and participation of the state.
238
Vogel
239
Unfinished Constitutional Business?
state is MAX π = pQ(c) - cQ(c). Solving for the first order conditions,
p dQ/dc = Q + c dQ/dc or marginal revenue = marginal cost. Under the
further assumption that Q=a√c, the problem becomes MAX π = p a√c - √c
a√c. Solving for the first order conditions, c = 1/3 p.
The proof that 1/3 the royalties collected by the state should go to the
communities hinges upon the assumption that Q(c)= a√c. Suppose that
the relationship is linear, Q(c)=ac, then the first order condition yields
c=1/2p, which means one half the royalty collected by the state should go
to the communities. However, linearity violates the assumption of dimin-
ishing returns. Hence, a state that shares 50 percent of its royalties with
the communities has approached the upper limit it can justify under the
twin assumptions of profit maximisation and diminishing returns.
A 50–50 split between the state and the communities will probably be
acceptable to both parties. The literature in experimental microeconomics
supports the assertion that contracts offering 50-50 splits are the most
easily accepted (see, for example, Kahneman, et al, 1986). A simple split
has already been observed in existing bioprospecting contracts. INBio
shares 50 percent of its royalties with the National Park System of Costa
Rica where it collects (Reid, et al, 1993), the University of Illinois-
Chicago shares up to 50 percent of its royalties with the host government
(Bertha, 1996) as does the Royal Botanic Gardens-Kew, and the
Stathclyde Institute for Drug Research (ten Kate, 1995, 16); and the
government of Surinam shares 50 percent of the benefits it receives from
Bristol-Myers Squibb with the Indigenous communities of Surinam
(Bowles, et al, 1996, 16).
A similar problem to that of sharing royalties between the state and the
communities is the sharing of benefits within any given community. The
easiest solution for sharing benefits within any given community would
be a disbursement of money among all the families of that community.
Microeconomic theory implies that money is always at least as good and
almost always better than in-kind transfers (see, for example, Rosen,
1994). However, the easiest solution may not be the most effective in
encouraging participation. Traditional knowledge is seldom evenly
distributed within a community; usually it is concentrated in the shaman.
Although a pro rata division of benefits would not contradict the CBD,
such a division would not leave the shaman with much incentive to
participate in ethnobioprospecting; indeed, they may even become
resentful that others within the same community are benefiting equally
from traditional knowledge despite the unequal burden of stewardship.
One suspects that without the cooperation of the shaman, there will be
very little traditional knowledge deposited in the regional databases that
has not already been published in the ethnobotanical literature and,
therefore, already in the public domain. So the question becomes: How
can the shaman be induced to participate without a disproportionate
240
Vogel
241
Unfinished Constitutional Business?
242
Vogel
by industry must easily exceed US$1b over the patent life of the drug. For
ease of exposition, suppose the expected revenue is US$1b (A$1.7b) and
one wishes to calculate what will be the royalty generated for the state
coffers. The controversial and sometimes incommensurable value of the
twelve items in the definition of ‘non-monetary benefit’ will undoubtedly
invite abuse as those items are quantified to reduce the royalty payment.
Such scepticism is not groundless; one may recall that Merck, Inc., a
‘blue-chip’ pharmaceutical giant, employed Arthur Andersen, of Enron
fame, to audit its books—the correction of having overstated its revenues
translated into a 40 percent drop of peak share value in 2002. Merck also
pioneered the first bioprospecting contract with INBio in Costa Rica in
the late 1980s. So, it seems highly probable that the non-monetary
benefits of a block-buster drug will indeed be ‘calculated’ to sum in excess
of 0.03 X (1700m–70m), thereby triggering item 11.5 ‘Reduction of
Royalty Rate and Minimum Performance Value’. Should the
‘Biodiscovery Organisation’ successfully reduce the royalty rate, the
expected effective royalty rate for a pharmaceutical becomes (0.10 X 40m
+ 0.05 X 30m) divided by the expected revenue, A$1,700m. This equals
0.003 or 0.3 percent.
Size matters. In Brazil, civil society is accusing Novartis of biofraud
precisely because the royalty rate is so low: 0.5 percent (incidentally, 66
percent greater than the calculated effective rate) (PeĖa-Neira et al,
2002). Whether the royalty is one fifth, one third, or one half of one
percent, all such percentages are insignificantly different from zero and
violate the ‘fair and equitable benefit sharing’ clauses of the Convention
on Biodiversity. In Australia, such low royalty rates would also contradict
‘ecological sustainability’, the stated ‘vision’ of The Discussion Paper,
and defined according to the Nature Conservation Act 1992. ‘Ecological
Sustainability is…(d) ensuring that the benefit of the use to present gener-
ations does not diminish the potential to meet the needs and aspirations
of future generations.’ By denying an economic rent to the natural
resource, the government of Queensland would be establishing a de facto
‘open access’ to genetic resources and projecting the false impression that
genetic erosion and extinction have low opportunity costs. It is for this
reason that the ‘Model Benefit Sharing Agreement’ contained in the
Queensland Biodiscovery Policy Discussion Paper violates the ecological
sustainability established in the Commonwealth Public Inquiry into
Access to Biological Resources in Commonwealth Areas (Voumard,
2000).
Is the de facto open access to genetic resources just an oversight? Or is
it evidence of neoliberal policy having nothing to do with neoclassical or
classical economics and everything to do with power? Australia again
approximates a scientific control as one looks across other related
policies. In the Code of Ethical Practice for Biotechnology in Queensland
(Queensland Government 2001) the same pattern of privatising benefits
243
Unfinished Constitutional Business?
Conclusion
The Convention on Biological Diversity (CBD) is a better reflection of
non-rational behaviour than it is of neoclassical economic science. Brute
nationalism manifested itself in sovereignty over genetic resources and
that sovereignty has now given way to price wars among biodiverse-rich
countries. Industry can now:
• avoid paying economic rents to the countries of origin or to the
Indigenous communities, and
• legitimise possession of genetic resources and traditional knowledge.
In other words, the biopiracy prior to the CBD has now morphed into
something far worse: the biofraud of Material Transfer Agreements
(MTAs). Totally frustrated are the two primary objectives of the CBD:
benefit sharing and conservation.
244
Vogel
The drafters of the CBD ignored not only the economic implications of
sovereignty, but also the likely scenario that bioprospecting would shift to
a non-ratified country, viz., the US. This chapter suggests an efficient and
equitable solution has already begun with the Alliance of Megabiodiverse
Countries: the establishment of cartels over genetic resources and associ-
ated knowledge. The President of Venezuela seems to be taking the lead,
acknowledging that the Alliance is indeed a cartel. Although this solution
springs from the same economic science embraced by neoliberals, one
suspects little support from such quarters. Vested interests will co-opt
governments as rent-seeking behaviour is masked with faulty logic and
lavish public relations campaigns. Queensland, Australia is a shining
example of what should not be done.
References
Alhadeff, D. 1982. Microeconomics and human behavior. Berkeley: University of
California Press
Barzel, Y. 1989. Economic analysis of property rights. New York: Cambridge
University Press.
Bertha, S. 1996. Academic research: policies and practice. Journal of
Ethnopharmacology, 51: 59–73.
Bowles, I, Clark, D, Downes, D, Guerin-McManus, M, 1996. Encouraging
Private Sector Support for Biodiversity Conservation. Conservation
International Policy Papers, 7.
COICA. 1996. Coordinadora de las Organizaciones Indígenas de la Cuenca
Amazónica. Nuestra Amazonia, Revista 8. Quito, Ecuador.
Doyle, Alister. 2002. Venezuela hopes for OPEC-like biodiversity cartel. Reuters
News Service. http://www.planetark.org/dailynewsstory.cfm/newsid/17635/
story.htm
Dawkins, R. 1995. River out of Eden. New York: Basic Books.
Frank, R. 1985. Choosing the right pond: human behavior and the quest for
status. New York: Oxford University Press.
Glowka, L, Burhenne-Guilmin, F, Synge, H, McNeely, J, and L. Gündling. 1994.
A Guide to the Convention on Biological Diversity. Gland, Switzerland: IUCN
The World Conservation Union.
Hardin, G. 1993. Living within limits: ecology, economics, and population
taboos. New York: Oxford University Press.
Hirshleifer, J. 1985. The expanding domain of economics. American Economic
Review 75(6):53–68.
Kahneman, D., Knetsch, J. and Thaler, R., 1986. Fairness and the assumptions of
economics. Pages 101–116 in Robin M. Hogarth and Melvin W. Reder
(Editors), Rational choice: the contrast between economics and psychology.
Chicago: The University of Chicago Press.
Lehrman, S. 1992. Genentech stance on biodiversity riles staff. Nature, 9 July: 97.
Lerner, Max. 1937. Edited volume of Adam Smith An Inquiry into the nature and
causes of the wealth of nations. New York: Random House.
McCloskey, Donald. 1983. The rhetoric of economics. Journal of Economic
Literature 21(2):481–517.
245
Unfinished Constitutional Business?
246
Vogel
247
16 Commenced Constitutional Business?
Reflections on the Contribution of the
Saami Parliaments to Indigenous Self-
determination
Barbara A Hocking
Introduction
The Saami people once inhabited most of the area that is currently
Finland, large parts of Norway and Sweden as well as parts of Russia.
Saami are one people living in four countries. Due to the expansion and
control by these nations, the Saami are now an even smaller minority
than might have been expected judging from their history. In this respect,
the Saami share a history with other colonised Indigenous peoples such as
the Aboriginal people in Australia, the Maori in New Zealand and Inuit
in Canada. Like these peoples, the Saami seek to regain some of what they
have lost through colonisation and fragmentation, and to clarify their
political and territorial position within the dominant state. Despite their
common goals, the process for achieving them has been different in each
Nordic country but there are also common features and related achieve-
ments.
In each of the three Nordic countries considered here, developments
reflecting what Svensson has called ‘the two predominant elements
contained in what is referred to as ‘Aboriginal rights’: political and land
rights, can be identified.1 This chapter explores some of the political and
territorial dimensions of these two predominant elements as they are
embodied in Finland, Sweden and Norway. While the focus is on the key
features of the Nordic responses to Indigenous claims of rights, the
chapter weaves through occasional comparisons with developments in
Canada and Australia.2
The clearest achievement of the Saami has been the Saami Parliaments
established in each of the three Nordic states. The Saami Parliaments have
been called ‘a democratic experiment designed to strengthen Saami
participation in the decision-making process’.3 To compare, a somewhat
similar process has been at work in Canada, with the development of
Nunavut Territory for the Inuit. However, the Saami Parliaments are
more concerned with political strivings and mark a formal attempt at
political participation, while Nunavut involves territorial governance—
248
BA Hocking
249
Unfinished Constitutional Business?
250
BA Hocking
In Minde’s view, the ‘natural prototypes for such an ideal type’ are
American and Canadian Indians, whereas the Saami of Northern Europe
cannot be categorised under the ‘classic ‘blue-ocean’ dogma that
underpins this model’.15 However, the Saami are the only recognised
group of Indigenous people in Scandinavia. At the same time they are a
linguistic, cultural and ethnic minority with a different status in all three
Nordic countries as well as in Russia. The Saami are an Arctic people,
comparable with the Inuit of the North American continent. As the
people from the northernmost part of Europe, they have their own land,
Sápmi (also known as Lapland) the territory of which is divided between
Norway, Sweden, Finland and Russia.16
This chapter only discusses the situation of the Saami in Finland,
Norway and Sweden, known as the Nordic nations. While they warrant
consideration in their own right, the situation of the Saami in Russia will
not be discussed because having lived under the control of the Soviet
Union, the issues and problems faced by Russian Saami differs markedly
from that of the Nordic Saami.17
251
Unfinished Constitutional Business?
252
BA Hocking
Finland
The number of Saami living in Finland has been estimated at only
approximately five and a half thousand. Two thirds of the Finnish Saami
live in the so-called Saami homeland formed by the municipalities of
Utsjoki, Inari and Enontekiö and the Lappi Reindeer Herding Cooper-
ative in the municipality of Sodankylä.33 Less than half of the Finnish
Saami are said to speak and use the Saami language. There have been
several legislative enactments improving the position of the Saami people
in Finland. In 1991 the Parliament Act, a law with a constitutional status,
was amended by inserting a new provision: the new Section 52a imposes
a duty upon Parliamentary Committees to hear the Saami in any matter
of public consequence to them. An Act on the Use of the Saami Language
before Public Authorities was also enacted in 1991.
In 1995, as a part of wider reform of fundamental rights and freedoms,
two major constitutional protections were extended to the Saami in
Finland.34 First, a provision was included in the Constitution Act that
relates to linguistic and cultural rights. By virtue of Section 14, the Saami
‘as an indigenous people’, as well as Roma and other groups have the
right to maintain and develop their own languages and cultures. The right
of the Saami to use their language before authorities is to be prescribed
by an Act of Parliament. This provision has clear links with Finland’s
obligations under Article 27 of the ICCPR, protecting the traditional way
of life of minorities and Indigenous peoples as an essential part of their
culture. Article 27 of the ICCPR has provided protection for the Saami,
both with regard to their livelihood, protecting in particular reindeer
herding as an aspect of their culture and also in providing them with legal
status recognised by Finnish courts to take further steps to protect their
rights.
The second constitutional provision added in 1995 was the new
Section 51 of the Constitution Act providing that the Saami as an Indig-
enous people shall be guaranteed cultural autonomy in respect of their
language and culture, as specified by an Act of Parliament. Accomp-
anying this provision is the Act on the Saami Parliament that came into
force on 1 January 1996. This law regulates the election and operation of
253
Unfinished Constitutional Business?
the Saami Parliament in Finland with the aim of securing Saami cultural
autonomy. Although it is a purely advisory body, Finland’s Saami
Parliament is empowered to allocate certain funds derived from the state
budget to purposes related to the Saami language and culture. The Act
has a consultation clause providing that all government authorities have
to negotiate with the Saami Parliament before taking measures in Saami
homelands, in case these have far-reaching and significant consequences
to the Saami as an Indigenous people. There is also a Saami Consultative
Committee, a joint Saami-interministerial body, which has drawn up a
proposal for a Saami Act, with the specific purpose of returning the Saami
the right to the lands and waters they formerly occupied and used.
As a consequence of the new legislation, the status of the Saami as
Indigenous people has been improved and their constitutional status in
Finland has been considerably strengthened. The aim has been partly to
secure the autonomy of the Saami people to use their language and pursue
their culture in their traditional homelands. However, it must be mentioned
that despite the constitutional developments comparable to Norway and
Sweden, Finland is often described as a ‘special case’. This is partly
because it has the fewest Saami citizens but largely because it has not
legally reserved reindeer herding as a Saami right. That special cultural
and occupational limitation has been part of the response of Norway and
Sweden to Saami claims of rights and has definitively shaped develop-
ments in those nations. Whereas in Finland it has been observed that
whatever their constitutional documents may state, the Saami are treated
more as a ‘national linguistic minority’ than as an indigenous people.35
This contrasts with Norway in particular, which was, at least until the
protracted negotiations over the Finnmark Act 2003, widely regarded as
the most responsive of the Nordic nations to its Indigenous citizens’
claims of rights.
Norway
With the largest Saami population of the Nordic nations, Norway has
taken several constitutional steps towards recognition of their Indigenous
peoples. The 1999 Human Rights Act in Norway incorporates the ICCPR
into the Norwegian legal system. An earlier development was the 1988
amendment to the Norwegian Constitution, inserting Article 110a, which
produced a ‘Saami paragraph’. This makes it the responsibility of the
state to ensure favourable conditions to enable the Saami population to
maintain and develop its language, culture and social structures. In 1987,
the Parliament had passed the Saami Act, which proposed the establish-
ment of a Saami Assembly and various proposals for Saami rights.36 With
the constitutional amendment, the Saami Parliament may take up any
issue deemed of importance for the Saami population. The Saami
Parliament is elected every four years by voters enrolled on the special
Saami electoral register opened in 1989.37 The Parliament has the role of
254
BA Hocking
Sweden
Despite numerous governmental inquiries, Sweden has been more
hesitant than the other two Nordic countries in ascribing constitutional
status to the Saami and it does not currently provide specific cultural
guarantees for the Saami and their traditional livelihood. In one view, the
255
Unfinished Constitutional Business?
256
BA Hocking
Applying this definition with regard to land that the Saami may be
considered to occupy, it is asserted that this must apply primarily to the
parts of the year-round pastures which the state has owned in modern
times. However the boundaries of these areas are ‘unclear and must be
established’.52 The use of the expression ‘rights of ownership and posses-
sion’ in the Convention is not considered necessarily to involve formal
title to land. However the Convention ‘does assume that the land rights
reach a certain minimum level’, which is estimated to correspond to ‘right
257
Unfinished Constitutional Business?
of use and possession of the land with strong protection under the
law’.53The report continues that the land rights of the Saami that apply
today do not reach that minimum standard since they are ‘forced to
tolerate considerable encroachments on their reindeer breeding
rights’.54To fulfil the minimum ILO requirements, the Saami must be
‘more strongly protected against such encroachment’.55
Thus it would appear that before there can be further steps towards
this broader recognition of Saami rights, there must be greater emphasis
upon rights associated with use of land and the resources of that land.
The Saami in Norway and Sweden already negotiate on reindeer
husbandry wages but negotiation on land areas, natural resources and
schemes for self-government is a significantly different area of concern,
both to the Saami and to the governments involved. It is the issue of
management, control and administration of land and territory upon
which the modern nation states have been established that evades Saami
control.
258
BA Hocking
259
Unfinished Constitutional Business?
260
BA Hocking
This comment points to the different emphasis upon land, water and
resource rights when comparing the situation of the Saami people to the
developments in Australia. Post-Mabo there can be seen an emerging
jurisprudence in Australia concerning land, water, sea and resource rights,
although these are limited by the requirements to prove the existence of a
‘native title’ and the emphasis in the jurisprudence upon traditional
connections with the land. Because of the historical dispossession and
dislocation of Aboriginal peoples since white settlement in Australia,
261
Unfinished Constitutional Business?
262
BA Hocking
building stone close to the village, within reindeer herding lands of the
Muotkatunturi Herdsmen’s Co-Operative.76 The fact that the
complainants were members of a minority within Article 27 and as such
with a right to enjoy their own culture was not in doubt. The Human
Rights Committee expressly acknowledged this, recognising further that
reindeer husbandry was an essential element of their culture. However, no
violation of Article 27 was found, since, on the facts the amount of stone
quarried was small, consultations had taken place with the local Saami
and measures had been taken to minimise the impact of the quarrying on
reindeer herding activities. While the case shows a refining of the elements
of cultural recognition, nevertheless the Committee issued a warning to
the Finnish Government in relation to its future activities. This was to the
effect that in carrying out economic activities, compliance with Article 27
required that the complainants would continue to benefit from reindeer
husbandry.
For Scheinin however, there is a further legal significance in this
decision. It introduced a new element emphasising that Article 27 protects
not only traditional means of livelihood of national minorities but more
generally activities that are characterised as important from a typical or
cultural perspective. The result of this is that Indigenous peoples may
invoke Article 27, even where their traditional way of life has been
adapted to fit modern and technological demands.77 The state party is
expressly placed under a duty to take this into consideration when either
extending existing contracts or granting new ones. For Scheinin, the
framing of the duty in this way is potentially significant in Finland, as the
Finnish Saami invoke Article 27 of the ICCPR in order to defend their
right to enjoy their culture and their land against competing forms of land
use by other actors.78 The decision was also significant for its declaration
that the economic advancement of the majority population would not
justify eroding the right of a minority to pursue its culture under Article
27.79
263
Unfinished Constitutional Business?
The Appeal Court delivered judgment on 16 June 1994, finding that the
adverse consequences of the disputed activities were much more severe
than the Court of First Instance had held. However, two of the three
judges found those adverse effects did not amount to a ‘denial of right to
enjoy their culture’ within the meaning of Article 27. The third judge
dissented, arguing that logging and construction of roads should be
stopped and prohibited.
Again, the applicability of Article 27 was not in doubt. The provision
is incorporated into Finnish law, and was seen as sufficient grounds for
the legal status of Saami individuals to sue the National Forestry Board
to endeavour to prevent logging and road construction. Furthermore, the
proposed logging would, in the Court of Appeal’s view, cause consider-
able adverse consequences and long-term disadvantages for the reindeer
herding. Yet it was decided that it did not constitute a ‘denial’ in the
Covenant’s language.80 For Scheinin, the dissenting judgment of the
Appeal Court’s Judge Supponen provides the most explicit judicial recog-
nition of Saami rights in Finland, illustrating the potential of ICCPR
Article 27 in domestic courts.81 Judge Supponen argued that for reindeer
herding to be a meaningful livelihood, and to support the maintenance of
the Saami culture, its practitioners must gain a considerable part, if not
most, of their living from it. The projected logging would have consider-
able adverse effects on the reindeer herding of the Lansmen, while not
totally preventing it. It followed, in the Judge’s view, that measures which
‘significantly hinder’ the enjoyment of a minority culture are also prohib-
ited under Article 27. This was the effect of the proposed logging, and the
right of the Lansmen in community with other Saami reindeer herders to
practise reindeer herding as part of their culture in the specified area,
should have prevented the logging and track construction of the Forestry
Board.
Frustrated by the more typical narrow interpretation of the domestic
courts, however, the Saami took their complaint to the UN Human Rights
Committee.82 The Committee issued a direction on interim protective
measures pursuant to rule 86 of its rules of procedure in November 1995,
requesting that the Government refrain from measures that would cause
irreparable harm. Notwithstanding the request, the National Forestry
Board commenced logging in this area, the cutting to involve some
13,000 cubic metres of wood in an area of approximately 250 hectares.
In its final decision in November 1996, the Committee made similar
findings to those in the first Länsman case: the level of consultation with
the Saami prior to development, although contested as to the facts, was
found to have been sufficiently effective, and the amount of logging
would not amount to a violation of the Saami’s right to continue their
traditional reindeer herding activities.83
The arguments that have been successful thus far have provided the
groundwork for legal claims in relation to the Mining Act of 1965, which
264
BA Hocking
allows for the right to start exploring and exploiting the mineral resources
on another person’s land or on state-owned land, following registration
of a claim. There are few impediments to registration under the Act and
Finland’s entry into the Treaty on the European Economic Area and the
European Union meant that foreign and multinational mining companies
that previously had been unable to make mining claims in Finland, were
able to make claims in the reindeer herding areas and Saami homelands
of Finland. This was coupled with a failure to even consult the local
reindeer herders prior to registration. This prompted reindeer herders’ co-
operatives within the Saami homeland to file administrative appeals
against decisions of the Ministry to register about 120 claims. The
argument was that Article 27 provides an obstacle to these increasing
claim registrations since exploration or mining would cause considerable
harm to the Saami reindeer herders in the pursuit of their traditional
activities. The applicants maintained that the side effects of the explo-
ration, such as road lines, traffic and noise, would cause damage to the
Saami culture. The Supreme Administrative Court considered Article 27
and the fact that the Ministry of Trade and Industry had not consulted
with the Saami, or informed itself of the effects the claims would have on
reindeer herding, prior to registering the claims. It repealed the Ministry’s
decisions and remitted the companies’ applications to the Ministry for
new consideration.84 The Court considered reindeer-herding to be an
integral part of Saami culture, and protected under Article 27. The most
significant point for the development of Saami rights lies in the obligation
of consultation.
265
Unfinished Constitutional Business?
266
BA Hocking
267
Unfinished Constitutional Business?
the Saami Parliaments and the uses of the political processes in the Nordic
countries is why the Nordic States have not taken steps towards a terri-
torial base for the Saami people. Models for this do exist in Canada,
particularly since Nunavut, and the acceptance of reindeer-herding as the
prime cultural activity lends itself to a territorial basis for rights. Such
territory would avoid the problem of encroachment on the Saami land
that appears to constrain the possibility of Sweden’s ratifying ILO
Convention 169.
Forrest has argued that the national policies towards the Saami show
the inability of the Nordic Governments to conceive of broader notions
of territory and that a determined view of the Saami as nomadic pastoral-
ists ‘prompted systems of administration which increased state regulation
of herding without regard for the fact that the Saami had effectively
managed communal herding and land use for hundreds of years’.93 The
governments tended to view nomadic pastoralism either as not economi-
cally viable according to their terms (and therefore, at best, in need of
paternalistic government protection), or as not being a legitimate economic
basis for land use. This illustrates the fundamental problem with which
the Saami struggle: their collective notions of territoriality and culture are
alien to concepts of exclusive private ownership of land. In order to have
a just settlement of their right to land and resources and to manage
reindeer herding on their own terms, the Saami conceptions of territori-
ality must be recognised as valid.
268
BA Hocking
Conclusion
It would appear that the Nordic nations mirror countries like Canada,
and indeed many nations where the relations between local people and
colonisers had at least some early constitutional form. In all these
countries, and also similarly to early Australian settlement, where law did
not recognise Aboriginal land rights, we see today that ‘in the cultural
background of a people old laws have a significant place’.100 Together
with those past laws we also see the influence of contemporary political
policies and international law upon the political and legal situation of the
Indigenous citizens of the countries examined here.
In that context, Korsmo considers the Saami Assemblies to reflect the
conciliatory policies of Sweden, Norway and Finland with respect to a
small minority most of whom live in the middle of the dominant culture
and for whom there is therefore no natural territorial entity.101 Yet for
Korsmo, the separation of these political institutions from territory has
rendered the institutions ‘superfluous’ in the national or regional
decision-making processes and has limited the legitimacy of the institu-
tions in the eyes of the constituents. This separation has forced the insti-
tutions to act on ‘the symbolic level’ and often through the use of
‘patronage’.102 Yet for other countries, such as Australia, still grappling
with the ways in which to formally recognise and publicly accept what
Korsmo acutely terms ‘politicized ethnicity’ and ‘ethno-political institu-
tions’,103 there may be new lessons to learn here with respect to the two
predominant elements of Indigenous rights identified by Svensson.104 The
first may be from near neighbour New Zealand, which created four
Maori seats in the mainstream Parliament (not a Maori Parliament) under
the Maori Representation Act of 1867. The second may be from Canada
where the Nunavut Territory illustrates Fleras’ contention that there are
existing practical models of shared sovereignty in federal systems.105 The
third may be from the United States, where Patton points to the precedent
of the doctrine of ‘dependent domestic sovereignty’.106 The fourth—
imperfect as they may be—may be from the more distant developments
of the Saami Parliaments of the Nordic countries.
269
Unfinished Constitutional Business?
Notes
270
BA Hocking
271
Unfinished Constitutional Business?
272
BA Hocking
273
Unfinished Constitutional Business?
274
BA Hocking
79. Länsman v Finland, above, para 9.4. However the Committee allowed that
economic activities that had limited impact on the cultural rights of a
minority may not amount to a denial of their rights under Art 27.
80. The Saami herders sought leave to appeal before the Supreme Court, asking
the Court to review only the issue of whether the adverse consequences of
the activities amounted to a ‘denial’ of their rights under Article 27. The
Supreme Court granted leave to appeal, and on 10 November 1994, it
granted an interim injunction. However it withdrew the injunction and
confirmed the Court of Appeal’s judgment on 22 June 1995: Supreme Court
of Finland 1995: 117.
81. Scheinin, op cit, at p. 212 and n 203.
82. Länsman v Finland, (Communication No 671/1995), UN Doc
CCPR/C/58/D/671/1995, 22 November 1996.
83. Ibid, para 10.5–11. See also Scheinin, op cit, at p 170. The Mirhaminmaa-
Kariselkä forestry case, (Rovaniemi Court of Appeal, 11 July 1997, No 601,
Supreme Court of Finland, 29 October 1997), another logging case,
concerned logging outside the Lemmenjoki National Park and part of the
herding lands of the Sallivaara Herdsmen’s Committee. The area is an
important one for reindeer herding and the Saami applied for an injunction
preventing the Forestry Board from cutting 11,000 cubic metres of wood
from an area of 270 hectares. They were successful in the Lappi Court of
First Instance (No 1587, Judge Hannu Kauppala, 30 August 1996), however
the decision was overturned by the Court of Appeal and leave to appeal
further was denied by the Supreme Court.
84. Supreme Administrative Court decisions, nos 1447–55, 15 May 1996; no
1603, 23 May 1996; nos 2860–71, 12 November 1997.
85. Ibid, para 7.
86. Ibid, para 6.1
87. Ibid, para 7
88. Signed by representatives of the Nisga’a Nation and British Columbia on 27
April 1999, and by Canada on 4 May 1999.
89. See Nisga’a Final Agreement, Chapters 8 and 9. Canada and British
Columbia retain responsibility for the conservation and management of
fisheries and fish habitat, although there is a joint management committee
with representatives of the Nisga’a, British Columbia and Canada.
90. See Nisga’a Final Agreement.
91. Peter Jull, ‘Negotiating Nationhood, Renegotiating Nationhood: Canada’s
Nunavut and Nunavut’s Canada’, Paper presented at the Rethinking
Indigenous Self-Determination Conference, Brisbane, Sept 2001.
92. Jull, op cit, at p. 15, citing Grimsson, OR, ‘The North: New Creative
Challenges for Creative Research’ President of Iceland speaking at
International Colloquium: The North, Edmonton, 27–28 May 2000, The
Northern Review (Canada) No 22, Winter 2000, 107–14.
93. Forrest, op cit, at p. 2
94. Human Rights and Equal Opportunity Commission Bringing Them Home:
Report of the National Inquiry into the Separation of Aboriginal and Torres
Strait Islander Children from their Families (Australian Government
Publishing Service, 1997) (frequently referred to as the ‘Stolen Generation
Report’).
275
Unfinished Constitutional Business?
95. Uhlmann A, ‘Law translating life and life translating law through stories:
Bringing Them Home and Benang by Kim Scott’ (2001) 15 The Australian
Feminist Law Journal 41–79, at p 42.
96. Patton P, ‘Reconciliation, Aboriginal Rights and Constitutional Paradox in
Australia’ (2001) 15 The Australian Feminist Law Journal 25–40, at p 26
97. See for example Patrick Dodson, ‘Address to the National Press Club’, 28
November 1997.
98. Patton P, op cit, at p 26.
99. Ibid., at p 36
100. Patton, op cit, at p 231
101. Korsmo, op cit, at p 163
102. Ibid.
103. Ibid at p 173
104. Svensson op cit, at p 363.
105. Augie Fleras, ‘Politicising Indigeneity’ in Havemann, Paul (ed) Indigenous
Peoples’ Rights in Australia, Canada and New Zealand (Oxford University
Press, 1999), pages 187–234
106. Patton, op cit, p 35, citing the US doctrine laid down in the Marshall
decisions: Johnson v McIntosh (1823) 8 Wheat 543; Cherokee Nation v
State of Georgia (1831) 5 Pet 1; Worcester v Georgia (1832) 6 Pet 515c
107. In reflecting upon this, it is worth recalling the comment of Gagnon about
territory: that it ‘…remains one of the rare areas within liberal democracies
where it is still possible to maintain representation and to demand political
accountability from political actors’. See A. Gagnon, ‘Quebec: The
Emergence of a Region-State’ Scottish Affairs (2001) 14–27 at 24 in Stephen
Tierney, (2005) ‘Reframing Sovereignty: sub-state national societies and
contemporary challenges to the nation state ‘International and Comparative
Law Quarterly p 161-83.
108. For example, following exhaustion of their attempts to have native title
recognised by the courts, the Yorta Yorta people were offered a political
‘solution’ in the form of territorial recognition by the Victorian State
Government.
109. The possibility of indigenous seats in the Queensland Parliament was subject
to an inquiry and public submissions between 2002-2004: see “Hands on
Parliament” and papers of the Legal, Constitutional and Administrative
Review Committee: www.parliament.qld.gov.au/committees/legalrev.htm.
While this was ultimately not proceeded with, there has been some progress
towards treaty possibilities—see Treaty by Sean Brennan, Larissa Behrendt,
Lisa Strelein and George Williams (Federation Press, Sydney, 2005).
110. Hicks J, and White G, ‘Nunavut: Inuit Self-Determination through a Land
Claim and Public Government?’ in Dahl J, Hicks J and Jull P (eds)
Nunavut—Inuit regain control of their lands and their lives, (International
Work Group for Indigenous Affairs, Copenhagen, 2000) at pages 30–115.
276
Conclusion: A Change Of Sovereignty—
During The Age of Empire
Barbara J Hocking
277
Unfinished Constitutional Business?
relationships with land according to their own laws and customs, which
are now recognisable by the common law as native title. Australia in
1788 therefore had been inhabited by sovereign peoples owning their
own lands in accordance with their own laws and customs—it had not
been unoccupied and unowned land (terra nullius) at the time of British
settlement but, on the contrary, a land with owners where there had to
have been a ‘change of sovereignty’ in 1788 (Mabo, per Brennan).
Under the rules of the common law, native title survived that change of
sovereignty until extinguished in accordance with the requirements of the
common law.
In all other settled colonies, treaties between Great Britain and the
prior inhabitants routinely accompanied the change of sovereignty, for
example in New Zealand, Canada, and the colonies of the future United
States. In these colonies, the territorial sovereignty that had changed was
not that between two internationally recognised nation states, it was the
territorial sovereignty between the Indigenous peoples, who were recog-
nised as having local sovereignty, and one such nation state.
In the Western Sahara case (1975), the International Court of Justice
advised that when sovereignty had changed in the absence of a treaty, a
treaty was to be implied. Implied terms in the treaty would then
accompany such a change of sovereignty; dealing it is suggested here with
matters such as the degree of autonomous self-government to be retained
by Indigenous communities, the recognition of their laws and customs by
the new sovereign, together with the recognition of the Indigenous native
title, and the cultural and other human rights acknowledged today by the
United Nations. It is important to understand for example that, unlike the
culture of a dominant society, the nature of Indigenous society is
communal, not individual, and native title is a concept of communal
ownership. Misunderstanding and denial of these differences amount to
today’s neo-racism, described by the United Nations as ethnocide. Thus it
can be seen that the so-called welfare trap in Indigenous communities is
being created and perpetuated by the dominant society, through its insis-
tence upon the payment of inappropriate individual welfare payments,
instead of such payments being made as a whole to a self-governing
Indigenous community.
The clash of cultures in these circumstances can have disastrous conse-
quences, arising here from the denial of the dominant Australian society
that the Indigenous community has a right to self-government—a right
that stems from its position as the initial founding sovereign of the
territory of Australia.
278
BJ Hocking
279
Index
280
Index
281
Unfinished Constitutional Business?
the WGDD, 15, 16, 17, 18, 20, colonialism, 4, 6, 38, 47, 191, 193,
21–3, 26 194, 198, 199, 202, 251, xv–xxiii;
canoe in Hawaiian history, 150 in Australia, 25, 32–3, 47–9, 63,
Cape Barren community (Tasmania), 66, 68, 70, 277; in North America,
90 171, 206; in Solomon Islands, 160,
Cape York Land Council, 57 163
Caribbean Community (CARICOM), commerce in Hawaii, 135, 137, 138
6 Commission on Human Rights
Caribbean land issues, 10 (CHR), 14–15, 19, 26, 27, xvii
cartel over biological diversity, 232–6, Committee of Public Safety (Hawaii),
239 140
CBD, see Convention on Biological common law, 82, 165, 218, 277, 278,
Diversity xvi; New Zealand, 124
Central Kalahari Game Reserve, 5 Commonwealth Association of
CERD, see Committee on the Indigenous Peoples (CAIP), 8,
Elimination of All Forms of Racial 11–12
Discrimination Commonwealth Development
Certificates of Origin on products Corporation, 167
utilising biological diversity, 236 Commonwealth Foundation, 8–9;
Charlottetown Accord, 177, 179, 188 report on the Indigenous peoples of
New Zealand, 9
Charter for Regional and Minority
Commonwealth Heads of
Languages, 259
Governments Meeting (CHOGM),
Charter of Rights and Freedoms
11, 12; Declarations, 6, 7, 8
(Canada), 177, 267
Commonwealth Health Ministers
Chávez, Hugo, 234, 245
Meeting, New Zealand, 2001, 10
Chavez, Luis-Enrique, 26
Commonwealth Human Rights
Chittagong Hill Tracts, 24
Initiative (CHRI), 8, 11
Christie, Nils, 211, 212
Commonwealth Inter-Governmental
CHRWG, see Commission on Human
Association, 8, 13
Rights Working Groups Commonwealth Law Ministers
circumpolar culture, 250 Meeting 2002, 10
citizenship, 13, 14, 38, 47, xviii; for Commonwealth Non-Government
Australian Indigenous people, Organisations, 8, 11, 12
48–64, 70, 82–3, 88; for Canadian Commonwealth of Nations, 1–31;
indigenous people, 182, 186; in lack of participation in Draft
Norfolk Island, 85–6 Declaration, 6, 17, 20, 29
civil disobedience campaign, 91 Commonwealth People’s
Clark, Geoff, 77 Communiquéę, 8, 12
Cleveland, Grover, US President, 141, Commonwealth Public Inquiry into
144 Access to Biological Resources in
climate change in Hawaii, 151 Commonwealth Areas, 243
Code of Ethical Practice for Commonwealth Secretariat, 7, 8,
Biotechnology in Queensland, 241, 9–10
243–4 Commonwealth Working Group on
collective rights, 1, 2, 6, 10, 16, 59, Traditional and Complementary
83, 107, 278; in Australia, 63, Health Systems, 10
64–5, 83; in international law, 11, communal decision-making, 56, 96,
16, 27–8, 29, 221, 236 139, 162, 193–4, 203–7
Collingwood Football Club, 82 communal sovereignty, 193, 194
282
Index
283
Unfinished Constitutional Business?
284
Index
285
Unfinished Constitutional Business?
286
Index
287
Unfinished Constitutional Business?
legal systems, Western, 159, 164–6, McArthur River Region Land Claim,
191, 199, 211, 213, 219, 222 38
legislative agreements, between New mediation process for resolving Maori
Zealand Crown and Maori tribes, disputes, 98–104
119, 120, 122–7; between states Meech Lake Accord, 177
and First Nations in North memory and remembering, 196; in
America, 129, 178; Nunavut, 180 native title claims, 34, 41–2
Lhukannguwarra Claim, 37–8 Merck, Inc, 243
liberal democratic ideals, 61, 62, 63, Merit Protection Agency, 69
66, 67, 70, 107 metaphysics, 195–8, 200–2, 204, 206,
Liliuokalani, Queen, 139, 140–1, 142 207
linguistic rights, 16, 29, 253, 258, Milirrpum V Nabalco Pty Ltd and the
259, 262 Commonwealth decision
local government powers and (Australia), 217
functions for Indigenous comm- military forces in Hawaii, 135, 137,
unities (proposed), 56, 89 140, 143, 151–3
Locke, John, 178 Miller, Loren, 238–9
logging on Saami lands, 263–4, 275 mineral rights, 65
mining, 5, 25, 34, 264–5
Mabo v. Queensland decision, 24, 82, missionaries in Hawaii, 135, 137,
138, 139
84, 249, 261–2, 267, 268, 277–8
Mixed Member Proportional repre-
Macdonald, Sir John A., 173
sentation (New Zealand), 111, 112
Maine, USA, Indigenous delegates,
Mohawk people at Kahnawake, 184
106, 108, 112–13
Mokuula, Hawaii, 147
majority rule, restraints for, 107, 116
Molgat-MacGuigan Committee, 175–6
Malaita Eagle Force, 166
moral rights, 190
Malawi, 7
Muir, Hilda, 39–40
Malaysia, 3, 10, 212; participation in
multi-nationalism in Canada, 175–8
WPDD, 16, 17, 20
Muotkatunturi Herdsmen’s Co-
Malu Aina Center for Non-violent operative, 263
Education and Action, 154 Murrii Magistrates Court
Mamaloni, Solomon, 167 (Queensland), 218
Manangoora Region Land Claim, 38 muru (Maori dispute resolution), 93–5
Maori Land Court, 93, 97–104
Maori language, 109 naming, 39
Maori people, 9, 23; dispute resolu- nation-building, 6, 47, 50, 124–5, 127
tion, 93–105; legislation for, 93, nation-building, Indigenous, 84–92
97–104, 218, 269; political repre- National Forestry Board (Finland),
sentation, 106–17; representatives, 263–4, 275
93–8, 99–104, 109, 110, 269; National Human Rights Institutions
social structures, 93, 96, 97, 103, (NHRI), 9–10
104 National Inquiry into the Separation
Maori seats in New Zealand of Aboriginal and Torres Strait
Parliament, 106, 108–12 Islander Children from their
Maori-State relations, 118–27 Families, 55–6, 268
Marshall I decision (Canada), 185, 186 National Park System of Costa Rica,
Marshall, Chief Justice John, 173 240
Material Transfer Agreements native title, in Australia, 24–5, 82, 83,
(MTAs), 231, 235, 244 88, 249, 261, 268, 277–8, xvi;
288
Index
289
Unfinished Constitutional Business?
290
Index
291
Unfinished Constitutional Business?
292
Index
293