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Unfinished Constitutional

Business?
Rethinking Indigenous
Self-determination

Edited by Barbara Ann Hocking


First published in 2005 by
Aboriginal Studies Press
for the Australian Institute of Aboriginal
and Torres Strait Islander Studies
GPO Box 553, Canberra, ACT 2601

Text © Barbara Ann Hocking in the collection


2005
Text © in individual chapters is held by the
contributor 2005

Apart from any fair dealing for the purpose


of private study, research and criticism or
review, as permitted under the Copyright Act
1968, no part of this publication may be
produced by any process whatsoever without
the written permission of the publisher.

National Library of Australia Cataloguing-In-


Publication data:
Unfinished constitutional business: rethinking
Aboriginal self-determination.
Includes index.
ISBN 0 85575 466 4.
1. Aboriginal Australians — Politics and
government. 2. Aboriginal Australians —
Legal status, laws, etc. 3. Self-determination,
National. 4. Aboriginal Australians —
Social conditions. I. Hocking, Barbara.
323.119915

Front cover illustration: ‘Returning’, Bronwyn


Maree Bancroft 2001. © Bronwyn Bancroft,
Licensed by VISCOPY, Australia, 2005

Designed and typeset by Aboriginal Studies Press


Printed in Australia by Ligare Pty Ltd

Publication of this book has been supported by


generous funding from the Australian Academy
of the Humanities.
Contents

The Politics of a Racist Game v


Preface vii
Acknowledgements x
Contributors xi
Introduction: Can Indigenous Peoples’ Experiences of xv
Colonisation Reshape our Constitutional Language?
Barbara Ann Hocking
1. ‘Indigenous Self-determination in the Commonwealth of 1
Nations Helen Whall
2. Self-determination or ‘Deep Colonising’: Land Claims, 32
Colonial Authority and Indigenous Representation
John Bradley and Kathryn Seton
3. Consensus and Sovereignty: Rethinking Policing in the Light 47
of Indigenous Self-determination Chris Cunneen
4. Patriarchal Whiteness, Self-determination and Indigenous 61
Women: The Invisibility of Structural Privilege and the
Visibility of Oppression Aileen Moreton-Robinson
5. Trust, Truth and Fatuity Philip Morrissey 74
6. Why Norfolk Island But Not Aborigines? Michael Mansell 82
7. Maori Legal Forum: Representation Issues and the Maori 93
Land Court Andrew Erueti
8. Indigenous Political Representation: Identified Parliamentary 106
Seats as a Form of Indigenous Self-determination
Catherine J Iorns Magallanes
9. Indigenous State Relations in Aotearoa/New Zealand: 118
A Contractual Approach to Self-determination
John Buick-Constable
10. Kanaka Maoli: Right of Self-determination Joshua Cooper 133
11. The Search for a More Appropriate Form of Government 159
in Solomon Islands Jennifer Corrin Care
12. Indigenous Self-determination. Is Canada As Good 170
As It Gets? Peter H. Russell
13. Indigeneity, Self-determination and Sovereignty Anne Waters 190
14. Indigenous Self-determination: Dispute Management 210
Cleopatra Magwaro
15. Sovereignty as a Trojan Horse: How the Convention on 228
Biological Diversity Morphs Biopiracy into Biofraud
Joseph Henry Vogel
16. Commenced Constitutional Business? Reflections on the 248
Contribution of the Saami Parliaments to Indigenous
Self-determination Barbara AS Hocking
Conclusion. ‘A Change Of Sovereignty’: During the Age of Empire 277
Barbara J Hocking
Index 280
The Politics of a Racist Game
Nicole Williams (1995)

I’m marred by your silence.


I’m haunted by your voice.
You speak to me of equity
and you say I have a choice.

A choice to do what?
To live a life in vain.
To live a life of oppression,
while all the time remaining sane.

We’re reeling from the side effects


of a not to pleasant time,
where your well-meaning attitudes
equate to an atrocious crime.

You separated my family.


You moved us all about.
Now you’re sitting wondering
why its us beginning to shout.

My family remains silent


afraid to speak aloud.
Worried about your answer
because you see they’re not feeling so proud.

It’s all about empowerment


about setting our people free.
We’re learning your terminology
and someday you will see.

You’re critical of some problems


like alcohol, health and such…
Or are you aware its something you started
and something you’re afraid to touch.

Yes, you’re ready to point that finger


always ready to put us down.
Yet it was you who raped and pillaged
and put on happy faces — an angry loathsome frown.

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.

Because in those lonely voices


there are children crying within,
trying to rationalise your thoughtless harmful sin.

The next time you point that bigotted finger


and are ready to stake your claim,
just stop and think and consider
your role in this frightening game.

My family are originally from Cairns in Far North Queensland. I am a


proud Indigenous woman. I have cultural connections to Ugar (Stephen
Island) in the Torres Strait, and to Djungan country north-west of Mareeba.
I have a commitment to ensuring that issues of social justice and
Indigenous autonomy are discussed and given ‘proper attention and
recognition.
I live in the hope that we will ‘get it right’ for our sake and the sake of
‘our’ collective children.
Nicole Williams

vi
Preface

Jean T Fournier

The majority of Indigenous peoples in the 21st century continue to exist


in what can only be described as shameful conditions. Social and economic
indicators all point to largely dysfunctional communities characterised by
high rates of poverty, unemployment, school dropout, ill-health, family
violence, substance abuse, suicide and incarceration. As well, the ability
of Indigenous communities to run their own affairs, by comparison with
the general population, remains severely restricted and constrained. I have
worked on Indigenous issues in Canada over the last thirty years and have
spent time in Alaska, Greenland, Lapland, Siberia and most recently,
Australia and the South Pacific. My experience has convinced me that the
end of domination and dependence and the achievement of real social and
economic equality are two objectives which Indigenous and non-Indigenous
peoples alike share broadly and profoundly desire. How do we get them?
How do we close the economic and social gap between the two groups?
Can Indigenous self-determination and self-government agreements produce
concrete benefits that will improve the lives of Indigenous peoples? How
can this excellent and comprehensive collection of essays contribute to
our journey, leading ultimately to the establishment of a new relationship
between Indigenous and non-Indigenous peoples?
After generations of neglect, remarkably, we are witnessing modest
improvements in the economic and cultural lives of Indigenous peoples.
Signs of this revival are found especially in countries and regions where
Indigenous peoples have acquired a measure of territorial autonomy, result-
ing in greater political involvement in running their own affairs in areas
such as health, education and business development. Increasingly, we are
hearing that the global push for Indigenous self-determination over the
past half-century is beginning to show positive results and is a key factor
in improving the lot of Indigenous peoples. But this book’s many contri-
butions are quick to point out that the new hope is fragile, progress is
uneven among countries and the larger picture remains bleak.
Whatever signs of hope there may be, life is still hard for the majority
of Indigenous peoples and change is slow. Simply put, there is no ‘quick’
fix on the road to Indigenous self-determination. Nor can ‘one size’ or
model of self-government fit all situations given the considerable differ-
ences between countries and among Indigenous peoples. Hundreds of years
of damage to the relationship must be repaired before Indigenous peoples
can take their rightful places. The process of renewing the relationship,

vii
Unfinished Constitutional Business?

sometimes referred to as ‘reconciliation’ must be pursued with justice and


generosity, with patience and tolerance, with determination and creativity,
and in a manner that replaces Indigenous anger and despair with self
respect and self reliance. As well, there must be broad public participa-
tion in defining a new relationship, and its terms must be understood and
accepted so that they are implemented in a positive spirit.
In this regard, there are lessons to be learned from the recent experi-
ence of countries such as Australia, Canada, New Zealand and the United
States. For example, dealing with sensitive issues of native title, resource-
revenue sharing and self-government has shown the importance of media
commentary in forming public opinion. Regrettably, we are now witness-
ing increased media criticism of government efforts to mend the relation-
ship, notably in Australia and Canada. According to one major newspaper
in Australia, the bipartisan support for the dismantling of ATSIC demon-
strated ‘that Australia’s experiment with self-determination had failed’.
The same newspaper carried a feature story that pronounced with satis-
faction that ‘Canadians teach us the folly of autonomy for Aboriginals’.
Similar, if negative statements about Indigenous issues can be found in
many popular newspapers.
History suggests that strong, sustained and bipartisan political leader-
ship at the highest levels is essential to fashion public opinion on Indigenous
rights issues and to contain extremist statements. In Canada, which I
know best, we have achieved the greatest progress in situations where
political leaders of different persuasions have joined together and actively
participated in shaping a broad native/non-native coalition in support of
Indigenous issues. Without such leadership, timely agreements would not
have been reached in the James Bay and Inuit areas of Northern Quebec,
the Yukon, Manitoba, the Western Arctic or in Nunavut. Peter Russell in
his essay aptly describes Nunavut—perhaps the best known Canadian
agreement—as ‘(coming) closer to satisfying the principle of Indigenous
self-determination than any other arrangement in Canada’. By compar-
ison, the Nishga agreement, the first modern treaty in British Columbia,
took over 30 years to conclude owing largely to the inability of successive
federal and provincial governments to find common ground.
However important, political leadership and media support are not
sufficient to achieve sustainable change. Governments are learning from
experience that a ‘whole-of-society’ approach is also required if Indigenous
programs and services are to deliver the benefits promised and self-govern-
ment agreements are to be successfully implemented. The active involve-
ment of all levels of government, the private sector and main-stream
institutions (notably health, education and police) are therefore indispen-
sable along with adequate levels of public funding. Finally, among the
lessons learned in Australia, Canada and other countries with similar
historic experiences, perhaps the most important lesson of all, is that
Indigenous peoples must have a major voice in running their own affairs,
rather than simply let others make arrangements, however generous, for

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

John Bradley is a senior lecturer in Anthropology at the Centre for


Australian Indigenous Studies, Monash University. <john.bradley@arts.
monash.edu.au>

John Buick-Constable is a solicitor with Linklaters, London and, form-


erly, was a solicitor with Bell Gully, Wellington, New Zealand. John’s
Master of Laws thesis explores, inter alia, how indigneous peoples’ claims
for self-determination may be addressed, at the international level, as
rights in international law and, at the domestic level, as politico-legal
arrangements with states. <john.buick-constable@linklaters.com>

Jennifer Corrin Care is Executive Director of Comparative Law in the


Centre for Public, International and Comparative Law and Senior
Lecturer at the TC Beirne School of Law, University of Queensland. She
was formerly an Associate Professor in the School of Law at the University
of the South Pacific, having joined the Faculty after nine years in her own
legal firm in the Solomon Islands. <j.care@law.uq.edu.au>

Joshua Cooper is a PhD candidate (ABD) in Political Science at the


University of Hawaii at Manoa. He is also a lecturer in Political Science,
Journalism, Peace Studies and International Human Rights Law at UH
West Oahu, Maui Community College, Leeward Community College,
Kapiolani Community College and Hawaii Pacific University. He lectures
at the University of Tulsa in Geneva, Switzerland and the David A. Clarke
School of Law, University of the District of Columbia. He is the founding
director of the Hawaii Institute for Human Rights. He serves as co-chair
of Amnesty International's Indigenous Peoples Task Force, and is a
national board member of Peace Action. <joshua@hawaii.edu>

Chris Cunneen is a Professor at the University of Sydney Law School


teaching criminology. He is also the Director of the Institute of Criminology
at the University of Sydney. <chriscu@law.usyd. edu.au>

Andrew Erueti is a lecturer at the Faculty of Law, Victoria University,


Wellington, New Zealand. He teaches and writes in the areas of Maori
customary law, land law and comparative Indigenous rights (with a focus

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>

Jean T. Fournier is a senior official of the Government of Canada. He


worked for several years in the department of Indian and Northern
Affairs where he set up the Office of Native Claims, and later became
Executive Director of the Royal Commission on Aboriginal Peoples. He
was Canada’s High Commissioner to Australia from 2000–2004, during
which time he strongly supported the establishment of the 'Federation
Dialogues' series by the Association of Canadian Studies in Australia and
new Zealand (ACSANZ). In late 2004, Mr. Fournier returned to Ottawa
and in 2005 he was appointed Canada’s first Senate Ethics Officer for a
term of seven years.

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>

Barbara Joyce Hocking is a retired Melbourne barrister. Her Masters’


thesis ‘Native Title in the Common Law’ (Monash University 1970) was
followed by a series of seminal articles on Aboriginal land ownership in
Australia. In 1981, she was the first barrister briefed in the Mabo case.
She was the legal advisor to the Aboriginal Treaty Committee led by
‘Nugget’ Coombs and Judith Wright in the 1980s. She was awarded the
Australian Human Rights Medal in 1992, together with the Distinguished
Alumni Monash University Inaugural Award in 1993. <barbhocking@
bigpond.com>

Catherine Iorns Magallanes is a Senior Lecturer in the School of Law at


Victoria University of Wellington, New Zealand. She has been researching
and teaching in the area of international and comparative Indigenous
rights since 1991, in Australia, New Zealand/Aotearoa and the United
States. <cathy.iorns@vuw.ac.nz>

Cleopatra Magwaro has worked as an academic at the Faculty of Law,


Queensland University of Technology where she pursued her undergrad-
uate studies. While in Brisbane, Magwaro was an active member of the

xii
Contributors

International Commission of Jurists (Queensland Branch) and was


awarded the Toni Dick Prize in recognition of her community service.
<c2.magwaro@quit.edu.au>

Michael Mansell is currently with the Aboriginal Legal Service of Tasmania.

Aileen Moreton-Robinson is a Geonpul woman from Quandamooka


(Moreton Bay). Previous to her appointment as Australian Research
Council Postdoctoral Fellow, she taught Indigenous studies at Griffith
University in Brisbane and Women's Studies at Flinders University in
Adelaide. She is President of the Australian Critical Race and Whiteness
Studies Association. <a.moretonrobinson@uq.edu.au>

Philip Morrissey teaches in the Department of English at the University of


Melbourne. <philipjm@unimelb.edu.au>

Peter Russell taught political science at the University of Toronto from


1958 until his retirement from full-time teaching in 1996. He was made
a University Professor at the University of Toronto in 1992. Professor
Russell has served as President of the Canadian Political Science Associ-
ation and the Canadian Law & Society Association. He was the Director
of Research for the Royal Commission on Certain Activities of the RCMP
and chaired the Research Advisory Committee for the Royal Commission
on Aboriginal Peoples. In 1998 he was appointed Canada’s Envoy to the
Deh Cho Dene in the Mackenzie Valley of the Northwest Territories. He
is an Officer of the Order of Canada and a Fellow of the Royal Society
of Canada. <phruss@aol.com>

Kathryn Seton is currently an anthropology postgraduate student at the


University of Queensland undertaking an investigation into land claim
processes, outcomes and future management issues (with a particular
focus on women). She has studied, published and lectured in the areas of
Indigenous issues, gender and development/management issues. <kathy-
seton@anthropologyprojects.com>

Joseph Henry Vogel teaches at the Department of Economics at the


University of Puerto Rico. From 1994 to 2003, he was a professor of
economics at the Facultad Latinoamericana de Ciencias Sociales in Quito
Ecuador, and earlier, a Fulbright Scholar in Brazil and a Research Fellow
in Australia. He has published widely on the economics of biodiversity.
<josephvogel@usa.net>

Anne Waters is of Seminole, Choctaw, Chickasaw, Cherokee, and Jewish


descent. She holds four graduate degrees (two doctorates) and is a
philosopher, poet, and lawyer. <docwaters92@earthlink.net>

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?

Barbara Ann Hocking

There would be few places on earth which could illustrate more


clearly the growing fellowship of Indigenous peoples than Geneva
airport a day before the gathering of the Working Group on
Indigenous Populations (WGIP). Far from their homelands, Indian
leaders in their multicoloured, wool-woven costumes from the
mountains of Peru, converse with leather and turquoise-beaded, or
western-suited leaders from the United States, Canada, Australia,
and New Zealand. (Hazlehurst 1995)

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

in particular (Bartolomei et al 1999). Modern comparative law method


uses a functional approach, aimed at finding similarities and convergence,
not in the technical rules of law, but in the solutions to particular legal
problems. Comparative legal analysis illuminates similarities and differ-
ences across legislative and ethical policies, both on the national and
international level and illustrates how closely law is conn-ected with the
culture or experience of a given community (van Erp 1998).
For the Australian Indigenous people the experience was one where,
briefly, their status was above that of the convicts transported to their
shores. That situation was however rapidly transgressed as disease,
wars and land and resource prospecting, reinforced by dramatic assimila-
tion policies, decimated their families, communities and their languages.
The Australian Indigenous experience was comparable with that of the
Maori in New Zealand, the Indians and Inuit of the continent of North
America, and the Indigenous peoples of British settled colonies in Africa.
Constitutionally, however the Australian experience differed from that in
New Zealand where the Treaty of Waitangi provided some recognition
of the political reality of the Maori people. Southern Rhodesia (now
Zimbabwe) was an exception to the classification of settled colonies. It
was classed as a conquered colony, although inhabited by indigenous
peoples soon dispossessed by white English settlers. Theoretical argument
raged for many years as to whether the British colonies of the Americas
had been conquered or settled and, strangely, New Zealand was not
considered conquered despite the Maori wars. With the exception of
Australia, the intricacies of the constitutional debates differed but the
constitutional issues were raised, at least in part, and not neglected. The
social legacy of colonialism in all these countries is also similar.
Havemann, for example, pointed to the distribution of benefits to
the colonists and the ‘immiseration’ of Canadian indigenous peoples.
Such observations are echoed in Australia where it has been claimed that
the ‘colonial mentality’ persists despite the recognition of native title by
the High Court. In his many writings, Russell explores the ways in which
Australia, as demonstrated by the High Court decision in Yorta Yorta,
continues to exclude Indigenous peoples from common law developments
in native title (Russell 2005). Comparisons across the countries examined
in this book illuminate the ebb and flow of Indigenous self-determination
and their shared and dissimilar experiences of colonialism and what some
consider post-colonialism. It is not necessary for the purposes of that
comparison that the countries in our book be similar: it is the shared
experiences that preoccupy our contributors in their individual analyses
of Indigenous self-determination and their search for ‘the nature of the
political community on which the constitution is based’ (Russell 2005).
So, to take just one point of difference, the extreme affluence and
advanced democratic status of some of the countries included in our
collection does not complicate the confrontation with the impact of

xvi
BA Hocking

colonialism on the part of those wealthier nations, such as Canada and


Australia. There is little justification for that affluence and democratic
advantage of the majority population muddying the post-colonial waters.
Bill Ashcroft takes that form of denial to task in this way:

One of the most tenacious controversies in post-colonial criticism


continues to be the argument about whether all the different forms
of colonized societies can truly be called ‘post-colonial’. For
societies such as those in Africa and the Caribbean the situation is
very clear, as it is perhaps for South Asia or, say, Melanesia. But for
colonies formed by invasion and settlement a post-colonial status
seems, to many commentators (although they wouldn’t put it this
way), to be somehow refuted by subsequent economic develop-
ment. I think that this implicit equation of post-coloniality with
Gross National Product is a very dangerous position, for it
completely obscures the real and persistent nature of cultural
imperialism. Two regions which seem ideal for reviewing this
question, because they appear so totally different, are Africa and
Australia (Ashcroft 1994).

The purpose of Helena Whall’s paper is to analyse the process of


consensus building on the issue of Indigenous self-determination, one of
the most difficult and sensitive issues in the Draft Declaration, specifically
at the sixth session of the United Nations Working Group of the
Commission on Human Rights on the Draft Declaration (2000), and
examine the role played by member states of the Commonwealth of
Nations in this process. Whall argues that a handful of prominent Common-
wealth member states are at the forefront of the opposition to the
inclusion of Article 3 in the Draft Declaration, as currently drafted, which
deals with the right of self-determination, and are thereby playing a vital
role in obstructing the adoption of the Draft Declaration. While the
adoption of the Draft Declaration will be important, since it will provide
Indigenous peoples with a mandate to take states parties to task if they
fail to uphold its principles, it is just one aspect of a larger process taking
place at the international, national and local level, by which Indigenous
peoples are finally beginning to secure their rights.
John Bradley and Kathryn Seton’s chapter focuses on the Aboriginal
Land Rights (Northern Territory) Act 1976, and they acknowledge that
legislation can assist Indigenous people greatly in pursuing their rights to
ancestral lands. They look beyond the law to contend that this legislation,
in itself, cannot be seen to be beyond critique, and whilst Indigenous
people use this legislation to try and achieve the return of their country,
the practical administration of the Act is a powerful and eclectic blend of
anthropology, European law, and Indigenous, State and Federal
Government bureaucracies. Bradley and Seton provide an overview of the

xvii
Introduction

Northern Territory legislation and discusses aspects of its application in


the field through the use of two land claim case studies and the types
of issues that confront Indigenous people when they engage with this
legislation.
Chris Cunneen’s chapter links a number of themes together such as
citizenship, self-determination and sovereignty to explore the issue of
policing in regards to Indigenous people. It is particularly concerned with
the intersections between policing and the concepts of sovereignty and
Indigenous self-determination. He advances the argument that policing as
a state activity was fundamentally caught within the broader processes
of colonisation. As a result, the contemporary demands for Indigenous
self-determination will necessarily involve a decolonisation of existing
institutions like policing. The historical movement from legislated racial
discrimination to assimilation and formal equality before the law changed
the nature of policing Indigenous peoples, lead to a prolonged period
of criminalisation and new forms of racialisation. In all the major
Indigenous discussions on this issue over the last two decades, the right to
develop and maintain institutions of Indigenous law, order and policing
have been central. Ultimately, continued Indigenous resistance to colonial
power and the assertion of alternative forms of governance provide us
with the broader opportunity to re-think the institution of policing and
its relationship with processes of decolonisation.
Aileen Moreton-Robinson ‘recasts the feminist standpoint theory by
looking at the Indigenous women’s position, which is different from that
of the white feminist, as it also is based on oppression’ (Foley 2003). The
aim in bringing together Indigenous women and whiteness is to illustrate
how the relationship between white race privilege and racial oppression
operates to circumscribe Indigenous women’s self-determination. Moreton-
Robinson’s key point is that racialised power relations are rarely discussed
in relation to self-determination.
Philip Morrissey also provides Indigenous perspectives on self-determi-
nation and sovereignty and focuses on the ways that institutions mask
colonialist racism while at the same time appearing to address and protect
indigenous rights. Since this chapter was written, ATSIC has been abolished,
but the political issues surrounding its existence and demise, and the
political representation and participation of Australian Indigenous people
remain perennial.
Michael Mansell outlines the sovereignty of Norfolk Island, deter-
mined long ago and respected to this day. Concepts of sovereignty and
self-determination are not concrete: they are capable of development
depending on the political context. The Norfolk Island model, while
currently being revisited by some residents, has provided the people of the
island with the independence to develop their own unique customs and
culture, an independence still denied to many Indigenous Australians

xviii
BA Hocking

whether they live in urban areas or remote communities. Mansell’s key


point, however, is that we need to know if the debate will be heard.
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.
Andrew Erueti 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.
Catherine Iorns Magallanes’s chapter provides comparisons of aspects
of political self-determination in New Zealand, and illustrates how different
indigenous peoples might devise different systems of separate indigenous
political representation to accord with their different visions of self-deter-
mination. Magallanes contends that it is necessary to take a wider
perspective on indigenous self-determination than temporary political
imperatives provide. She makes it clear that separate political representa-
tion can be used as an effective tool to achieve indigenous self-determina-
tion in Australia, but that a vision of Indigenous self-determination and
what it entails in Australia must be agreed upon first.
John Buick-Constable’s chapter provides the politico-legal backdrop to
the debates on issues of indigenous self-determination in New Zealand.
He explores the historical and contemporary attempts to address these
issues in New Zealand through what is identified as a ‘contractualist’
approach to indigenous self-determination. From this perspective, the
history of relations between indigenous Maori and the New Zealand state
can be understood properly as that of a contractual relationship. Buick-
Constable emphasises that, because of the original treaty-based relation-
ship and through contemporary domestic legislative agreements, certain
Maori tribes and peoples have had grievances recognised and achieved
measures of sovereignty and justice in their pursuit of self-determination.
Joshua Cooper’s chapter provides an historical overview of the Kanaka
Maoli in Hawaii and the way they are using self-determination to assert
their rights to land and their right to continue their cultural practices
through ecology. This has been a difficult situation in the light of the
onslaught of tourism and the USA military bases on Kanaka Maoli land.
The chapter therefore deals with the non-violent struggle for the human
rights of Kanaka Maoli; a struggle which continues daily, as it has for the
previous two centuries—in the legislature, legal system and everyday
living in Hawaii. Cooper asserts that the main challenges to traditional
protocol and politics continue to be colonisation, militarisation and

xix
Introduction

corporate globalisation threatening the cultural survival of the Indigenous


peoples of Hawaii.
Jennifer Corrin Care’s chapter turns to Solomon Islands, which has
been thwart with more overt conflict than Hawaii, despite gaining its
independence in July 1978, with a Constitution framed to incorporate ideals
of national unity and parliamentary democracy. As Care’s chapter makes
clear, the reality is that these introduced ideals have little resonance in a
country where tribal allegiances run far deeper than political affiliations.
Care adds an historical perspective to the earlier research, examining the
governmental arrangements from the time Solomon Islands became a British
Protectorate. She includes comments on provincial govern-ment and
updates the research to include developments in late 2002 and early 2003,
including the Malaita Province Autonomy Bill 2002.
Since this chapter was written, there have been several developments,
the most dramatic of which is the arrival of ‘RAMSI’, the Regional
Assistance Mission to Solomon Islands. The paper has been updated to
make mention of recent events, but does not include any detailed analysis
of them. These developments do not detract from the arguments put
forward in this paper; if anything the danger of introducing solutions
without proper reference to local circumstances and norms has become
more acute since Solomon Islands has been forced to accept outside assis-
tance to solve its problems.
In Peter Russell’s view, a new kind of constitutionalism has been emerging
in Canada that is more pluralist and human-rights oriented than the
classic liberal constitutionalism that was so influential at the time of
Australia’s founding. Michael Ignatieff shares this view, arguing that:
‘Canada has moved away from a constitutional debate dominated by
governments and first ministers to a system of constitutional renewal driven
essentially by citizens, interest groups, and nations.’
Those nations are the Indigenous people: the Inuit nations of Canada.
And in Russell’s view, despite a ‘back-lash’ movement led by Conservative
political forces, indigenous peoples in Canada, since 2001, have been able
to consolidate gains and move forward on a number of fronts. On 19
April 2004, just a few days after Australia’s Prime Minister John Howard
announced the dismantling of ATSIC, Canada’s new Prime Minister, Paul
Martin, in a nationally televised meeting with Aboriginal leaders promised
to make Aboriginal affairs a priority of his administration and to abandon
the Liberal government’s previous plans to impose legislative changes on
Indigenous communities. Russell maintains that, the progress that has
been made in Canada over the last three years in preserving past gains
and advancing Indigenous self-determination has come about mainly
through Indigenous peoples making effective use of their own political
resources.

xx
BA Hocking

Canada’s northern neighbour the United States also provides us with


perspectives on and experiences surrounding Indigenous self-determina-
tion. Anne Waters’s chapter attempts to provide a philosophical analysis
of decolonization, Indigenous identity, self-determination and sover-
eignty. Waters also attempts to provide a Native American perspective of
these largely western terms and concepts. She tries to find a balance
between the individual Native American and the collective Native
American groups. The chapter reminds us of the need to be aware of
language and the ways in which philosophical understandings of identity
vary depending on one’s own personal and cultural experiences.
Common to many of the contributions here about former colonies, we
see in the Nordic nations of Norway, Sweden and Finland the extent to
which migratory Indigenous people have also suffered from relatively
recent impositions of political borders. Like Indigenous peoples in
Australia, Canada, and New Zealand, the Saami constitute a visible
minority—and a very small minority—and have confronted similar
experiences of dislocation of family and destruction of their livelihoods
and resources.
To understand self-determination for the Saami people, one must
recognise that their culture has traditionally been based to a large extent
in reindeer herding even though many in the population no longer live
from this activity. However, the specific constitutional form that recogni-
tion of their evolving culture takes is also contingent upon the history of
each of the nation states and the largesse of the governing Parliament. In
the case of the Nordic countries, the most known vehicle of self-determi-
nation has been the Saami Parliament The agenda of such Indigenous
Parliaments reflects both the specific borders within which they were
created as well as the international dimensions of the Indigenous
movement. Perhaps reflecting the larger number of Saami citizens,
Norway alone ratified Convention # 169 concerning Indigenous and Tribal
peoples in Independent Countries. As promising as such developments
appear in Norway, self-determination is nevertheless limited by the
absence of clear land titles; and disputes are ongoing as to the extent of
the recognition of traditional reindeer herding. There were recently
serious contentions over the proposed Finnmark Act, which it was
claimed fell well short of Norway’s obligations under the ILO
Convention. In neighbouring Sweden, issues persist as to recognition of
the Saami, particularly in the context of capacity to vote for the Saami
Parliament. An enhanced constitutional capacity may be presaged,
however, with the long-standing and only recently re-activated proposals
for a Nordic Saami Convention, which is expected to draw to a large
extent upon the obligations of the ILO Convention.

xxi
Introduction

Cleopatra Magwaro investigates the impact that international human


rights law should have within the legal dynamics of Indigenous commu-
nities generally. She examines the main aspects behind safeguarding
Indigenous dispute management systems, and illustrates why Indigenous
methods of managing disputes should be internationally guaranteed so
that communities can retain their cultural identity whilst administering
and managing their own disputes.
Unfinished Constitutional Business? aims to get us thinking about
Indigenous self-determination within the specific realities (some would
say confines) of our Australian political and constitutional system
(Pengelley 1998). Given we are currently re-engaging vigorously with the
Bill of Rights debate, particularly in the light of our political and legal
responses to the so-called ‘war on terror’ and to the concentration of
federal government power following the 2005 election (Williams 2005) it
is timely to reflect upon the wide-ranging constitutional and human rights
debates unfolding in Australia, as well as those elsewhere that may be of
relevance to or influence in Australia (Tierney 2005). In many of the
chapters in this book we witness a consideration, in other nations, of
Justice Brennan’s pronouncement in Mabo No. 2 that:

‘…the expectations of the international community accord with


the contemporary values of the Australian people to require that
any interpretation of this power which would be adverse to
Aborigines and Torres Strait Islanders is no longer acceptable.’
(Mabo v Queensland)

Where is Australia in this debate about Indigenous rights and the


expectations of the international community? How will Australia work
towards ‘better constitutional accommodation’ (Tierney 2005) in a global
environment where it has been suggested that ‘the old constitutional
categories are losing their meaning’? (Keating 2001).

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.

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BA Hocking

Mabo v Queensland [No 2], 175 CLR 1 at 42 per Brennan J.


Nettheim G, GD Meyers and D Craig 2002, Indigenous Peoples and Governance
Structures: A Comparative Analysis of Land and Resource Management
Rights, Aboriginal Studies Press, AIATSIS.
Pengelley N 1998, The Hindmarsh Island Bridge Act: Must laws based on the race
power be for the ‘benefit’ of Aborigines and Torres Strait Islanders? And what
has bridge building got to do with the race power anyway? Sydney Law
Review, http://www.austlii.edu.au/au/journals/SydLRev/1998/6.html.
Russell P 2005, Recognizing Aboriginal title. The Mabo Case and Indigenous
resistance to English–settler colonialism, University of Toronto Press, Ontario.
Tierney S 2005, Reframing sovereignty: sub-state national societies and contem-
porary challenges to the nation state, International and Comparative Law
Quarterly p 161–83.
Van Erp JHM 1998, European private law: postmodern dilemmas and choices
towards a method of adequate comparative legal analysis, Electronic Journal
of Comparative Law 3.1.
Williams G 2005, Balancing national security and human rights: lessons from
Australia, Fulbright Public Lecture, University of Melbourne, 21 June 2005.

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?

Yet many states, including Commonwealth countries, have consistently


refused to acknowledge that this right extends to Indigenous peoples. This
paper asks, why Indigenous peoples, of all peoples, should be excluded from
enjoying this right?4
Many Commonwealth states are reluctant to acknowledge the right of
Indigenous peoples to self-determination. This reluctance stems in part
from a fear that recognition of the right of self-determination for Indig-
enous peoples could endorse secession. This could have implications for
ethnic minorities claiming independence on the basis of self-determina-
tion. A denial by Governments of this right, could also promote conflict
between such groups and the state. Moreover, states are concerned that if
the definition of Indigenous peoples were merely based on self-identifica-
tion, as currently drafted in Article 8 of the Draft Declaration, the prin-
ciple of self-determination would become a blank cheque, thus enabling any
group which sees itself as ‘Indigenous’ to claim Indigenous rights.5
Such concerns are routinely expressed by Governments at the Working
Group and each time they are met with reassurances from Indigenous
peoples that these fears are unfounded. For the majority of Indigenous
peoples in the Commonwealth, and indeed for many outside of the
Commonwealth, self-determination is not about separatism, but auto-
nomy or self-government.
Indigenous representatives at the Working Group have reiterated why
self-determination matters to Indigenous peoples:

There can be no doubt that we are peoples, with distinct collective


rights and distinct historical, political, social, cultural and spiritual
identities that unite us. It is through the collective exercise of our
right to self-determination that our languages, laws, values, customs,
practices, traditions and institutions are maintained and manifest
themselves. Our very identity as indigenous peoples is shaped by
the dynamic balance between and linkage of our collective and
individual rights. Exercise of our collective rights is not only critical
to indigenous spirituality, but also to maintaining the inter-genera-
tional nature of all of our social, cultural, economic, and political
rights. We recognise and applaud those states that have given their
unequivocal support for our collective rights…To omit or deny our
collective rights in the draft Declaration would serve to severely
undermine our most basic rights and status, as well as our integrity
as indigenous peoples. It would contribute to the dispossession,
exploitation, cultural genocide and genocide of indigenous
peoples.6

For most Indigenous peoples, self-determination is a pre-requisite for


the exercise of their spiritual, social, cultural, economic and political
rights, as well as their practical survival.

2
Whall

Indigenous self-determination is about ensuring good democratic


governance that requires responsiveness by the state and participation in
the state, both planks in the Indigenous self-determination case and
generally agreed by all governments as elements of good governance. The
debate on Indigenous self-determination at the United Nations and other
international fora is about how the balance can be struck between state
or national self-determination and Indigenous self-determination, with-
out over privileging the state. This new paradigm requires a big shift and
it is the progress towards this change in perception amongst Common-
wealth states that is traced in this paper.
In conceptualising the notion of self-determination, this chapter utilises
the work of Howard Berman and the International Work Group for
Indigenous Affairs (IWGIA).7
Some Commonwealth states have found ways of achieving this
balance. A good example can be found in the establishment of Nunavut
in Canada, where the Indigenous Inuit have attained self-government as
a territory within a federal system. This is an expression of Indigenous
self-determination, though within the confines of a state.
For Indigenous peoples, the right to self-determination is the corner-
stone of the Draft Declaration, without which many of the other articles
of the Draft Declaration would have little meaning. After a decade of
deliberations, however, there has been no consensus on Article 3. It is the
failure of states to agree on the principle of self-determination that has
stymied the adoption process.
This chapter consists of several sections that make a case for the
Commonwealth’s interest and position on Indigenous rights, examine the
evolution of the Draft Declaration, with emphasis on the principle of self-
determination, and outline the positions of the Commonwealth govern-
ments on the Draft Declaration. The core of the chapter is an analysis of
the debate on self-determination at the WGDD in 2000, focusing on the
interventions of the Indigenous delegates and Commonwealth govern-
ments. The chapter concludes by looking at the possibility of consensus
on the principle of self-determination and urges the Commonwealth of
Nations to adopt Article 3 of the Draft Declaration as formulated.

1. A case for Commonwealth interest in Indigenous Rights


The United Nations estimates that there are currently about 300 million
Indigenous peoples living in more than 70 countries, of whom approxi-
mately 150 million live in Commonwealth countries. Yet wherever they
may live, in an industrialised country or a developing one, from the
Aboriginal and Torres Strait Islander people in Australia to the
Amerindians in Belize, from the Jummas in Bangladesh to the Inuit in
Canada, and from the Adivasis in India to the Orang Asli in Malaysia,
Indigenous peoples are routinely marginalised, in social, economic,
cultural and political terms, and discriminated against.

3
Unfinished Constitutional Business?

The Commonwealth of Nations has a responsibility to recognise and


protect the right of Indigenous peoples to self-determination. This is
unfinished business for an association built on the national independence
that replaced an empire. In other circumstances, such Indigenous peoples
might have had recognised statehood. Instead, they are frequently disem-
powered and subjected to discrimination with regard to jobs, education,
welfare, culture, and language and especially in relation to their land
rights. Some Indigenous groups were subordinated prior to colonialism,
many suffered under colonialism, and others have been repressed by
intolerant versions of national development since independence. Many
Commonwealth countries have not treated their Indigenous peoples fairly
or justly.
While the Commonwealth of Nations as an association is the direct
legacy of the process of decolonisation, today, many of its fifty-four
member states, which were themselves the beneficiaries of the right to
self-determination, deny Indigenous peoples within their borders the right
to self-determination. Many of these post-colonial borders were arbitrarily
drawn, cutting across areas traditionally occupied by Indigenous peoples.
The persistent refusal of many Commonwealth states to acknowledge the
unqualified right of self-determination for Indigenous peoples has signif-
icant negative consequences across a range of areas that directly affect the
lives and well-being of Indigenous peoples from control over resources to
community involvement in the planning and delivery of health, welfare,
and education services.
Fundamental to the issue of self-determination is the right of Indig-
enous peoples to be consulted about all matters directly affecting them on
the basis of their right to give or withhold their informed consent.
Indigenous peoples are often marginalised by developments on their own
lands and regularly suffer severe environmental, social and economic
disruption from developments, which benefit others. Without effective
control over proposed developments, native title and land rights remain
meaningless.
The right of informed consent is an emergent rule of international law.
A strong link is being established between the right of self-determination
for Indigenous peoples and control over land and resources. This linkage
is seen in the International Labour Organisation Convention 169
Concerning Tribal and Indigenous Peoples. Articles 14 and 15 of this
Convention provide a significant level of protection of Indigenous rights
in respect of possession, use and management of Indigenous territories
and their resources. When these articles are read in conjunction with
article 6(2) of ILO 169 (requiring consultations to be undertaken in good
faith with the objective of achieving agreement or consent), they provide
a level of protection leading to the requirement of informed consent. The
jurisprudence of the Human Rights Committee under articles 1(2) and
27 of the ICCPR is also supportive of the right. The Committee on the

4
Whall

Elimination of All Forms of Racial Discrimination (CERD), in its General


Recommendation XXIII, 1997, has also emphasised the importance of
ensuring that members of Indigenous peoples have equal rights in
respect of effective participation in public life, and that no decisions
directly relating to their rights and interests are taken without their
informed consent.
All Indigenous peoples have a strong relationship with their land. They
are dependent on their lands, not only for their social and economic
needs, but also for their spiritual and cultural survival. Nevertheless,
many Commonwealth states have used different mechanisms to take
lands away from Indigenous peoples. These include: development projects
such as building roads (for example, Guyanese Amerindians struggled
hard to stop the construction of a road through the centre of their tradi-
tional lands); the construction of dams (most of the dams in India, over
3,000, are located in Adivasi/tribal areas); the construction of oil
pipelines (the Bagyeli in the Cameroon are fiercely opposing the construc-
tion of an oil pipeline that will cut through their ancestral lands); defor-
estation programmes (the Ogiek are challenging the Kenyan government
over the theft and destruction of their forest homelands); afforestation
programmes and the creation of natural parks (the Basarwa/San and
Bakgalagadi peoples in Botswana have been evicted from the Central
Kalahari Game Reserve to make way for conservation and tourism; and
mining and processing projects (the tribal people in the Rayagada district
of Southern Orissa, India, have met with violent deaths in their opposi-
tion to the mining and processing of bauxite in their traditional homelands.
What is apparent is that many such programmes are aimed at
‘national’ development, yet are carried out to the detriment of Indigenous
peoples. It is rare that any of these programmes benefit local Indigenous
peoples, yet they always have to pay the costs, which are often high in
both economic and social terms.
As land is their main source of income and livelihood, this contin-
uing erosion of land rights is the major cause of the current impoverish-
ment of Indigenous peoples. In most Commonwealth countries where
Indigenous peoples are in the minority, they are among the poorest and
most disadvantaged segment of the national population, with the lowest
levels of education, income, poor housing, and with problems in health
and sanitation.
Commonwealth governments need to acknowledge, accept and enshrine
the principle that Indigenous peoples have a right to determine their own
futures and circumstances, and that decisions taken which affect them,
should only proceed on the basis of effective participation in the decision-
making process and on the basis of the informed consent of the peoples
concerned. Indeed, this principle already forms part of international law;
the principle is integral to the development policies of the European
Union and the World Bank.

5
Unfinished Constitutional Business?

The United Nations WGDD provides an avenue through which


Commonwealth member states could promote and protect the right to
self-determination of Indigenous peoples. However, few Commonwealth
member states are actively participating in the Draft Declaration adop-
tion process. This is despite the fact that many Commonwealth countries
have large Indigenous populations; India alone has a population of 80
million Indigenous Adivasis/tribal people. Moreover, many of those
Commonwealth states that are making interventions on the issue of collec-
tive rights are actively obstructing the adoption of Article 3 on self-deter-
mination, as currently drafted.
The reluctance of many Commonwealth states to engage in the delib-
erations on the issue of Indigenous rights at the UN has to be due, in part,
to the fact that many Commonwealth governments that came to power at
independence have tended to stress cohesive nation-building, at the
expense of the recognition of ethnic or other differences. They have also
been committed to the retention of colonial boundaries which, particu-
larly in Africa, had cut through the traditional territories of Indigenous
and other ethnic groups.
In this paper, it is argued that the Commonwealth has a particular
historical and moral responsibility to recognise and protect the right of
Indigenous peoples to self-determination. With a third of the world’s
states members of the Commonwealth, the association can be a signifi-
cant player on the world stage and has the potential to influence interna-
tional opinion.
In the Commonwealth Declaration of the Commonwealth Heads of
Governments Meeting (CHOGM) in Lusaka in 1979, the Common
wealth made a commitment to pay ‘special attention’ to ‘indigenous
minorities’ and to make ‘special provisions’ for ‘indigenous populations’.8
However, the Commonwealth has not held to this commitment. The
capital Harare Commonwealth Declaration, 1991, which commits member
states to protecting and promoting human rights, did not include any
reference to Indigenous rights. Today, the Commonwealth is one of the
last international organisations to recognise and accept responsibility for
the protection of Indigenous peoples. While other major international
organisations such as the United Nations, the European Union, the Inter-
national Labour Organisation, the Caribbean Community (CARICOM),
and the Organisation of American States have been working hard to
define and protect Indigenous peoples’ rights, cultures and habitats, the
Common-wealth has remained apparently oblivious to the situation of its
most vulnerable citizens. This is the case despite the fact that many of the
problems facing Indigenous peoples today are the direct result of colonial-
ism. It is argued in this paper that it is time that the Commonwealth had
an explicit position with regard to Indigenous peoples.
There is currently no Commonwealth consensus or policy as such
on the rights of Indigenous peoples. It is left up to each Commonwealth

6
Whall

Government to deal with Indigenous people’s issues in the context of their


national policies. While the association expects, of course, that such
policies would be consistent with the Commonwealth’s fundamental
political values, as expressed in the Harare Declaration, 1991, this is not
always the case.
The policies of individual Commonwealth states should also be consis-
tent with principles of international law on the rights of Indigenous peoples.
The jurisprudence of the UN’s human rights treaty bodies, such as the
Human Rights Committee and the Committee on Economic, Social and
Cultural Rights, is an example of international law relating to Indigenous
peoples with which Commonwealth states should adhere. Nor is
Commonwealth actively cooperating with the efforts of other interna-
tional organisations, like the United Nations and International Labour
Organisation, when it could utilise its goodwill and educational network
to co-ordinate greater understanding of Indigenous issues and responsi-
bilities among member states.
Five Commonwealth countries, Bangladesh, Ghana, India, Malawi and
Pakistan, have signed the 1957 Indigenous and Tribal Populations
Convention, 107, in which Article 11 states ‘The right of ownership,
collective or individual, of the members of the populations concerned
over the land which these populations traditionally occupy shall be recog-
nised.’ Only Fiji among Commonwealth countries has signed the much
stronger ILO Convention 169 of 1989.
There is currently no official Commonwealth publication descriptive of
the current economic, social, cultural and political status of Indigenous
peoples in member states and there is no administrative mechanism with-
in the Commonwealth Secretariat to channel specific enquiry, advocacy
or support.
At the CHOGM in Coolum, Australia in March 2002, the fifty-four
member states renewed their commitment to promoting and protecting
human rights, as enshrined in the Harare Commonwealth Declaration.
Despite the fact that the meeting was held in Australia, where Indigenous
issues have a high profile, indeed Aboriginal and Torres Strait Islander
people were actively encouraged to participate in the ceremonial aspect of
the meeting, no reference was made to Indigenous rights in the Coolum
Declaration.
It is argued in this paper that an effective programme for the realisa-
tion of human rights must include the protection of Indigenous rights,
including the right of self-determination. The Commonwealth must reco-
gnise the special situation of Indigenous peoples in its human rights policy
and acknowledge their marginalisation, their vulnerability and the legiti-
macy of their goals of distinct group survival. The Commonwealth associ-
ation should make good its commitment to promoting and protecting
Indigenous peoples rights enshrined in the Commonwealth Lusaka
Declaration and more significantly to its commitments to Indigenous
peoples under international law.

7
Unfinished Constitutional Business?

2. The Commonwealth and Indigenous Rights


When discussing the Commonwealth’s position on Indigenous rights, it is
necessary to distinguish between the position of the official Common-
wealth—the intergovernmental association of fifty-four states, and
Commonwealth civil society—the association of Commonwealth peoples.9
The official Commonwealth position on Indigenous rights is reflected
in the Commonwealth Declarations, the outcome of CHOGMs, the
biennial Commonwealth Summits; the Commonwealth Communiqués,
which reflect the discussions held at the Commonwealth Ministerial
Meetings, and the statements and publications of the Commonwealth
Secretariat and the Commonwealth Foundation.
The unofficial Commonwealth position on Indigenous rights can be
found in the publications of the Commonwealth Human Rights Initiative
(CHRI), an association of eight Commonwealth Non-Government Organis-
ations (NGOs); the statements made by the Commonwealth Association
of Indigenous Peoples (CAIP); the Commonwealth People’s Comm-
uniqué, issued at the Commonwealth People’s Forum at CHOGM, and
other publications reflecting the views of Commonwealth NGOs.

The Commonwealth Inter-Governmental Association


In the 1979 Lusaka Declaration, the Commonwealth made a rare commit-
ment to pay ‘special attention’ to ‘indigenous minorities’ and to make
‘special provisions’ for ‘indigenous populations’. The Commonwealth
Heads of Government acknowledged that the history of the Common-
wealth and its diversity ‘require that special attention should be paid to
the problems of indigenous minorities.’ Moreover, they attested to the
fact that the ‘effects of colonialism or racism in the past may make
desirable special provisions for the social and economic enhancement of
indigenous populations.’
Since the Lusaka meeting, Commonwealth Heads have avoided the
issue of Indigenous rights in their biennial Declarations. The Lusaka
Declaration was drafted at a time when the Commonwealth was lobbying
hard against apartheid in South Africa and the regime in Rhodesia. This
may explain, in part, why the Commonwealth of 54 states was willing, at
this juncture, to make such an open acknowledgement of the role played
by the former colonial powers in the modern situation of Indigenous
peoples. Today, there seems to be great reluctance on the part of the
official Commonwealth to accept its historical and moral responsibility
towards Indigenous peoples.
Despite the continued absence of a Commonwealth consensus or policy
on Indigenous rights, there has been a series of welcome developments by
the official Commonwealth in the field of Indigenous rights.

Commonwealth Foundation
The Commonwealth Foundation, an inter-governmental organisation
resourced by and reporting to Commonwealth governments, has

8
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acknowledged that Commonwealth member states need to listen to the


voices and needs of Indigenous peoples if they are to fulfill their obliga-
tion to strengthening civil society and good governance.
As part of its ‘Citizens and Governance: Civil Society in the New
Millennium’ programme, the Commonwealth Foundation published a
report on Indigenous peoples in New Zealand in April 1999, concluding
that:

They are united in seeking full participation of Indigenous Peoples’


(Mäori) within civil society in Aotearoa. This is underpinned by the
need to access resources that they identify are theirs’ as of right,
guaranteed under the Treaty of Waitangi.
According to this research Indigenous Peoples’ (Mäori) are
actively striving for self determination and constitutional change to
ensure a partnership between themselves and the crown based on
equal power sharing.10

It is clear from this report that the government of New Zealand is


listening to the voices and needs of its Indigenous peoples in an attempt
to fulfill its obligation to strengthening civil society and good governance.
It is disappointing, however, that in many of the reports undertaken for
the Commonwealth Foundation programme, Indigenous peoples are not
acknowledged.

National Human Rights Institutions


In a 2001 publication, ‘National Human Rights Institutions (NHRI): Best
Practice’, the Commonwealth Secretariat recognised that it needed to
‘work to prevent their [Indigenous peoples’] social, political and econ-
omic marginalisation’.
Specifically, it stated that:

• NHRIs should develop and execute special outreach programmes


directed towards indigenous peoples.
• Where appropriate, NHRI staff should include indigenous persons.
• NHRI staff should be specially trained to respond to the specific
issues faced by indigenous peoples.
• NHRIs should include specific questions related to the provision
of services to indigenous peoples as part of their evaluation efforts.
A NHRI should recognise the experiences of indigenous peoples
and work to prevent their social, political and economic marginali-
sation. This can be accomplished by ensuring that indigenous
persons feel comfortable filing complaints with NHRIs, that NHRI
staff are adequately trained to address the needs of indigenous
persons, and that a component of the NHRI’s overall performance
of these two talks be the subject of the evaluation included in its
annual report.

9
Unfinished Constitutional Business?

However, it is clear that the Commonwealth Secretariat view Indigenous


people as a category of persons facing ‘specific issues’ (although these are
not clarified) with special rights of protection, and not as a group with
collective rights, such as the right to self-determination. Nevertheless, the
Commonwealth Secretariat does, simultaneously, use the language of
‘Indigenous peoples’.

Commonwealth Health Ministers Meeting


At the Commonwealth Health Ministers meeting in New Zealand in
2001, a significant commitment was made to protecting the intellectual
property rights of Indigenous peoples. In the Final Communiqué, the
Commonwealth Working Group on Traditional and Complementary
Health Systems invited the Commonwealth Secretariat to engage with the
Government of Malaysia to prepare detailed proposals to address inter
alia intellectual property rights of indigenous traditional healers.
It will be interesting to see what progress is made in this regard and
to note what reference is made to the intellectual property rights of
Indigenous peoples at future Commonwealth Health Ministers Meetings.

Commonwealth Law Ministers Meeting


At the Commonwealth Law Ministers Meeting held in St Vincent & The
Grenadines in November 2002, a commitment was made to address the
needs of ‘communities and groups’ which have been dispossessed of their
lands. Moreover, Ministers recognised ‘customary law’ relating to land.
The Commonwealth Secretariat’s paper for the meeting read: Most
developing countries, however, find themselves in the midst of profound
transitions in this arena. Some countries are still working with colonial
era statutes, which are outdated and require review and reform. In the
Caribbean, key land issues which have been identified for past and
ongoing projects include: ‘the poor; indigenous peoples and women often
lacking equitable and sufficient access to land.11
It is interesting to note that the Commonwealth Secretariat continued
to make reference to ‘indigenous peoples’ in this paper. Unfortunately,
there was no reference to ‘Indigenous peoples’ in the Commonwealth
Law Ministers Meeting Final Communiqué. However, the Kingstown
Declaration on Land and Development, an Annex to the Communiqué,
acknowledged the needs of ‘communities and groups’ that have been
dispossessed of their lands and recognised ‘customary law’ relating to
land.12

UN World Summit on Sustainable Development


At the UN World Summit on Sustainable Development (WSSD), held in
Johannesburg, South Africa, in August–September 2002, Commonwealth
member states signed up to the Political Declaration, which stated: We
reaffirm the vital role of indigenous peoples in sustainable development.13

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The inclusion of this paragraph was a major breakthrough for Indigenous


peoples, since it accepts the unqualified term ‘Indigenous peoples’. For a
long time, certain Governments, including the United Kingdom in the
Commonwealth, have opposed the use of the term ‘Indigenous peoples’,
preferring instead to use the term ‘Indigenous people’, thus drawing a
distinction between collective and individual rights. It is hoped that
Commonwealth governments will now follow up on the WSSD Plan of
Action and give the respect that Indigenous peoples deserve in all future
consultations, relationships, partnerships and negotiations on sustainable
development.

Commonwealth Human Rights Initiative


While the official Commonwealth remains reluctant to adopt a policy
on Indigenous rights, Commonwealth Non-Government Organisations
(NGOs), by contrast, have seen the Commonwealth as having a special
potential for assisting Indigenous peoples to realise their rights. The
Commonwealth Human Rights Initiative (CHRI) is backed by eight
Commonwealth NGOs.
The first book published by the CHRI made Indigenous rights one of its
eight human rights priorities for the Commonwealth, recommending that:

Commonwealth human rights policy must recognise the special


situation of Indigenous and tribal peoples. It must recognise their
marginalisation, their vulnerability and the legitimacy of their goals
of distinct group survival.14

Further, the CHRI’s Millennium Report reiterated its plea to the


Commonwealth to recognise and protect Indigenous rights: ‘wherever
they live…indigenous peoples encounter discrimination, intolerance and
prejudice. They must struggle for both their survival and their
identity’.15The CHRI is expected to continue lobbying for Indigenous
rights in its activities in Commonwealth Civil Society forums.

Commonwealth Association of Indigenous Peoples


A potentially significant development for Indigenous peoples in the
Commonwealth was the establishment of the Commonwealth Associ-
ation of Indigenous Peoples (CAIP) in July 1999, at the first of a series of
Dialogues on Indigenous Rights in the Commonwealth. It was agreed that
a pan-Commonwealth association of Indigenous peoples needed to be
established to raise awareness about Indigenous rights issues in Common-
wealth countries and to put pressure on the Commonwealth to acknowl-
edge its responsibility to its Indigenous peoples.
In 1999, CAIP received accreditation for the CHOGM in Durban,
South Africa. The summit provided an opportunity for CAIP to network
with other Commonwealth NGOs and to raise awareness about Indigenous

11
Unfinished Constitutional Business?

concerns in the Commonwealth, as well as to familiarise itself with the


workings of CHOGM. In addition, as an accredited Commonwealth NGO
at the Brisbane CHOGM in 2001, CAIP organised a second ‘Dialogue on
Indigenous Rights in the Commonwealth’, as part of the Commonwealth
Peoples’ Festival.
Apart from lobbying Commonwealth Heads of Government at the
biennial summits, CAIP regularly lobbies Commonwealth governments at
other international fora, in particular, at the United Nations.

Commonwealth People’s Communiqué, CHOGM 2001


The Commonwealth Heads of Government Meeting scheduled to be
held in Brisbane, Australia, in October 2001, was postponed as a result
of the events in New York on 11 September 2001. The CHOGM was
eventually held in Coolum, Australia, in March 2002.
Despite this postponement, the unofficial CHOGM, the Common-
wealth Peoples’ Festival, went ahead as planned. The Commonwealth
Peoples’ Festival was designed as a parallel event for Commonwealth
NGOs, at which accredited Commonwealth NGOs were given the oppor-
tunity to network and raise awareness of their concerns.
The Commonwealth People’s Communiqué, issued by the NGOs at
Brisbane, included an appeal to the Commonwealth to recognise and
address the rights of Indigenous peoples:

The Commonwealth must recognise and address the rights of its


indigenous peoples. It is no longer acceptable to dismiss indigenous
issues as the domain of nation states. The Commonwealth is
lagging behind other international fora and needs to bring itself up
to date on this issue.16

Dialogue on Indigenous Rights in the Commonwealth


The issue of Indigenous rights in the Commonwealth was given further
exposure at the third ‘Dialogue on Indigenous Rights in the Common-
wealth’, held in London on 7 June 2002. In the opening statement by the
UN High Commissioner for Human Rights, Mary Robinson, said:

I place great reliance on strong national and regional institutions in


advancing human rights and in particular Indigenous rights. The
Commonwealth is one such institution that can do a great deal to
promote human rights throughout its membership.
The Commonwealth will find that by embracing its Indigenous
peoples there is much in fact that Indigenous peoples can do for the
Commonwealth. Their cultural diversity is a treasure for all human-
kind and beyond their traditional knowledge and cultural accom-
plishments, the Indigenous peoples of the World are possessed
with a unique spirituality, vision and sense of community. If the

12
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Commonwealth can open its heart to her Indigenous peoples and


find a way to share some of the wisdom and world view of their
peoples within the Commonwealth and the wider international
community, then this may prove the most important and enduring
achievement of this important organisation.17

It is clear from recent developments that the issue of Indigenous rights


is increasingly finding a place on the agenda of Commonwealth civil
society. However, there is still a long way to go before Indigenous rights
are placed on the agenda of the Commonwealth Intergovernmental
Association.

3. Evolution of Article 3 of the UN Draft Declaration on Rights


of Indigenous Peoples
At its fourth session in 1985, the Working Group on Indigenous
Populations (WGIP) decided that it should aim to produce ‘a draft decla-
ration on indigenous rights’ for eventual adoption by the General Assembly.
At a strategy meeting, attended by ninety Indigenous representatives,
draft principles were prepared and submitted to the WGIP at its 1985
session, which stated clearly the central aspiration of Indigenous partici-
pants:

All Indigenous peoples have the right to self-determination, by


virtue of which they have the right of whatever degree of autonomy
they choose. This includes the right to freely determine their political
status, the right to freely pursue their own economic, social,
religious and cultural development and determine their own member-
ship and/or citizenship without external interference.18

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:

It is the position of the Indigenous delegates…that self-determina-


tion is the critical and essential element of the Draft Universal
Declaration on the Rights of Indigenous Peoples. Discussion on the
right of self-determination has been and still is the sine qua non of
our participation in the drafting process. The right of self-determi-
nation must therefore be explicitly stated in the declaration…We
believe that the working group should demonstrate consistency
and objectivity on this issue because the right of self-determination
is the heart and soul of the declaration. We will not consent to any
language which limits or curtails the right of self-determination…19

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:

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.

Further, Article 4 recognises the right of Indigenous peoples to main-


tain and develop their distinct characteristics and legal systems, whilst
participating fully in the life of the State.
The Draft Declaration also specifies the exercise of self-determination,
that is, Indigenous peoples have the right to self-government in relation
to their own affairs (Article 31). These include culture, religion, educa-
tion, media, health, housing, employment, social security, economic activ-
ities, land and resources management, environment and entry by
non-members. Articles 32 to 36 affirm the rights of Indigenous peoples:
• to determine their citizenship in accordance with their customs and
traditions;
• to develop and maintain their institutional structures and juridical
customs, procedures and practices;
• to determine the responsibilities of individuals to their communities;
• to maintain and develop relations and cooperation with other peoples
across borders; and
• to the recognition and enforcement of treaties, agreements and other
constructive arrangements concluded with States or their successors.
In August 1994, at its forty-sixth session, the Sub-Commission adopted
the text of the Draft Declaration and submitted it to the Commission on
Human Rights (CHR). On 3 March 1995, the CHR adopted a resolution
in which it decided:

to establish an open-ended inter-sessional working group…with


the sole purpose of elaborating a draft declaration, considering the
draft contained in the annex to resolution 1994/45 of 26 August
1994 of the Sub-Commission on Prevention of Discrimination and

14
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Protection of Minorities, entitled draft ‘United Nations declaration


on the rights of indigenous peoples’ for consideration and adoption
by the General Assembly within the International Decade of the
World’s Indigenous People.

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:

In the first years of the Working Group, Indigenous peoples argued


that any declaration of Indigenous peoples’ rights must include the
recognition of the right to self-determination. The members of the
Working Group thought that we were crazy. The Chairperson
made it clear that there was no way that the Working Group could
support recognition of such a politically contentious right. An
examination of the drafts from one year to the next reveals that our
perspectives were gradually accepted…when the final draft left the
Working Group it contained the unqualified right to self-determi-
nation as one of its articles.20

However, the process of gaining acceptance for Indigenous self-deter-


mination was far from over. Indeed, the hardest part had only just begun.
During the years that the Draft Declaration has been before the CHR,
there has been considerable debate over the various articles in the Draft
Declaration. Today, disagreement focuses primarily, although not exclu-
sively, on Article 3 relating to the question of self-determination. While
Indigenous participants oppose any restriction upon their right of self-
determination, many governments continue to call for some qualification.
Particular Commonwealth governments have been at the forefront of
those governments opposing the inclusion of the right to self-determina-
tion, as currently drafted.

4. Working Group on the Draft Declaration on the Rights of


Indigenous Peoples
The first session of the WGDD was held in 1995. The Working Group
consists of representatives of Governments, inter-governmental organisa-
tions, Indigenous peoples and organisations and Non-Governmental
Organisations. Different sections of the Declaration are discussed by the
participants at each session with the aim of arriving at a consensus.
Few Commonwealth government delegations are actively partici-
pating in the adoption process of the UN Draft Declaration. Among the
states that have been most active are Australia, Bangladesh, Canada, Fiji,

15
Unfinished Constitutional Business?

Malaysia, New Zealand, Pakistan and the UK. Other Commonwealth


states have remained silent during discussions, albeit showing a willing-
ness to listen, including India, Kenya, Nigeria and South Africa.
The ‘white settler’ states of Australia, New Zealand and Canada are
clearly the most active of the Commonwealth states in the adoption
process of the Draft Declaration. Of the South Asian states, India,
Bangladesh and Pakistan, which have each signed up to ILO Convention
107 Concerning Indigenous and Tribal Peoples (1957), although not to
ILO Convention 169 (1989), have participated the most. Few Common-
wealth African states have sent delegations to the WGDD. Indeed, many
Commonwealth African states continue to reject the issue, on the grounds
that they do not find the term ‘Indigenous peoples’ applicable to Africa
conditions. The main argument is that all Africans are ‘Indigenous’ to
Africa and that no particular group can claim Indigenous status. However,
the African Commission on Human and Peoples’ Rights is increasingly
taking an interest in the issue of the human rights of Indigenous peoples.
It is hoped that this may lead to greater participation in the drafting
process by the Commonwealth African states, in particular, South Africa,
which since 1994, has had a good record of promoting and protecting the
land rights and cultural and linguistic rights of its Indigenous citizens, the
San (Bushmen).
At the first session of the Working Group, Commonwealth Govern-
ments’ positions on Article 3 fitted broadly into three categories:
• Australia and Fiji were in favour of supporting self-determination in an
unqualified sense, as expressed in the Draft Declaration.
• New Zealand and Canada, while not opposing self-determination, felt
that more dialogue and negotiation was necessary. In principle, they
expressed that they were able to consider the inclusion of the term self-
determination, providing that the meaning is unequivocal.
• Bangladesh and India were generally negative about the Declaration
and had difficulties with the concept. They rejected self-determination,
advocating instead terms such as ‘autonomy’.21
On the related issue of collective rights, the Commonwealth Govern-
ment positions were:
• Australia and Fiji had no problem with collective rights as expressed in
the Declaration.
• The United Kingdom was concerned that collective rights would affect
the individual rights of Indigenous peoples, but with reassurances on
this question would not support an exclusive use of individual rights in
the text.
• Malaysia accepted that collective rights could be in the Declaration,
but wanted to negotiate and discuss clearly when this should be appro-
priate.
In its analysis of the first WGDD, the International Work Group for
Indigenous Affairs sketched a useful albeit rudimentary typology presenting
the various Government positions on the Draft Declaration. The Govern-

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ments were divided into vocal countries, which participated actively in


the meeting and the silent ones, which did not. According to IWGIA,
vocal countries were clustered in four types: cold, tepid, lukewarm and
warm, while the silent Governments were clustered into two types on the
basis of consultations during the meeting.
Amongst the vocal countries, Commonwealth Governments fell into
the four categories: 1. Cold: Bangladesh and India. 2. Tepid: Canada,
Malaysia and New Zealand. 3. Lukewarm: none. 4. Warm: Australia and
Fiji.
Amongst the silent countries, Commonwealth Governments were cate-
gorised as: 1. Cooler: none. 2. Warmer: United Kingdom and Pakistan.
Amongst the ‘Unknown Quantities’ were Sri Lanka,22 Kenya, South
Africa and Tanzania.
The positions of the Commonwealth governments on the Draft Declar-
ation, in particular, on Article 3, have changed significantly since the first
session in 1995. The positions of Australia and Canada have changed
most dramatically and have had a major impact on the process of consensus
building as a whole.

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:

Major shifts in the national policies can lead to changes in support


for the Declaration which can take place overnight. The Govern-
ment of Australia, for example, has been a positive influence on the
meeting, but how long they can continue this with a new rightist
government is uncertain and causes indigenous peoples consider-
able concern.xxiii

Australia’s later volte face on Article 3 of the Draft Declaration is


evidence of the uphill struggle faced by the Indigenous community in
building a consensus on the principle of self-determination and in final-
ising the Draft Declaration for adoption by the General Assembly.

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:

I wish to state at this point that the Government of Canada accepts


a right of self-determination for indigenous peoples which respects
the political, constitutional and territorial integrity of democratic
states.24

This volte face constituted a major change in the complexion of the


governments at the Working Group. Being one of the major governmental
actors, this shift in policy on the part of Canada had a significant impact.
Since 1996, Canada has been playing a mediating role between those
governments broadly supportive of Article 3, and those that favour sub-
stantial amendments to the current text.

5. Sixth Session of the Working Group on the Draft


Declaration, 2000
At the sixth session of the WGDD held in November–December 2000,
there was a view that the negotiations of the Working Group on the issue
of self-determination had reached a ‘critical stage’. A close examination
of the debate on Article 3 at this session reveals that there remained
considerable differences of opinion amongst the Government delegations
on this issue. The sixth session saw a continued effort on the part of states
to narrow their differences on the text, in particular, on Article 3.
The sixth session of the WGDD was attended by more than 365
people, including representatives of 62 Indigenous peoples and organisa-
tions and NGOs and 48 Government delegations. However, the number
of active state participants, Commonwealth and non-Commonwealth,
had decreased since the first session of the Working Group in 1995, with
an increasing number of states registering as participants and remaining
absent or silent.
At this session, several Commonwealth government delegations made
interventions on Article 3 of the Draft Declaration and made clear their
positions on the principle of Indigenous self-determination. The
Commonwealth government delegations that actively took part in the

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proceedings included Australia, Bangladesh, Canada, New Zealand, and


Pakistan. There was a marked absence of participation by Common-
wealth government delegations from Commonwealth Africa.

Interventions of Indigenous Delegations


At the sixth session of the WGDD, the general debate on self-determina-
tion opened with the Indigenous representatives making their representa-
tions on Article 3, followed by interventions by government delegations.
Indigenous representatives reiterated the centrality of the right of self-
determination, as formulated in Article 3.
Many of the Indigenous representatives expressed concern about initia-
tives put forward by various states to develop alternative wording for
Article 3. It was made clear that the CHRWG ‘had no mandate to lower
international standards as applied to Indigenous peoples.’25 Indigenous
representatives stated that the right of self-determination was firmly
established in international law, including in the Charter of the United
Nations, common Article 1 of the ICCPR and ICESCR, and the Vienna
Declaration and Programme of Action, adopted by the 1993 World Confer-
ence on Human Rights.
It was stated by the representative of the International Organisation of
Indigenous Resource Development that ‘to negotiate alternate text for
Article 3 irrespective of Indigenous peoples’ views was contrary to General
Recommendation XX111 (51) of the Committee on the Elimination of
Racial Discrimination, adopted on 18 August 1997, which provides that
‘no decisions directly relating to the…rights and interests [of indigenous
peoples] are taken without their informed consent.’26
Unfortunately, while the interpretation of the General Recommendation
of the CERD by the International Organisation of Indigenous Resource
Development is creative, the reality is that it remains the prerogative of
states to negotiate, endorse and codify international instruments in what
is still an inter-state, international legal system. While Indigenous peoples
are increasingly, and often profoundly influencing this system, states do
not require the ‘informed consent’ of Indigenous peoples in order to take
decisions on the adoption of Declarations and resolutions.
In its report, IWGIA comments:

Indigenous speakers variously described self-determination as a


way to strengthen the capacity of Indigenous peoples to chart their
economic, social, cultural and political destinies, to lessen conflict
between Indigenous peoples and states, to promote peaceful co-
existence, and to enable Indigenous peoples to bring about sustain-
able development.27

Several Indigenous representatives also commented that states’


concerns in relation to territorial integrity are taken care of by Article 45

19
Unfinished Constitutional Business?

of the Declaration, which provides ‘Nothing in this Declaration may be


interpreted as implying for any State, group or person any right to engage
in any activity or to perform any act contrary to the Charter of the United
Nations’. Indigenous representatives also suggested that states’ fears regard-
ing territorial integrity were also protected by the General Assembly’s
1970 Friendly Relations Declaration (resolution 2625).
The IWGIA report on the sixth session comments:

The Friendly Relations Declaration clarified the relationship


between the principle of self-determination and those of territorial
integrity and national unity, establishing that the right of self-deter-
mination as articulated in the UN Charter did not normally entail
a right of secession from independent States. The Friendly
Relations Declaration suggested a criterion of ‘effectively represen-
tative’ to determine when Indigenous peoples are no longer bound
to exercise their right to self-determination by seeking to reach
agreement on sharing power within existing States. This approach
promoted the negotiation of agreements.28

A number of Indigenous representatives stated that international law


does not impose any one form of exercise of self-determination. The
IWGIA report states:

Others commented that in the exercise of the right, few, if any,


Indigenous peoples seek to dismember existing states. Instead,
most take a functional approach, expressing a preference for recog-
nition and constitutional reform within states in order to develop
indigenous political institutions and determine their development
in accordance with their own values.29

At the close of the interventions made by Indigenous delegations,


representatives agreed that ‘there can be no qualification of self-determi-
nation, and that it would be unacceptable and discriminatory to restrict
Indigenous peoples’ self-determination to internal self-determination.
Although the vast majority of Indigenous peoples would choose to
implement their right through autonomy and self-government arrange-
ments, the right could not be limited a priori to such arrangements.’30

Interventions of Government Delegations


Only five Commonwealth states actively participated in the debate on
Article 3 at the sixth session, namely: Australia, Bangladesh, Canada,
New Zealand, and Pakistan. Another four Commonwealth states were
present for the discussions, but remained largely silent on the issue of
Article 3: India, South Africa, Malaysia and UK. The Commonwealth
government delegations that were active held markedly divergent positions
on the right to self-determination: Pakistan supported the adoption of

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Article 3; Canada, New Zealand and Bangladesh supported the principle,


but insisted on amendments to the current text; and Australia challenged
the concept of self-determination.

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:

According to Pakistan, there was no contradiction between self-


determination and territorial integrity; rather these were mutually
reinforcing principles which strengthened democratic values at the
national and international levels.31

In this context, Pakistan referred to the Declaration on Friendly


Relations (1970), claiming that it was wrong to associate self-determina-
tion with the historical process of decolonisation. According to Pakistan,
it was not colonisation which had led to the emergence of the right to self-
determination; rather it was the existence of the right of self-determina-
tion that propelled the process of decolonisation and that process
remained to be completed in certain parts of the world.32
While the Indigenous Peoples or ‘Tribals’ living in the Federally
Administered Tribal Areas (FATAs) in Pakistan have considerable auto-
nomy, they have few political rights. For fifty years, over 1.6 million
Tribals were denied the right to vote. As a consequence, Tribals in
Pakistan have poor political representation at the national level. This in
turn, means that their concerns are rarely voiced and/or addressed.
Despite its support for the principle of self-determination at the WGDD,
therefore, the Pakistan government clearly has a long way to go before
the right to self-determination of the Tribals in the FATA is recognised.

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?

that there are other ways of exercising self-determination. As far as Canada


is concerned, the exercise of the right of self-determination involves
negotiations between states and the various Indigenous peoples within
those states to determine the political status of the peoples involved, and
the means of pursuing their economic, social and cultural development.
Canada’s position on Article 3 is reflective of its domestic practice of
negotiating agreements with its Indigenous peoples on land and self-
government. In 1999, Canada granted some of its Indigenous peoples the
right of self-government when it returned one-fifth of the country to the
political control of the Inuit as part of a land rights settlement between
the Inuit and the Canadian government. On 1 April 1999, a new and
unconventional political entity called Nunavut, came into being,
according the Inuit the right of self-government. Canada’s newest entity
is carved out of the Northwest Territory, and is equipped with its own
government. The case of Nunavut is an example of good practice in the
field of Indigenous self-government that gives scope for active precedent
among the fifty-four Commonwealth states.
On 7 February 2002, an historic agreement was signed between the
Government of Québec and the Cree Nation, which marked the beginning
of a new nation to nation relationship between Québec and the Indigenous
Crees, based on mutual respect, dialogue and trust. This innovative
Agreement, which reflects a new paradigm of thinking on ways for
Indigenous peoples and the nations in which they live to cooperate, with
mutual benefits, should also have an exemplary effect on other
Commonwealth states.
Despite these cases of good practice, however, many Indigenous peoples
in Canada continue to live politically, socially and culturally impover-
ished lives on reservations and face grave human rights issues.
According to some Indigenous analysts, the Canadian process is governed
by principles that are substantially lower than international standards,
resulting in a negotiation process that starts from a point of disadvantage
to Indigenous peoples. Negotiations in Canada are often long and there
is no way out if an agreement cannot be reached. While the case of
Nunavut is an example of best practice, the only way that the Inuit
obtained self-government was by agreeing to a blanket extinguishment of
aboriginal rights and by agreeing in perpetuity never to seek satisfaction
for aboriginal rights. Thus, the Inuit cannot be said to have obtained the
right of self-determination as understood by Indigenous delegates at the
WGDD. Significantly, the principle of self-determination has no mention
in the Agreement between the Cree and Quebec. Both the UN Committee
on the Elimination of Racial Discrimination (CERD) and the UN Human
Rights Committee have commented upon the inconsistency of this policy
with international human rights law.
In August 2002, the United Nations Committee on the Elimination of
Racial Discrimination (CERD) considered Canada’s periodic report

22
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regarding domestic implementation of the Convention of the Elimination


of All Forms of Racial Discrimination. Members of the Committee
expressed much concern about what was referred to as Canada’s most
glaring human rights problem. Aboriginal issues were placed high on the
agenda. Amongst the concerns raised, CERD members paid special
attention to Ottawa’s Comprehensive Claims Policy and its continuing
effort to extinguish Aboriginal Title, which violates both Canadian
Supreme Court of Canada decisions and international human rights law.

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:

Some of the present language of the Declaration (for example,


references to autonomy, self-government and separate legal,
taxation and judicial systems) were inconsistent with New Zealand
policy and more appropriate to the situation of Indigenous people
living on reservations than those integrated into the wider society
as in New Zealand.35

According to the New Zealand delegation, the language of the


Declaration needs to be clarified to ensure consistency with the Treaty of
Waitangi settlement processes and policies, international understandings
and domestic New Zealand law, before the government can accept it.
The key issue facing Mäori in New Zealand today is the failure of the
government to adequately enforce the provisions of the Treaty of Waitangi,
the treaty signed in 1840 between the British and some Mäori chiefs, the
foundation of constitutional authority and the founding document of the
New Zealand state. Many Mäori identify the root cause of their alien-
ation as the loss of Mäori land, the basis of traditional Mäori society.
Many saw this loss embodied in the Treaty of Waitangi, which was seen
as symbolising Mäori acceptance of British sovereignty, and demanded
that its principles be enforced by the government.

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
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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:

… after its renewed examination in August 1999 of the provisions


of the Native Title Act as amended in 1998, the devolution of
power to legislate on the ‘future acts’ regime has resulted in the
drafting of state and territory legislation to establish detailed
‘future acts’ regimes which contain provisions further reducing the
protection of the rights of native title claimants that is available
under Commonwealth legislation. Noting that the Commonwealth
Senate on 31 August 1999 rejected one such regime, the Committee
recommends that similarly close scrutiny continue to be given to
any other proposed state and territory legislation to ensure that
protection of the rights of indigenous peoples will not be reduced
further.41

In the Secretary-General’s report to the UN General Assembly in 2002,


the Special Rapporteur in his comments on Australia stated that: ‘The
land question remains crucial and is the key to the Australian problem’.
He also stated that:

the question of reconciliation with the Aboriginal peoples remains


outstanding, because it affects the foundations of the Australian
State and conflicting cultural values. For the Aboriginals, despite
the democratic foundations of the Australian State and its desire to
incorporate all its ethnic components on an egalitarian basis, this
State is a manifestation of colonization, whose consequences remain
to this day, notably through the limitation of their land rights, the
tragedy of the abducted children, cultural clashes and highly
precarious living conditions outside the wealth of the majority of
Australians. In their view, the resolution of conflicts is dependent

25
Unfinished Constitutional Business?

on negotiation on equal terms between Australia’s governors and


those who originally possessed the continent, the eminent owners
of the Australian lands, of which they have been dispossessed,
particular account being taken of their indissoluble links with the
land. The land question remains crucial and is the key to the
Australian problem…41

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:

…focused both on the most difficult articles and intensified


dialogue on crucial themes, whilst also considering the easiest

26
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articles in order to reach agreement and generate sufficient trust in


order, at an appropriate time, to deal with the more sensitive issues
in the Declaration.44

Article 3 of the Draft Declaration is clearly one of the most difficult


and sensitive issues in the Draft Declaration. Moreover, as the Indigenous
participants at the sixth session reiterated, the right of self-determination,
as formulated in Article 3, is the fundamental provision in the Declar-
ation. Article 3 is the cornerstone of the Draft Declaration and unless
Article 3 is accepted, as formulated, much of the remaining Draft
Declaration will be meaningless. It is the failure of states to agree on
Article 3 that explains why it is taking so long to achieve consensus on
the Draft Declaration.
It is interesting to note that the UK, which does not have an Indigenous
population (as defined by the Special Rapporteur for the United Nations
Sub-Commission, José Martinez Cobo), is taking a much firmer line on
the issue of Indigenous self-determination than those States with
Indigenous populations, many of whom are actively participating in the
UN Working Group, and working hard towards building a consensus on
this issue.
It is difficult to understand why the UK adopts this hard line position
on self-determination at the UN, when it has recognised forms of self-
determination for the Irish, Scottish and Welsh, with the recent establish-
ment of the Northern Ireland Assembly, Scottish Parliament, and the
National Assembly for Wales in 1999.
However, despite the lack of progress made at the sixth session of the
WGDD, there may be some room to move among the positions of States
on self-determination. The IWGIA report on the sixth session states:

Such sympathy has ensured that after 6 sessions of the CHRWG,


the basic principles in each provision have been respected and the
basic structures of the Declaration remain intact. It is also apparent
that these States, at least, are listening to the interventions of
indigenous delegations. The result has been a tempering of the
impact of the redrafting zeal of some States and a thwarting, as yet,
of efforts to wreak irremediable harm upon the Declaration.45

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?

articles relating to collective rights in the Draft Declaration, including


self-determination, at the eighth session of the Working Group on the Draft
Declaration.
At the Informal Intersessional Consultations held in Geneva in
September 2002, the negotiations centered on the question of whether or
not the principle of self-determination for Indigenous peoples should be
qualified or not. It was noted that to reach a consensus, those states that
can accept the current Draft Declaration need to make concessions to
those states that cannot accept it without rendering the Draft Declaration
meaningless. It was also noted that the options facing the Working Group
were twofold: either the content of Article 3, must be qualified, i.e.,
providing a minute description of self-determination; or Article 3 must be
left as it is and safeguards added to specify what the article does not
mean.
A number of states noted that they could accept the text of Article 3,
as it is, as long as a safeguard clause was included in the Declaration.
Suggestions were made that the right of self-determination should be
addressed in the Preamble to the Draft Declaration. By restating rights as
they currently exist in international law, the problem of articulating
specific Indigenous (qualified) rights could therefore be avoided. A
proposal was made by Norway to reflect the language of the Declaration
on Friendly Relations, 1970, that:

Bearing in mind that nothing in this Declaration may be used to


deny any peoples their right of self-determination, yet nothing in
this Declaration shall be construed as authorizing or encouraging
any action which would dismember or impair, totally or in part,
the territorial integrity or political unity of sovereign and
independent States conducting themselves in compliance with the
principle of equal rights and self-determination of peoples.47

The Norwegian proposal, as it became known, to leave Article 3 as it


is, and to add a safeguard to specify what the Article does not mean, had
popular support at the Informal Intersessional Consultations. However,
the Norwegian proposal ran against the strong view of Indigenous peoples
and organisations in their unwillingness to compromise on the wording
of Article 3.
It is argued in this paper that it is essential that Article 3 of the Draft
Declaration be adopted, as it is currently drafted. It is a basic principle of
international law that human rights be applied uniformly and universally,
and this includes the right to Indigenous self-determination. Without the
non-discriminatory application of international standards, the funda-
mental integrity of the UN’s standard setting on the rights of Indigenous
peoples is seriously compromised. There can be no qualification of the
right of self-determination of Indigenous peoples. The ‘redrafting zeal’ of

28
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a minority of states must not prevent a consensus from being reached on


this most critical of issues. It is unfortunate that members of the
Commonwealth are committed to redrafting Article 3. Some of the blame
for the lack of progress made by the Working Group on the Draft
Declaration must therefore be placed on the shoulders of those
Commonwealth states that are obstructing efforts to obtain a consensus
on the principle of self-determination.
Moreover, the poor participation of the Commonwealth member states
in the Draft Declaration process must be condemned. There needs to be
greater participation of Commonwealth states in the drafting process.
The Commonwealth African countries, which rarely attend the sessions
of the Working Group, must be encouraged to participate, in particular,
South Africa, which has a good record of promoting and protecting its
Indigenous citizen’s land rights and cultural and linguistic rights. Those
Commonwealth Asian countries, which often attend, but remain silent,
such as India, must also be urged to be more active in the proceedings.
Once adopted, the Declaration will not be legally binding on
Commonwealth states, but will have great moral force and will provide
minimum standards to guide states in their dealings with Indigenous
peoples.

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?

7. Berman H 1993, The Development of International Recognition of the


Rights of Indigenous Peoples, in Document 74, IWGIA and the Centre for
Development Research, Copenhagen, reproduced in Indigenous Affairs,
IWGIA, 4/01, p 17.
8. For the full text of the Commonwealth Lusaka Declaration, 1979, see:
http://www.thecommonwealth.org/whoweare/declarations/lusaka.html
9. For more information on Commonwealth civil society and the relationship
between the official and unofficial association, see Amanda Shah, ‘Joining
up the Commonwealth’, CPSU, August 2002, at: http://www.cpsu.org.uk/
projects/Civil/civil_proj_out.htm
10. Part V, Summary of Analysis for the Indigenous Partner of Aotearoa,
‘Citizens and Governance: Civil Society in the New Millennium’,
Commonwealth Foundation, New Zealand, April 1999.
11. ‘Strategies for Enhancing Democracy by Eliminating Legal Barriers to
Development’, Draft Agenda Item 2(a), LMM (02)9, Paper by the
Commonwealth Secretariat, Commonwealth Law Ministers Meeting, St
Vincent & The Grenadines, 18–21 November 2002.
12. Kingstown Declaration on Land and Development, Annex C, ‘Meeting of
Commonwealth Law Ministers, Kingstown, St Vincent and The Grenadines,
18–21 November 2002, Communiqué’, Commonwealth Secretariat, 22
November 2002.
13. See the United Nations website for the WSSD Declaration and Plan of Action
at: www.johannesburgsummit.org
14. ‘Put Our World to Rights’, Commonwealth Human Rights Initiative, CHRI,
1991.
15. ‘Human Rights and Poverty Eradication—A Talisman for the
Commonwealth’, Commonwealth Human Rights Initiative Millennium
Report, 2001, p.6.
16. Commonwealth People’s Communiqué, CHOGM, Brisbane, Australia,
October 2001, Paragraph 12.
17. ‘Indigenous peoples and the Commonwealth’, Statement made on Behalf of
the High Commissioner for Human Rights by John Scott, Indigenous
Human Rights Officer Office of the High Commissioner for Human Rights,
United Nations, Appendix B, Third Dialogue on Indigenous Peoples in the
Commonwealth, CPSU, London, 7 June 2002.
18. UN Doc E/CN 4/Sub 2/AC 4/1985/WP 4, ‘Indigenous Peoples, The United
Nations and Human Rights’, ed., Sarah Pritchard, (1998), p. 45.
19. WGIP, Eleventh session, 20th July 1993, Indigenous Peoples, ed. Sarah
Pritchard, (1998), p. 46.
20. Comment: Mick Dodson, Aborginal and Torres Strait Islander Social Justice
Commissioner, in Indigenous Peoples, ed. Sarah Pritchard, 1998, p. 63.
21. ‘Indigenous Peoples at the United Nations’, by Andrew Gray, The
Indigenous World, 1995–1996, IWGIA, p. 257.
22. Wiveca Stegeborn, ‘’Indigenous Rights in Sri Lanka: Assimilation of the
Wanniyala-Aetto’.
23. The Indigenous World, 1996–1997, IWGIA, p. 290.
24. The Indigenous World, 1996–1997, p. 309.
25. The Indigenous World, 2000–2001, p. 421.
26. The Indigenous World, 2000–2001, p. 422.

30
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27. The Indigenous World, 2000–2001, p. 422.


28. The Indigenous World, 2000–2001, p. 422.
29. The Indigenous World, 2000–2001, p. 423.
30. The Indigenous World, 2000–2001, p. 423.
31. The Indigenous World, 2000–2001, IWGIA, p. 428.
32. ‘Indigenous Issues’, UN Doc E/CN.4.2001/85.
33. The Indigenous World, 2000–2001, IWGIA, p. 425.
34. The Indigenous World, 2000–2001, IWGIA, p. 427.
35. The Indigenous World, 2000–2001, p. 427.
36. The Indigenous World, 2000–2001, p. 428.
37. ‘Indigenous Issues’, UN Doc E/CN.4.2001/85.
38. For a fuller account of the current issues facing the Jumma people of
Bangladesh, see Raja Devasish Roy, Chief of the Chakma Peoples,
Chittagong Hill Tracts, Bangladesh, ‘Indigenous Rights in Bangladesh: Land
Rights and Self- in the Chittagong Hill Tracts’. This paper can be found on
the CPSU website at: http://www.cpsu.org.uk/projects/DELHI_ME.HTM
39. The Indigenous World, 2000–2001, p. 426.
40. ‘Concluding Observations by the Committee on the Elimination of Racial
Discrimination: Australia. 19/04/2000, CERD/C/304/Add.101. 19 April
2000.
41. UN General Assembly, ‘Measures to combat contemporary forms of racism,
racial discrimination, xenophobia and related intolerance’, Note by the
Secretary General, 11 July 2002, A/57/204.
42. The Indigenous World, 2000–2001, p. 429.
43. The Indigenous World, 2000–2001, p. 429.
44. The Indigenous World, 2000–2001, p. 429.
45. The Indigenous World, 2000–2001, p. 447.
46. ‘Indigenous Issues’. Report of the working group established in accordance
with Commission on Human Rights resolution 1995/32’ by the Chairperson-
Rapporteur, Mr Luis-Enrique Chavez, (Peru), E/CN.4/2002/98 6 March 2002.
47. Annex 3 ‘Proposal by Norway: Amendment to Preambular Paragraph 15’,
DRAFT WGDD consultations September 2002, p. 21.

31
2 Self-determination or ‘Deep Colonising’:
Land Claims, Colonial Authority and
Indigenous Representation

John Bradley and Kathryn Seton

Decolonising Institutions or ‘Deep Colonising’


Decolonisation refers to moving away from policies of control of
Indigenous peoples, developed in the so-called interests of the state,
towards policies of self-determination for Indigenous people. The Council
for Aboriginal Affairs formulated this strategy and the central premises
were that ‘Aboriginal organisations would both deliver services in more
appropriate ways and develop enterprises through which communities
could become economically independent’.1 The vision was that control
over Aboriginal arenas would be placed back into the hands of
Indigenous people themselves. While such moves appear to be self evident
in the creation of Land Councils and the Aboriginal and Torres Strait
Islander Commission, these decolonising institutions have been, in the
end, limited in their scope.
Whilst acknowledging relationships between Indigenous people in
Australia and the colonising state have changed over the last few decades,
there are still practices embedded within decolonising institutions that are
meant to reverse the colonising process but, in fact, sustain it. These are
the same decolonising institutions that have been legislated to manage
processes such as land claims and negotiate for, and with, Indigenous
people for any proposed developments on their country. Indigenous
people are effectively caught in a double bind, wishing to use legislation
to achieve land rights (which can equal economic rights), whilst having to
continuously confront the colonial issues that are embedded deep within
these institutions. Thus, we have a situation of what could be called benign
conquest and contestation, a situation that will continue as long as the
final arbitrator of the legislation is based within white parliamentary
structures.

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

particularly in the world of cultural studies (for example Gelder and


Jacobs 1998), which now proclaims Australia as post-colonial. However,
the term post-colonial is neither appropriate or accurate, for in relation
to a settler society like Australia, there is no clear moment of de-colonial-
isation and many Indigenous people continue to speak of colonisation as
an ongoing process. For instance, the Yanyuwa people we work with have
undertaken three separate land claims over a period of 26 years. Only the
first of these claims has been finalised with land hand back falling short
of that claimed by the Yanyuwa. This has lead to further carving up of
Yanyuwa country and the continuing lodgment of land claims for country
not yet granted or available for community access. The result has been
ongoing meetings and negotiations for many years, leading various
Yanyuwa claimants to comment that they are ‘weary and frustrated’
(Leonard Norman) with the process, that they have not been ‘paid back’
(Jimmy Pyro) for their work in demonstrating their links to country and
that whitefellas are ‘trying to steal our minds’ (Annie Isaac and Dinah
Norman). Thus, we are suggesting in this chapter that the process of land
claims and the registration of landowners continues this process under the
guise of legislation that is said to be beneficial to Indigenous people.

‘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.

Land Rights Northern Territory Style


The Aboriginal Land Rights (NT) Act 1976 (ALRA) has provided an
avenue for Indigenous people in the Northern Territory to come to a

33
Unfinished Constitutional Business?

court and give evidence to a Commonwealth appointed judge, known as


the Land Commissioner, as to why he should ‘find them’ the traditional
owners of certain tracts of Crown land.4 While acknowledging that
people have achieved rights under this Act, this same piece of legislation
should not be seen to be beyond critique. The practical administration of
this Act is a potent blend of anthropology, law, Indigenous, State and
Federal government bureaucracies. It is in this setting that Indigenous
people give evidence and where more intimate issues, such as memory and
remembering, become critical aspects in the desire for a successful outcome.5
There is extensive literature on anthropological and legal issues associ-
ated with, and stimulated by land claims under the ALRA. Much of this
literature offers us competing views on how anthropological models of
land tenure and social organisation must, or might be understood.6 There
are also some publications, though in the minority, that offer an Indige-
nous voice on these issues.7 Further, there is also a remarkable diversity
of public debate on the issues of land rights, much of it, however, is
uninformed about the injustices of the Act towards Indigenous people.

Traditional Owners Under the Act


Section 24 of the ALRA requires Aboriginal Land Councils to compile
and maintain a Register setting out:

• 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

but whose identities may be unknown. Traditional owners of Schedule 1


land have not had to undergo the land claim process of proving their
traditional claims in a court of law. Thus, from the outset, it could be said
that the ALRA created two groups: to use the colloquial, these are the
‘haves’ who do not have to contest their claims as traditional owners, in
an external forum—the court (though their status may at times be
contested internally) and the ‘have nots’ or ‘yet to have’ who have had to
contest, or are in the process of contesting, their rights to be acknowl-
edged as traditional owners by the Land Commissioner.

The Land Claim Process


Land claims are prepared on behalf of Indigenous claimants by Land
Councils tantologically enacted under the ALRA. Land Councils employ
anthropologists to prepare extensive documentation on such matters as:
how the claimant group(s) relate to the land in question; the extent and
the composition of the group, done by extensive genealogies; the nature
of their rights to the land; their knowledge of the land in terms of named
locales and spiritual significance; and the history of the contact between
the Indigenous people and the newcomers into the area. Preparation for
the claimants’ case is a co-operative venture by anthropologists, lawyers
and knowledgeable Indigenous people, many of whom give evidence before
the hearing.9
While the lawyers for the claimants take evidence from the Indigenous
witnesses and argue points of law, it is the anthropologist who acts as a
bridge between the claimants, who often have little knowledge of Western
law, and the lawyers who may have difficulties in understanding what the
claimants are telling them. There are other parties too (for instance,
pastoralists, commercial and recreational bodies, mining interests, etc)
who have interests in the land under claim and they are usually repre-
sented by lawyers. Over all this the Land Commissioner, or judge, sits as
the final arbiter. As Rose (1987: 185–186) comments:

The Aboriginal Land Rights (NT) Act 1976 produces an event in


which a European judge (to date all male) decides whether or not
a set of Aboriginal people are who they say are. The Aboriginal
people in question must produce for examination and cross-exami-
nation an identity that meets the requirements of an Act produced
by Europeans. The onus is on Aboriginal people to ‘prove’ their
identity according to an alien means of determining truth and
falsehood.

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?

to that discourse, and to make final determination on authenticity. It is


difficult to conceive of a more cruel and elegant expression of cultural
domination.
In a later publication, Rose modified her stance, drawing out some of
the subtle ways Aboriginal people gain a measure of control in land
claims. Rose (1996b:51) concluded that a land claim hearing is a ‘hybrid
event that allows for multiple systems of knowledge and meaning to
engage with each other without being annihilated’. However, these events
also need to be situated within the larger regional and national political
contexts in which they are created and sustained. Whilst ‘hybrid events’,
it is less certain how these aspects of local autonomy can be sustained,
when negotiating interests and rights to Indigenous country and resources
at regional and national levels. It is against some of these comments that
we wish to present a case study that demonstrates the colonial traits
embedded within such endeavours as land rights and one which brings
the activities of the anthropologist, lawyers and barristers assisting the
claimants, and ultimately the role of the Land Commissioner and the
Minister, into the same arena.

Borroloola Land Claims


The first land claim in which John Bradley acted as senior anthropologist
for the claimants was a repeat claim over the Sir Edward Pellew Group of
Islands. The Yanyuwa people lodged this repeat claim after they found
out the results of their initial claim over the area. This initial claim was
undertaken in 1976 and, the then Land Commissioner, Justice Toohey,
made recommendation for a partial grant of the land initially claimed by
traditional Aboriginal owners. It is worth noting this was the first land
claim hearing under the ALRA. It is also worth noting that between the
period of Justice Toohey’s first decision and the rehearing in 1993, the
Northern Territory Government engaged in two acts that were improper
under Australian law as it relates to land under claim; whether this be an
original or repeat claim. The first was to proclaim a township over the
two major islands (Centre and South West Islands), which were lost in the
first claim. The second was to subdivide Camp Beach on Centre Island
into housing allotments for sale on the open market (Gray 1997). The
primary intent of these actions, it could be argued, was to foil any further
attempts at land claims over these islands (Ludwig 1983).

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.

The Stolen Generation


Colonialism is a process through time and space where Indigenous people
are not only dispossessed of their lands but also of their distinct histories
(Fabian 1983 and Brough 1989). In the late 1800s and early 1900s,
Indigenous people in Australia had been labeled as ‘stone age survivors’
and a ‘dying race’, though after the Second World War it was regarded an
official policy that they should be assimilated into the dominant white
society. This had two dimensions: being on the one hand a biological
policy, envisaging the loss of distinct identity through intermarriage and
mixed race children, and on the other, it was a social and religious policy
of making Aboriginal people think, act, and worship in the same way as
white people.
The removal of children is now the best-known dimension of this
attempt to turn Aboriginal people into non-Aboriginal people. It was a
policy aiming (among other things such as ensuring a supply of domestic
labour) to destroy Aboriginal identity through education of children in
white institutions and foster homes. Not all of these removed people lost
contact with their home communities and Yanyuwa people wanted to
bring such people and their descendants back onto their country—to
make things straight, to create order where order had been taken away.
This incorporation process in itself is not difficult. It requires, however,
the reinvention of a fathers line (patriline) so that people can be given
paternal rights to country, which in this area is the primary right of
ownership (though balanced against rights to mother’s country). In all the
cases involving these removed people and their descendants, there is a
maternal line, but for the Act this is not enough—there needs also to be
a paternal line.

38
Bradley & Seton

Making Things Straight


It is interesting that this claim was dominated by a number of senior
women as, since the last claim, a majority of senior men had died. It was
these women who demanded the inclusion of the Stolen Generation into
the genealogies and began a process of teaching the respective people so
they could know something of the landscape or, in this instance, the
littoral zone. With these underpinnings, the nature of the claim meant
that women dominated the case and showed themselves to be capable
owners of land, and eloquent speakers for the spiritual value of the land
and their responsibilities towards it. In many respects, this claim is
probably also quite unique in the history of land claims under the Act in
terms of the predominant and powerful presence of women.
It is the women who first create the order for a land claim by constru-
cting and working through genealogical information. The process of
investing children of mixed race marriages with country has a long
history in this area of Australia, regardless of whether the father stays in
the relationship. The individuals who were ‘stolen’ from their communi-
ties and their descendants are seen by the community to be Yanyuwa, and
that they have certain rights to country is also not denied. The issue is
how they are given rights of the kind that allow them to stand as claim-
ants in a land claim. The women follow this simple rule: the relationship
that existed between the woman and her partner is treated as if it was
straight, that is, it is socially correct according to the internal workings of
the kinship structures of the community. If this is the case, the children of
the marriage/relationship will be incorporated into the group that, if their
father had been of Yanyuwa descent, they would belong too. Such people
when mapped into society like this are also given a ‘traditional’ name that
links them intimately with a certain tract of country. Importantly such
actions are a demonstration that no social structures can ever be taken for
granted. They can be manipulated with a degree of fluidity that does not
destroy their foundational structures and, because they deal with
transcendental properties of the cosmos such as ritual and Dreaming,
these social processes are important points of discussion.11 Thus, any
identification with country is a process that must be actualised and accepted
by others through negotiation. For the Indigenous people concerned, the
processes of investing Stolen Generation people and their descendants
with land is a necessary response to a specific situation; one which is
transparent and, to the outsider, is a visible demonstration of the negotia-
bility of people with their own law and outside structures.
For the Indigenous community, there was no serious issue about
bringing such people into the claim and hopefully having them registered
as land owners; it was after all about a philosophy of ‘making straight’,
of bringing separated families back together again. Hence, one senior
claimant, Hilda Muir, who was removed from her family at age seven,
was incorporated into the claims process even though she had not been

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).

Colonial Authority and Indigenous Representations


For the outsider, such as government officials, lawyers and members of
the Land Council, one could suggest that the issues are about degrees of
assimilation and how much a person has been incorporated into another
society. However, for the Indigenous community these issues are relatively
unimportant and acculturation is not an issue in determining the status of
any one individual in relation to family, descent and landedness. There
has, however, been debate about these issues prior to this claim. Not so
much about the issue of the Stolen Generation, but rather about what are
considered essentially urban Indigenous people being listed as potential
owners of country. At the last land claim hearing attended by John Bradley,
the Northern Territory Government lawyers stated from the outset that
they would contest the inclusion of such people; this is not unusual given
other documented cases. For instance, Walsh (1995) raises the issue of
‘tainted evidence’, and this was a term raised by both lawyers repre-
senting the Indigenous community in the Kenbi claim under discussion.
Tainted evidence’ is a term that raises a number of problems, all of
which were undercurrents in the Kenbi claim. The primary question often
raised (even if implicitly) by legal council for the Government is ‘are such
people indeed Indigenous?’, given that they are embedded within urban
cultures that are dominantly Anglo-Australian. Questions are also specu-
lated upon about the relationship of traditional knowledge and literacy;
it is a fundamental underpinning of the land claim process that know-
ledge must come from the head regardless of how educated a claimant
may be. This has some unfortunate outcomes. A legal adviser for the
Northern Territory Government is on record as saying:

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.

Degrees of Acceptability and Contestation


Walsh (1995) also analyses the degrees of acceptability of Indigenous
witnesses in courts of law. Walsh finds that generally the degree of accept-
ance is based upon stereotypes of ‘traditionality’ and that so-called
‘bushies’ or ‘real Aboriginals’ (that is being dark skinned), even though
their methods of communication are not really comprehensible to lawyers,
are accorded a high degree of acceptability. Claimants who are classed as
‘townies’, ‘half castes’, or ‘really white’ are accorded a low acceptability.
Underpinning all of this is a continued contestation with the choice
made by the Indigenous community to include such people as claimants
and as potential landowners. Ultimately we are repeatedly presented with
ethical dilemmas that are derived from a legal standard that is not yet
flexible enough, or perhaps does not want to be flexible enough, to
include social, political and cultural arrangements for different groups of
Indigenous people who are making claim to land. This is matched with
the reality that the land claim process is without question an adversarial
system of justice and it raises issues which question the reality of how any
balanced, neutral account can ever be produced in such a politically
divided situation.
This division leads to lawyers using forensic anthropology12 to create a
distortion of what is really going on in any one community, and the trial
(land claim hearing) becomes the focus of attempting to prove who
people say they are. It becomes a contest between literate and oral forms
of knowledge and one is left with a nagging certainty that after the
Indigenous people have given evidence which is reduced to transcript, this
written archive is accorded more value than anything that may have
transpired in the court or in the field. The judge retires and makes a
decision; this judge alone is the final arbiter of tradition, identity and the
process of history that people have lived.

Memory and Remembering


Amongst this discussion we are left with a system of courts that can
reflect or disregard Indigenous peoples’ memories and the wider under-
standing of the past. There are real consequences at play that concern
access to power or material benefits, either in relation with whites or

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).

If self-determination is linked to ‘an attempt to move away from strong


paternalistic central control’ (Fletcher 1999:342), the land claims process
in the Northern Territory, part of the legislative and administrative
apparatus developed to underpin this attempt at decentralisation, has
been ineffective. Whilst we have demonstrated ‘instances’ of self-determi-
nation in this chapter, the ability of Aboriginal people and communities
to make decisions that affect their lives are constantly being challenged
and subjected to scrutiny by outside forces. Indigenous people are contin-
uously contesting constructions from outside agencies, however, there are
on-going tensions that challenge both their ability to retain distinctive
cultural identities, lifestyles, values and laws, and achieve ‘greater social
and economic equality as against the majority of the Australian Comm-
unity’ (O’Neill and Handley 1994:400) — as self-determining peoples
and communities. There have been some important gains for Indigenous

42
Bradley & Seton

people under the ALRA, and other forms of legislation. However,


decolonising institutions, perhaps set up with the vision of creating a
‘postcolonial’ Australia, remain embedded in practices underpinned by
‘deep colonising’ processes, where colonial authority can still define
Indigenous reality through the creation of classes such as the ‘haves’ and
‘have nots.’ The entire land claims process could be read as one whereby
the Land Rights Act has created a theatre of tragic farce for Indigenous
people; knowing they are required to produce a particular type of
Aboriginality, and if they fail to do so, or maybe unable to do so, they fail
in their attempt to become a registered land owner under the Act.

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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

Discussions of policing and multiculturalism often assume that minority


groups can, in some way, be accommodated within (modified) existing
organisations of state police. This chapter discusses the complexities that
arise for policing where groups within an existing nation-state go beyond
the claim for minority recognition within a concept of multiculturalism,
to claim the right of self-determination. The political accommodation of
these claims requires a rethinking of notions of sovereignty and citizen-
ship, as well as the institutional framework and practices of policing. In
this context, Indigenous claims to self-determination have profound
implications for the development of policing institutions within liberal
democratic societies.
Policing developed as a state activity fundamentally captured within
the wider historical trends of colonisation and nation building—and
nation- building occurred at the expense of dispossessed and excluded
peoples, including Indigenous peoples. Thus, the effective expression of
Indigenous self-determination is intimately connected with decolonis-
ation as a general political condition. The actual process of decolonisation
requires significant institutional change. The relationships created between
institutions of the nation-state and Indigenous peoples have been forged
within the context of a colonial political process and a colonial ‘mentality’.
Those processes have relied on treating Indigenous people as people to be
excluded from the nation state. Particularly in more recent periods, crimi-
nalisation has played an effective role in this process of exclusion. This
chapter then explores the links between criminalisation, racialisation,
exclusion and nation-building, and in particular the way these processes
have forged a specific relationship between Indigenous peoples and the
liberal-democratic state. Further, it is my intention to consider the way
political claims to self-determination are thus directly linked to a process
of decolonisation; that is, decolonisation of institutions and a decolonisa-
tion of the discursive construction of Indigenous people as ‘criminal’.
Decolonisation implies a pre-existing condition of colonialism. Colonial-
ism (and, to a certain extent, neo-colonialism) has been a process of
subjecting particular cultural or territorial groups of people, usually with

47
Unfinished Constitutional Business?

pre-existing links to land and resources and independent cultural and


political processes, to the control of another group. It is a process that
necessarily involves the exercise of power and a range of political strate-
gies to ensure subjection. It is a process that implies exploitation, violence
and cultural domination. It is a process that implies resistance on the part
of those being dispossessed and expropriated.
In the Australian context, colonialism set in motion a process of
invasion, settlement and nation-building that fundamentally altered the
lives of those people who were living in Australia. These processes disrupted
existing economies, political and religious institutions and cultures. The
processes disrupted the modes of governance through which the Indige-
nous peoples lived. I write ‘disrupted’ because modes of governance were
changed, modified, eliminated or untouched to greater or lesser extents
depending on time and place. This colonial framework of a violent and
imperial imposition of law and governance on essentially fluid, changing
and multiple modes of Indigenous governance has profound implications
for understanding both who Indigenous peoples are and their relationship
with the Australian nation-state today.
The notion of ‘neocolonial’ can be useful in understanding the trans-
formation of colonial ideology and practices in the latter half of the
twentieth century. In particular, the concept of ‘neo-colonialism’ may
assist in understanding the changes from a discourse of race, which
included Aboriginality, based on hierarchies of racial inferiority, to a
discourse which utilised concepts of formal equality. In the Australian
context, this change occurred over a thirty year period which included the
extension of citizenship rights, formal equality before the law, and social
policies of assimilation. Between the first Commonwealth/State Native
Welfare Conference in 1937 when ‘absorption’ (assimilation) became the
accepted principle underpinning Government policy, and the 1967 refer-
endum where constitutional amendments permitted the Commonwealth
Government to make laws for Aboriginal people, Indigenous people became
‘citizens’ of the nation-state known as the Commonwealth of Australia.
Of course, in a formal sense Indigenous people had been British subjects
by virtue of having been born in Australia, and after Commonwealth
legislation in 1948 were automatically Australian citizens. Yet, as
Chesterman and Galligan (1997) have forcefully argued, this citizenship
amounted only to a ‘formal shell’ under which lay the systematic
exclusion of Aboriginal people from the rights, entitlements and privi-
leges of citizenship through a mosaic of discriminatory laws and admin-
istrative practices.
During the 1950s and 1960s, overtly discriminatory legislation that
denied active citizenship to Aboriginal people was replaced by a formal
recognition of equality. The 1967 referendum provides a convenient
marker in the process of dismantling the racist legislative regimes which
had excluded Indigenous people from the rights and entitlements that

48
Cunneen

most other inhabitants of Australia took for granted. This transformation


over several decades has particular ramifications for understanding
policing. Full citizenship rights for Aboriginal people implied at the very
least the application of the principle of equality before the law.1
Aboriginal people were no longer to be viewed as a race apart in the
legislative framework that governed the behaviour and entitlements of
individuals. Rather, they became citizens with rights to be treated in a
non-discriminatory manner.
Aspects of policing also changed. It is the appeal to the rational and
formally ‘racially neutral’ character of modern policing that differentiates
it from previous periods and direct involvement in colonial policies
(White 1997). Yet there were also the ongoing processes of ‘deep colonising’
(Rose 1996). Although the formal relations between Indigenous people
and the colonial state changed in the latter part of the twentieth century,
colonising practices were still deeply embedded within institutions—even
those institutions which were meant to reverse the processes of colonis-
ation. Rose was specifically referring to land rights legislation. However,
her argument that ‘colonising practices embedded within decolonising
institutions must not be understood simply as negligible side effects of
essentially benign endeavours’ has resonance for understanding policing
during the contemporary period of formal equality (Rose 1996: 6).
Although there were formal changes in the police role after the demise
of the protection period, particular practices of colonial policing continued,
even if in a modified form, throughout the remainder of the twentieth
century. Part of the continuities in policing derived from the demands
made by an active policy of assimilation. This approach drew upon the
discourse of formal equality, where equality was defined as ‘sameness’.
Assimilation was a process demanding intensive surveillance of
Indigenous individuals, families and communities by the standards of
non-Indigenous society.2 Thus, while assimilation implied an end point of
formal equality, the process of getting to the point of being equal involved
significant state supervision.
Day-to-day discrimination, racism, violence and terror also continued
to be employed as strategies for the maintenance of a law and order. The
1960s and 1970s saw the significant criminalisation of Indigenous people
through the formal processes of the criminal justice system. The concept
of ‘neocolonialism’ provides a conceptual tool for bringing together the
continuities of policing in the colonial period, with an understanding of
the political changes that occurred in the legal context of citizenship,
equality and the rule of law. It is my argument that current levels of crimi-
nalisation and the role police play in this process can be understood as an
historical moment of neocolonial relations. The concept of neocolo-
nialism in this context draws attention to the ‘deep colonising’ effects of
criminalisation and the practices embedded in policing.

49
Unfinished Constitutional Business?

Citizenship, Self-determination and the Imagined Community:


Nation and Crime
There is an extensive literature on the relationship between nation and the
‘imagined community’ (Anderson 1996, Pettman 1996). The state defines
itself as synonymous with the nation. Nationalism constructs the ‘people’,
but does so through a process of excluding and forgetting. The limits of
belonging to the nation can also become the boundaries of the moral
community (Pettman 1996: 47). To be outside the moral community is to
be susceptible to the violence of the state. Discourses on nationalism and
the state also bear directly on definitions of crime and criminality. Sumner
(1990) has argued that the censure of crime attempts to unify and
publicise a vision of the nation and its morality. Crime is seen as a threat
to national unity. Criminalisation is a key part of the building of the
nation through processes of exclusion. Thus, ‘notions of crime control,
the crime wave, the crime zone, crime as a social problem, and the
breakdown in law and order, [are presented] as signs of a moral malaise
threatening the constitutional integrity of the state’ (Sumner 1990: 49).
Related to this concept of censure is the view that the criminal justice
system has a determining role in actually constituting social groups as
threats and in reproducing a society built on racialised boundaries. In
Keith’s (1993: 193) terms, ‘the process of criminalisation itself now
constitutes a significant racialising discourse’. A decade later the impact
of globalisation has lead to discussion of the deep seated insecurity within
liberal democracies and the role of the state in representing itself as the
guardian of sovereignty and internal and external security (Bauman 2000,
Lianos 2000). It seems that these three processes are inter-related: crime
as a moral censure reinforcing the boundaries of the nation, crime as
fundamentally racialising in drawing its exclusionary boundaries, and the
state, at a time of diminishing power in the face of globalisation, eager to
exert its power in maintaining internal order. These processes also help us
understand the limitations of response by liberal-democratic states to the
claims of Indigenous peoples for sovereignty and self-determination.
Exclusionary practices are about keeping out the human tide of people
moving from poor countries, as well as controlling racialised minorities
within the national boundaries. The racialised minorities within wealthy
nation states like Australia include both ethnic and racial groups who
have immigrated or arrived as refugees, as well as Indigenous groups. The
racialisation of Indigenous people is particularised because of their
political status and claim to rights as Indigenous, and because of their
specific position within colonial processes. The particular positioning of
Indigenous people is pertinent to understanding how criminalisation
excludes and isolates Indigenous people from the assumed national
consensus. The exclusionary processes undermine citizenship rights and
Indigenous rights. Criminalisation legitimates excessive policing, the use
of state violence, the loss of liberty and diminished social and economic

50
Cunneen

participation. Criminalisation also permits an historical and political


amnesia in relation to prior ownership of the land, contemporary land
rights, and Indigenous rights to self-determination. The political, social
and cultural rights of Indigenous peoples are easily transformed into
seeing racialised groups as a ‘law and order’ threat to national unity.
A major political impact arising from criminalisation processes is that
it removes and annihilates the political status of Aboriginal and Torres
Strait Islander people as Indigenous people. In this sense, the political
status of ‘first peoples’ is denied, as well as the validity of Indigenous
methods of governance and social control. In place of this inherent
political status, Indigenous people are both racialised and criminalised.
‘Race’ becomes conflated with criminality and the essentially political
rights of Indigenous people to control their own lives as legal subjects
disappears. Once identified as criminals, a range of practices come into
play including isolation, detention, the loss of civil rights, and the
cultural, social and economic disruption of Aboriginal communities.
Thus, the administration of criminal justice is embedded in practices
that maintain the colonised in an inferior position: outside the accepted
boundaries of citizenship. The reason one might refer to this as neocolo-
nial is because the practices themselves rely on discourses which appeal to
equality, unlike earlier colonial practices which unselfconsciously
operated within a discourse of the inferiority of the ‘native’. Many of the
formal restrictions on citizenship arising from criminalisation have been
partially removed in most liberal democracies. However, if we adopt a
broader view of the concept of citizenship as social and economic partic-
ipation and entitlement then the impact of criminalisation on the ability
to enjoy citizenship is profound (Brown and Wilkie 2002). Pixley has
argued that the right to work is the key to citizenship: unemployed people
no longer forfeit political rights, but levels of social participation drop,
and the multiple obligations placed on welfare recipients highlight their
marginalised and dependent character. Criminalisation doubly
compounds this issue. Firstly, it places its own sets of obligations and
restrictions on individuals, irrespective of whether they are in prison or in
the ‘community’. Secondly, criminalisation has multiple affects on family
life and the likelihood of future employment. Criminalisation thus
seriously reduces social and economic participation and therefore the
enjoyment of citizenship.

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?

autonomy that were recognised to varying degrees through treaties in


New Zealand and north America. More generally, the political claim of a
right to self-determination implies the right and ability to exercise some
level of sovereign power—even if within the boundaries of existing nation
states.
Sovereignty in international law is usually seen as inextricably tied to
territory: ‘Sovereignty demands a territory over which the governmental
authority of the sovereign extends. Control over territory is the most
essential element of sovereignty… Territory thus represents both the
encompassing limits of a state’s jurisdiction over its resident population
and the barriers to outside jurisdiction’ (Royster 1995: 1–2). Sovereignty
includes the ability to enter into foreign relations with other nation states
and the possession of absolute authority within the territorial and juris-
dictional boundaries of the state. For the nation state, territory delimits
sovereignty both in control of internal and external populations.
In practice Indigenous peoples experience of sovereignty under colonial
regimes varies widely from limited recognition in the United States, to a
connection with self-government in Canada, to a state of denial of its
Indigenous possibilities by Australian governments. In the US, Indigenous
peoples have had sovereignty recognised within the confines of the
overarching authority and jurisdiction of the federal government. Federal
Indian law is founded on the doctrine of inherent sovereignty: ‘The
essential claim of tribal Indians that distinguishes them from other groups
is their claim of sovereignty—the inherent right to promulgate and be
governed by their own laws’ (Scott Gould 1996: 815).
There have always been difficulties in the way Indigenous sovereignty
has been conceptualised by colonial powers. In the US, Indian tribes have
been both characterised as ‘domestic dependent nations’, as well as being
within a fiduciary relationship with the federal government like a ‘ward
to a guardian’. In other words the relationship has involved a tension
between both independence and dependency.
Despite the apparent rigidity of international law definitions, sover-
eignty is also a dynamic concept with transformed meanings in different
political and historical contexts. It is neither static nor absolute. Despite
the apparent claims of the nation state to a concept of sovereignty that
privileges a particular political relationship and concept of power, sover-
eignty is in a state of flux. From an Indigenous perspective, it can be
conceptualised in terms of jurisdictional multiplicity and divisibility
rather than monopoly and unity.
In the US there has been a transformation of the notion of Indian
sovereignty away from a territorial-based concept of sovereignty to one
based on consent. Tribal territorial sovereignty has been under attack in
the US over the last several decades, and this changing concept of sover-
eignty has largely occurred in the context of a derogation of Indian rights
(Scott Gould 1996, Royster 1995).

52
Cunneen

A consent-based sovereignty doctrine refers to the voluntary member-


ship of a federally-recognised Indian tribe through either implicit or
explicit consent. In the US this change has been used to whittle away
Indian power within Indian territory. For example, Supreme Court
decisions such as Oliphant v Suquamish Indian Tribe (435 U.S. 191
[1978]) and Duro v Reina (495 U.S. 676 [1990]) have removed Indian
criminal jurisdiction over non-Indians and non-member Indians. Indian
tribal sovereignty has been reduced to tribal members who expressly or
implicitly consent to tribal membership, and to non-members who have
consensual relationships with Indian tribes. The Court found in Duro
that ‘the retained sovereignty of the tribe is but a recognition of certain
additional authority of tribes maintain over Indians who consent to be
tribal members’ (495 U.S. 676 (1990) at 693).
While the change in the US has been to shift and further delimit Indian
sovereignty, it is also worth considering whether the linking of sovereign
power with consent opens up other avenues for rethinking Indigenous
political claims. How, for example, might we think about the requirement
of consent for the exercise of sovereign powers in relation to policing?
Considerations of sovereignty on the foundation of consensual agreement
rather than a territorial base, also opens up new possibilities for
Indigenous peoples who are unlikely to achieve a territorial base.
Foucaldian discussions on governmentality have also seen a renewed
interest in the question of sovereign power. Foucault’s concept of sovereign
power was tied to the centralising tendencies of the state. Sovereign
powers took on an increasingly centralised and unifying juridical form of
rights which were seen to transcend sectional interests, and power was
exercised negatively through prohibition, restraint, interdiction, sanction.
Stenson (1999: 50) has argued that ‘the establishment and maintenance
of sovereign control over territory [has remained] a core principle of
liberal rule’. Further ‘despite the trends towards globalisation which may
threaten the state with competing modes of governance, the liberal-
democratic nation-state retains a central role in redistributing elements of
sovereign power and national jurisdiction’ (Stenson 1999: 67).
While sovereign power remains central to the nation state, there has
also been a ‘redistribution’ of sovereign powers. In the criminal justice
area, we can see sovereign power moving out of the state to international
bodies for courts and policing (United Nations and regional-based courts,
regulatory bodies, investigatory bodies and so forth). Sovereign power
can also be seen as moving downwards to more regional and local spheres
of government and governance such as multi-agency crime control
partnerships (Stenson 1999: 68).
Establishing and maintaining the sovereignty of the state remains of
central significance within liberalism. The redistribution of sovereignty
may also provide avenues and gaps for the development of shared juris-
dictions or shared sovereignty. Yet there is also a tension here. Shared

53
Unfinished Constitutional Business?

forms of sovereignty can provide uncertainty about the legitimacy of the


nation state. The outcome may be a tendency towards integration rather
than pluralism, as the state asserts it’s right to govern under a transcen-
dent and sovereign law.

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:

The crucial importance of self-determination to Aboriginal and


Torres Strait Islander people is little appreciated by non-Indigenous
Australians. Correctly understood, every issue concerning the
historical and present status, entitlements, treatment and aspira-
tions of Aboriginal and Torres Strait Islander peoples is implicated
in the concept of self-determination. The reason for this is that self-
determination is a process. The right to self-determination is the
right to make decisions (Dodson 1993: 41).

Dodson elaborated specific aspects of the right to self-determination,


in particular that it is a collective right of distinct peoples and that it
entitles the free determination of political status. Dodson noted that
government policy was not based on recognition of the inherent right of
Indigenous people in Australia to self-determination. Rather than being
founded as a right in international law, Australian governments recog-
nised self-determination as a distinct administrative policy for Indigenous
people because of their unique status in Australia. For Indigenous people
the problem with this is that governments change. The Howard Liberal
and National Parties Government has withdrawn its support for self-
determination both in relation to domestic policy for Indigenous people,
as well internationally where it has urged the United Nations to drop the
term self-determination and replace it with self-management or self-
empowerment (ATSIC 1999: 118).
In 1995 ATSIC, the Council for Aboriginal Reconciliation, and the
Aboriginal and Torres Strait Islander Social Justice Commissioner produced
three reports for the then Labor Federal Government on social justice
measures for Indigenous people. All three reports stressed the funda-
mental principle of self-determination for Indigenous people as a basis to
ensuring social justice. For example, the ATSIC report stated that ‘there
is no right more fundamental for Indigenous people than that of self-
determination’ (ATSIC 1995: 28). Specifically in matters connected to
policing and the administration of justice, ATSIC noted that self-determi-
nation underpinned the recognition of customary law, the reassertion and
development of community self-governance; and the negotiation of
flexible forms of self-government (ATSIC 1995: 29). Importantly, ATSIC
noted that self-determination should not be constrained within existing
legal and political structures.
The National Inquiry into the Separation of Aboriginal and Torres
Strait Islander Children from Their Families also used the concept of self-
determination as the key principle underpinning its consideration of the

55
Unfinished Constitutional Business?

contemporary removal of Indigenous children through welfare and juvenile


justice processes (NISATSIC 1997: 562–580). The Inquiry argued for a
new framework which respects the right to self-determination for Indig-
enous people and complies with other international obligations for the
treatment of children and young people.
Meanwhile, there have been many developments at the local, state and
territory level where the discussion of self-determination has evolved with
particular ramifications for policing and the administration of justice. In
1993 the Northern Territory Aboriginal Constitutional Convention
discussed at length the issue of Aboriginal self-government during its
deliberations. The official push towards statehood in the Northern
Territory largely ignored Aboriginal aspirations for self-determination and
self-government. Because of dissatisfaction with the Statehood Conv-
ention held in Darwin in 1998, Aboriginal people held their own conven-
tion which resulted in the Kalkaringi Statement. The statement reiterated
the concerns of the earlier Aboriginal Constitutional Convention and
called for (among other matters) the recognition of Aboriginal rights to
self-determination, the inherent right to self-government, and the recog-
nition of Aboriginal law and Aboriginal structures of law and gover-
nance. Specifically, the statement called for negotiation over the
administration and resourcing of community justice mechanisms
(Pritchard 1998: 12–15).
The issue of developing local decision-making in Indigenous communi-
ties in Queensland was considered in an inquiry and report by Legislation
Review Committee (1991). The Committee was required to consider ‘a
new legislative framework consistent with government policy for Aboriginal
and Torres Strait Islander communities to control and manage their own
destinies’ (Legislation Review Committee 1991: 1). In its consultations
with Indigenous communities, the Committee found widespread support
for Indigenous autonomy in community decision-making. The Committee
proposed that such autonomy could be developed through appropriate
community government legislation, which would allow:

Community government structures to have all local government


powers and functions for an area. Briefly, governing structures
would also have express functions and powers in the following
areas: education, housing, health, employment, business and enter-
prise, recognition of custom, administration of justice, mainte-
nance of peace, order and safety, management of natural resources,
access and right of residency, alcohol and drug control, elections
and referenda (Legislation Review Committee 1991: 9).

Thus the Committee advocated additional powers to those available to


mainstream local authorities. Such additional powers would cover issues
such as the recognition of customary rights, laws and traditions, and the
administration of justice, police and corrections. The Committee recom-

56
Cunneen

mended the development of community government constitutions


whereby Indigenous communities could tailor jurisdictional options to
meet their concerns, needs, circumstances and aspirations as Indigenous
people (Legislation Review Committee 1991: 13).
The form which self-determination might take in Australia is
something that will be worked out over time and will no doubt vary from
place to place. However, whatever form it does take, there will be impli-
cations for how police operate in Indigenous communities. Indigenous
self-government is an achievable goal in Australia. Many Indigenous
organisations have cited the case of Norfolk Island as an example of the
recognition of self-government (Norfolk Island Act 1979). The comm-
unity was granted self-government on the basis of ‘the special relationship
of the (Pitcairn) descendants of Norfolk Island and their desire to preserve
their culture’. The community has limited powers in relation to law and
order, taxation, education, immigration, health and social welfare
(Dodson 1993). The communities of the Torres Strait have moved some
way towards self-government with the establishment in 1994 of the
Torres Strait Regional Authority. Localised self-government could also
arise through the type of model advocated by the Legislation Review
Council in Queensland whereby Indigenous communities exercise self-
determination with greater local powers of self-government through
community constitutions.
Finally, we might consider the role of regional agreements in transfer-
ring greater power to Indigenous people. The concept of regional agree-
ments derives from Canadian experience where self-government powers
have been devolved in the form of agreements between the Federal
Government and Indigenous peoples. The Canadian use of negotiated
agreements arose after the Supreme Court recognised in Calder (1971)
that native title might continue to exist in parts of Canada (Jull and Craig
1997). The devolution of responsibility through regional agreements has
included criminal justice administration in particular areas and can occur
without the necessity of constitutional change. Although as Jull and Craig
(1997: 481) point out, the making of agreements through bringing
together two peoples and two cultures in a process to share political and
economic power is a constitutional process. In Australia, the Kimberley
and Cape York Land Councils in particular have promoted the idea of
regional agreements as a method of ensuring greater autonomy (Aboriginal
and Torres Strait Islander Social Justice Commission 1995).
Developing a new interface between policing and Indigenous people
within a context of self-determination is both a theoretical and a practical
political task. There is no single blueprint for operationalising self-deter-
mination in the area of policing and community justice. However, the
lesson of successful Indigenous community justice responses is efficient,
practical and ongoing support from governments to facilitate communi-
ties in the difficult process of finding acceptable solutions. There will also

57
Unfinished Constitutional Business?

be difficulties in developing Indigenous justice processes that will need to


be overcome.
The extent to which there is an identifiable Indigenous community
with identifiable interests will affect how the practice of policing and the
principle of self-determination interact. Indigenous people in Australia
live in many different circumstances with varying levels of interdependent
networks. Other questions which will need to be addressed include how
differences and conflict between Indigenous groups will be settled, and
what processes there will be for making decisions. If Indigenous commu-
nities and regions decide to exercise their own jurisdiction over policing
and criminal justice matters, how will this impact on non-Indigenous
offenders and victims? How will jurisdiction be conceived and exercised,
and which areas of law will be encompassed?

Sovereignty, Citizenship and Policing


It is clear that the Aboriginal domain has continued to not only survive
but develop in many places throughout Australia. Aboriginal space
continues to be defended and where possible extended. In contrast, non-
Indigenous governance through policing and the broad spectrum of
government policy and programs tends to circumscribe and delimit the
struggle for Indigenous autonomy.
In many cases where Aboriginal community justice initiatives have
flourished, there have been successes in reducing levels of arrests and
detention, as well as improvements in the maintenance of social harmony.
The success of these programs has been acknowledged as deriving from
active Aboriginal community involvement in identifying problems and
developing solutions.
Indigenous resistance to colonial power has been productive of new
spaces for the exercise of Indigenous governance over policing and
criminal justice issues. Throughout Australia, Canada and New Zealand,
Indigenous communities have continued to exercise authority, or have at
least attempted to develop localised methods of dealing with problems of
social disorder. Indigenous practice has provided us with the opportunity
and the necessity to re-think the possibilities of a postcolonial relationship
between police and community.
This chapter argues for the need to explore the possibilities of
policing—about re-thinking key concepts in policing in the light of
Indigenous aspirations for self-determination. Such a reconceptualisation
needs to take account of Indigenous claims for sovereignty. Seeing sover-
eignty within a consensual-based framework has particular appeal in
relation to policing, given that so much of the problem of Aboriginal-
police relations has been based on a problem of the perceived illegitimacy
of colonial state intervention.
At a broad level, this re-thinking is necessary to respond to the
demands of ‘differential citizenship’ (Havemann 1999, 472). The liberal

58
Cunneen

idea of citizenship was traditionally tied to notions of individual human


rights. New notions of citizenship stress self-determination by collectivi-
ties, pluralism and diversity.
‘Differential citizenship’ represents a new notion of citizenship based
on collective rights (self-determination), as well as the traditional
individual rights associated with liberal notions of citizenship. Collective
rights for Indigenous peoples are embodied in the principle of self-deter-
mination, yet individual rights are also still an important aspiration for
Indigenous people—particularly those rights relating to freedom from
arbitrary state intervention and freedom from racial discrimination.
Citizenship, like sovereignty, is not a static concept. We can see citizen-
ship as forged through political struggles and conflicts over access to
resources and rights. Citizenship is a changing and evolving socio-
political concept. As Havemann (1998: 474) has noted, ‘rights talk’ and
‘sovereignty talk’ constitute dominant discourses around the relationship
between Indigenous peoples and the nation state. Arising from this
problematic relationship is the need to consider how frameworks for the
operation of multiple jurisdictions might be designed. To a large degree,
the movements in policing appear to be in the opposite direction:
expanding criminalisation, greater centralisation and management struc-
tures which emphasise singularity of goals, aims and outcomes.

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?

Keith M, 1993. From Punishment to Discipline, in M Cross and M Keith (eds).


Racism, The City and The State, Routledge, London.
Legislation Review Committee 1991, Inquiry into Legislation Relating to the
Management of Aboriginal and Torres Strait Islander Communities in
Queensland, Final Report, Legislation Review Committee, Cairns.
McLaughlin E and Murji K, 2001. Lost Connections and New Directions: Neo-
Liberalism, New Public Managerialism and the ‘Modernization’ of the British
Police, in K Stenson and R Sullivan (eds), Crime, Risk and Justice. The Politics
of Crime Control in Liberal Democracies, Willan Publishing, Uffculme.
NISATSIC 1997. Bringing Them Home, Report of the National Inquiry into the
Separation of Aboriginal and Torres Strait Islander Children from Their
Families, HREOC, Sydney.
Pettman JJ 1996. Worlding Women, Allen and Unwin, St Leonards.
Pritchard S 1998. The Kalkaringi Convention, Indigenous Law Bulletin, Vol 4,
No 15, pp 12–15.
Rose D Bird 1996. Land Rights and Deep Colonising: The Erasure of Women,
Aboriginal Law Bulletin, Vol 3, No 85, pp 6–14.
Royster JV, 1995. The Legacy of Allotment, Arizona State Law Review, 27 (1)
Spring 1995.
Scott Gould L 1996. The Consent Paradigm: Tribal Sovereignty at the
Millennium, Columbia Law Review, 96(4) May 1996, pp 809–903
Stenson K 1999. Crime Control, Governmentality and Sovereignty, in Smandych,
R (ed) Governable Places: Readings on Governmentality and Crime Control,
Ashgate, Aldershot.
Stenson K 2001. The New Politics of Crime Control, in K Stenson and R Sullivan
(eds), Crime, Risk and Justice. The Politics of Crime Control in Liberal
Democracies, Willan Publishing, Uffculme.
Sumner C (ed) 1990. Censure, Politics and Criminal Justice, Open University
Press, Milton Keynes.
White J 1997. Power/Knowledge and Public Space: Policing the ‘Aboriginal
Towns’, Australian and New Zealand Journal of Criminology, Vol 30, No 3,
pp 275–91.

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

Indigenous peoples have the right of self-determination, in accor-


dance with international law by virtue of which they may freely
determine their political status and institutions and freely pursue
their economic, social and cultural development. An integral part
of this is the right to autonomy and self-government1
The essential feature of racism is not hostility or misperception,
but rather the defense [sic] of a system from which advantage is
derived on the basis of race. The manner in which the defense [sic]
is articulated—either as hostility or subtlety—is not nearly as
important as the fact that it insures the continuation of a privileged
relationship2

In recent years there has been a proliferation of literature on Indigenous


people and self-determination. The arguments entailed in this work are
concerned with formalising self-determination, demonstrating govern-
ments’ contravention of international human rights covenants and
discussing whether or not self-determination, as specified under such
covenants, can be applied to the position of Indigenous peoples within
nation states.3 Others engage with liberal political theory as a means of
explaining Indigenous claims within western democracies.4 A conserva-
tive and populist view, which is shared by the present Australian
Government, asserts that ‘the rights of indigenous people as a people are
to some extent actualised in institutions—corporations, associations and
statutory representative bodies—that are subsidised by governments.
These institutions substantiate the supra-individual sovereignties solicited
under the policy of self-determination’.5 Such a view is based on a liberal
image of the state where race is no longer the exemplar of unity and the
enactment of policy is through democratic means. An invisible and
unnamed white constituency at the centre of the nation advocates that
citizenship is the democratic means through which Indigenous rights should
be contained and exercised. According to this constituency the impover-
ished conditions under which Indigenous people live are a product of

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

reinforced through the wide and positive representation of white people


in the media, to knowing that when national heritage and civilisation are
mentioned white men are responsible for its development.9
Since the early 1960s, racism policy makers and legislators have inter-
preted racism as either a matter of prejudice and discrimination or oppres-
sion; usually the overt behaviours of individuals that can be readily
identified and labelled. However, when racism is restricted to these
phenomena, such a definition does not sufficiently explain or expose the
pervasiveness of racist beliefs and ideologies. The focus is placed on how
racism functions to the disadvantage of Indigenous people—not on those
who are privileged, who gain from the hidden benefits of such outcomes.
The complicity in racism that white race privilege provides functions by
omission and misnomer.
Scholars within the United States and Britain have developed a power-
ful form of critique by approaching whiteness as an analytical object of
research. Dissatisfied with standard liberal and Marxist approaches to
racial oppression, scholars began investigating the relationship between
whiteness and the reproduction and maintenance of racial hierarchies.
Whiteness became exposed as the human condition, an invisible norm
against which all races are judged in myriad ways and contexts.10
However, as Rains argues, ‘for all the generation of theory on racism and
on whiteness, there remains a surprising disconnection of these issues to
the ways in which we behave and act toward each other’.11 There is also
a disconnection of white race privilege from legislative mechanisms that
are supposed to enable self-determination as argued by Rowse and others.
As I have argued elsewhere, white race privilege in Australia is based on
the theft of our lands, the murder of our people and the use of our slave
labour.12 Colonisation and dominance propelled by an ideology of white
racial superiority benefited white people in that the nation-state conferred
certain privileges and rights on white people through its systems of gover-
nance and culture.

Indigenous Women’s Self-determination and Cultural Integrity


Self-determination for Indigenous women entails governance with
political and economic power in the hands of Indigenous communities.
This is different from the current policy of self-determination espoused by
government, which is concerned with the management and administra-
tion of organisations and communities. This form of self-determination
has not actualised more autonomy or drastically improved our quality of
life and is based on the rights of citizenship rather than Indigenous rights,
which position us as welfare recipients not independent autonomous
Indigenous nations.
Indigenous women challenge the legitimacy of the nation-state and
citizenship on the basis of colonisation and illegal dispossession. The
struggle for Indigenous rights and justice is tied to the establishment of

63
Unfinished Constitutional Business?

the nation-state and citizenship. Indigenous women give priority to the


collective rights of Indigenous people rather than the individual rights of
citizenship. This does not mean that we are not concerned with rights of
citizenship or women’s representation and advocacy in society. What
Indigenous women embrace is a politics of Indigenous rights, which
encompasses the collective rights of Indigenous people, some of which
overlap with individual rights of citizenship. In 1980 at the ANZAAS
conference in Adelaide, Indigenous women resolved that:

The Australian Aborigines are the landowners of the country. The


government needs to recognise this and meet the needs of the
Aboriginal people by ensuring land rights, better education,
employment and housing.13

And in 1989, at the first International Indigenous women’s conference,


it was recommended that ‘the State and Federal Governments recognise
the right of Aboriginal people to maintain and foster our way of life and
our own system of law and self government’.14 The demand for the collec-
tive rights of sovereignty and rights of citizenship were echoed again in
1992 at the ATSIC National Women’s conference, where it was resolved:
That we the Australian Aboriginal and Torres Strait Islander Indigenous
women demand a commitment of:
• the recognition of sovereignty rights of Aboriginal and Torres Strait
Islander people;
• increased socio economic and political status of Aboriginal and Torres
Strait Islander people;
• the preservation of Aboriginal and Torres Strait Islander culture and
customs;
• introduction of immediate strategies to combat racism;
• the immediate equitable delivery of quality federal social services to
Aboriginal and Torres Strait Islander people.15
When Indigenous women assert their rights, they do so on the basis
that their cultural difference and integrity is maintained. In the resolu-
tions from six Indigenous women’s conferences, service delivery was
identified as inadequate in the areas of: child care; fostering and adoption;
employment and income; education and training; family violence;
alcohol, substance and sexual abuse; health; housing; law and legal aid;
and sport and recreation.16 In these resolutions Indigenous women
advocated:
• that the development and provision of service delivery be culturally
appropriate;
• that more Indigenous people be employed and trained in white depart-
ments providing services;
• that Indigenous people be consulted and provide advice on policy
formulation and service delivery;

64
Moreton-Robinson

• that at the community level Indigenous people determine and have


control over service provision;
• that culturally appropriate information be developed on service
delivery for distribution to Indigenous communities; and
• that white service providers be taught about their racism and the
cultures of Indigenous people.
Indigenous women perceive collective rights of self-determination as
synonymous with their sovereign rights. Professor Marcia Langton, who
worked on developing the United Nations Draft Declaration on the
Rights of Indigenous Peoples has outlined the goals of Indigenous self-
determination in Australia. These goals encompass sovereignty and self-
determination rights including self-government. This includes control
over access to land, rivers and waterways on or near Indigenous land that
has been returned under an inalienable land rights regime and rights to
minerals and resources on those lands. This must also include the right to
living areas on pastoral leases and the granting of title to Aboriginal
people over land occupied and formerly designated as reserves as well as
the right to convert Aboriginal freehold to inalienable title. Indigenous
people should also have the right to control and veto development on
Indigenous land and negotiate royalty payments. Our sea rights should
also involve control over sea resources within a specified area and compen-
sation for the dispossession of land and social and cultural upheaval.17
The goals of Indigenous women’s and men’s self-determination are
underpinned and informed by the inter-substantiation of relations
between Indigenous land, spirit, place, ancestors and bodies. The connec-
tion between self-determination and these relations is evident in the
words of Barbara Flick:

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

The irreducible difference exemplified here, between patriarchal


whiteness and Indigenous women, is the embodied experience of
Indigenous subjects, who have a connection to land that is not based on
white Anglicised males’ conceptualisation of property and ownership.
Indigenous self-determination thus encompasses our cultural sustenance
and our political and economic empowerment. Consequently, the nation
state is positioned by Langton and other Indigenous women as a contrac-

65
Unfinished Constitutional Business?

tual partner in negotiations between a nation of Indigenous people and a


nation of white men and women.
Indigenous women are committed politically to achieving self-determi-
nation and maintaining their cultural integrity. As Watson argues:

It is vital for our survival as a people to assert the right to self-


determination on all aspects of our lives—our legal rights, health,
housing, education, all functions of our existence must be deter-
mined by ourselves, from the perspective of positive Indigenous
development and not welfare dependency.19

Indigenous men and women utilise the contradictory nature of power


to position our politics on self-determination. We deploy a politics of
embarrassment, which draws on the liberal democratic ideal of equal and
human rights for all citizens in our struggle for self-determination, in
order to expose the legacy of colonisation. In this struggle, Indigenous
women are politically and culturally aligned with Indigenous men because,
irrespective of gender, we are tied through obligations and reciprocity to
our kin and country and we share a common history of colonisation.20
Individual accomplishment, ambition, property ownership and rights are
the essential values of patriarchal whiteness, whereas the family and
kinship system in Indigenous communities means that Indigenous
women’s individual aims and objectives are often subordinated to those
of family and community. The goals of self-determination in practice
warrant the recognition, acceptance and operationalisation of Indigenous
cultural differences within Australian society on equal terms.
Indigenous women seek to transform cultural and social institutions so
that our ways of knowing will be taught and respected. Indigenous
women’s relations to country mean that we have specific concerns about
the lack of protection of our sacred sites and our lack of formal owner-
ship. Under Australian law, it is the Crown who owns our sacred sites.
Moreover, Indigenous women’s authority and land ownership are being
undermined because patriarchal whiteness has designated Indigenous
men as the landowners and authority figures with whom white men
should speak. Unfortunately some Indigenous men have internalised this
conferred right and act accordingly.
Indigenous women continue to demand and struggle for the return of
our lands, the right to our intellectual property, cultural heritage, religion
and spirituality, and the right to learn and pass on our morality, attitudes
and world view.21 Self-determination for Indigenous people includes
cultural practices derived from knowledges that are outside the experi-
ences and knowledges of patriarchal whiteness. Yet we experience cultural
oppression in the form of the erasure and denial of Indigenous cultural
knowledges by white people as part of our everyday existence; we must
participate in a society not of our making under conditions not of our
choosing.

66
Moreton-Robinson

Indigenous women’s conference resolutions do not substantiate the


liberal argument that we have achieved self-determination in Australia. In
the past ten years, governments have implemented only a small number
of the resolutions. Indigenous women’s views are silenced by inaction,
which is a condition of the democratic process itself. They rarely receive
the recognition and status they deserve both nationally and internation-
ally. This is clearly evident in the United Nations Draft Declaration on the
Rights of Indigenous Peoples where our specific rights as women were not
complemented, reaffirmed or strengthened consistent with other Inter-
national covenants such as the Convention for the Elimination of Discri-
mination Against Women. Although it was recommended that a positive
statement be adopted and inserted in the Declaration concerning Indigenous
women’s rights, it is unlikely that such a proposal will be incorporated,
given the pressure on Indigenous representatives from hostile govern-
ments such as the United States and Australia.22 The hostility towards
Indigenous women’s self-determination was also evident at the Beijing
conference (World Conference on Women) in November 1999 when
Indigenous women were advised by state party representatives that self-
determination was not a ‘women’s issue’ and should not be discussed.23
Self-determination is something only men should talk about. Given the
racialised and patriarchal hierarchy of the United Nations, it is not
surprising that nation states can use their power to discriminate against
Indigenous women by denying them the basic human right of self-deter-
mination.
The Australian nation state has signed over 50 international covenants
but ratified only two in domestic legislation: the Convention on the
Elimination of All Forms of Racial Discrimination and the Convention on
the Elimination of All Forms of Discrimination Against Women. They are
incorporated into domestic law in respectively, the Racial Discrimination
Act 1975 (Cth) and the Sex Discrimination Act 1984 (Cth).

Racial Discrimination Act 1975


The Racial Discrimination Act 1975 (RDA) is part of Australian law.
However, white Anglo heterosexual physically-able and middle class
males are overly represented in government, legislatures, bureaucracies,
the legal profession and the judiciary where ‘they shape legislation,
administration and judicial texts in their own image and to their own
advantage’.24 They control and manage universities, businesses and
corporations, the source of the vast majority of complaints, and they
predominate as respondents in discrimination cases under the RDA. They
also argue that the law is neutral and impartial.
Under Australia’s adversarial judicial system, the RDA is an
individual-based model that requires the complainant to recognise an act
of racism that accords with discriminatory behaviour. What constitutes
racist behaviour is presupposed by the RDA and in this sense it restricts

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:

Even if the focus is on the substance of discrimination in higher


courts, a narrow precise and technical definition of the concept is
sought in the interests of predictability and stability. Legal
form…necessitates compressing every complaint into a form that is
both substantively and procedurally hedged in with requirements
that consistently operate to blanch the complaint of its racist
substance and to sustain the status quo.25

As white males predominate among corporate respondents in discrim-


ination complaints, they are more likely to be interested in challenging
procedural rules than the substance of the case. The power and resources
of their respective corporations can be deployed to retain an advocate
who can utilise legal formalism to benefit the discriminator. The use of
formalism becomes an expectation of white Anglo law upon which
corporate respondents depend to further their interests. Advantages are
accorded to ‘those who have profited most from present and past racial
discrimination…especially through intergenerational transfers of
inherited wealth that pass on the spoils of discrimination to succeeding
generations’.26
From 1990 to 1999 the majority of complaints under the RDA were in
the area of employment where white men predominate as managers,
Chief Executive Officers and owners. It is also the area where claims are
less successful because the concept of merit is strategically deployed in
refuting discrimination. Merit is perceived as being culturally and racially
neutral but job specific. The employer whose expertise is relied on deter-
mines the criteria used to measure merit. The evidentiary requirement to
provide a job-related reason for the discriminatory action privileges the
employer’s expertise and provides scope for the development of a non-
discriminatory rational explanation. The acceptance of the employer’s
expertise makes it difficult for the complainant to refute. When legal
procedures recognise, either implicitly or explicitly, the expectations of
white males built on the privileges and benefits produced by colonisation
it acknowledges and reinforces white race privilege. The exercising of
white race privilege here is invisible and normalised through the process.

68
Moreton-Robinson

In 1993 a racial discrimination complaint came before the Human


Rights and Equal Opportunity Commission. The complainant was an
Indigenous woman, who was challenging a decision made by the Merit
Protection Agency regarding her appointment by a selection panel, whose
conduct was subsequently contested. The Commissioner, a white middle
class male, in summing up his decision said:

I am sensitive to the possible presence of systemic racism, when


persons in a bureaucratic context can unconsciously be guided by
racist assumptions that may underlie the system. But in such a case
there must be some evidence of a system and the latent or patent
racist attitudes that infect it. Here there is no such evidence to
establish the weight to be accorded to the alleged stereotype.27

The Commissioner’s requirement that the complainant provide


evidence of systemic racism, which is not acknowledged under the RDA,
is itself, along with the act of discrimination, an act of exercising white
race privilege under the pretext of evidentiary burden. The existence of
systemic racism is contingent upon the complainant’s evidence even
though there is no such concept within the RDA. Here the victim becomes
the scapegoat. The Commissioner denies the connection of white race
privilege to the ways in which institutionalised whiteness confers upon
whites cultural, political and economic power and establishes a system of
inequality based on race. The status quo is maintained by the denial of
systemic racism and the way in which white race privilege contributes to
its existence manifested in individual acts of discrimination.
Under the RDA, complainants are given the option of pursuing redress
through the less formal and less expensive mechanism of dispute resolu-
tion. On the surface such a mechanism appears to offer complainants a
less threatening forum without scope for respondents to shelter behind
legal formalism. However, the unequal power relations that permeate
discrimination complaints can be reproduced in such a forum. Conciliators
are forced to subscribe to the white masculine norms of the conciliation
process and discriminators can rely on their deployment to assist in
negotiating a position. The conciliation process also works to protect the
reputations of discriminators, who are predominantly white males,
because of the confidential nature of proceedings and outcomes. The
conciliation process can thus contribute to racial discrimination recidi-
vism because there is no public outing to circumscribe discriminatory
behaviour. An effect of the process is that ‘by recognising the reputational
interest in being regarded as white, as a thing of significant value, which
like other reputational interests, [is] intrinsically bound up with identity
and personhood…a property interest [can] be asserted. In this context,
whiteness is a form of status property’ that confers certain privileges.28 In
effect, the processes of the RDA work to support the behaviour and
attitudes of white male perpetrators over the racially oppressed.

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]

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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.

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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

secretly undermine language, because they make it impossible to


name this and that, because they shatter or tangle common names,
because they destroy ‘syntax’ in advance, and not only the syntax
with which we construct sentences but also that less apparent
syntax which causes words and things (next to and also opposite
another) to ‘hold together’. (Foucault 1982)

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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?

involving some Aboriginals in August 1996. While Aboriginal political


violence is a rarity, Howard inspected the damages to the Old Parliament
House souvenir shop like a general touring a racial front line, and vowed
on national television that he would not be moved. This was a scandalous
piece of theatre when one calls to mind the violence meted out to
Aboriginal by the colonisers since 1788.
In keeping with that grotesque social climate, in which Howard and
Hanson were the dominant actors, a mayor of a South Australian town
defined ‘mixed race’ Australian children as mongrels and was given
coverage in the national press (Leech 1996).The South Australian Premier
of the time said that the mayor was unfit to hold office, but Howard’s
response was more complicated. First pointing out that in responding he
was exercising his right to free speech, the Prime Minister then said the
remarks were ‘insensitive’ and ‘cruel’; as though there were more sensitive
terms than ‘mongrel’, or more acceptable ways of representing the ideas
behind the remarks. In weighing his words like a lawyer, when he should
have spoken emphatically and without calculation, Howard ended up
sounding like a teacher secretly siding with a bully against his victim. It
was also a revealing insight into Australian bourgeois racism, a formation
which thinks racism is a matter of words rather than a consistent and
unchallenged world view often misrepresented as ‘mainstream opinion’.
The Reconciliation Convention in 1997 provided the scenery for
another act, albeit one which was spontaneous rather than calculated.
Howard was angered by comments from the audience and lost control of
himself, banging the lectern and shouting during his address to the
Convention: a performance that was watched in silence by the Chair of
the Reconciliation Council, Patrick Dodson, and other speakers.
Convention delegates may not have liked what the Prime Minister had to
say, but he had a reasoned position which in this instance was overshad-
owed by his anger. The anger was significant because it was a side of his
personality he did not show to gun enthusiasts or the ‘ordinary Australians’
who supported Pauline Hanson’s One Nation Party. That outburst
reinforced the sense that there is something deeper than political expedi-
ency in the anti-Aboriginal agenda of the Liberal government, and that its
cause can be found in Howard himself.
Before moving on to other, electorally more weighty, causes the Howard
government continued its swarm through the Aboriginal community. The
self-evidently absurd assertion, ‘There never was a Stolen Generation’,
was defended by Howard’s then Minister for Aboriginal Affairs John
Herron, who explained: ‘We’re arguing it’s not a generation if it was 10
percent. If it was a generation it means the whole generation, so we think
it’s a misnomer’ (Garran 2000). Howard was reported as being ‘fully
supportive’ of Herron’s comments.
In a similar vein a public servant from the Department of Prime
Minister and Cabinet’s Indigenous Policy Unit (who described himself as

76
Morrissey

having experience in ‘communication activity’) edited and amended


questions for a survey commissioned by the Council for Aboriginal
Reconciliation. One of the questions asked for a response to the
statement, ‘Compared with other Australians Aborigines get too many
handouts from the Government’. The expert in communication activity
had written next to it ‘Crude, but effective!!’ (Seccombe 2000)3. In
reporting this incident journalist Mike Seccombe wrote: ‘In the end, the
poll found pretty much what the Government wanted: most opposed an
apology, most thought Aborigines were not disadvantaged, most thought
they got too much special treatment’ (Seccombe 2000). The saving grace
is that history will find a Brechtian humour in the actions of Prime
Minister Howard, Minister Herron and the public servant.4
In light of this what does it mean when Howard declares that he will
greet the recommendations of the Council for Aboriginal Reconciliation’s
document ‘with immense goodwill’? (Steketee 2002). Precisely nothing—
other than to suggest that there is now an effective disconnection between
images, statements and reality. This disjunction is now part of the fabric
of Aboriginal affairs and mitigates against any meaningful and cohesive
discourse of Aboriginal affairs, and by extension, any effective policies.
As an unambiguous example of this disjuncture, The Australian news-
paper of 28 March 2002 featured a photograph of Geoff Clark, ATSIC
Commission Chair, bending to kiss the hand of a smiling Jeanette Howard,
wife of the Prime Minister (Rintoul 2002). The inappropriate symbolism
of this gesture, courtly and gracious though it may be on a personal level,
illustrates the fatuity of contemporary Aboriginal affairs. Mr Clark at the
time had been the subject of racialised allegations that he had raped
several women in the 1970s. But the significance of the image lies less in
its content than in its symbolic excess: Mr Clark could be expected to
treat the Prime Minister with the respect and formality due to him by
virtue of his office, but given Mrs Howard’s irrelevance in the context of
Aboriginal affairs, the hand kissing does nothing more than symbolise the
exaggerated deference and gratitude in which Mr Clark appears to hold
the Prime Minister. Any such symbolism is odious given the Howard
Government’s response to the Stolen Generations report. The occasion of
this photograph was an ATSIC conference on National Policy and the
announcement of a Federal Government ‘five-point plan’
Parallel with this absurdity is the banality of the public face of official
Aboriginal affairs. A random example is Victoria’s State ATSIC
newsletter, Koori Grapevine. The April 2002 issue carried a lead story
(complete with photographs) on the poor Indigenous attendance at
regional meetings convened to discuss a treaty. The newsletter announced
the consideration of strategies to improve attendance. Its contents also
included an ATSIC Commissioner’s diary, reports on family violence
prevention and new Aboriginal players in the Australian Football League.
In a discussion of Aboriginal leaders and community in Western New

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

True Country. In Scott’s novel the remote Aboriginal community of


Karnama becomes the locus where discourses of Aboriginal affairs, each
with varying degrees of integrity, are objectified:

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)

No-one expects anything better from White or Aboriginal politicians


with career ambitions, but how many Aboriginals have accustomed
themselves to the corruption of ‘living with the lie’? There is now talk of
‘zero tolerance’ of corruption—corruption defined as the misuse of
government funding and the exploitation of Aboriginal communities. But
what of the subtle corruption of individuals? Most overtly those whose
lives are bound by the politics of Aboriginal organisations and their
relation with ATSIC. And for everyone else the greater or lesser accept-
ance of the lie. It is not simply a matter of individuals who are corrupt
but a social world which presents objectively dysfunctional strategies as
reasonable. The lie in this sense can be explained more prosaically
through recourse to Pierre Bourdieu’s concept of habitus which he defines
as:

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)

Grossly inefficient and corrupt Aboriginal organisations, and their


staff and office bearers, are the prime exemplars of this negative habitus,
but we are all formed and normalised by it to an extent. The malaise may
be a lot more far reaching and subtle than proponents of new policy
directions in Aboriginal affairs realise.
The words of Wauthorong author Bruce Pascoe’s character Jim Fox
sound a pessimistic note:

79
Unfinished Constitutional Business?

There’s got to be space between people. Room to be alone, room


to move to another camp, find more fish, more fruit...No town
dwelling civilization has ever survived more than a few hundred
years without being run down by the next mob of rats. (Pascoe
1999)

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

2. Pauline Hanson’s Maiden Speech, delivered on 10 September 1996, among


other things asserted that mainstream Australia was the target of reverse
racism and rejected the ‘assumption that Aborigines are the most disadvan-
taged people in Australia’.
3. Seccombe suggested that these actions had been undertaken with the
endorsement of the Prime Minister’s office.
4. Brecht’s The Resistible Rise of Arturo Ui serves as a useful point of departure.

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

In essence, citizenship means that Aboriginal entitlements are no less


than, nor more than, those if other Australians. On the other hand, self-
government is formal recognition by Australia that the unique circum-
stances of Aborigines warrants special consideration. It is a pragmatic
attempt by those who believe that the only way to maintain Australia as
a white-dominated nation is to show some concessions in order to keep
Aborigines loyal and dependent.
Sovereignty, on the other hand, is the acceptance of Aborigines and
their fundamental right to control their own destiny; and the rejection of
the claim by Australia to having won the right to act on behalf of
Aborigines, either through invasion or by Aboriginal consent. It amounts
to the right to have enough land given back so that Aboriginal communi-
ties can realistically have their own government, raise their own economy
and entirely run their own affairs.
For some Aborigines, citizenship offers the chance to be equal.
Equating Aboriginal property and political rights to those enjoyed by
others has its attractions. As it is seen as being less confrontational, it is
much more acceptable to the majority. That in itself is a carrot for the
Aboriginal leadership. It usually brings with it high office and the perks
that go with it, and the opportunity to mix with the affluent, usually an
exciting novelty for Aborigines. It provides the opportunity for Aborigines
to live well by enjoying the trappings that white people generally take for
granted. Unlike the greater autonomy options, such benefits become an
end in themselves, as if, quite falsely, the other options cannot provide
these benefits. It amounts to saying that without white people, Aborigines
cannot enjoy a high living standard. The Australian experience stands
testimony to the falsity of this view.
Citizenship—or ‘one people, one nation’ — or equality as it is often
referred to, is a simplistic response to an issue that deserves a great deal
of thought. Useless slogans cannot provide the answer. While little time
will be spent here arguing the doubtful merits of Aborigines being content
to be Australians, there is little doubt the bulk of people believe such an
aim is good enough.
Its major shortcoming is that as a concept it has little substance. Out
of all of the nations of the world we are to accept Australia as the model
for a homogenous society, despite its horrific track record on Aboriginal
matters. The federal government’s display of repugnance for communal
native title, and the developing myth that Aborigines are really a privi-
leged people, despite the hard evidence to the contrary, show up the
degree of imagination embodied in such a view.
As usual, there is a cost with the compromise. The cost is having to give
up the inherent right to land, and the pride that goes with owning a
heritage and a culture so different to those of others. It is to start from
scratch in a new nation. Just as immigrants have come to Australia’s

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.

The Middle Road—Self-government


Self-government is gaining support in the Aboriginal community. Those
most interested are in the Torres Strait, the Kimberley and the Northern
Territory. It is an attractive proposition for a number of reasons. It gives
the protection of the Mother state (social security, health funding, etc.)
while permitting local control over matters such as road works and
housing construction, which in turn increases local employment and
permits limited self-regulation over drunkenness and similar ‘socially

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unacceptable’ behaviour. It also allows for Aboriginal involvement in


land management (Parks and Wildlife) and the sea and water (Fisheries
and Water Boards).
A new lease of life on this subject followed the Norfolk Island debate
in the Commonwealth Parliament. Norfolk Island, which lies about 1700
kilometres to the east of Sydney, has about 2000 residents, approximately
1500 of them permanent. Of those 1500 about half are of Pitcairn Island
descent and the balance are a mixture of Australian and New Zealanders.
During the debate on the Norfolk Island Electoral Bill in June 1992,
the issue of optional enrolment arose for Norfolk Islanders. The difficulty
was that under the provisions of the Commonwealth Electoral Act,
optional voting only applied to three categories: an Antarctic elector; an
eligible overseas elector; and an itinerant elector.
The House of Representatives agreed to amend the Electoral Act to
make special provision for Norfolk Islanders to allow optional participa-
tion in Australian elections. Ian Sinclair of the National Party provided
compelling argument for his Party’s support for optional enrolment,
arguing that:

…in Australia we believe that people should have the right to


govern themselves. It is therefore, very much a matter for the
people of Norfolk Island to determine the extent to which they
want to maintain their association with Australia. (Hansard 1992,
p 42)

The House of Representatives Legal and Constitutional Affairs Comm-


ittee had recommended optional voting for Norfolk Islanders, but had
also recommended that to vote in the Norfolk Island Assembly, Norfolk
Islanders had to take out Australian citizenship, drawing a remarkable
parallel to the Government’s position on Aborigines. Sinclair, along with
the rest of the House, rejected that recommendation. He objected to
imposing citizenship on Norfolk Islanders because ‘if Norfolk Islanders
have decided to retain their association with us, so be it, but I do not
believe that we should impose on them any obligation to Australian
citizenship’ (ibid).
In making its recommendation to the Parliament, the Committee had
been cognisant of the strongly held views of the Norfolk Islanders, ‘most
likely a majority, for whom Commonwealth Parliamentary representation
is an anathema’ (Hansard p 38).
Bruce Scott for the Liberal Party gave his endorsement because ‘it is
sensible and it has certainly taken into consideration the wishes of the
people of Norfolk Island in its drafting’ (ibid).
The Labor Government was influenced by the strength of the resolve
of the Norfolk Islanders. Duncan Kerr referred to evidence taken by the
Committee from the Society of Pitcairn descendants, who expressed the

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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:

That the particular circumstances of the island are very different


from the rest of the country is reflected in the unique compromise
which permits a voluntary enrolment, rather than a compulsory
enrolment, as is the case for the majority of Australian electors.
The reasons for that are provided in the report. (ibid)

Despite my best efforts in searching for these reasons in the report


titled Islands in the Sun: the legal regimes of Australia’s external territo-
ries and Jervis Bay Territory to which Kerr referred, I could find nothing
to support his contentions.

Why Norfolk Island but not Aborigines?


There appear to be three fundamental reasons that explain the willingness
of the Australian Government to consider both self-government and
optional enrolment for areas such as Norfolk Island but not for
Aborigines. The first arises from a mixed feeling of political insecurity
and conditioning. Australians feel a great sense of achievement for having
built their nation. They see any injustices, such as have befallen Aborigines,
as sufficient to handicap the cause of continuing to build their nation
great. As a result, Australians have developed tunnel vision and intoler-
ance toward attitudes that do not subscribe to that of their own on the
issue of nationhood. This explains the horror expressed by politicians and
media especially to Aboriginal assertions of ‘not being Australian, but
Aboriginal’. Yet the identical position taken by Norfolk Islanders was
relied upon by the Government to give them what they wanted.
Australians seem genuinely shocked that Aborigines would not want to
be a part of their nation, and dismiss Aboriginal calls for independence as
being ridiculously unworkable. So accustomed have Australians become
to keeping Aborigines dependent that they cannot conceive that we may
be able to survive without them.
We can accuse Australians of becoming outdated on the issue of who
has the right to govern Aborigines and our lands. The more Aborigines
demand resolution of this contemporary issue, the less convincing are the
responses. Slogans and waffle take over: ‘we are one people’ or ‘the
reconciliation process is the answer’. This shows the difficulty of justi-
fying the continuing white domination of Aborigines.
There is one further important preliminary to the discussion of sover-
eignty in practice, and that is the issue of whether minds can even open
up to the discussion in itself. It is both frustrating and exhausting to be
confronted by questions ranging from the sublime: will Aborigines living
outside the Aboriginal territory get the full benefits from sovereignty

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(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.

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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.

The Legal System


One of the most absurd situations in Australia is that a legal system that
was designed in England should apply to Aborigines everywhere,
including those who live in remote areas under traditional laws and
practices. Under an Aboriginal government, we would encourage each
local community to design its own appropriate legal system—whether it
be traditional, a mixture of both Aboriginal and white law, or even
something which in practice looks more like a white legal system. The
point is that we must do whatever we feel is appropriate for us. If many
of us still live a traditional lifestyle and it is appropriate that traditional
laws should apply, then so be it. Equally as clear is the need to accept that
if peoples’ lifestyle has become more westernised and if they decide that
a western-type law, with changes, should apply for them, then that’s how
it should be.
It would not be very difficult to make this arrangement work even
though there were differences in the legal system. Take the current
Australian legal system as an illustration. We have federal laws that apply
to everybody in Australia. We have state laws that differ from state to
state, but apply to everybody who comes into that state. We have local
government by-laws that apply to everybody who comes within the

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jurisdiction of that local government. So differences of laws in different


parts of a nation have been shown to work.
If you drive for one day in Europe you will go across a number of
different boundaries, come in contact with a number of different languages,
different legal and political systems, and this has been going on for many
hundreds of years. If it can work for whites, then of course it can work
for us.
It needs to be said however that Aboriginal laws would only apply on
Aboriginal land. For those Aborigines who chose to remain in the cities
and the towns, they could not expect to bring Aboriginal laws with them.
That would be unworkable. But what it does mean is that for people
coming onto Aboriginal land and who are not familiar with Aboriginal
laws, then breach of those laws might not mean as great a punishment as
it would for an Aboriginal person who knew of those laws and broke
them. We would offer a more lenient approach to those people who are
just not familiar with the different laws in the Aboriginal nation. We can
then use this as a bargaining position to help those Aborigines who chose
to remain in the city. We could tell the governments of Australia that we
treat their people more leniently when they break our laws, and therefore
we expect them to treat our people more leniently when white laws are
broken.

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.

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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.

Tactics to Achieve Control


In many parts of Australia, a form of self-government already exists. This
is mainly in the remote areas but widespread around Australia. The Cape
Barren community in Tasmania, Framlingham in Victoria and Redfern in
New South Wales are instances of a form of self-government in the south-
east. The Kimberley and Northern Territory Aboriginal communities best
show-up forms of Aboriginal self-sufficiency in the north. These commu-
nities seek greater limits to outside interference on issues such as fishing
and hunting, and control of the environment and resource management.
This indicates that self-regulation will not satisfy Aborigines in the long
run. The North Australia Research Unit has shown that the Kimberley
economy is doomed without the presence of Kimberley Aborigines, and
the funds which their presence generates. It can be but a small step for
such Aboriginal groups to be in full control of themselves.
Yet not all Aboriginal communities are as well positioned. With
poverty and neglect often comes despair and a sense of hopelessness. Such
groups of Aborigines need to be involved in discussions about the future
and how they can become part of it, despite their understandable lack of
aspiration. Education, in this context, becomes relevant and meaningful.
In the old days when this country was first invaded, our ancestors had
no choice but to do as they were told. If they did not, they were either
shot on sight or poisoned at the waterhole. Today we also do as we are
told, especially when governments tell us that we must be part and parcel
of the Australian nation and are not allowed to be independent. Yet we

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are no longer shot on sight and we at not poisoned at the waterholes. On


what basis then can we explain why we do not challenge the right of
white governments to control us? It is because we give our consent.
We consent by our conduct every day. We obey the laws of the white
man. If he tells us to live in a particular area then we do; and by and large
we accept the right of white governments to control not only our day-to-
day lives, but also our destiny. We have got to recognise that so long as
we consent through our continuing conduct, we will never be able to
exercise our right to have our own government.
We should begin the process by a campaign of civil disobedience. Some
examples include refusing to participate the Census and refusing to vote
in white elections. Another is to use the APG birth registrations so that
Aboriginal children born from now on are registered as being born
Aboriginal and not Australian. The APG has already begun this process
by refusing to travel in and out of Australia on a white passport.
Under Australian’s Migration Act 1958, officials at airports are not
obliged to allow anyone into this country who does not have a valid
travel document, which is referred to as a passport. Under Australian law
a passport is deemed to be a document which looks like a passport.
The Aboriginal Provisional Government issues Aboriginal passports
that look like passports. When Aborigines travel into Australia on the
Aboriginal passport, the officials cannot refuse them entry because they
have a valid passport. Not wanting to recognise the Aboriginal passport
however, the officials seek to harass Aborigines using them. This runs
them into problems because, according to Australian and international
law, any person who is not accepted as having a valid right of entry into
a country must be treated as an illegal immigrant. Under international
law, an illegal immigrant has to be deported to their country of origin.
Where else are they going to send us?

The Olympic Games


Another wonderful way for Aborigines to begin to assert ourselves as an
independent people is to have our own team in the Olympic Games.
Many people have said that we would not have sufficient numbers to put
up a team that could compete with countries like the United States. Why
should we worry about that, especially when we already have world class
athletes and boxers? The main point of having an Aboriginal Olympic
team is to overcome the despair amongst Aboriginal youth who know
that the only way to get on in this country is to be white. Many of our
kids grow up knowing that there is almost no chance of them making the
Australian Olympic team.
Just think of this proposition: we enter only one Aboriginal person in
the marathon at the Olympics. It may well be that an Aboriginal person
comes stone motherless last. Just think though how many Aboriginal
children would have their eyes glued to a television, or their ears to a

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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!

Conclusion: A Workable Vision of the Future


The whole idea of the Aboriginal government is based on the right of
Aborigines to exercise a choice which we think is appropriate for us. The
Aboriginal Provisional Government has always said that if Aborigines
eventually make a choice and that choice is to be part and parcel of the
Australian community, then we would accept that decision. We wonder,
however, if other bodies such as the Australian government would equally
accept this decision if Aborigines choose to be an independent people and
have our own government.
Our view is based on a vision with new ideas. We have given up on the
same old policies that have been applied to us now for more than 200
years and have been shown not to work.
It’s true that there will be no overnight change. But we have to start
somewhere. A people without a vision are a people who will remain in a
state of oppression. By having a vision of an Aboriginal government
working on crown lands in Australia where Aboriginal people can please
ourselves what we do, enables us to develop appropriate strategies that
can be taken up by us and our friends to make the vision real. The right
of Aborigines to have our own government is not a matter of a govern-
ment grant but a human right.

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.

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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:

The Great Muru involved Kahui Te Kararehe, a ‘young and


handsome chief of high rank in the Opunake district and living at
Te Namu village’.
Kahui eloped with Lydia, an old flame, who he was forbidden
to marry as he was already married to another. No one knows
where they eloped to—they simply disappeared for a week. Lydia
was the wife of Aperama, ‘a young chief of high rank living in
Parihaka’. The main players, Kahui, and Aperama, and Lydia, too,
were people of high status (mana).
Upon hearing of Kahui’s indiscretion, it was agreed by the chiefs
in the district (within a radius of 15 to 20 miles of Te Namu) that
given Kahui’s and Aperama’s mana, Kahui’s village (Te Namu)
would be subjected to a large scale muru.

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Unfinished Constitutional Business?

What followed was a highly ritualised and ordered process.


On day one, the people from the closest community to Te Namu
(ie. those with closer kinship ties to Te Namu than Parihaka) made
their way to Te Namu village and removed tools, blankets and the
like but not more precious goods.
The next day, the members of a more distant community (again
close kin but with closer ties to Parihaka than the day one party)
came to Te Namu and removed pigs, geese etc—that is, more
prized possessions.
And on the third day, people from the Oeo/Opunake area (ie.
quite close to Parihaka) came and ‘took away every horse, bullock,
cow and calf they could find, nothing was left’.
At that point Te Namu village had been deprived of every item
of personal property except for some food which had been hidden.
Then on the fourth day a ‘runner’ is dispatched from Parihaka
to Te Namu. The Taranaki veteran’s account follows:
Early on the morning of the fourth day a runner came from
Parihaka to Te Namu, with the news that an armed party had left
Parihaka, and were coming to have their share of the muru…We
learned that the war party would be at Te Namu by 11am…Not a
Maori was there but those belonging to the hapu, it evidently was
not correct for anyone but the principals to be present…At about
a quarter to eleven, we heard the Maoris coming down the track
from Umuroa; we heard an occasional sound of a chant rising or
falling as they passed over hills or hollows, and at times their
volleys from their guns…the noises continued until the war party
was within about one hundred yards of the village, and then there
was silence; a long painful anxious silence [as the enemy hid in the
fax and scrub at the edge of the village]. I looked towards our
Maoris, and the men were rigid and immovable as statues.
[All of a sudden] the air was rent with screams, such screams as
could emanate only from the throats of highly cultured female
savages the two old hags…sprang screaming, leaping and dancing
into view. They were absolutely naked and to add to their hideous-
ness they had rolled themselves in the black mud of the raupo
swamp. Each held in her hand a lighted torch. They worked
themselves into a pitch of frenzy…and each rushed to a whare and
shoved the blazing torch into the sides and roof…and they ran
from whare to whare, until everyone in the village was in flames.
A glance at our Maoris showed the awful strain upon them, they
had drawn their blankets over their heads, and crouched forwards,
their heads down almost to their knees.
But a cry went up from one of our Maori women that an old
bedridden Maori had been left in one of the whares and was being
burned to death. Men, both friends and foe, rushed forward
and…commenced frantically to pull down the whare but it turned
out to be a false alarm and back each went to their places, our

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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.

I wouldn’t advocate the re-institution of muru in its original form as a


modern means of Maori dispute resolution. But there are a number of
important concepts underlying the practice of muru and these at least
could be employed in any modern form of Maori dispute resolution:
• The parties themselves resolve the issue: there is agreement between the
chiefs in the district on the sacking of Te Namu in response to Kahui’s
transgression but the parties do not appeal to some external authority,
or supra-tribal body for the resolution of their disputes. Rather the
parties themselves resolve the dispute.
• Whakapapa is an integral part of the process. Close kin were always
reluctant to harm one another. Invoking muru as the means of seeking
utu, rather than warfare, showed that the parties considered them-
selves to be linked by blood-ties and wanted to maintain good
relations. In this way muru re-inforced kinship ties between groups.
Note also that Aperama’s people saw all of Te Namu as being respon-
sible for Kahui’s adultery. And all of Parihaka and the surrounding
neighbourhood were keen to exact utu for his indiscretion.

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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

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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.

The Runanga Iwi Act 1990


The Runanga Iwi Act 1990 (RIA) was introduced to assist in the devolu-
tion of certain social services from the Department of Maori Affairs to
iwi.2 The Act provided for the incorporation of Runanga as legal bodies
to act on behalf of iwi, give it an ‘authorised voice’, and take over certain
government services. The authorised voice provisions of the RIA were
important. All Runanga incorporated under the Act were to be recognised
by the Crown and all local and public authorities as the ‘authorised voice’
of the iwi. The Crown now had a readily identifiable treaty partner for
the purpose of consultation and negotiation of treaty settlements.
There were a number of criticisms levelled at the RIA. First, it was said
that the Act failed to take into account the modern realities of Maori
urbanisation. Secondly, many objected to the Act’s focus on iwi as the
appropriate level of representation. This was seen as undermining the role
of hapu and marae, the social entities that mattered the most to many
Maori.3 Also, Select Committee submissions on the Runanga Iwi Bill
revealed that the Bill had created division and in-fighting within iwi. For
example, established tribal structures were concerned about their position
under the RIA.
The Act had an extremely short shelf-life and was quickly repealed by
the incoming National government in 1991. However, while the RIA had
many imperfections, its repeal left an organisational void leading to many
difficulties in the ‘mandating’ of groups pursuing treaty claims.
The other legislative step taken to assist in the mandating of Maori
groupings was the eleventh hour insertion of section 30 to Te Ture Whenua
Maori 1993 (the revised Maori Land Act).

The Original Section 30 Determination Power of the Maori Land


Act 1993
Section 30 gave the Maori Land Court authority to determine who are
the ‘most appropriate representatives of any class or group of Maori
affected by negotiations, consultations, allocation or any other matter’.
Applications for a determination in the first instance went to either the
Chief Executive of TPK or Chief Judge of the Maori Land Court. They
acted as gatekeepers. Under the original section 30(2), an application
would not be referred to the Maori Land Court unless the Chief Judge or
Chief Executive was satisfied that the applicant had made sufficient
efforts to determine the representatives of the Maori grouping and that
those steps had been unsuccessful.4

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Unfinished Constitutional Business?

Chief Judge Durie (as he then was) described the purpose of the
provision:

The section may be defined by reference to the malady that the


Legislature has sought to cure. The malady in this case would
appear to be that persons seeking to effect negotiations, consulta-
tions, funding allocations or the like, in respect of Mäori groups,
are uncertain as to who may have an appropriate mandate to effect
such negotiations or consultations or as to who may give a valid
receipt. The section is designed to give that certainty so that outside
parties may treat or be treated with. Conversely, the section does
not appear to be designed to enable the Court to determine the
appropriate representatives of a group for all or a wide number of
purposes. The purpose must relate to some matter of business that
is pressing at the time. It must also be established that the question
of representation for the particular purpose described has not and
cannot be settled outside of the Court.5

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.

Origins of the Section 30 Mediation Provisions


The Maori Land Act 1993 underwent a major revision in 2002. Among
other changes, section 30 was substantially amended to include a new
mediation process for the resolution of representation issues.
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The original changes proposed to section 30 in the draft amendment


Act were of a technical nature. They ensured that the Maori Land Court
had sufficient discretion as to the scope and tenure of any determination
order. It was the Maori Land Court bench itself that suggested the need
for section 30 to be ‘substantially revamped to provide for a judge-guided
process rather than a judge adjudicated process’. A Select Committee
submission by the Maori Land Court bench noted that section 30 needed
to be withdrawn for overhaul and reconsideration:

Members will be aware that mandate and representation remains a


significant obstacle to the achievement of treaty settlements and the
resolution of intra kin-group disputes…The primary problem with
section 30 is that it is determination rather than process based…We
consider that [section 30] ought to provide a formal and properly
resourced process to encourage disputant parties to resolve their
disputes except in the most intractable of cases and as a last resort
only…
The section 30 process should allow the parties to mediate their
disputes in accordance with sound [Alternative Dispute Resolution]
principles and tikanga Maori. The judge’s role should primarily be
as facilitator assisted by an expert in tikanga and an individual
court officer able to act (where necessary) as go-between between
the parties. Any final resolution would be sanctioned by a court
order to ensure that the resolution is legally workable. It is
important that the mediation team should be headed by a judge
properly trained for the role [my emphasis].8

In fact, the Maori Land Court submission considered the court’s


statutory function could be extended to include the resolution of most
disputes between Maori with respect to tribal assets:

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

The Role of the Maori Land Court


Is the Maori Land Court the most suitable forum for resolving issues of
Maori representation via mediation? That would seem to be a reasonable
question. There is nothing in the Act’s statutory objectives about the court
resolving representation issues amongst Maori.10 Certainly, section 30
doesn’t sit comfortably with the balance of the Maori Land Act, which

99
Unfinished Constitutional Business?

focuses on the administration of Maori freehold land. And if tikanga


Maori is to be employed to resolve these representation issues—as one
would expect—is the Maori Land Court the most appropriate forum?
Apart from a few exceptions, the court is rarely called upon by the
legislation to consider questions of tikanga Maori when administering
Maori freehold land. But the Chief Judge of the Maori Land Court has
noted how tikanga Maori has been employed by stealth to resolve Maori
land matters:

My practical experience over the past 18 months has been


somewhat different. The reality in my experience is that people
who are kin group members appearing before the court do not by
and large take much notice of the enforced assimilation of the
[Maori Land Act 1993]. They come to court, if they are in conflict,
armed with the tikanga based arguments which support their
position. Trustees are appointed to administer lands not for their
skills, but for their seniority within the leading families…Judges
will always find a way to defer to tikanga unless the statute and the
tikanga are in direct conflict and even then there is often room for
creativity, and sometimes that option is taken up. But it all occurs
informally. Almost secretly.11

Also, the Maori Land Court is at least viewed by external bodies as a


court with the ability to determine questions concerning tikanga. The
Maori Land Court already has the statutory function of advising, when
requested, the High Court and the Waitangi tribunal on issues concerning
tikanga Maori. Also the Minister of Maori Affairs, the Chief Executive of
TPK, or the Maori Land Court Chief Judge can refer a question of
tikanga Maori to the Maori Land Court for inquiry and report. The
Maori Land Court also has the ability to appoint pukenga, or specialists
in tikanga Maori, to assist it with these inquiries. A similar process exists
for the Maori Land Court’s determination power also, but there’s no
process in place for involving such pukenga in a section 30 mediation.
The Maori Land Court then, has the potential to become the forum for
resolving issues involving tikanga. There are encouraging signs too with
the major amendments to the Maori Land Act 1993—section 7(2A) of the
Maori Land Court provides a person must not be appointed a judge
unless the person is suitable, having regard to the person’s knowledge and
experience of te reo Maori, tikanga Maori, and the Treaty of Waitangi.
And presently there are members of the Maori Land Court who are
widely regarded as highly knowledgeable in matters of tikanga Maori, the
treaty and te reo Maori.

The Revamped Section 30 Mechanism


The Mäori Land Amendment Act 2002 revamped section 30 of the Maori
Land Act 1993. The Maori Land Court retains its determination power

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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).

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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:

On the surface there’s nothing particularly ‘Maori’ about the new


section 30 mediation mechanism. There’s no statutory direction
that tikanga Maori be employed to resolve issues. In fact, the
mediation procedure is not all that dissimilar to the mediation
provisions in say, the Employment Relations Act or the Family
Proceedings Act.

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’

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account: the importance of whakapapa and whanaungatanga (the parties


to mediation will invariably have blood connections), openness, utu, and
mana.

Maori Land Court Judges as Mediators


The new section 30 contains several measures intended to uphold the
integrity of the mediation process and ensure it is kept independent of any
subsequent adjudication by the Maori Land Court, noting that if mediation
fails, the matter may be referred to the Maori Land Court for a determi-
nation hearing. For example, a Maori Land Court judge appointed as a
mediator is prohibited from later making a determination as a Maori
Land Court judge in the event that mediation fails (section 30D(6)).
Of course it is important that the parties find their own way to a
resolution, guided when necessary by the mediator. Maori Land Court
judges who are appointed as mediators will obviously be conscious of
their need to ‘disrobe’ during the course of mediation but there is a risk
that the parties to the mediation may nevertheless view the Maori Land
Court mediator as a judge and there may be an expectation that a
mediating judge should adopt a more interventionist role.

Direct Access to Mediation


Unfortunately the new section 30 does not allow Maori to gain direct
access to mediation. Instead the parties must apply for a determination in
the first instance and the Maori Land Court judge decides whether or not
to refer the matter to mediation.
Mediation is therefore invoked at the discretion of the addressing judge
and not by agreement and request of the relevant parties. Presumably
parties who wish to avoid a determination and proceed straight to medi-
ation will need to signal their intention to do so when they apply for a
determination.
This has the benefit of allowing the Maori Land Court judge to
determine whether the case merits a referral to mediation and the court
does have exceptionally broad grounds for refusing to hear a determina-
tion (section 30C(6)). But that gate-keeping function could have been
achieved in legislation without requiring the parties to first apply for a
determination.

Relationship Between Section 30 and Tribal Settlement


Legislation
The current approach to settling treaty claims at an iwi level has the
potential to create tension between any centralised iwi body and its
constituent hapu groupings. That conflict has led to mandating problems
but it is unlikely to disappear in any post-treaty settlement era. Hapu

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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:

The Judge may choose not to address an application if the Judge is


satisfied that the issues it presents are governed by another
enactment, or another part of this Act, or are more appropriately
addressed in another forum.

In addition the Maori Land Court has a broad discretion to reject


applications that it considers inappropriate or vexatious (section 30C(6)).
One final point about the relationship between tribes and the Maori
Land Court—it will be interesting to see what occurs if the Maori Land
Court’s dispute resolution power is broadened in the way suggested by
the Maori Land Court in their submission on the draft section 30:

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 traditonal kin groups...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.

If the court’s jurisdiction is extended in this way, iwi who negotiate a


statutory treaty settlement will need to consider whether they would in
fact want the Maori Land Court to resolve their internal disputes. Some
may be happy with the idea, but I suspect that many would want to
establish their own fora for resolving disputes, at least in the first
instance. And some may simply not want the court to play any role in the
resolution of their internal disputes.

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.

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6. See the Re Rangitane o Tamaki Nui-a-Rua (Inc) [1996] NZAR 312.


7. See Cracknell v The Treaty of Waitangi Fisheries Commission (1993)
Tairawhiti MB 152.
8. See, Maori Land Court bench submission to Select Committee (dated 14
September 2000).
9. See, Maori Land Court bench submission to Select Committee (dated 14
September 2000); see also Chief Judge Joe Williams, ‘The Maori Land Court
—A Separate Legal System?’ Text of a New Zealand Centre for Public Law
lecture given on 10 July 2001.
10. There is the view that the Maori Land Court should not be involved in Maori
representation issues. The Te Runanga o Ngai Tahu Act 1996 provides that
the tribe can ‘contract out’ of section 30 by inserting alternative dispute
resolution procedures in its charter.
11. See Chief Judge Joe Williams, ‘The Maori Land Court —A Separate Legal
System?’ Text of a New Zealand Centre for Public Law lecture given on 10th
July 2001, page 7.
12. The Act does not say who may make such an application which means that
say, a local council could seek to invoke the section 30 mediation process but
the Maori Land Court has remarkably broad powers to dismiss what it
considers to be inappropriate applications.

105
8 Indigenous Political Representation:
Identified Parliamentary Seats as a Form
of Indigenous Self-determination

Catherine J Iorns Magallanes

Ideas about what constitutes Indigenous self-determination are still


evolving and a key focus of this debate has been on forms of self-govern-
ment. One aspect that has been gaining attention amongst Indigenous
peoples world-wide is shared government, involving separate Indigenous
political representation.
In Australia, Indigenous peoples have argued that identified Parlia-
mentary seats should be set aside for Indigenous candidates at both
federal and state levels. While politicians rejected this at the federal level,
a 1998 New South Wales Legislative Council Inquiry recommended that
a detailed proposal for such a system be developed and put to a state
referendum.1
The model of representation most commonly cited as a precedent for
the establishment of separate Indigenous Parliamentary seats is that used
in New Zealand/Aotearoa. This model has been in existence since 1867
and its experience has been discussed widely. This approach is regarded
as being effective at protecting Maori interests in Parliament, but it has
also been argued within New Zealand that this system of separate seats
should be abolished. Further, despite the system effectively protecting
Maori interests in Parliament, its philosophical and structural underpin-
nings are not necessarily consistent with other aspects of Maori self-deter-
mination today.
In this chapter I focus on the relevance of self-determination for
Indigenous political representation. I consider arguments for separate
political representation as a form of self-determination, describe the
history and operation of the New Zealand/Aotearoa system of separate
Maori Parliamentary seats, and briefly outline the system of Indigenous
delegates in Maine, United States of America, and contrast it with that in
New Zealand. From such comparisons, I identify basic issues to be
discussed in the establishment (or review) of any system of separate political
representation for Indigenous peoples. Most notable is that different
definitions of self-determination will often lead to different aims and
objectives of any system of representation. These can (and should) lead to
different features incorporated within such systems of representation.

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Iorns-Magallanes

Separate Political Representation as Self-determination


In modern liberal democracies, the concept of majority rule tends to
define the democratic systems. However, the fear of abuse of power by the
majority has also given rise to constitutionalism, designed to limit the
power of those in government. Such limits restrain and control the
exercise of authority by restricting the scope of majority rule, the
substance of matters to be ruled upon and/or the procedure by which
majority rule can be effected.2
Despite such restraints on democratic majorities, minorities—and
Indigenous peoples in particular—complain that they are insufficient.
They assert that their human rights have been infringed and that they
need positive protection for the existence of their groups. They argue that
traditional, individualistic conceptions of democracy are insufficient for
the protection of group needs and rights and that different approaches
and measures need to be adopted.
Both Indigenous peoples and political theorists have identified various
possible alternative approaches, ranging from separate government to
special accommodations within national governments. Those special
accommodations include, inter alia, measures of autonomy (akin to models
of federalism), guaranteed Parliamentary representation, entrenched
rights, veto powers, and proportional voting systems.3 They don’t pretend
to remove or assimilate the differences among groups but regulate
possible conflict between them through democratic devices. The result is
power-sharing at a national level and group veto rights in certain circum-
stances, proportionality, and autonomy at the sub-national level.
However, some of the devices suggested by political theorists as being
appropriate are not necessarily applicable to Indigenous peoples.4 While
they may appear on the surface to be applicable, their reliance on the
existence of political elites may make it difficult—or at least slow—to
implement in many countries with Indigenous peoples, because of the
historical exclusion of Indigenous peoples from national politics.
One democratic device that Indigenous peoples are increasingly
exploring is guaranteed political representation. This is argued as
necessary for Indigenous participation in mainstream local and national
politics and thus in decisions that concern them at the highest political
level. Only through such high-level political participation, they argue, will
their rights be able to be protected—both the liberal, individualistic
human rights and their collective rights as Indigenous people.
From another angle—one that focuses more on the group than the
individual—the debate on Indigenous self-determination has also resulted
in calls for increased representation for Indigenous peoples within
mainstream politics. For most Indigenous peoples, self-determination will
be exercised through self-government within the states in which they live
rather than through secession and formation of an independent

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Unfinished Constitutional Business?

Indigenous state. So discussion has turned to how to achieve self-determi-


nation through self-government within the modern democratic state.
In this respect, Indigenous peoples have argued that self-government
entails control over internal and local affairs. Especially where the
Indigenous peoples do not exercise complete autonomy, many of these
internal affairs are currently governed by the wider government. And
even where Indigenous peoples exercise degrees of local autonomy, their
physical location within the wider state necessarily entails that the range
of matters that concern them are decided outside that sphere of
autonomy. Thus, in order for Indigenous peoples to be self-governing and
to achieve self-determination, they need to hold a greater degree of
control within the mainstream state. As control is exercised from the top,
they argue that they need to be participating in the decisions at the highest
political levels. From a self-determination perspective, this needs to be a
guaranteed feature of the constitutional and political landscape and not
one left to the whim of non-Indigenous voters. Such participation thus
needs to be enshrined in legislation as guaranteed political representation.
Thus, both democratic theory—primarily designed to protect the rights
of individuals—and self-determination theory—designed to protect the
group as well as the individuals in it—have suggested the same conclu-
sion. Indigenous peoples need some form of guaranteed political repre-
sentation at the highest levels of politics and government, at local and
national levels. In countries that have systems of separate Indigenous
political representation, such systems have been labelled as forms of self-
determination. For example, it has been suggested that the current Maori
Parliamentary seats in New Zealand/Aotearoa are an integrationist, but
not assimilationist, model of sovereignty.5 In Maine, USA, the current
system of First Nations tribal delegates has been defended as a part of
Indian First Nation self-determination.
The following parts of this paper detail these examples of Indigenous
political representation. They describe the features of such systems,
identify aspects which contribute to the systems being labelled as forms
of Indigenous self-determination, and identify aspects that could be
improved so as to better achieve Indigenous self-determination.

The Maori Parliamentary Seats in New Zealand/Aotearoa


In the mid-1800s in New Zealand, there had been a number of proposals
for Maori political representation, but they had been abandoned for
various political reasons.6 Special parliamentary representation was
sought for Maori because the vast majority of Maori males were not then
eligible to vote on the general electoral roll. To be on the electoral roll,
males were required to hold a minimum amount of private property.7
Nearly all Maori then did not own property individually but commu-
nally.8 In 1867, because of a convergence of political factors, a political

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Iorns-Magallanes

bargain was made whereby Maori gained four dedicated Parliamentary


seats.
It is interesting to note why Maori succeeded in gaining representation
in 1867 when they had not succeeded earlier. The first reason is that it
was seen as a quid pro quo for special gold diggers’ representation in the
South Island. The gold diggers were not private landholders either, but
they were numerous and desired a vote and participation in their local
political issues.9 Second, the special Maori seats were seen as a temporary
measure only, to be used while Maori communally-owned land was trans-
ferred to individual title.10 It was envisaged that, when Maori males held
individual land titles, they would satisfy the property requirement for the
general franchise and thus enrol on the general electoral roll. Thus the
1867 Act stipulated that the Maori seats were to last for only five years.11
In 1872 it was extended for another five years, and then extended indef-
initely in 1876.
In the first 20 years the system for the selection of the Maori represen-
tatives was noticeably different from that for the general members of
Parliament. There was no registration of voters nor individual polling to
choose representatives. Meetings to choose Maori representatives were
held in the electorates, conducted in Maori, and votes were by a show of
hands of the whole meeting. The choice of MPs was dominated by iwi
(tribe) and hapu (sub-tribe) politics—that is, by solely internal, Maori
issues and affiliations. Participation by Maori grew rapidly and election
as a Maori Member of Parliament became ‘a matter of considerable
personal and tribal mana’ (authority and prestige).12
In these first twenty years, none of the Maori representatives chosen
spoke English, but Parliamentary proceedings were not translated for
them. Interpreters were brought in especially for them to speak on the
Parliamentary floor when requested, or when the settler MPs wanted to
negotiate with them for their votes. But the Maori representatives did not
actually participate greatly in Parliamentary business. The perception was
that the Maori representatives were like ambassadors or delegates from
the Maori themselves, rather than participants in the government of the
country. Sorrenson comments that ‘in Parliament the Maori voice was
often ineffectual on matters of vital importance to them’, particularly the
sale of Maori land to settlers, and they were ‘very often ignored or
ridiculed when they did speak on important Maori matters’.13 Sorrenson
concluded that ‘the Maori members were little more than a token repre-
sentation that enabled the pakeha members to salve their consciences
while also relieving the Maori of much of their remaining land and
autonomy’.14
By the end of this period, the existence of the Maori seats had been
extended indefinitely for two reasons. First, the settlers and their MPs
were afraid that their votes and/or seats would be diluted by a huge influx
of Maori onto the general electoral roll. There were approximately

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.

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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.

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Unfinished Constitutional Business?

The Parliamentary Electoral Law Reform Select Committee, in reviewing


the Royal Commission’s recommendations, decided instead to keep the
Maori seats. This was because of the three advantages identified by the
Commission. This resulted in the introduction of MMP in 1996, while
retaining the Maori seats, plus having proportionality of the number of
Maori seats to the Maori electoral population. This can be said to be the
best of both worlds in terms of representing Maori interests in
Parliament.
In terms of results, the predictions of the 1986 Royal Commission have
come true. The party lists put forward at each election from 1996 have
had reasonable Maori representation on them, in electable positions,
across the political spectrum. The review of Maori representation under-
taken by the MMP Review Committee in 2000–2001 confirmed that this
is the case.17 Whereas, before the introduction of MMP there were only 7
Maori MPs (7.1% of the Parliament), after both the 1996 and 1999
MMP elections, there were 16 Maori elected (13.3%). Moreover, Maori
MPs have been placed in positions of power within political parties and
in both MMP governments, including being given Ministerial portfolios.
Overall, the Maori MPs are widely regarded as having raised the profile
of Maori issues within New Zealand/Aotearoa. Through this publicity
and their numbers and positions in government and the House, they have
achieved improvements to laws and policies that relate to Maori interests,
and to the living conditions of Maori generally. They are said to have
achieved some of the goals of Maori self-determination.
The 2001 review of the Maori seats, while it could not agree to make
any recommendations to keep the Maori seats, was also unable to make
any recommendations to abolish them. So the seats still stand and look
likely to do so for a while to come. Today separate Maori representation
has come to be seen as linked to status under the Treaty of Waitangi, to
Maori identity and to Maori rights generally. This is quite different from
1867. With the Maori members from electorate and especially the list
seats, the Maori seat MPs have changed the face and dynamics of
Parliament. Yet we should still be asking whether this form and function
reflect their purpose—i.e. the reason we give for having them. For
example, do they embody an appropriate concept of Indigenous self-
determination? The need for discussion of such issues becomes more
apparent when one looks at both the history of the Maori seats, for
example, and at different ways other systems of Indigenous representa-
tion have been devised.

Indian Representation in the Maine State Legislature, United


States of America
In Maine in the United States, the two largest Indian First Nations have
provided one ‘tribal delegate’ each to the state legislature since the early
1800s.18 The delegates are understood to be ambassadors from the Indian

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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.

Achieving Self-determination Through Representation


Even these brief descriptions of the systems in New Zealand and Maine
can help with devising (or reviewing) a system of separate Indigenous
political representation. They help primarily by illuminating different

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Unfinished Constitutional Business?

aspects of the approaches that might be considered necessary for Indigenous


self-determination, including competing ideas of what self-determination
might require at the level of implementation and detail. This enables one
to focus on issues that need to be addressed in the creation (or review) of
any such system. For example:
• What is the aim (or aims) to be achieved? Is it making Indigenous
opinions heard in government? Is it making Indigenous opinions count
in terms of adopting laws and policies? Is it recognising Indigenous
sovereignty?
• How would these aims best be achieved, both in terms of practical
matters (for example population size and density) and conceptual (for
example visions of self-determination)?
In addition, even if recognition of Indigenous sovereignty is an interna-
tionally-consistent aim, what is required to achieve it may actually be
different in New Zealand or Australia from the United States. Under
American law, Indian nations are constitutionally separate with their own
law-making powers; they are not constitutionally under state law. Thus,
sovereignty in the US suggests ambassadorial delegates. In contrast,
Maori sovereignty and self-government in New Zealand/Aotearoa has
been interpreted differently. In constitutional terms Maori have loosely-
defined rights under the Treaty of Waitangi to tribal autonomy and
control of tribal matters, but joint control and governance in the nature
of a partnership over matters of common concern.24 This suggests the
retention by Maori of a separate identity as a distinct partner, yet also
inclusion in a law making body, and thus not separate ambassadorial
relations. I suggest that the current Australian constitutional position is
closer to the New Zealand approach than the US position.
The other aspect of sovereignty exercised in Maine—internal control
over selection of delegates—suggests that we should be discussing such
issues when considering how best to achieve the aims identified. For
example, in the New Zealand context, what is the mandate for the Maori
seats? They have the appearance of implementing Treaty guarantees, and
their retention is argued on that basis, yet the process for selecting the
representative is nothing like a Treaty-based process. Only when
contrasting today’s procedures with, for example, those employed in the
1800s, or those employed in Maine today, do we realise to what extent
the current processes for election of Maori representatives are part of the
mainstream. At the moment, I do not see another model available for use
in New Zealand/Aotearoa, because the current Treaty models are so
contested. But a review of the seats should consider the more fundamental
issues like this, not just the more superficial survey of current opinions on
retention. Similarly, any establishment of separate Aboriginal representa-
tion in Australia needs to consider such fundamental issues.

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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

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Unfinished Constitutional Business?

methods for improving Aboriginal political representation generally. See


Parliament of NSW, Standing Committee on Social Issues, Enhancing
Aboriginal Political Representation: Inquiry into Dedicated Seats in the New
South Wales Parliament (Report No. 18, November 1998). Australia is not
alone is considering such a system of representation. The American state of
Wisconsin was in the process of adopting such a system for First Nations
delegates and the country of Colombia recently established one. Separate
Aboriginal representation through separate electoral districts was recom-
mended in Canada but that recommendation has not been pursued.
2. There are many constitutional devices adopted to restrain majorities,
including those that focus on the structure of the state (eg federalism), on the
division of powers between different decision-making bodies (eg checks and
balances, the separation of powers, and judicial review), on the structure of
the legislative body (eg bicameralism), on the electoral system (eg propor-
tional electoral systems), on decision-making processes within deliberative
bodies (eg qualified majorities and veto rights), as well as on the substance
of possible decisions (eg bills of rights).
3. Two of the more popular models of democracy among political theorists are
the closely-related consociational and consensus models, both of which aim
to share and limit political power. The most significant work on both of
these models is by Arend Lijphart. His most significant work on consocia-
tionalism is Democracy in Plural Societies: A Comparative Exploration
(1977). He describes consensus democracy in Democracies: Patterns of
Majoritarian and Consensus Government in 21 Countries (1984).
4. Will Kymlicka has discussed how the position of Indigenous people is
different from most other national minorities; but he argues that more work
needs to be done on this. See eg, Kymlicka, Multicultural Citizenship,
(Clarendon Press, Oxford, 1995); Kymlicka & Shapiro (eds) Ethnicity and
Group Rights: Nomos XXXIX (NYU Press, NY, 1997); Kymlicka,
‘American Multiculturalism and the “Nations Within”’ in Political Theory
and the Rights of Indigenous Peoples, Ivison, Pattison & Sanders (eds),
(Cambridge University Press, 2000), 216.
5. Roger Maaka and Augie Fleras, ‘Engaging With Indigeneity: Tino
Rangatiratanga in Aotearoa’, Political Theory and the Rights of Indigenous
Peoples, Ivison, Patton, Sanders (eds), (Cambridge University Press, 2000),
89 at 104. Note that the term used by Maaka and Fleras is tino rangati-
ratanga (translated as chieftainship or sovereignty).
6. See MPK Sorrenson, ‘A History of Maori Representation in Parliament’,
Appendix B to the Report of the Royal Commission on the Electoral System
(December 1986), at p. B-18.
7. The New Zealand Constitution Act 1852. The property requirement could
be in relation to freehold land (worth at least 50 pounds), or leasehold
(annual value of at least ten pounds), or a tenement (annual rental of at least
ten pounds in a town or five pounds in the country).
8. See MPK Sorrenson, at p B-17: Crown law officers ruled in 1859 that Maori
communal tenure did not qualify for the franchise.
9. There was already, at this time, separate representation in Auckland for
pensioners, so the concept was not considered unusual. See RJ O’Connor,

116
Iorns-Magallanes

‘The Future of Maori Representation in Parliament’, 1991 New Zealand


Law Journal 175, at 175.
10. See Preamble to the Maori Representation Act 1867.
11. Section 12, Maori Representation Act 1867.
12. Sorrenson, at B-22–B-25.
13. Ibid, pp. B-25, 26.
14. Ibid., p. B-26.
15. This is despite the government’s desire for assimilation, and a then commonly
projected decline in Maori and mixing of populations leading to the view
that one day it would be safe to amalgamate Maori on the main electoral
roll. Sorrenson, above n 11, pp B-36–37.
16. Except for a brief period in 1975, when a law was passed to this effect, but
was then quickly repealed.
17. See Inquiry into the Review of MMP: Report of the MMP Review Committee
(New Zealand Parliament, August 2001), at pp 19–20. Note also that repre-
sentation of women and of other ethnic minority groups has been improved
as a result of the introduction of MMP.
18. “A Brief History of Indian Legislative Representatives in the Maine
Legislature,” by S Glenn Starbird, Jr, (1983), updated by Donald Soctomah
(1999); contained in Final Report of the Committee to Address the
Recognition of the Tribal Government Representatives of Maine’s Sovereign
Nations in the Legislature, Appendix H (Maine Legislature, April 2000).
19. See DL Lovell, ‘Precedents for a Nonvoting American Indian Delegate to the
State Legislature’, American Indian Memo No 98–6 (State of Wisconsin,
Legislative Council Staff, May 7, 1999), at pp 1–3.
20. Apparently the delegates do not actually speak very often on the floor, but
are listened to and taken seriously when they do. Ibid p 3. This is different
from accounts of the first phase of the Maori seats in New Zealand. See
above nn 23–24.
21. See eg, Starbird.
22. The one-person-one-vote rule, which is so clearly a part of the Equality clause
in the Constitution, would be violated, as tribal members would then have 2
representatives in Parliament: one through their general electorate MP and
one through their tribal representative. See ‘Opinion of the [Maine]
Attorney-General on Questions Propounded by the Committee’, November
16, 1999, contained in Final Report, above n 38, at Appendix E.
23. See ‘Issues and Options Paper Generated from Committee Discussions’ by
Maine Office of Policy and Legal Analysis, at p 4, contained in Final Report,
above n 38, Appendix D.
24. These interpretations of the rights afforded by the Treaty of Waitangi have
come from both the Waitangi Tribunal and the New Zealand courts. It is
important to note here that New Zealand law does not permit Maori to
bring court actions for direct enforcement of these Treaty rights against the
government unless they have first been legislatively recognised.
25. See note 1 and accompanying text.
26. See Enhancing Aboriginal Political Representation, Conclusions One and
Two, pp 104–106.

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

Overview of Maori-Crown Relations


The history of Indigenous-state relations in Aotearoa/New Zealand
provides a useful case study in Indigenous self-determination from a
contractual perspective for two reasons. Aotearoa/New Zealand is a
useful case study for two central reasons. First, the complexities of the
indigenous situation in Aotearoa/New Zealand, such as the degree of
urbanisation of Maori and interbreeding between Maori and Pakeha
(majority European descendant New Zealanders), make it a uniquely
difficult place for settlement of indigenous issues (including issues of

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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

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Unfinished Constitutional Business?

America and Australasia, states parties have failed to uphold their


contractual ends. The pressures on states to acquire control over land and
resources brought about the denial of the status and relevance of treaty
agreements with Indigenous peoples, and, in their place, states pursued
policies of subsumption of Indigenous peoples and their territories under
state sovereignty.
From the 1970s, however, in the wake of a changed international
climate of human rights and anti-colonialism, Indigenous peoples around
the world sought a reinvigoration of their Indigenous identity and a
renewal of their Indigenous self-determination.9 Largely in tandem with
these trends has been a renaissance of the theory and practice of contrac-
tualism as a model and method for social and political organisation,
including the (re-)establishing and (re-)orienting of Indigenous-state
relations.10 The motivation behind this revived contractual approach has
been the growing state need to respond to Indigenous unrest concerning
matters of self-determination, sovereignty and justice that date back to
the original treaty agreements between the parties. In this way, contractu-
alism, in the form of treaty-making and legislative agreement, can be seen
to have played an integral part in Indigenous-state relations as the
foundation for, and renewed source of, those relations. The history of
Maori-Crown relations in Aotearoa/New Zealand is exemplary of this
contractual approach in the struggles of Maori for self-determination
historically and contemporaneously.

Historical Maori-Crown Relations: The Treaty of Waitangi


Treaties, like all contractual forms, are negotiated agreements. They may,
at one extreme, record an agreement between sovereign entities to stop
warring with one another, and, at the other extreme, simply record an
agreement over a sale and purchase between sovereign entities.11 Treaty-
making has been a fundamental aspect of, and formal foundation for,
Indigenous-state relations for over three centuries.12
The Treaty of Waitangi 1840 [the ‘Treaty’] between Maori and the
Crown has been interpreted as a response to the Crown’s need to justify
imposing its will on Maori, to assume governance of Aotearoa/New
Zealand and to rationalise land purchases in the wake of its recognition
of Maori sovereignty in the Declaration of Independence 1835.13 By
1839, the Crown had decided that a treaty was to be the juridical method
of achieving these ends. The treaty instrument was to have three objec-
tives: the protection of Maori interests, the promotion of settler interests
and the securement of strategic advantage for the Crown.14 However,
haste, inadequate consultation, lack of participation by Maori and
linguistic and cultural misunderstandings were hallmarks of this contrac-
tual approach to Maori-Crown relations in Aotearoa/New Zealand.
The Treaty is a relatively simple document consisting of a preamble
and three articles.15 Its specific purpose has been declared as securing an

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Buick-Constable

exchange of sovereignty for protection of rangatiratanga, defined as


control over lands, forests, fisheries and taonga (treasures) of the Maori
people.16 The terms of the Treaty can be briefly stated.17 By Article 1, the
Maori ceded their sovereignty over Aotearoa/New Zealand to the British
Crown. In return, by Articles 2 and 3, the Crown was to guarantee to
protect the Maori peoples’ material assets, culture and social system, and
their right to control the sale of tribal land, while preserving to itself a
pre-emptive right of purchase of tribal land. Lastly, by Article 3, the
Crown was to confer on the Maori people rights as British subjects.18
Despite the apparent simplicity and straightforwardness of the terms of
the Treaty, there remain markedly different interpretations between
Maori and the Crown on their meaning, largely captured by the different
Maori and English language versions of the Treaty.19
As a matter of self-determination, the question of sovereignty under the
Treaty of Waitangi, as with treaties generally between Indigenous peoples
and states, is the major point of contention. For Maori, sovereignty was
to be shared under the Treaty. For the Crown, sovereignty was to be
transferred, with the Crown as sovereign and the Maori as subject.20
Certainly, the process of treaty-making served as an expression of the
dual sovereignties of Maori and the Crown in the exercise of their
external self-determination in accordance with the international law of
the time.21 Further, the product of the Treaty concerned some form and
degree of exchange of political and legal sovereignty in terms of gover-
nance (imperium) and title over land and resources (dominium).22 For
Paul McHugh, a constitutional law scholar, the recognition of Maori
rangatiratanga in the Treaty provides Maori self-determination in terms
of sovereignty rights over their Treaty-defined material assets, culture and
social system.23 In this way, it can be seen that the Treaty brought the
sovereignties of the Maori and Crown parties to the agreement and
included them within its terms. However, the practical value of this is
marginalised by the fact that there remains no real consensus on the
status, meaning and implications of the Treaty, so that the question of
where precisely sovereignty lies cannot be definitively answered.24
Nonetheless, the Treaty, through its recognition of rangatiratanga,
serves as an original contractual source of state-building between Maori
and the Crown, and has provided a contemporary juridical source for
Maori claims for self-determination over their assets, culture and social
system.

Contemporary Maori–Crown Relations: The Claims Settlement


Acts
According to I. H. Kawharu, a Treaty of Waitangi scholar, inherent in the
simplicity of the Treaty is its lack of a conceptual scheme that could
accommodate the two cultures of Maori and Pakeha and an administra-
tive infrastructure for devising coherent policies and programmes that

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Unfinished Constitutional Business?

balance obligations of sovereignty against those of rangatiratanga.25 This


failing of the Treaty, combined with its state-sponsored neglect, created
the reality of a unitary and indivisible Crown sovereignty in Aotearoa/
New Zealand, denying Maori any semblance of self-determination or
rangatiratanga for much of the post-treaty-making period of Maori-
Crown relations.26
From the 1970s, however, there was a shift in the focus of Maori-
Crown relations back toward the content of the historical Treaty, and yet
away from treaty-making as a juridical method of (re-)establishing and
(re-)orienting those relations. By the 1990s, in the place of international
treaty-making, but still within the contractual paradigm, Maori and the
Crown began entering into domestic legislative agreements regarding
long-standing Maori Treaty grievances and claims against the Crown.27
The two exemplars of the contemporary contractual approach to Maori
self-determination are the Waikato Raupatu Claims Settlement Act 1995
[‘the Waikato Act’] and the Ngai Tahu Claims Settlement Act 1998 [‘the
Ngai Tahu Act’]. Both legislative agreements have been tailored towards
the settlement of grievances and claims by particular Maori tribes, in
these cases Waikato-Tainui and Ngai Tahu.28
In 1989, largely as a result of the 1987 Lands case decision, the Crown
undertook a deliberate strategy to return Treaty issues to the political
arena and government control, rather than continuing to rely on the
piecemeal approach of the Waitangi Tribunal or the courts of law, with
the issuance by the Labour Government of its Principles for Crown
Action on the Treaty of Waitangi.29 Within this strategy, direct negotia-
tions began between the Crown and Maori at three levels: pan-Maori
negotiations, tribal negotiations and leadership summits. In December
1994, with only negligible Maori input, the National Government
released details of its proposal to settle all Treaty claims within a ten year
period and with a cap of one billion New Zealand dollars, which became
known as the ‘fiscal envelope’. This was to be achieved through durable,
full and final settlements by direct negotiation with Maori tribes and
peoples, and introduced through legislation that removed the claims from
the jurisdiction of the Waitangi Tribunal and courts. Some Maori
objected to these restrictions and held other concerns.30 Nonetheless,
within this framework, four settlements have been successfully negotiated
and legislated: Waikato-Tainui, Ngai Tahu, Ngati Turangitukua and
Pouakani; with Tuwharetoa ki Kawerau, Te Aupouri, Ngati Makino,
among others, currently negotiating with the Crown.31
The part of Tainui known as Waikato were the first Maori tribe to
settle Treaty claims through domestic legislative agreements with the
Crown under this framework. It is perhaps the most significant land claim
settlement ever in Aotearoa/New Zealand. The Waikato Act was, in fact,
the first piece of New Zealand legislation to be signed by the Monarch
personally.32 The Waikato Act legislates the Deed of Settlement made

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between the Crown and Waikato-Tainui on 22 May 1995, and concerns


the claim against the confiscation of 486,502 hectares of Tainui land in
the Waikato region under the New Zealand Settlements Act 1863. The
Waikato Act provides for the transfer of 15,439 hectares of available
Crown land back to the tribe and a compensatory cash payment of
NZ$170 million.
The Ngai Tahu settlement was constructed along different lines, and
came about for different reasons, from the Waikato-Tainui settlement.
There were no rauputu (confiscated) lands involved in the Ngai Tahu
claim. Instead, the claim concerned the failure of the Crown to honour
the conditions upon which Ngai Tahu land was purchased, the overex-
ploitation and then expropriation of Ngai Tahu sea fisheries and the
destruction of Ngai Tahu mahinga kai (traditional food gathering
sources). The claim involved almost the entire South Island (Te
Waipounamu) of Aotearoa/New Zealand, embraced almost every issue
possible in Treaty negotiations and a great variety of environments and
resources.33 However, the primary concern for Ngai Tahu had been the
failure of the Crown to keep its promise that three million hectares of
purchased land would be reserved for the tribe. The Ngai Tahu Act legis-
lates the Deed of Settlement made between the Crown and Ngai Tahu on
21 November 1997, and involves the transfer of 1.38 million hectares of
available Crown land back to the tribe and a compensatory cash payment
of NZ$170 million. The significance of the Ngai Tahu settlement is that
it provides certainty regarding the South Island.34
Both legislative agreements are detailed, lengthy and complex. In terms
of their land and compensation provisions, the Tribe-Crown settlements
are much like the legislative agreements between the Indigenous peoples
and States of North America of the last two decades. However, what
separates the Aotearoa/New Zealand settlements are the form and
content of the legislation giving effect to the settlements. In terms of the
self-determination of the tribes, and as an aspect of belated State-
building, the legislative agreements provide for both justice and sover-
eignty.
Justice is accommodated substantively through the incorporation of
the past, present and future of Tribe-Crown relations. For past wrongs
against the tribes, the Preambles set out, in considerable detail, the histor-
ical background to the settlements in both English and Maori. Section 6
of each Act contains a formal apology by the Crown to the tribe in both
English and Maori that stands as part of the law of New Zealand. Within
the apology is contained an acknowledgement of the injustice of Crown
action in breach of the Treaty, recognition of the ‘crippling impact’ and
‘harmful effects’ to ‘the welfare, economy and development’ of the tribes
of such action and a declaration ‘to begin the process of dealing and to
enter a new age of co-operation’ with the tribes. For their part, within
section 6 of each Act, the tribes accept the apology and the settlement of

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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

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state-building in Aotearoa/New Zealand through a contractual redistrib-


ution of measures of sovereignty to Ngai Tahu as an aspect of their self-
determination as a tribe.
The Waikato-Tainui and Ngai Tahu settlements can also be said to
have involved most New Zealanders through the democratic process. The
Deeds of Settlement were the culmination of contractual negotiations at
the political level between the tribes and the Crown. The New Zealand
Parliament played no role in the settlements as political Deeds. But
through the passage of the settlements into ordinary legislation,
Parliament has had the opportunity to vote on them. In this way, the
represented majority has had a say on the settlements and are committed
now, and in the future, to their arrangements at the politico-legal level.
The contemporary legislative agreements can thus be said to honour both
majority preferences and Indigenous concerns.39
The major advantage of these contemporary legislative agreements has
been their capacity to address matters of self-determination for Maori in
far greater detail and specificity than by way of treaty-making, constitu-
tional clauses and the piecemeal contribution of judicial review. This has
meant the giving of effect to the (economic) self-determination of certain
Maori tribes and peoples by bringing within the domestic politico-legal
system the previously unrecognised conceptions, identities, powers and
rights of those tribes and peoples. This has been achieved peacefully and
effectively through a contractual approach that has provided fair, negoti-
ated and consensual agreement between tribal Maori and the Crown on
matters of self-determination.
On the flip side, a concern may arise as to the product of contempo-
rary legislative agreement. As ordinary legislation, legislative agreements
are susceptible to amendment or repeal at some time in the future.
However, the likelihood of this occurring without consultation with
Maori may not be great, as it would offend against the principles inherent
in their contractual relations with the Crown. In addition, an interna-
tional legal right of self-determination for Indigenous peoples, which may
provide the impetus for contractual agreement between Indigenous
peoples and states in the first place, may also provide the requisite
political and legal pressure at the international level to ensure any unilat-
eral amendments and repeals to legislative agreements would not occur
domestically.40 Within the Aotearoa/New Zealand context at least, the
capacity for such legislative agreements to be amended or repealed is
perhaps just as well for, despite purporting to be full, final and lasting
settlements, there is a strong perception of these settlements as genera-
tional only.41 The settlements will take several generations to complete
and times will change. It should not be forgotten that Maori and the
Crown, as with all relations between Indigenous peoples and states more
generally, will continue to coexist, and their relationship and any negoti-
ations and agreements that emerge from it should reflect this continuity.42

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Unfinished Constitutional Business?

A further concern may arise in terms of the actual inequality of


bargaining power between Indigenous peoples and states. Regardless of
the assumptions of equality in bargaining power in contractual relations,
state-promoted extinguishment of Indigenous status and rights is but one
situation that may emerge, potentially imposing a degree of duress on the
Indigenous party within contractual relations. What must be assessed in
each instance is proof of free and informed choice, voice, participation
and consent by all relevant parties as befits the nature and principles of
contractual relations. In Aotearoa/New Zealand, this has been a major
sticking point in certain Maori-Crown negotiations.43

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.

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The outcome of Maori-Crown contractual relations has been


noteworthy for certain Maori tribes, but it remains short of full self-deter-
mination and complete belated state-building for all Maori. The contrac-
tual approach to Indigenous-state relations in Aotearoa/New Zealand has
sought to provide a means for the vision of peaceful and effective
Indigenous self-determination and belated state-building to take root.
This vision is perhaps best captured, within the contractual paradigm, by
Lord Cooke of Thorndon when, in the 1987 Lands case, his Lordship
described the Treaty of Waitangi as a ‘living instrument’.44 This is how the
contractual approach ought to be understood and interpreted by both
Indigenous peoples and states: as a means of continuing coexistence
through consensus. This vision and contractual approach is already shared
by, and taking shape within, the Indigenous-state relations of Aotearoa/
New Zealand and Canada. It can be achievable elsewhere.

References
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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.

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Tichy I and G Oddie 1992, Is the Treaty of Waitangi a Social Contract? in G


Oddie and RW Perrett (eds). Justice, Ethics, and New Zealand Society, Oxford
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Upston-Hooper K 19998, ‘Slaying the Leviathan: Critical Jurisprudence and the
Treaty of Waitangi’, 28 VUWLR 683.

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

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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.,

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Unfinished Constitutional Business?

the indigenous nation in question) so as to acquire derivative title through


the formal cession (or sale, or concession of acquisitive possession, or any
other type of valid transfer) of lands: Martinez, above n 4, para 188. The
transfer was encased in a written document that could be presented as proof
before the colonising power’s equals in the ‘concert of civilized nations’:
Martinez, above n 4, para 189.
13. M. H. Durie Te Mana Kawanatanga: The Politics of Maori Self-
Determination (Oxford University Press, Auckland, 1998) 176.
14. Durie, above n 14, 176 citing Peter Adams Fatal Necessity: British
Intervention in New Zealand 1830–1847 (Auckland University Press and
Oxford University Press, Auckland, 1977) 87–88.
15. It has also been suggested that there was a fourth oral article protecting the
important laws and customs of Maori society to which all parties agreed
prior to signing: McGinty, above n 14, 694. This may well have been the case
at Waitangi itself, but there is nothing to show that such an oral article was
carried about the country when the Treaty was presented for accession at
other places: Spiller et al, above n 4, 131.
16. Kawharu, above n 12, xvi.
17. This restatement is derived from the English language version.
18. Kawharu, above n 12, xvii. But see Tipene O’Regan ‘A Ngai Tahu
Perspective on Some Treaty Questions’ in McLay, above n 15, 88, 88–89 for
his own interpretation of the Treaty articles. For Tipene O’Regan, ‘tino
rangtiratanga’ in Article 2 of the Treaty is more than just property rights; it
is both ownership and control: O’Regan, above, 92.
19. Bruce Biggs cogently argues that the Treaty is best thought of as two
treaties—the English and Maori language versions: Bruce Biggs ‘Humpty-
Dumpty and the Treaty of Waitangi’ in Kawharu, above n 12, 300, 311. This
is because the canonical texts existing in the English and Maori language
versions are not translations of each other: Spiller et al, above n 4, 130–131.
For useful discussions on the competing interpretations of the terms of the
Treaty and the competing language concepts, see Kawharu, above n 12,
xix–xx and McGinty, above n 14, 690–694.
20. See Kawharu, xvii.
21. The only entities with the juridical capacity to make treaties were, as today,
international subjects possessing sovereignty: Martinez, above n 2, para 189.
See below n 7.
22. See McHugh’s excellent conception of this as it applies to the Treaty of
Waitangi and treaty agreements between Indigenous peoples and states more
generally.
23. Constitutional Theory, above n 26, 47.
24. Certainly, on this point, the New Zealand Courts have been far from
decisive. In R v Symonds (1847) NZPCC 287, 395 (SC), Martin CJ
suggested that, in the context of the Crown’s pre-emptive right to purchase
land, British sovereignty predated, and thus was established independently
from, the Treaty. Prendergast CJ in Wi Parata v the Bishop of Wellington
(1877) 3 NZ Jur (NS) 72, 78 (SC) claimed that insofar as the Treaty
‘purported to cede sovereignty, it must be regarded as a simple nullity’, as ‘no
body politic existed… capable of making cession of sovereignty nor could
the thing itself exist’. However, the Treaty has been regarded by the Privy

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Council in Nireaha Tamaki v Baker (1901) NZPCC 301 and Hoani Te


Heuheu Tukino v Aotea District Maori Land Board [1941] NZLR 590 as a
valid treaty of cession, but as such it has no enforceable status in municipal
law until recognised in statute, and this remains the orthodoxy at the present
time. Philip A. Joseph Constitutional and Administrative Law in New
Zealand (The Law Book Company Ltd, Sydney, 1993), Jindra Tichy and
Graham Oddie ‘Is the Treaty of Waitangi a Social Contract?’ in Graham
Oddie and Roy W. Perrett (eds) Justice, Ethics, and New Zealand Society
(Oxford University Press, Auckland, 1992) 73.
25. Kawharu, above n 12, x.
26. Paul McHugh describes this absolute sovereignty of the Crown metaphori-
cally as ‘Leviathan’ following Thomas Hobbes: P. G. McHugh ‘Constitutional
Voices’ (1996) 26 VUWLR 499, 502.
27. See, for example, the Treaty of Waitangi (Fisheries Claims) Settlement Act
1992. For Tipene O’Regan, Treaty settlements are attempts to give effect to
the Treaty promise and are largely an exercise of recapture and resumption.
They do not involve the establishment of new rights, but rather the resump-
tion of old ones that have been denied: O’Regan, above n 20, 92.
28. It should be noted that, although Ngai Tahu signed the Treaty of Waitangi in
May and June of 1840, Tainui were not signatories to the Treaty, claiming
the retention of their sovereignty over their own land as signatories to the
Declaration of Independence 1835. However, this is largely a moot point as
the Crown asserts that the Treaty applies to all Maori tribes, signatories or
not. For useful analyses of the settlements and legislative agreements, see
John Dawson ‘A Constitutional Property Settlement Between Ngai Tahu and
the New Zealand Crown’ in Janet McLean (ed) Property and the
Constitution (Hart Publishing, Oxford, 1999) 210, Dora Alves The Maori
and the Crown: An Indigenous People’s Struggle for Self-Determination
(Greenwood Press, London, 1999) 124 and Robert Te Kotahi Mahuta
‘Tainui: A Case Study of Direct Negotiations’ in McLay, above n 14, 69.
29. See Department of Justice Principles for Crown Action on the Treaty of
Waitangi (Government Press, Wellington, 1989).
30. The objections included the non-negotiability of the conservation estate and
the billion dollar cap on claims; the non-inclusion among the settlement
principles of the principles of the Treaty that had been outlined in the 1987
Lands case and through which the resurgence of Maori Treaty claims had
originated; the settlement principles themselves being founded upon political
expediency, economic affordability and popular support, rather than as
principles of natural justice; Maori interests in natural resources being
confined to use and value interests, excluding ownership; and, implicit
discounting of the Maori version of the Treaty: Durie, above n 14, 191–193.
31. Durie, above n 14, 195. Pre-requisites of the negotiation process were accept-
ance onto the National Government’s Negotiations Work Programme, which
presupposed prior agreement between the Crown and Maori that the claims
were historically verifiable; that the claimant group had a mandate; that the
Crown’s position on the alleged breaches was accepted; and, that the claim
was seen as having sufficient priority. The claimants also had to agree to
negotiate a final settlement and to waive all other avenues of redress: Durie,
above n 14, 198.

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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

The common article of the twin covenants of the International Bill of


Rights is Article 1 with three significant paragraphs summarising neatly
the significant aspects from basic survival to belief systems and creating
philosophical and political order of all peoples. This chapter examines the
case of Kanaka Maoli (Native Hawaiian people) in the quest for realisa-
tion of the right of self-determination in Ka Pae Aina (the land known as
Hawaii). I provide a historical perspective on the denial of the right of
self-determination in the nineteenth century through to current challenges
and circumstances. I also look at the resistance movements striving to
realise the right to self-determination through the current campaigns to
secure this right in the hearts of Kanaka Maoli and the halls of decision-
makers around the world from the US Congress in Washington DC to the
United Nations in New York and Geneva.
According to common Article 1 paragraph 1,

‘All peoples have the right of self-determination. By virtue of that


right they freely determine their political status and freely pursue
their economic, social and cultural development.’

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.’

The final paragraph reminds all nations of the responsibility to ensure


the right of self-determination for all peoples of the planet. The duty as
UN members is placed in the third paragraph,

‘The State Parties to the present Covenant, including those having


responsibility for the administration of Non-Self-Governing and
Trust Territories, shall promote the realization of the right of self-

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Unfinished Constitutional Business?

determination, and shall respect that right, in conformity with the


provisions of the Charter of the United Nations.’

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 biggest weapon wielded against that collective defiance is the


cultural bomb. The effect of a cultural bomb is to annihilate a
people’s belief in their names, in their languages, in their environ-
ment, in their heritage of struggle, in their unity, in their capacities
and ultimately in themselves. It even plants serious doubts about
the moral rightness of the struggle. 1

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).

Ahupuaa and Aumakua: Lokahi Among Kanaka Maoli and Aina


Before the aims of the missionaries, the military and the merchants were
placed above the aspirations of the Indigenous peoples of the islands,
there was a balance among the people and nature. Slowly through each
wave of influence crashing onto the shores, the intricate interconnected-
ness between the people and nature was eroded.

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The spiritual relationship with ka aina is the foundation for the


purpose of people inhabiting the most isolated land mass in the world:
Hawaii. The harmony between inhabitants and the islands from flora,
fauna, water, animals and land was reflected in the spiritual practices of
reverence for nature in all its forms. Kalo (taro) is the most sacred of
plants noted to be the eldest child of Kanaka Maoli and the first child of
Papahanaumoku, earth mother, and Wakea, sky father, after the creation
of the sacred land of Hawaii nei—Ka Pae Aina. From the taro comes
Kanaka Maoli. The relationship of Kanaka Maoli and the land is one of
family, of kinship with one another. The reciprocal relationship is the
basis for existence.
The eight islands inhabited exercised a self-determination, with each
island divided into districts of okana that were divided from mountaintop
to sea in wedge-shaped pie pieces of ahupuaa. The ahupuaa were natural
boundaries providing a basis for a next level of ili where ohana (families)
cared for cultivation of the land. The ohana was the core unit for the
primary purposes of economic, social and cultural development as noted
in the right of self-determination.
Kanaka Maoli survived for centuries in the relationship of reciprocity
in each ahupuaa where makaainana (people of the land) had access to all
necessities of the earth with access to mountain forests with fruits, taro
terraces, fresh water and oceans of fish. At the time of contact with the
Western world, Ka Pae Aina boasted a population of up to 1.3 million on
the islands, the current population today.
As Marion Kelly, a University of Hawaii professor notes,

The Polynesians who settled Hawaii, perhaps as early as 300 A.D.


[had]a distinctive Polynesian culture: their language, religion, their
art, navigational knowledge, agriculture and fishing technologies,
their legends and history, and the plants and animals which they
cultivated and domesticated. It was their belief that their gods had
created the land and the sea and everything on the land and in the
sea. These resources were there for everyone’s use: land, water, sea.
Because these were created by the gods, they must be cared for. No
one must take more than they need, and everything must be
shared.2

Before Captain James Cook accidentally arrived on the shores in 1778,


Hawaii was a thriving nation in the Pacific. Captain Cook arrived during
Makahiki (season of peace) and was welcomed. Subsequently, the harmony
of Hawaii nei was shattered and the right of self-determination denied
through various interests of missionaries, militaries and merchants over
the next centuries and into current daily decisions impacting the
Indigenous peoples of Hawaii.
The philosophy and principles enshrined in the policies of Kanaka
Maoli were shattered with contact as the political system was changed to

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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.

These early Hawaiians applied a resources management approach


within a societal structure that ensured their survival in a new,
natural paradise of raw elements. Managing an area, usually from
the mountain-tops to the nearshore waters, they lived in a self-
sufficient watershed called ahupuaa. They viewed the natural
environment as an integrated system and nurtured it holistically,
while using it to feed, heal, clothe, house, transport and teach the
community.3

On one of the first visits of Captain Vancouver in 1794, Archibald


Menzies toured the area and wrote

We entered the breadfruit plantations whose spreading trees with


beautiful foliage were scattered about the distance from the shore
along the side of the mountain as far as the eye could see in both
directions we continued our ascent for about two miles further
surrounded by the plantations of the esculent roots and vegetables
of the country.4

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

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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:

In less than a hundred years after Cook’s arrival, my people had


been dispossessed of our religion, our moral order, our form of
chiefly government, many of our cultural practices, and our lands
and waters. Introduced diseases killed Hawaiians by the hundreds
of thousands, reducing our Native population to less than 40,000
by 1890.7

As the Indigenous peoples passed away, the beliefs were also


weakened, allowing for foreign influences to determine the economic,
social and cultural development of Kanaka Maoli through religion, the
market economy and democratic elections through Western laws instead
of the traditional mechanisms. The ability of self-determination dwindled
as more powerful forces decided the direction of Hawaii.
Kanaka Maoli faced forces that denied the principles recognised in the
right of self-determination—forces based on a centre of capital commerce
mixed with military might and religious self-righteousness and peppered
with racial superiority over the Pacific periphery, which was coping with
the century’s challenges. As Noel Kent, wrote:

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

The Monarchy in Hawaii and the American Manifest Destiny in


the Pacific

Ua mau ke ea o ka aina I ka pono


The life of the land is perpetuated in righteousness
Kamehameha III
The right of self-determination focuses on the political front, for all
peoples to freely determine their political status. It is crucial to focus on

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Unfinished Constitutional Business?

this component of the right of self-determination. In Hawaii nei, the


political status was the beginning of the end where all other aspects of
economic, social and cultural development were destroyed by declaring
traditional practices, from language to land cultivation, illegal, through
laws passed by imperial powers.
The political status was changed through more businessmen partici-
pating in the political decision-making bodies, even changing the core
documents guaranteeing basic rights of Kanaka Maoli such as the consti-
tution and other important instruments; for example laws pertaining to
land such as the Mahele, privatising lands that were formerly based on a
kinship, and communal status.
The waves of foreign dominance determined the political future of
Hawaii. As Trask wrote:

Upon the heels of British explorers and their diseases, Americans


came to dominate the sandalwood trade in the 1820s. Coincident
with this early capitalism was the arrival of Calvinist missionaries,
who introduced a religious imperialism that was as devastating a
scourge as any venereal pox. A combination of religious and
economic forces enabled aggressive Americans to enter the govern-
ment where they pressured the chiefs and King unceasingly for
private property land tenure.9

By 1844, there were 14 non-Kanaka Maoli holding seats in govern-


ment from royal representatives to judges. Only three years later, there
were 48 non-Kanaka Maoli in leadership positions with 25 from the
United States.
George Paulet, British representative to Hawaii, had over 700 pages of
grievances as reasons to overthrow and annex Hawaii. For five months,
the British took over Hawaii, yet the leaders petitioned the Queen to
restore the sovereignty taken by the British admiralty through its actions.
The British Crown recognised the illegality and immorality of the actions
by the admiralty. In 1843, Rear Admiral Thomas restored the Kingdom
upon order by the British Crown guaranteeing the right of self-determi-
nation.
The will of Kanaka Maoli was overshadowed by the political will of
the missionaries and their descendents for Hawaii to represent their
values. As Kent wrote, ‘Tenacious, strong willed clergymen like Gerrit
Judd and Riccord wrote a constitution in 1852 that granted decisive
powers to themselves as ministers of the king.’10 The impact of these
combined forces on the right of self-determination for Kanaka Maoli is
recognised by Indigenous authors. As Trask wrote:

Through the unrelenting efforts of missionaries like Gerrit P Judd,


the Mahele, was attained in 1848–1850. Our disease ridden
ancestors, confused by Christianity and preyed upon by capitalists,

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Cooper

were thereby dispossessed. Traditional lands were quickly trans-


ferred to foreign ownership and burgeoning sugar plantations. By
1888, three-quarters of all arable land was controlled by haole.

The tragedy of the usurpation of the decision-making to reflect the


Indigenous culture was recognised in the newspapers of the time and on
the streets, as Kanaka Maoli became dispossessed in their own homeland
to the benefit of evangelical clergy and business owners with economic
interest in Hawaii. As a newspaper, The Sandwich Islands noted,

The king is king in name only, all executive prerogatives and


functions of the king have been assumed by individuals consti-
tuting themselves a Privy Council. Either Dr Judd or Mr Richards
presides at the legislative council and explains the law, then raises
his hand to vote for final adoption, and they all vote with him.11

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.

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Unfinished Constitutional Business?

Queen Liliuokalani wanted to restore a sliver of the right of self-deter-


mination eroded with the Bayonet Constitution forced on her brother
Kalakaua. Queen Liliuokalani’s effort was never brought forward as
some ministers believed a new constitution would result in a violent response
by the business leaders. The Annexation Club formed the Committee of
Public Safety to protect property but not liberty of the people in Hawaii.
The 13 white male member committee urged US Minister Stevens to land
US troops ‘as a precautionary measure to protect American life and
property.’12 While American lives were not endangered, the life of the
Hawaiian nation was.
On 17 January 1893, the 13-member Committee of Public Safety,
overthrew Queen Liliuokalani with the military might of the US Marines.
Because the Committee was concerned that the Queen would change the
constitution to reflect the basic rights of Kanaka Maoli and challenge the
monetary monopoly of the missionary descendents,

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 right of self-determination was curtailed through various acts in


the nineteenth century. However, the ultimate violation of the right of
self-determination was the political declaration replacing the chosen
leadership of Kanaka Maoli. As Harlan Cleveland wrote in a column,

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

The illicit collaboration of the US representative allows for the actions


by the Annexation Club to succeed. As Minister Stevens wrote in the
Foreign Service Journal the following morning, ‘The underlying cause of
this profound feeling among the citizens is the hope that the United States
Government will allow these islands to pass to an American control and
become American soil.’15 Minister Stevens might have misread the will of
people blinded by his enthusiasm for the overthrow and possibilities of
Hawaii becoming part of the United States. As Minister Stevens wrote to
the Secretary of State, ‘The Hawaiian pear is now fully ripe and this is the
gold hour for the United States to pluck it.’16
Queen Liliuokalani was a pioneer peace advocate, avoiding bloodshed
although she had police and troops armed and available to defend her

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Cooper

position. Queen Liliuokalani followed a diplomacy path for peace in the


Pacific. She authored a letter of protest to preserve the nation and protect
the human rights of Kanaka Maoli, especially the right of self-determina-
tion. Her letter to President Grover Cleveland read,

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

Queen Liliuokalani followed protocol for the law of nations to


recognise and return the right of self-determination to Kanaka Maoli
avoiding war and aiming toward aspiration of the rule of law in the inter-
national order.
US President Benjamin Harrison attempted to end any reflection and
return of the Hawaiian Islands by sending an annexation treaty to the US
Senate because it ‘will be highly promotive of the best interests of the
Hawaiian people, and is the only one that will adequately secure the
interests of the United States.’18 Fortunately, the President-elect Grover
Cleveland instead sent James Blount, a former chair of the House Foreign
Affairs Committee, to investigate and provide insight to the islands’ well-
being. Meanwhile President Cleveland withdrew the annexation treaty
just three days after his inauguration. Blount arrived on March 31 and
ordered the lowering of the US flag. The Queen was impressed with the
fairness of Blount interviewing both sides and speaking to people in the
street.
Based on the Blount report and the correspondence with the Queen,
President Cleveland made a speech to both houses of Congress on 18
December 1893:

By an act of war committed with the participation of a diplomatic


representative of the United States and without authority of
Congress, the Government of a feeble but friendly and confiding
people has been overthrown. A substantial wrong has thus been
done which a due regard for our national character as well as the
rights of the injured people requires we should endeavor to repair.19

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,

Our Government was formed for the express purpose of creating


in a new world a new nation, the foundation of which should be
man’s self-government, whose safety and prosperity should be

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Unfinished Constitutional Business?

secure in its absolute freedom from Old World complications and


its renunciation of all schemes of foreign conquest.20

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,

He believed in the right of people to establish and alter on occasion


their own form of government. Self-determination is an indefinite
thing. This principle he advocated for our territorial administra-
tion. He regarded it as inevitable that the welfare of the subject
would be forgotten if profits were the aim of business enterprise
and the government controlled by special interests. He advocated,
therefore, administration by the United States, of Hawaii and
Puerto Rico in the interest of the native people, that sympathy born
of understanding and kindred institutions might form the basis of
lasting unity.22

President Wilson believed in the right of the peoples toward self-deter-


mination. He stated of the US position,

We are trustees. Puerto Rico, Hawaii, the Philippines, are ours,


indeed, but not ours to do what we please with. Such territories,
once regarded as mere possessions, are no longer to be selfishly
exploited; they are part of the domain of public conscience and of
serviceable and enlightened statesmanship. We must administer
them for the people who live in them and with the same sense of
responsibility to them as toward our own people in domestic
affairs.23

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Cooper

Another important act on the domestic front was the decision by


Prince Jonah Kuhio to advocate as a Republican. He worked for the
Hawaiian Homes Commission Act for the ‘rehabilitation of the Hawaiian
race.’ There are 200,000 acres of homelands provided to those who can
prove 50% Hawaiian ancestry. The idea of blood quantum used for
Native Americans is imposed upon Indigenous peoples of the Pacific in
their own homeland for Hawaiian Homes. This was the compromise
between the sugar companies fearing loss of land and elected officials
aiming for some form of reparations according to rule of law but also
importantly for cultural survival. Unfortunately, to date over 20,000 have
languished on the waiting list to receive a 99-year lease on parcels that are
some of the least productive areas of land in Hawaii.
In the spirit of Woodrow Wilson’s aspiration, in 1946, Hawaii was
placed on the United Nations List of Non-Self-Governing Territories as a
US colonial possession and eligible for decolonisation under the principles
and practices of international law. The US responded with a plebiscite for
statehood. Hawaii became the 50th and final state of the union with the
vote in 1959. Hawaii was taken off the UN Committee on Decolonisation
list when the US informed the UN that 95 percent of the people of Hawaii
voted for statehood. However, the question on the ballot was not legal
under international standards of law. It stated, ‘Should Hawaii be
admitted as a member of the Union?’ If the voters, who were required to
have lived in Hawaii for only one year prior to the plebiscite voted yes,
they desired statehood. If the voters cast a ballot for no, they remained a
territory. A crucial concept missing in the form of question on the ballot
is one of self-determination and sovereignty. According to UN General
Assembly Resolution 742 (VIII) there must be several options in such a
ballot, including independence. For 14 years, Hawaii was listed on the
UN Decolonisation list. The US claimed the question was answered with
the vote for statehood. Unfortunately, the demands for justice and the
question of independence never received a vote. The Indigenous peoples
provided the protest cry of ‘Now we are all haoles.’
The corporations continued to build upon their political and economic
control of the islands, determining the future of all people according to
their vision of a paradise of the Pacific based around their profit margin,
disregarding the peoples’ movement desire for decolonisation and possible
independence for a Pacific nation. From sandalwood to whaling to sugar
and eventually tourism, the economic future was placed in one sphere.
Tourism became the determining force for decisions, not the people. The
other significant factor was Hawaii’s role as a military outpost in the
Pacific allowing the US to patrol the Pacific and maintain influence in the
region. Since the establishment of the Pearl Harbour naval base, Hawaii
has become an outpost for US military actions. Tourism and military
matters have dominated the determination of decision-making in Hawaii
for the past half-century. The corporations have decided the direction of

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Unfinished Constitutional Business?

development of the lands, which also led to displacement of more Kanaka


Maoli from their homelands in the interest of hotel development and also
military training.
Over 100 years have passed, yet the words of President Grover
Cleveland still ring true in the claim for recognition of international law
and a moral order of equality for all peoples and all nations. The basic
right of self-determination must be recognised by other Heads of State
around the world to honour the Hawaiian claim for this core, collective
human right. As President Cleveland said in Congress:

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

Unfortunately, the rights of Kanaka Maoli continue to be challenged


and deteriorated with US Supreme Court cases such as Rice v Cayetano
and upcoming decisions such as the Barrett case. There are more cases
aiming at eliminating any entitlements which have survived centuries of
discrimination.
There are many actions that the United States and the United Nations
can take to right the wrong and respect human rights, specifically the
right of self-determination. Meanwhile, the Indigenous peoples are organ-
ising on various fronts to realise the right of self-determination, pursuing
economic, social and cultural development. Unfortunately, since the
people are unable to determine their political status, the additional
pursuits also remain undeveloped. And a fundamental requirement is the
return of land, to provide a basis for holistic living, rooted in spiritual
traditions that create the essence for the economic, social and cultural
developments.
Through resistance and non-violent revolution or peace protest,
creative campaigns have secured basic human rights and fundamental
freedoms where the United States laws and policies as well as multina-
tional corporate agendas have attempted to deny the right of self-determi-
nation.

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Tourism: The Current Engine of the Economy or the Cultural


Exploiter?
Today, more people visit Hawaii annually than actually live in the islands.
Tourists outnumber Kanaka Maoli and therefore many decisions from the
state legislature to the US Congress reflect the interests of those visitors.
The decisions made in the boardrooms of corporations determine the
use of the land. This important aspect limits Kanaka Maoli choices from
culture to career. From the hotels to the travel giants, the islands serve as
a tourist destination with the residents of Hawaii destined to serve the
visitors. The vision of a tourism destination cloud the true ray of light of
the host culture. The culture is appreciated for the purpose of luring
visitors. Yet, it is only a minimal appreciation. The culture and the people
exist as exotic hula wallpaper to serve food and fantasy.
The people of Hawaii fit the dependency model where the people
cannot even imagine what existed before and what can be, except for
tourism. The core of powerful agents in the tourism industry, being the
United States continent and even Japan, determine the direction with
shopping malls such as Ala Moana. The periphery of Hawaii exists to
serve the needs of the economic centre. From the classes offered at
colleges to the employment career fairs, tourism reigns over the islands.
In the most recent issue of Hemispheres magazine of United Airlines,
under ‘Return to Alohaville’, the multinational corporation bragged
about its powerful role and Hawaii’s political future. It noted, ‘United’s
magazines have long mirrored the airline’s key role in popularising
Hawaii and even helping it achieve statehood.’25 United played an
important role and continues today. While the importance of bringing
people to stay at hotels was supreme, there is now a shift toward
purchasing real estate beyond the hotel visit. The hotels have played a
precarious role in providing employment. However, it is also important to
understand tourism’s impact on the denial of the right of self-determina-
tion. One example is Iholani on the Waianae coast. Where the beach hotel
now exists, the land was appreciated in various degrees by Indigenous
peoples. The area provided food where fisherman still used traditional
methods of net throwing.
Another side is the importance of hotel construction and actual
promises made along with hotel agreements. One of the largest cases
concerned the removal of ancestors’ bones for the building of a hotel on
Maui. As Edward Halealoha Ayau wrote:

In 1988, the remains of approximately 1,100 ancestral Native


Hawaiians were archaeologically removed to make way for
construction of the Ritz-Carlton Hotel on the island of Maui. The
place known as Honokahua became the focal point for Native
Hawaiians with respect to the legacy of burial site disturbance. At

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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

Na Iwi (the bones) are considered sacred because they contain a


person’s mana (spiritual essence). The burial sites of na iwi are important
legacies for Indigenous peoples to protect. It is a kuleana (responsibility)
to take care of the elders and to protect for future generations as well. A
non-governmental organisation (NGO) – Hui Malama I Na Kupuna O
Hawaii Nei—noted:

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

Dana Hall, one of the leaders in the process, remains involved in


assisting to set up burial councils to protect sacred sites. She poignantly
described the reason for her efforts: ‘It is wrong to expose the remains. It
strikes at our culture and who we are’.28 Hall spoke to a class studying
Hawaii Politics, sharing an experience while standing on the dunes
protecting na iwi. Hall said, ‘You are looking at your ancestors. This
person is who I am. You are looking at yourself. You are part of a long
continuum.’
More people are understanding that historical wrongs continue today
and non-violent resistance is necessary to stop the continual perpetuation
of these problems. Dana Hall declares, ‘It is important to declare limits.
We must be involved in the process. It is really important to maintain
cultural values because otherwise we lose connection to the land. Our
past, our future, our whole identity is connected to the islands. Our lands,
our way of life, our economy is our values.’29
Beyond the social and cultural level, actions by the hotel industry have
also had an economic impact on the lives of Indigenous peoples. The
Hawaii Prince Hotel on Maui and other resorts had to promise various
projects to provide infrastructure when developing their mega-resorts.
Unfortunately, these promises have not been fulfilled. One example is
affordable housing near the area so workers could have housing near
their employment. Yet, no housing was built. The law guaranteeing
affordable housing did not have a specific date, so the hotel developers
have not provided it. This is one example of how Indigenous peoples,
who are the basis of the tourism industry, providing its essence, the
mystique of a Pacific paradise, have their needs placed at the bottom of
the priority list.

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Another important area on Maui is the site of the Hawaiian Monarchy


known today as Lahaina. On a small baseball field at the end of the
whaling building tourism town is truly a field of dreams. Concealed
beneath Lahaina is Mokuula, the former seat of government and spiritual
mecca and sacred space. The island of Mokuula was significant in
Hawaii’s history, especially King Kamehameha III. ‘The private world of
Mokuula offered the king shelter from the hurricane of cultural change
taking place throughout his realm, a refuge where he could still surround
himself with the ways of his ancestors.’30 It also provided significant
purpose as ‘Mokuula became a nexus of the island’s political and spiritual
power, and whoever lived there had both.’31
However, although it would be reason enough to preserve Mokuula, it
is not deserving of preservation merely to look at as an historical relic. It
is also an important area for future generations as well. Another NGO
was created to restore the land and the rights of Kanaka Maoli to this
sacred space. Akoni Akana spearheads Friends of Mokuula that is
‘committed, first and foremost, to restoring the Native Hawaiian
community’s identity and integrity through the physical restoration of one
of its most important sites.’32 This rebirth or renaissance is important to
Akana and other cultural practitioners and is the first step toward
restoring the entire ahupuaa. Akana said, ‘I want the Hawaiian people to
interpret their own culture in their own way. I want them to be able to
see the places that mean something—not just imagine or dream them.’33
Even Waikiki is seen as paradise; however, this mile stretch of beach is
a fraction of the natural beauty that exists in Hawaii. It is the plastic
version of the perfect palms and people of Hawaii. There is a lack of
appreciation for the culture that makes Hawaii unique. While Waikiki is
not revered today by residents, and is seen as a concrete jungle, the histor-
ical purpose is appreciated. Once a month, I hike up Leahi (Diamond
Head) for spiritual purposes at sunrise. It is a special place. Yet, that
historical and natural meaning is continued to be lost if an area is not
developed with hotels and shopping malls. On a flight to teach on Maui
recently, the attendant said, ‘Waikiki means spouting water. Waikiki used
to be just a swamp with ponds.’ This is one example that exists often in
daily life. Waikiki used to be the rest area of royalty. The swamp was
actually hundreds of loi kalo (taro terraces) providing food through
amazing scientific skill to live in harmony with nature. There is an alter-
native vision of Hawaii where the true beauty of Hawaii can be seen for
the whole world to honour.
In 1989, there were many ecumenical organisations coming together
from around the world focusing on responsible tourism in Hawaii from
the Ecumenical Coalition for Third World Tourism to the North
American Coordinate Center for Responsible Tourism. The 14 interna-
tional NGOs wrote the Hawaii Declaration, concluding that:

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Unfinished Constitutional Business?

Contrary to the claims of its promoters, tourism, the biggest


industry in Hawaii, has not benefited the poor and oppressed
Native Hawaiian people. Tourism is not an indigenous practice;
nor has it been initiated by the Native Hawaiian people. Rather,
tourism promotion and development has been directed and
controlled by those who already control wealth and power, nation-
ally and internationally. Its primary purpose is to make money. As
such, tourism is a new form of exploitation. As a consequence, the
Native Hawaiian people suffer the most; their culture has been
increasingly threatened, their beaches and even their sacred sites
have been taken over or intruded upon in order to build tourist
resorts and related developments. Furthermore, tourism brings and
expands the evil of an economy which perpetuates the poverty of
Native Hawaiian people and which leads to sexual and domestic
violence and substance abuse among the Native Hawaiian people.
In addition, sexism and racism are closely interlinked with tourism.
In short, tourism, as it exists today, is detrimental to the life, well-
being and spiritual health of native Hawaiian people. All is not
well in paradise. Indeed a state of emergency exists in regard to the
survival, the well-being and the status of the Native Hawaiian on
the one hand and the near extinction of the precious and fragile
environment on the other.34

The declaration reveals what many Indigenous peoples in Hawaii have


known for decades: there are many hidden costs to the world of tourism.
From the use of water necessary to provide the basic necessities to the
waterfalls around the grounds, it is a true cost, while every year the
people of Hawaii are asked to conserve water in annual shortages. Water
is just one more aspect of an industry impacting the Indigenous peoples
of Hawaii.

Development: Affordable Housing in Hawaii or Preparing our


Number One Export of Youth
People born in Hawaii cannot afford to live there. The median cost of a
house on the most populated island of Oahu is US$450,000. Hawaii is
one of the most expensive places to live, yet the average real income is
quite low in comparison. There are many examples on each island. Too
often, many people are removed from their land for the creation of new
development projects such as townhouses and gated communities. The
Indigenous peoples’ lands continue to be desecrated. While organised
religions would disregard the host culture, now it is the real estate
agencies dominating the land for sale.
The first church created to ‘save the savage’ was constructed in Keopou
Ahupuaa of Kailua Kona in 1836. The Heiau (place of worship) of Umi
was dismantled and the sacred stones reconstructed to create the
Mokuaikaua Church, which still exists today and holds services weekly.

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Fortunately, the Indigenous spiritual perspective is establishing a solid


base for future generations. Culturally significant locations were buried
under the concrete to accommodate the consumer society to support the
tourist development in Kailua. There is little trace of civilization that
existed due to construction.
There is a lack of respect for host culture and connection with the land.
A new development project by an Arizona developer, Hokulea, has
already encountered over 320 burial sites as well as noteworthy numerous
agricultural and cultural sites. Yet, it still continues with its 18 holes of
golf complete with a members-only lodge under the theme that develop-
ment is inevitable. Another vision is necessary for a Hawaii, balancing
past and present for a better future which respects Hawaii’s roots. The
land issue is very important and must be recognised. In Hawaii, through
the different transitions from independent nation to 50th state of the
USA, there are different categories: Hawaiian Home Lands, State Ceded
Lands; Federally Held Lands and Private Trust Lands. Each must be
reviewed and respected to provide a base for Kanaka Maoli to exercise
the right of self-determination.

Language: Essence of Education


Language is vital to existence and the cultural survival of a people. In
1896, the language was banned and the core of the Kanaka Maoli as a
people was destroyed through law. Both children and teachers were
forbidden to speak the Hawaiian language. Teachers were even sent into
homes to reprimand parents for using Olelo Hawaii. However, the people
continued the practice of language despite the fact that over century it
was criticised and denied its proper place. Language schools may not
seem like a radical liberation movement; however they are the basis for
the cultural revolution taking place in the Pacific nation of Hawaii,
educating and empowering current generations and future generations
with the most powerful weapon of knowledge. As Haunani-Kay Trask
wrote:

‘In Hawaii, teaching the Native languages in immersion schools


has been at the forefront of a cultural resurgence that also includes
reclaiming of ancestral lands and moves toward various forms of
self-government. In situations like these, language instruction is
understood to be both a cultural and a political assertion; cultural
because it seeks to preserve the core of a way of being and living
that is uniquely Native, and political because this attempt at preser-
vation takes place in a system where the dominant group has
employed legal and social means to deny the use and inheritance of
the Native language by Natives themselves.’35

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

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culture of oral traditions. It is used for a common point of communicating


information from person to person as well as to uphold and maintain
structures of cultural protocol. The Kula Kaiapuni Hawaii school is a
model based on Hawaiian words of Kula (school), kai (ocean) and puni
(to be immersed). Therefore, the school program is an immersion of a
person in the ocean of language and culture. The immersion school model
continues to graduate class after class. It is also important because parents
have a responsibility in the success of the schools. Parents take Olelo
Hawaii classes weekly and also volunteer at the schools to assist in their
management.
Dr. Manulani Aluli-Meyer focuses on Kanaka Maoli epistemology to
transform education through language and culture to restore the rights of
Indigenous peoples of Hawaii. One goal of her work is to establish an
educational model that recognises each child as gifted and talented, while
it also incorporates values, spirituality and self-esteem back into educa-
tional philosophy and curriculum. One important aspect of spirituality
and knowledge according to Meyer is recognising, respecting and
honouring the life in all things. By doing so, honouring and respecting the
ancestors is a given moral code for life. Meyer’s model is also important
to other scholars and cultural practitioners focusing on intellect and
intuition. It is utility-based knowledge, based on emotion as well as
enlightenment.
One example of education being handed on is in the skill of geography
and science as well as history. Hokulea is providing the model for motto,
Ma Ka Hane Ka Ike (In the Action, that is where the knowledge is).
Hokulea is a voyaging canoe that guided the culture of Kanaka Maoli
into the history books and most importantly the hearts of Kanaka Maoli.
The canoe is a catalyst for positive cultural change to respect the skills
and abilities of the ancestors. Hokulea also places Hawaii as a cultural
equal around the world able to circumnavigate the liquid continent of the
Pacific. Hokulea also opens up another aspect of the right of self-determi-
nation. For Indigenous peoples, especially in the Pacific, the right of self-
determination is not only land-based but also based in the ocean. This is
symbolic of the interconnected and holistic comprehension of economic,
social and cultural development linked with right of subsistence with
cultural survival of a people.
As Nainoa Thompson, the first Hawaiian-trained traditional navigator
of the modern age, said of the Hokulea, ‘It helps us to define ourselves by
our strengths, instead of our weaknesses. The next generation are going
to be looking at who we are very differently than our grandparents.’36
This is true of other aspects of cultural revival such as language where
there was a great shame and sense of failure to pass on language that was
of the past but not useful for future success. Many elders thought after
the century of prejudice and policy that the Kanaka Maoli ways were
wrong and that they would hamper the youth from achieving success.

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Interestingly enough, it is exactly the opposite: the Kanaka Maoli values,


beliefs and traditions are the essential ingredients for realising the right of
self-determination. Hokulea is an important symbol for this right. As
University of Hawaii ethnobotanist Isabella Abott said, ‘Hokulea is the
single, consuming, unifying, unarguable symbol of the Hawaiian renais-
sance.’37

Military in Hawaii: Protecting the People or Annihilating the


Aina?
From the landing of the USS Boston marines with loaded canons facing
Iolani palace to the announcement of chemical weapons testing on land
in Hawaii, the role of the military is an important part of Hawaii’s
history. Even in 2002, the military is the number two force in Hawaii’s
economy. It is also regarded in the role of protector, while many groups
aspiring to sovereignty claim it is the oppressor.
There are many important land claims concerning the military in
Hawaii. For sake of brevity and severity, the main focus will be on the
island of Kahoolawe where the entire island is still uninhabitable due to
decades of bombing practice.
By 1600, Kahoolawe hosted a thriving community providing major
services for the island and for other islands. Fishing was very important
and the waters provided excellent sources of food. Navigational training
was also crucial. Puu O Moaulaiki was a ‘navigator’s seat’ where students
of the stars could learn the universal knowledge of the celestial skies.
From the top of the hill, Puu O Moaulaiki provided a view of five peaks
of tall mountain tops of the islands: Mauna Kea, Mauna Loa, Hualalai,
Haleakala and Mauna Kahalawai. One can study the wind and ocean
patterns from this sacred site. The navigation skills of Kanaka Maoli are
well-known, and recognised for their ability to navigate the Pacific.
While most people are aware of the bombs that buried the true nature
of the island, the devastation began with ranching and the environmental
destruction of Maui, in a way that points out the balance between the
island’s beauty and the importance of preserving nature. Forests were
cleared on Maui’s southwestern slopes of Haleakala. When this act took
place, the Naulu cloud line that existed between Maui and Kahoolawe
disappeared and so did the rains that nourished the soil of Kahoolawe.
The clouds moved higher and now rain fall evaporates before touching
the sacred soil of Kahoolawe.
In 1941–1945, the US Army signed a sublease with Kahoolawe Ranch
Company, acquiring bombing rights for one dollar per year. After the 7
December 1941 Pearl Harbor attack, martial law was declared, with
Kahoolawe being appropriated for use as a training ground and bombing
practice target. In 1953, President Eisenhower signed Executive Order
10436 placing Kahoolawe under the Secretary of the Navy and ‘for the
use of the US for Naval purposes’. Another important part of the order is

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Unfinished Constitutional Business?

that when no longer of use for the Navy, it would be returned in a


condition ‘reasonably safe for human inhabitation, without cost to the
territory’.
Over the decades, bombing practice by the US military continued; they
even invited other nations to practise their bombing too. The worst
military exercise was the simulation of an atomic blast in 1965 near the
bay of Honokanaia. In 1976, nine Kanaka Maoli made the first of many
landings on the shores for social justice and restoration of the island to be
part of a cultural renaissance. The movement was launched in the spirit
of Aloha Aina based on a spiritual and cultural path. The ‘Protect
Kahoolawe Ohana’ group filed federal lawsuits charging the US Navy
with violating laws pertaining to historic preservation, and the environ-
ment as well as religious freedoms. By 1980, the US Navy and PKO group
signed a consent decree providing regular access for religious, cultural,
educational and restorative purposes. Through the actions, over 2,337
archaeological sites were noted, and in 1982, the entire island was regis-
tered in the US National Register of Historic Places. In 1990, President
Bush halted bombing and the US Congress established a Conveyance
Commission. Three years later, Congress voted to end military use and
authorised $400 million to clear the island of ordinance in 10 years or
until the money is spent. On 7 May 1994, title to Kahoolawe was
officially transferred from the US military to the State of Hawaii to be
held in trust until the formation of a ‘sovereign Hawaiian Nation’. One
year later, the Kahoolawe Island Reserve Commission was formed to be
the state entity that holds the island in trust until a sovereign entity is
established and recognised by the federal government.
It took over 200 years of neglect and abuse for Kahoolawe to be in its
current position. I visited and participated in the Makahiki ceremony.
When one visits Kahoolawe, one gets a greater understanding of the need
to bring the water back and re-establish the balance on this beautiful
island in the shadows of the fastest growing city in current border of
America, Kihei. Upon contemplation on Kahoolawe during the celebra-
tion of Makahiki, I was fortunate enough to malama aina and practise
culture in one of the most beautiful islands of the world. Yet, one must
always be cautious of each step one takes in this place: there are still live
ordinances. Kahoolawe must be cleaned and returned, so a living culture
can continue to thrive on a sacred space for future generations.
There are many other areas occupied by the military today. On Oahu,
25 percent of the entire island is land occupied by the US Army, Air Force,
Marines, Navy and Coast Guard. Some of the important areas still
required to be returned are Makua and Mokapu. An astounding statistic
is that 54 percent of the military’s land holdings consist of stolen
Hawaiian-ceded lands. The military use of land goes beyond Oahu to the
other islands as well. From the mountaintops of Moana Kea on Hawaii

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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,

What is national defense, when what is being destroyed is the very


thing the military is entrusted to defend, the sacred land of
[Hawaii]. America National defense is indefensible in terms of the
loss of pride for many citizens of Hawaii-nei. This continued
disregard of our seriousness, this refusal to give credibility to the
Hawaiian culture based on Aloha Aina, forces me to protest.38

One Ahupuaa at a Time: The Realisation of the Right of Self-


determination

Ua lehulehu a manomano ka ikena a ka ano o ka nohona


Great and numerous is the knowledge of the environment

Kanaka Maoli relationship with the land is one of interconnectedness


with the islands. The relationship was kinship versus stewardship. The
ahupuaa model continues to be restored on all of the islands. On Maui,
there are only two ahupuaa where the water flows naturally from
mountaintop to the ocean providing an intact living example of tradi-
tional ahupuaa. The water flows and is appreciated in its traditional
manner providing source for the creation of taro terraces. In Kahakuloa,
Uncle Oliver Dukelow, a taro farmer and member of the reinstated
Hawaiian government, is teaching future generations to live in harmony,
according to values of Hawaii nei. Dukelow invites classes and commu-
nities to plant kalo and reconnect with the land. Students hike deep into
the valley where the natural order is still evident and where the workman-
ship of generations is evident as one walks deeper into the valley. The
ahupuaa model is intact waiting for a rediscovery by the people willing to
work in the valley. The taro terraces Dukelow opens up provide the
sacred space for future generations to understand that the right of self-
determination is in the soil. As each kalo plant grows in the ground and
each soul searches for self-determination in international law, a new
future is created.
Another important example of teaching about ahupuaa is Hoa Aina O
Makaha on Oahu. This important model focuses on peace education and
sustainable agriculture based on traditional values. Hoa Aina o Makaha
teaches courses at nearby elementary Makaha school yet provides sacred
space for students all over Hawaii. This school offers sustainable economy
with honey from bees, aquaculture with fish and fields of vegetables and

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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

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an ahupuaa system and the same time building a community.’41 Waipa is


one of the most important living examples providing skills to strengthen
cultural identity and traditional connections to the aina while also
providing economic self-sufficiency. For over two decades, the Sproat
Ohana malama aina and there is no doubt the model will continue for
time immemorial if allowed without interruption. Stacy Sproat says, ‘We
are simply attempting to be good stewards of the land, as were our
ancestors.’42
The Sproats have created the Waipa Ahupuaa Learning Center,
bringing together many agencies, partnering to provide sacred space for
volunteers to come together to learn the value of caring for the land and
realising the land takes care of its people. Everyone involved is encour-
aged to understand the sustainable model benefits. Waipa already
provides most importantly a model that shows anything is possible with
persistence and patience blended with Indigenous cultural practice. David
Sproat said, ‘This land is our children’s legacy and that was our original
intention. We wanted to create educational opportunities. Education is
not only in the classroom. There are a lot of possibilities here.’43
The possibilities will continue as Indigenous peoples of Hawaii defuse
the cultural bomb through collective actions in the classroom and the
global civil society for the full realisation of the right of self-determina-
tion.

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,

‘We get to walk in the footsteps of the ancestors. Imagine, just


using your brain to figure out where you are on the Earth. There is
a whole extrasensory feeling you get from sailing on her. It’s
fabulous to think about what the ancestors thought about when
they were sailing, and the idea that the ocean is a friend and a
pathway.’44

155
Unfinished Constitutional Business?

The same sense of purpose and being at the core of self-determination


will continue as has been seen with the Hokulea. That same sense will be
recognised in the taro patches on the islands, at spiritual ceremonies at
summits on the islands, and at restoration of lands long neglected due to
military occupation and ordinance bombing. Ka Kanaka Maoli will
continue to organise on the grassroots and the global level for the full
realisation of the right of self-determination, through education and
empowerment that creates a sustainable society in the Pacific.
The understanding of self-determination is beyond basic rights and a
spiritual connection with land and all living beings according to Kanaka
Maoli culture. As Nalani Minton notes,

‘Cultural Self-determination is not only about rights. It is the full


realization of our relationships and responsibilities as human
beings. That we are related as family to all the families of the
natural world and must regain a deep spiritual response to the
consciously communicating spirits of all living beings. Then we will
have regained our common sensitivity to life and live again in
enlightened ways as our ancestors have in profoundly personal and
collective relationship with the cosmos’.

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.

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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

Jennifer Corrin Care

At independence, Solomon Islands became a sovereign state with a


separation of powers and a system of parliamentary democracy. A resound-
ing Preamble to the Constitution declared and pledged commitment to
the power of the people, to be exercised on their behalf by the legislature,
the executive and the judiciary, and to democratic principles of universal
suffrage and responsible government. However, this system formed a thin
veneer over a fragmented society, spread between twenty-six islands and
hundreds of small islets stretching over 1360 kms. Amongst the popula-
tion of around half a million people, not less than 63 vernacular lang-
uages are spoken and distinctive hair and skin colours highlight diversity.
Language and physical features give some clues as to the customary group
to which a person belongs, membership of which carries with it tribal
allegiance and submission to customary law. On this unstable foundation,
the Government of Solomon Islands was given a mandate not only to
operate within a framework of national unity but also to decentralise
power and to cherish and promote different cultural traditions. These
contradictions were contained in a constitution that provided no mech-
anism for resolving conflicts between its competing demands.
Over recent years, Solomon Islands has been brought from the status
of an optimistic developing nation, known as ‘the Happy Isles’, to a
country ruled by fear and lawlessness. It is easy to attribute this state of
affairs to the civilian ‘coup’, outlined in this chapter, but given the incon-
gruous foundations of government, is it any surprise that it was unable to
uphold the rule of law? This chapter briefly describes the framework of
government established by the Independence Constitution and highlights
some of the incompatibilities with the Indigenous order. It considers
whether the introduced system of law and government, which has been
grafted from overseas roots into a somewhat hostile environment, can
succeed and whether democratic government and respect for the rule of
law are, and have always been, illusory. I examine some of the contradic-
tions in the current legal system and consider the proposals for change
both at central and provincial level.

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Unfinished Constitutional Business?

The Journey to Independence


In 1843 the southern islands of the Solomon chain became a British
Protectorate and by 1885, Germany had declared a protectorate over the
Northern Islands. About five years later, the German Protectorate, except
for Buka and Bougainville, was transferred to Britain in exchange for
recognition of German interests in Western Samoa. The Pacific Order in
Council 1893 (UK) provided the basis of government.1 In 1960, a Const-
itution was brought into force by British Order, establishing a Legislative
Council that was presided over, not by a Solomon Islander, but by the
High Commissioner for the Western Pacific. Elected members were intro-
duced in 1965 and a Legislative Council and an Executive Council were
introduced in 1967. A new Constitution, which came into force in 1970
replaced these Councils with a single Governing Council. For the first
time, the majority of members were elected. The British Solomon Islands
Order of 1974 introduced a new constitution, which repealed the Governing
Council with a Council of Ministers and a legislative Assemble. The
Governor and Deputy Governor were both appointed by the Queen of
England.
At independence, the 1974 Constitution was repealed and replaced by
the Constitution of Solomon Islands 1978. This document was prepared
in London rather than drafted locally, although a delegation from
Solomon Islands travelled to England to discuss a draft. However these
discussions only lasted for ten days, between 6 and 16 September 1977.2
The manner of the Constitution’s enactment is worth considering. Rather
than permitting the Constitution to be prepared and enacted locally, as
was done the following year in Vanuatu,3 or to be dealt with by a special,
locally constituted body, as was done in Nauru and Samoa,4 the
Constitution was appended to Solomon Islands Independence Order
1978, which was made in the United Kingdom.

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:

All power in Solomon Islands belongs to its people and is exercised


on their behalf by the legislature, the executive and the judiciary
established by this Constitution.

This centralised form of government was alien to the traditional style


of government, where individual islands, let alone the whole country,
were not controlled by any central authority, Instead, allegiance was
owed to a clan or tribe group made of family groups sharing a common
language and culture.

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The necessity for some devolution of power was stressed in paragraph


(e) of the preamble to the Constitution, which states:

We shall ensure the participation of our people in the governance


of their affairs and provide within the framework of our national
unity for the decentralisation of power.

Failure to accommodate traditional practices or to consult the


community before introducing this system means that few understand it.
Consequently, it is open to manipulation by those who do.
Under the 1978 Constitution, the Executive is dealt with in Chapter V,
which provides that the executive authority of the people is vested in the
Queen of England, as Head of State, acting through the Governor-
General. The Governor-General acts on the advice of the Cabinet and is
to be kept informed of the general conduct of Government by the Prime
Minister. The Prime Minister is elected from members of the Parliament.
The Governor General on the advice of the Prime Minister appoints
Ministers from among the MPs. The Constitution provides for a max-
imum of eleven Ministers in addition other Prime Minister, and this
number may be increased by the Parliament. The ministerial system is not
only an introduced system, but also an expensive one, calling for the
trappings of office, such as private secretaries, cars and entertainment
allowances. Can a country the size of Solomon Islands, with a per capita
income of US$712, afford this?5 Bearing this question in mind, it is all the
more surprising that the Parliament exercised its power to increase the
number of Ministers—to 17 in 1993 and more recently to 19 and then 20.
In 2002, the bankrupt government reduced the number of ministries to
10 in a step described by the Prime Minister as essential in developing a
‘fiscally responsible 2003 budget’.6
The system of responsible government is specifically referred to in
section 35 of the Constitution, which establishes a Cabinet consisting of
the Prime Minister and other Ministers, which is ‘collectively responsible
to Parliament’. The principle of responsible government is underlined by
the Preamble, which pledges that the government will be based on ‘the
responsibility of executive authorities to elected assemblies.’
Cabinet changes occur frequently, reflecting the fact that Ministers are
often chosen by the Prime Minister more with an eye to staying in power
than as a reflection of personal qualities for the job. To the extent that
responsible government means that Ministers are not all-powerful, but
bear responsibility for their actions, this concept accords with traditional
forms of governments, at least in most Melanesian communities.
However, the fact that this responsibility is to Parliament rather than to
the Minister’s constituents may be a more difficult idea. This only makes
sense within the context of national identity, which, if it exists at all, only

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Unfinished Constitutional Business?

unites Solomon Islanders who find themselves living or travelling together


outside the country’s boundaries.
Chapter VI of the Constitution establishes a single chamber legislature.
This Parliament consists of one member from each constituency, elected
under a system of universal suffrage.7 The Preamble pledges that, ‘govern-
ment shall be based on democratic principles of universal suffrage’.
The system carries with it a host of practices and conventions. An
important part of this is party politics, but it is doubtful whether this
concept has translated well into the context of Solomon Islands’ society.8
Traditionally, Solomon Islanders identified ‘government’ with an
individual rather than a political party. A ‘Big Man’ or Chief headed
customary groups. In some, mainly Polynesian, areas, the leader is a
hereditary chief. More commonly, he is a person who has earned his place
through hard work and a display of leadership qualities. Identification of
government with an individual continued during colonial times, when the
District Commissioner was regarded as representing government. At
independence, the country was faced with the unfamiliar idea of voting
for the abstract concept of a party, rather than an individual.
Whilst there has been some recognition of party politics, mainly in the
commercial centres, the system of voting for a wantok (someone from
your cultural and language group) or the Big Man or Chief of your own
customary group is even stronger.
Generally, the weakness of political parties has resulted in government
by unstable Parliamentary coalitions. Party allegiances and government
leadership often change and frequent votes of no confidence merely
highlight the lack of confidence in the system as a whole.
Voting in accordance with tribal allegiances, rather than for the best
candidate is an enduring practice. Analogies can be drawn with neigh-
bouring Papua New Guinea, where fighting between rival tribes follow-
ing the national election in 2002 was referred to in an Australian paper
as ‘election violence’. Three weeks after the election the death toll had
reached 17, as people were stoned, axed, knifed and shot for voting for
the ‘wrong’ candidate.9
Decision-making by majority vote is also a novel concept in societies
customarily governed by consensus. This fact had been recognised during
an earlier stage of Solomon Islands development. In 1970, a Governing
Council had been set up, with nine ex officio members and seventeen
elected members. The Council operated on the committee principle and
combined the functions of executive (during private sessions) and legisla-
ture (in open sessions). Members were divided into five committees, each
with a responsibly for a particular part of government. The rational was
that decisions reached by discussion in committee would result in a style
of government more appropriate and therefore more acceptable to
Melanesian people. Unfortunately, the Council was not successful,
divisions appearing between elected and unelected members and between

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personal, local and general interests. Following the recommendations of


a select committee, in 1974 executive and legislative functions were again
divided, this time between a Legislative Assembly and a Council of
Ministers.

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?

basis that it was undemocratic and consequentially unconstitutional. The


legislation was upheld by the Court of Appeal in The Minister for
Provincial Government v. Guadalcanal Provincial Assembly,13 which
acknowledged the Constitutional commitment to democratic principles in
central government, but refused to carry this over as a requirement for
provincial government. However, the political pressure was too much and
the Parliament subsequently passed the Provincial Government Act 1997,
which repealed the 1996 Act and substantially re-enacted the Provincial
Government Act 1981, returning to the previous position.
Whilst the technical effect of this is that the role of traditional chiefs in
provincial government has been ‘considered’, as required by section 114,
it has certainly not been accommodated. The desirability of this involve-
ment was stressed before independence, but the drafter’s inability to
depart from the pre-packaged model resulted in this being left for the
Parliament to deal with. The present arrangements between central and
local government satisfy no one. The division of resources has always
been the focus of grievances so, in the present economic climate, it is
hardly surprising that calls for change have increased.
Like the central government, provincial governments are beset by
changes in allegiances and challenges to leadership given the lack of disci-
plined political parties. In the second half of 2002, for example, the
Mayor of Honiara City Council narrowly defeated a no-confidence
motion. Shortly after the motion, a council member who had supported
the no-confidence vote changed loyalties, and accepted chairmanship of
the Youth and Sports portfolio. At the same time, another Council
member returned to the mayor’s camp in order to retain his Works
portfolio.14

The Legal System


The Constitution establishes a High Court with unlimited original juris-
diction and a Court of Appeal. Judicial independence is buttressed by
appointments being made on the advice of the Judicial and Legal Services
Commission and by conferring tenure until the age of sixty. Removal by
the Governor General is only permitted after referral of the matter to a
tribunal made up of current or former holders of high judicial office
within the Commonwealth.
The Constitution also provides that the Parliament shall make
provision for the application of laws, including customary laws, and in so
doing shall have particular regard to the customs, values and aspirations
of the people of Solomon Islands. Parliament finally did ‘make [some]
provision’ in the form of the Customs Recognition Act 2000. However,
this statute is not well thought out and is unlikely to be brought into
force. In the interim, the sources of law, which are set out here are in
descending order of importance:

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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)

The principles of common law and equity, in force on 7 July


1978 (if they are appropriate to the circumstances of Solomon
Islands and are not inconsistent with written laws or custom)

Whilst formal recognition of customary law acknowledges its impor-


tance, the present arrangements do not deal adequately with conflicts or
provide guidance as to how such a fundamentally different type of law is
to be administered in the formal system. However, at one level, the
different systems of law proceed independently in their own spheres,
without problems. Outside the commercial centres, introduced law is
generally of no account. As explained by the Law Reform Commission of
Solomon Islands, in its 1996 Annual Report:

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.

Armed Conflict 1998–2000


The fragility of the democratic system has always been evident to those
who cared to notice. From time to time events occurred that would
highlight the impotence of government to control civil disruption and to
counter actions justified by reference to customary law and practices.16
The descent into anarchy in 1998 graphically demonstrated the superior
strength of traditional allegiances and put pay to confidence in the intro-
duced system to uphold the rule of law.
Hostility between the people of Guadalcanal, and those from Malaita
has been present since, at least, the end of the second World War. During
the war Honiara had been a major supply depot and afterwards
Malaitans stayed on. In 1978, Honiara became the capital of Solomon
Islands. This animosity escalated to armed conflict in 1998 when rival
militia groups, the Malaita Eagle Force and the Guadalcanal Revolu-
tionary Army (which later became the Isatabu Freedom Movement) were
formed. Fatalities occurred on both sides and an estimated 22,000
Malaitans were forcibly repatriated to their home island. Malaitans had
made up a large percentage of the workforce (about 60% at Solomon
Islands Plantations) and had dominated the public service, which were
major grievances against them. Many expatriates and Solomon Islanders
left the country and commercial activity ground to a standstill. The
conflict came to a head when the Prime Minister, Bartholomew Ulufa’alu,
was placed under house arrest by the Malaita Eagles and was eventually
forced to resign. In October 2000, the rival groups signed the ‘Townsville
Agreement’ with Solomon Islands Government and Guadalcanal and
Malaita Provincial Governments, by which the militia groups pledged to
disarm and work towards a peaceful resolution of issues of land-
ownership and compensation.
Unfortunately, arms decommissioning exercises carried out pursuant to
the agreement have been only partly successful. Further, a handful of
leaders refused to sign the Townsville agreement. These included Harold
Keke, leader of the Guadalcanal Liberation Front, situated on the
Weather Coast of Guadalcanal. In 2001, Keke seized a nineteen-seater
commercial aircraft and crew, which he ransomed for SBD500,000.
Bolstered by his seeming invincibility, Keke was accused of conducting a
reign of terror culminating in the murder of Fr Augustine Geve in August
2002, who was a member of the government and Minister for Youth, Sport
and Women’s Affairs.
The armed conflict led to a flood of compensation claims, not just by
the main parties but also by individuals. The compensation mentality is a

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serious obstacle to restoration of law and order and progress to economic


recovery. To give just one further example, attempts to reopen Solomon
Islands Plantations Limited’s palm oil production business (which claimed
to contribute 20% of the countries national income and employed more
than 2000 workers) was met by claims by local landowners for compen-
sation and rental payments. The Commonwealth Development Corpor-
ation, which owns 68 % of the company (Solomon Islands government
owning 30% and landowners the remaining 2%) has since indicated that
it is pulling out of Solomon Islands and the government is looking for an
investor to take up its shares.
Given the armed conflict, it will take some time and a great deal of
money to rebuild confidences and trust. The Constitution and the institu-
tions it embodies have been exposed by the ‘coup’ as ostentatious
pageantry.

Proposals for Change


Before rushing to re-establish and further entrench the Westminster style
of government, consideration should be given to whether this system is
appropriate. Given the geography of the country and the lessons to be
learnt from history, local government must be high on the agenda for
discussion.

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.

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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.

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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

In our view the Aboriginal peoples of Canada possess the right of


self-determination. This right is grounded in emerging norms of
international law and basic principles of public morality.1

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:

Indigenous peoples have the right to self-determination. By virtue


of that right they freely determine their political status and freely
pursue their economic, social and cultural development.2

The right of self-determination in the Canadian context, they


explained, gives Aboriginal peoples:

the right to initiate changes in their governmental arrangements


with Canada and to implement such reforms by negotiation and
agreements with other Canadian governments3

That this commitment to Indigenous self-determination was made by a


Commission appointed by the Government of Canada and that this
government did not repudiate the commitment but on the contrary was
already taking important steps, and soon would take more, to implement
it, indicate a very high level of official recognition of the principle of
Indigenous self-determination. Indeed, I do not think that any settler state
has gone further either in principle or in practice than Canada in its
commitment to Indigenous self-determination. Yet Canada has fallen far
short of what many, perhaps most, of the Aboriginal people within its
borders understand as their right to self-determination. At the same time,
the limited support the country’s political and judicial elites have given the
right goes beyond what many, perhaps most, non-Aboriginal Canadians

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Russell

believe is either just or prudent. So, if Canada really is about as good as


it gets for Indigenous self-determination, why is hardly anyone really
happy with the situation?
The answer takes us to the tragic heart of colonialism. For make no
mistake about it, Canada’s Aboriginal peoples like their counterparts in
other settler countries are colonised peoples who had rule by a foreign
power imposed upon them. There are two possible ways for Indigenous
relations in a settler state to move beyond colonialism. One is for Indig-
enous peoples as distinct political societies to disappear and have no
recognised status different from that of the many ethnic groups who make
up the larger multi-cultural society. This objective is favoured by a great
many non-Aboriginal Canadians—possibly by a majority. It is an
approach that would make Indigenous self-determination irrelevant by
removing the collective Indigenous self as a political entity.
The other approach is for Indigenous peoples as political communities
to work out a relationship with the Canadian state to which they consent.
This approach is consistent with the principle of self-determination and is
the constitutional aspiration of the residents and citizens of Canada who
identify with Aboriginal people. But it is an approach that is problematic
for federal and provincial governments. Their willingness to negotiate
self-government arrangements with Aboriginal peoples is based less on
respect for the principle of Indigenous self-determination than on fear of
provoking Aboriginal resistance that could be both economically
disturbing and internationally embarrassing. But unwillingness to relin-
quish control over Indigenous peoples, their lands and their waters, and
awareness of their electorates’, at best, limited support for Indigenous
self-determination, means that the settler governments are tough negotia-
tors. ‘Agreements’ reached through these negotiations are heavily
compromised—too little autonomy for many on the Aboriginal side, too
much for many in the dominant society.
From the perspectives of both Aboriginal nationalism and settler-state
nationalism, the accommodation of Indigenous self-determination in
Canada must be disappointing. From the perspective of liberal constitu-
tionalism, it is possible for the accommodation to get better. A more
genuine and popularly supported sharing of sovereignty is how I conceive
of such an improvement. But, I doubt that it can get much better than that
and I am sure that it will take a very long time to reach such a condition
in Canada. This is what makes the Canadian case interesting—it indicates
that even where historical and cultural conditions are relatively
favourable, progress in achieving Indigenous self-determination is
painfully slow and always limited.

The Problem of Sovereignty


For about two centuries, from the early 1600s until the early 1800s,
British imperial policy in North America accepted the practice of Indigenous

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Unfinished Constitutional Business?

self-determination. Relations between Britain and Indian nations were


governed by negotiated agreements or treaties. The same was true of
French and Dutch relations with Amerindians. During this period Britain
and the other European powers did not attempt to govern native societies.
The Royal Proclamation of 1763 setting out the constitutional arrange-
ments for Britain’s new North American possessions after the fall of New
France gave formal legal expression to this policy. It referred to native
peoples as ‘the several Nations or Tribes of Indians with whom We are
connected’ and to their ‘Possession of such Parts of Our Dominions and
Territories as not having been ceded to or purchased by us are reserved to
them’. The Proclamation strictly prohibited private purchase of any of
these Indian lands (virtually all of the land west of Quebec and the
thirteen American colonies) until ‘at some public Meeting or Assembly of
the said Indians’, the owning nation agrees to sell some part of its lands
to the British Crown.4
Note that the 1763 Proclamation treated native Americans not as
British subjects but as members of Indian nations or tribes. These nations
were recognised as owners of the lands they inhabited and relied on for
their life needs, and the Indian nations’ decision-making was recognised
as essential for any disposition of those lands. All of this was consistent
with the practice of Indigenous self-determination, although of course the
interest in self-determination was not articulated as a principle or right by
any nation at that time.5 There was, however, a political assumption
embedded in the Royal Proclamation that would soon be in serious
conflict with Indigenous self-determination. That was the assumption of
British sovereignty over Indians and their lands.
Those ‘Nations and Tribes of Indians with whom We are connected’
are also said to be ‘under our Protection’. The potent’s ‘word is explicitly
used where the Proclamation states that Indian lands are reserved ‘under
our Sovereignty, Protection and Dominion’. This assumption of British
sovereignty over Indians and their lands was, in the actual circumstances
of real politic that prevailed on the ground, pure imperial bravado. Just
before the Proclamation was issued, between May 16 and June 20, 1763,
an Indian alliance led by Pontiac burnt nine British forts in Indian
territory. A year later, when William Johnson, Britain’s northern superin-
tendent of Indian affairs, met two thousand Aboriginal leaders, repre-
senting over twenty-four nations at a peace council at Niagara, he
explained Britain’s commitment in the Royal Proclamation to put a stop
to settler encroachment on Indian lands. This went down well with the
Indians and helped to consolidate peace between Britain and her Indian
allies. But Johnson did not expound or explain those parts of the
Proclamation in which Britain asserted its sovereignty over the Indian
nations and their lands.6 If he had, it is doubtful that he would have
returned alive to report the Indians’ reactions to his political masters.

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Russell

But the assertion of sovereignty over native North Americans was a


crucial component of the law and politics of British imperialism. Like
other European powers, Britain had no reservations of principle about
imposing its sovereignty on native peoples in newly discovered lands. At
first, the main application of British sovereignty was to deny Indigenous
nations the right to have international relations with any other European
power. The aim was to domesticate Indian nations—to deny them a free
international personality—by excluding any other European power from
having formal relations with them. This objective of domesticating
Indigenous nationhood was captured succinctly by US Chief Justice John
Marshall when he accorded Indian nations the status of ‘domestic
dependent nations’.7 Writing in 1823, and drawing upon his under-
standing of the new republic’s inheritance of British law and policy in
Aboriginal affairs, Marshall CJ acknowledged that Indian tribes were ‘the
rightful occupants of the soil, with a legal as well as a just claim to retain
possession of it and use it according to their own discretion’, but their
‘rights to complete sovereignty, as independent nations must be dimin-
ished’. With characteristic candour, the Chief Justice explained that this
restriction ‘may be opposed to natural right, and to the usages of civilized
nations, yet if it be indispensable to that system under which the country
has been settled…it certainly cannot be rejected by courts of justice.’8
Later in the nineteenth century when the balance of power,
demographically and militarily, shifted decisively in the settlers’ favour,
both of Britain’s successor states, the United States and Canada, extended
the reach of their sovereign powers beyond the external relations of
Indian nations to their internal affairs. Indigenous people became truly
subjects of these states. The long-term aim was to assimilate them so that
as individuals they could become citizens of the democratic nation-states
which both countries were building. In Canada, the main instrument for
doing this was the 1876 Indian Act. In the words of Canada’s first Prime
Minister, Sir John A Macdonald, the Act’s purpose was ‘to do away with
the tribal system and assimilate the Indian people in all respects with the
inhabitants of the Dominion, as speedily as they are fit to change.’9 There
was not even a whiff of Indigenous self-determination in that policy.
Indeed, in Canada as in the other English settler-states—Australia, New
Zealand and the United States—state policy at this point in the nineteenth
century and well into the twentieth was based on the first approach to
Indigenous self-determination, that is, the elimination of the Indigenous
peoples as political societies.
Traces of the earlier recognition of Indigenous peoples and their land
rights remained in the Canadian legal system. The continuity section of
Canada’s founding Constitution carried forward the 1763 Proclamation
as part of Canadian law. But the only explicit reference to Aboriginal
peoples in the Constitution Act of 1867 was to assign ‘Indians and lands

173
Unfinished Constitutional Business?

reserved for the Indians’ to the exclusive legislative jurisdiction of the


federal Parliament. Canadian judges occasionally recognised the contin-
uing force of the laws and usages of Indian nations,10 but for the most
part, Canadian judges operated in ignorance or outright denial of
Aboriginal law.11 In 1888, the Judicial Committee of the Privy Council,
the highest court of the British Empire and at the time Canada’s highest
court pronounced that native title to land derived from ‘the good will of
the Sovereign’.12 The Canadian government continued the British practice
of obtaining Indian lands for settlement through land cession treaties, a
process that implicitly recognised Aboriginal land ownership. But the
written text of the treaties as contrasted with the oral negotiations
purported to record an agreement on the part of the native signatories to
‘cede, release, surrender and yield up all their rights, titles and privileges
whatsoever’.13 For over a century and a half, in Canada as elsewhere,
settler-state sovereignty was in denial of Indigenous self-determination.
Not until Canadians and European civilization generally began to
question the racist assumptions of imperialism have Indigenous peoples in
Canada derived much benefit from the vestiges of the recognition of
Indian nations and their land rights that remain in Canada’s law and
historical memory.
There is no evidence that Aboriginal peoples in Canada consented to
the imposition of imperial or settler-state sovereignty over them. Once
they mastered the colonisers’ language and were exposed to their history
books, many were shocked to learn about the dominant society’s assump-
tion that its sovereign had a monopoly of legitimate political power over
their societies. I well remember my first meeting in the 1970s with leaders
of an Aboriginal nation, the Dene of the Northwest Territory. A Dene
woman began the meeting by firing two questions at me: ‘Professor
Russell,’ she asked, ‘what is sovereignty and how did the Queen get it
over us?’ The first question, at the time, didn’t seem so difficult, but I had
never before thought very carefully about the second. For me it was the
beginning of a trans-cultural odyssey that continues to this day. For that
woman elder and the Dene Nation, it was the beginning of a process
through which they would try, through the instruments of their
colonisers’ political culture, to recover some of the political freedom they
had lost.14
A natural response by Aboriginal people to the discovery of the settler
society’s assumption of sovereignty is to make a counter claim to sover-
eignty. This they certainly have done in Canada and elsewhere. Since
sovereignty seems to be not just the most valuable coin of the realm, but
indeed the coin without which a society is not entitled to a realm of its
own, how can a self-respecting human society afford not to claim sover-
eignty? Though the actual word ‘sovereignty’ is new to Aboriginal
peoples, they give it a meaning infused with their own political culture.
Thus, rather than the state sovereignty as theorised by Bodin with its

174
Russell

centralisation of secular power over people, they conceive of sovereignty


more as a personal and social right of self-direction and responsibility
conferred on individuals and groups by their Creator. As the Chiefs of
Ontario submission to the Royal Commission on Aboriginal Peoples put
it, sovereignty is ‘the original freedom to our people by the Creator rather
than a temporal power’.15
Many non-Aboriginal scholars and most non-Aboriginal governments
read their own conception of sovereignty into Aboriginal claims to sover-
eignty. Thus they fear that to concede that Aboriginal peoples have sover-
eignty is to recognise their right to have totally independent states, a scary
and politically unacceptable possibility to pretty well all settler states,
including Canada. Though it is difficult to see a principled reason for
denying that an Aboriginal nation’s right to self-determination includes
the right to secede and form its own independent state, as a practical
matter there are few Aboriginal leaders or groups with separatist aspira-
tions. Most of those Canadians who have a strong identity with an
Aboriginal people also have a Canadian identity. The attachment of
Aboriginal peoples to Canada may be based as much on economic
prudence as patriotic sentiment, still it means they should be able to
satisfy their demand for autonomy within the Canadian nation-state. But
it is difficult to see how the autonomy they seek can be realised by
anything short of a share of the sovereign authority of the Canadian state.
In a country with a deeply federal constitutional culture, this should not
be impossible to achieve.

Quebec and Canada’s Emerging Multi-nationalism


Canada is one of those federations that adopted a federal constitution not
for reasons of abstract political philosophy but as the only practical way
of combining different peoples in a single state. Confederation in 1867
was a compromise between the English-speaking majority who wanted a
unified state and the French-speaking minority who insisted on having a
jurisdiction, Quebec, in which French Canadians would be a majority
with the power to protect their distinctive culture. The result was a feder-
ation which, on paper, was highly centralised, but over time became much
more decentralised. It was not until the 1960s that Quebec’s French
majority, animated by the spirit of modern nationalism, began to press for
a restructuring of Canada’s Constitution that would give Quebec the
status of the homeland of a founding people. This surge of Quebec
nationalism plunged Canada into a series of constitutional crises and
engagement in an intense kind of constitutional politics that has not yet
played itself out. Though for the majority of Canadians this has been a
painful political struggle, it has provided Aboriginal peoples in Canada
with both a stimulus and opportunity to advance their self-determination.
Quebec nationalists’ claim to the right of self-determination is highly
problematic. In 1972 a Special Constitutional Committee of the Canadian

175
Unfinished Constitutional Business?

Parliament (the Molgat-MacGuigan Committee) considered the claim


made by Quebec’s rapidly growing separatist party, the Partie Quebecois,
that Quebec’s right to secede from the Canadian federation was based on
the right to self-determination. The Committee observed that self-deter-
mination of a people is not the same as self-determination of a province.16
The Committee noted that ‘there are within the Province of Quebec other
groups which would possess an equal claim with Francophones to self-
determination.’17 Though some or all of the homelands of nine Indian
nations and of the Inuit people of Nunavik lie within Quebec’s bound-
aries, the only group the Committee specifically mentioned as having
a right to self-determination was Quebec’s one million anglophones. But
the Committee recognised that the Trudeau Government’s proposal to
extend the equal rights of individual citizens to native people would not
provide a consensual basis for restructuring Aboriginal relations. It
acknowledged that an alternative approach viewing ‘the native peoples as
collectivities…does appear preferable to many of the native peoples
themselves’.18
Quebec nationalism did not win, either for the Quebecois or for
Aboriginal peoples, recognition of their right to self-determination.19 But
it did open up a constitutional discourse about the fundamental nature of
Canada as a political community. This was in a context where all
Canadian governments and the great majority of the Canadian people
wanted to transcend the last traces of the country’s imperial beginnings
and transfer custody of their Constitution to Canada so that Canadians
could become truly and fully a sovereign self-governing people. For that
to happen there would need to be agreement on the nature of the
Canadian ‘self’ or ‘people’ that was now to become sovereign and self-
governing. Any definition or treatment of the sovereign Canadian people
that denies the Quebecois and Aboriginal people their claims to ‘people-
hood’ would be illegitimate for the majority of Quebecers and the
majority of Aboriginal people. Leaders like Pierre Trudeau could, and
did, insist on the unitary nature of the Canadian people, but their consti-
tutional efforts no matter how popular they were with the majority of
Canadians could not win the assent of French Quebec or Aboriginal
peoples. The insistence of these two elements of the Canadian political
community on being recognised, at the very least, as nations or peoples
within Canada, has meant that Canada has had to grapple with the possi-
bility of being a ‘multi-national’ state.
Ironically, though Quebec was primarily responsible for opening up
Canada’s constitutional agenda, it is the Aboriginal peoples who, so far,
have made the most tangible constitutional gains. Of course the
Indigenous peoples had much further to go in recovering some measure
of autonomy. Since 1867, the French majority in Quebec had a law-
making jurisdiction that they could use to protect and nurture their
distinct society, whereas the Aboriginal peoples had been denied recognition

176
Russell

of their traditional governments and many of them were subjected to the


colonial regime of the Indian Act. The 1982 Patriation Package, the only
major change in Canada’s Constitution in three decades of constitutional
turmoil, included a section that recognises and affirms ‘the existing
aboriginal and treaty rights of the aboriginal peoples of Canada’.20
Another section stipulates that the rights and freedoms pertaining to
Aboriginal peoples, including those recognised by the Proclamation of
1763, historic treaties and modern land claims agreements, take priority
over the rights and freedoms in Canada’s new Charter of Rights.21 At the
time no one was sure what ‘the existing rights of Aboriginal peoples’
might entail, but compared with Quebec, which the Patriation Package
treated as simply a ‘province like all the rest’, Aboriginal peoples had
done relatively well in gaining constitutional recognition of their collec-
tive political identity.
After 1982, Quebec and Aboriginal leaders pressed hard for more
constitutional recognition. For Aboriginal peoples the crucial objective
was explicit recognition of their ‘inherent right to self-government’. They
wanted this much of their right to self-determination written into the
Canadian Constitution. They did not succeed, but the four conferences
between 1983 and 1987, in which their leaders negotiated the issue with
the Prime Minister of Canada and the Provincial Premiers on national
television, advanced public understanding of the Indigenous peoples’
political aspirations. At the same time, the experience integrated the
Aboriginal leadership into the Canadian constitutional process.
The primary objective of Quebec nationalists, by then led by a ‘feder-
alist’ Liberal Government in Quebec City, was recognition of Quebec as
a ‘distinct society’ within the Canadian federation. This was the centre-
piece of the Meech Lake Accord which for three years absorbed the
political energy of the country before dying in 1990, having failed to win
the assent of all the provincial legislatures. Next came a weird and
wonderful effort to combine the Aboriginal peoples’ inherent right to self-
government and recognition of Quebec’s distinctiveness with proposals
designed to meet virtually every other source of constitutional discontent
in the country. This potpourri of constitutional proposals was agreed to
by all Canadian governments and four pan-Canadian Aboriginal organi-
sations at Charlottetown in 1992. But when the Charlottetown Accord
was presented to the Canadian people in the October 1992 referendum,
it was rejected by a majority of 54 percent.
The defeat of the Charlottetown Accord put an end to any further
efforts at major constitutional restructuring in Canada at least for a
decade. Except for the sovereignist leaders in Quebec and their most
passionate followers, Canadians had lost their appetite for constitutional
reform. This was as true of the Aboriginal peoples as of non-Aboriginal
Canadians. In 1994, with the Ojibwa lawyer Roger Jones, the author, on
behalf of the Royal Commission, canvassed Aboriginal organisations on

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Unfinished Constitutional Business?

their interest in resuming constitutional negotiations. We found virtually


no interest among Aboriginal peoples in trying to achieve their political
objectives through Canada-wide constitutional negotiations.22 If further
progress was to be made, it would be through initiatives of individual
nations and communities, assisted perhaps by the lobbying and advocacy
of pan-Canadian organisations.
Though the many years of constitutional wrangling failed to achieve a
grand resolution of Canada’s constitutional conflicts, the experience
changed the country’s constitutional culture. Canadians had learned,
many of them sorrowfully, that Canada was not destined to be a conven-
tional nation-state—one culture, one people, one nation, one state. Or to
put the point a little differently, self-determination for the people of
Canada means coming to terms with the reality of a very divided self, not
just a multi-ethnic self, but a multi-national self.23 While the majority of
English Canadians and new immigrants to Canada identify primarily with
the Canadian nation, a majority of French Quebecers and Aboriginal
peoples identify primarily with nations within the Canadian state. No
coherent constitutional expression for a political community divided in
this way has been brought forward. Though some might question the
viability of a political community so divided, forcing a constitutional
resolution of these identity issues would appear to endanger Canadian
unity even more.

Moving Ahead in a Burkean Manner


With efforts at grand mega-constitutional reconciliation off the Canadian
agenda for a decade, progress in reforming political relationships,
including relations with Aboriginal peoples, has been made piecemeal
through more informal, low-profile instruments of constitutional adjust-
ment. In Aboriginal affairs the most important of these instruments are
changes in government policy, international commitments, judicial
decisions and treaty-like agreements. This style of constitutional
evolution I call Burkean in contrast to the Lockean constitutional ideal.
Whereas in John Locke’s constitutional philosophy a people constitute
themselves a political community by agreeing at a foundational moment
on the terms of their governance, in Edmund Burke’s constitutionalism a
political community develops over time and is bound together by the
collection of laws, institutions and political practices that are found to
provide a practical basis for communal peace and well-being.24 Burkean
constitutionalism, I have argued elsewhere, is more appropriate for a state
like Canada containing several peoples than the Lockean ideal, which
postulates a political community based on a single people.25
The change in government policy that holds out the most promise for
Indigenous self-determination is the Government of Canada’s decision to
recognise ‘the inherent right of self-government for Aboriginal people as
an existing Aboriginal right within section 35 of the Constitution Act,

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Russell

1982’.26 These words are from the government’s official response, in


January 1997, to the Royal Commission on Aboriginal Peoples. The
federal government’s decision to concede, without any litigation, that the
‘inherent right to self-government’ was one of the ‘existing aboriginal
rights’ recognised and affirmed in the Constitution had been announced
two years earlier.27 Since 1995 a large section of the Department of Indian
Affairs and Northern Development has been devoted to ‘implementing
the inherent right’.
The Canadian Government’s commitment to implement this right came
with some important strings attached. To begin with, the inherent right
must be exercised within Canada. That restriction had been negotiated
with Aboriginal representatives in negotiating the wording of the
Aboriginal section of the Charlottetown Accord.28 It was also, in effect, a
condition of Canada’s willingness to recognise Indigenous peoples’ right
to self-determination as set out in Article 3 of the United Nations Draft
Declaration on the Rights of Indigenous Peoples. Canada, like the other
states which have accepted Article 3, has stipulated that Indigenous
peoples’ right to self-determination must be exercised in a manner that
does not threaten its territorial integrity and on terms to be negotiated
with Canadian governments.29
At the outset, the Canadian Government tried to limit the subject
matters on which it was prepared to negotiate Aboriginal self-govern-
ment. Its approach has been more one of devolving powers to Aboriginal
peoples rather than making room for Aboriginal peoples to recover
control over their own societies. Negotiations involving self-govern-
ment—in many cases combined with land claims—have been initiated at
eighty different ‘tables’, involving Aboriginal peoples all across the
country. But few agreements have been reached. The difficulties have not
all come from the pre-conditions of federal, provincial and territorial
governments or their reluctance to relinquish control. Indigenous peoples
often have difficulty in presenting themselves as coherent political
communities ready to assume major responsibilities of governance. Self-
government negotiations cannot move ahead with Indigenous communi-
ties where fundamental issues of constitution and membership remain
unsettled. Colonial control has fragmented Indigenous peoples and
imposed alien governmental structures on them. Government funding of
‘capacity building’ can do little to enable Indigenous peoples to revive
their own traditions of governance and adapt them to administering
public services not envisaged by traditional societies.
There are also formidable issues of lands and resources that must be
resolved. A land base, more precisely ownership and control of at least a
significant part of a people’s homeland, is essential—both spiritually and
materially—for Aboriginal self-government. Though the Supreme Court
of Canada in its 1997 decision in Delgamuukw did not deal with the
general right of Aboriginal self-government, it did recognise the power of

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Unfinished Constitutional Business?

government inherent in Indigenous peoples’ communal ownership of


land.30 The collective Aboriginal owner, it held, has the right to control
the use of the land to which it has native title. However, the Court also
held that this right as with all other constitutionally recognised
Aboriginal and treaty rights, can be justifiably infringed by federal or
provincial governments if, in the court’s view, such an infringement is
required for some large public purpose. Moreover, if assertions of native
title are challenged in the courts, the onus of proof rests with the
Aboriginal claimants to show their continuing association with the land
since before the imposition of British sovereignty. The Supreme Court
urged Aboriginal peoples and Canadian governments to resolve native
title issues through political negotiations rather than litigation. And
indeed, it is through a modern treaty process, expanded to encompass
self-government as well as land rights, that Aboriginal peoples have made
the most tangible gains in securing land and government power.
Most of the progress to date has occurred in the northern territories
where the absence of provincial governments means that negotiations can
be essentially bilateral. The creation of Nunavut, a self-governing
territory carved out of the Northwest Territories and encompassing the
entire Eastern Arctic (nearly a quarter of Canada’s land mass) is the most
spectacular development.31 Nunavut is the result of a 1993 Agreement
between Canada and representatives of the 22,000 Inuit people who
constitute 85 percent of the region’s population. The agreement vested
ownership of approximately 350,000 square kilometres of land in an
Inuit land corporation and established a Nunavut Government and
Legislature with provincial-type powers. To give the Inuit time to prepare
for taking the dominant role in Nunavut’s governance, the new govern-
ment did not begin to operate until 1999. Only the land ownership part
of the 1993 Agreement has section 35 Constitutional status. The Govern-
ment of Nunavut was created by an Act of the federal Parliament. While
this may bother constitutional purists, it has not been an issue for the
Inuit. The Inuit people historically had not developed a traditional system
of structured political authority. The institutions of Nunavut—Prime
Minister and Cabinet responsible to a one-vote-one-person legislative
assembly—are basically European. The status of Inuktitut as an official
language, the absence of a party system and the objective of maximum
decentralisation to small hamlets are the principal Indigenous elements.
Still, I would say that Nunavut comes closer to satisfying the principle of
Indigenous self-determination than any other arrangement in Canada.
Progress in achieving a significant measure of Aboriginal self-govern-
ment has also been achieved in Yukon, the westernmost of Canada’s
northern territories. While Aboriginal peoples constitute only about 20
percent of Yukon’s 30,000 population, they are the majority on the lands
outside of the urban centres. Under the Umbrella Agreement signed in

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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-

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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

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Agreement in the courts, on the grounds that it unconstitutionally recog-


nised Nisga’a sovereignty. In July 2000, Justice Williamson of British
Columbia’s highest trial court rejected the challenge and held that the
forming of Canada in 1867 did not extinguish the Aboriginal peoples’
right to govern their own societies. In May 2001, in a landslide election
victory, Campbell’s Liberals, who ideologically are soul-mates of the
Australian Liberal and National Parties, came to power in British
Columbia. Though in opposition Campbell promised to appeal Justice
Williamson’s decision, and to submit the whole BC Treaty process to a
referendum,38 in power he become more cautious. Fear of the economic
damage that Aboriginal resistance can inflict on the province might hold
him back.

Backlash and the Limits of Consensus


The Nisga’a Agreement marks the outer limit of native/non-native
consensus on Indigenous self-determination—at this point in Canadian
history. If the Agreement had been put to a province-wide referendum,
I doubt that it would have been approved. Indeed I would bet against
its winning approval in a Canada-wide referendum. My doubts would be
based as much on the federal government’s feeble support for the
Agreement as on popular opposition to its contents. On these issues,
public opinion is formed and fashioned largely by political leadership and
commentary in the media. On the Nisga’a Agreement, as on other major
developments in Aboriginal relations, the most prominent leaders and
commentators these days are on the conservative side of politics and they
either ignore or reject the principle of Indigenous self-determination.39
The only serious opposition to the Chrétien Liberals came from this
side of politics. This largely explains why it is that since the Royal Comm-
ission, the Government of Canada has provided virtually no leadership in
respecting or strengthening popular support for Aboriginal rights.
The response of Aboriginal peoples to the Nisga’a Agreement has been
entirely different. Most Aboriginal commentators reject the Agreement as
inadequate for their own people and circumstances. The day that the
terms of the Nisga’a Agreement became public I happened to be meeting
with a group of Deh Cho Dene leaders in a continuing effort to find
enough common ground between the Deh Cho and Canada to justify
beginning formal negotiation of an agreement on land and self-govern-
ment issues. While the Deh Cho leaders observed the convention of not
criticising how other Aboriginal nations exercise their self-determination,
they made it clear to me that the Nisga’a Agreement could not serve as a
template for their own agreement with Canada. They were not prepared
to surrender rights to traditional lands and they wanted fuller recog-
nition of their own government’s sovereignty. While some of the fifty plus
First Nations participating in the British Columbia Treaty process might

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.

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The Supreme Court of Canada is also showing signs of bending before


the counter-attack on Aboriginal nationalism. The Court’s 1999 ruling in
Marshall I,46 that federal fishing regulations contravened the rights of the
Maliseet and Mi’kmaq peoples to fish for a modest livelihood secured in
eighteenth century treaties with the Crown, provoked angry attacks on
the Court in the right-wing press. When organisations representing non-
native fishers asked for a re-hearing of the case, the Supreme Court,
instead of simply saying ‘no’ it never rehears cases, issued an unprece-
dented eighteen page opinion, Marshall II,47 explaining its decision and
laying particular emphasis on its acknowledgement of the federal govern-
ment’s overarching sovereign power to set justifiable limits on all
Aboriginal rights including treaty rights. Marshall II was written by the
Court’s new Chief Justice Beverley McLachlin who had dissented in
Marshall I. It seems that the McLachlin Court, in contrast to the Dickson
and Lamer Court, will follow rather than lead public opinion on
Aboriginal rights.48

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?

real opportunity for self-determination. From the early 1970s through to


the late 1990s, what really helped them to move forward were crucial
decisions of the Canadian courts and governments which afforded a
limited, conditional recognition of their rights. I do not think we can
expect anything coming from non-Indigenous Canadian leaders or judges
to move relations with Aboriginal peoples beyond that limited condi-
tional recognition of their rights. Even consolidating the limited gains that
have been made will require vigorous political action by Aboriginal
peoples. The backlash that is now occurring is, I believe, largely a
reaction to Aboriginal successes in court decisions like Delgamuukw and
Marshall I and the Nisga’a Agreement. Inadequate as these ‘successes’
may be to many Aboriginal people, they are still too much for many non-
Aboriginal Canadians.
Reflecting on de-colonisation in the Third World suggests other points
of comparison about the conditions of Fourth World de-colonisation. We
know that recognition of Third World nations’ right to self-determination
in international law and politics has not by any means resulted in the
complete autonomy of these countries. Third World de-colonisation is
still a work in progress and its progress now depends not on altering
constitutional arrangements with the former imperial powers but to a
large extent on dealing with global conditions of political economy. It is
also evident that Third World peoples’ success in enjoying real self-deter-
mination depends as much on internal conditions—above all on internal
peace and democracy—as on external relations. Applying these reflec-
tions to Indigenous de-colonisation in Canada, I would not expect
anything but a very long struggle ahead for Aboriginal peoples, and that
the economic side of autonomy—greater economic self-sufficiency—will
be more important than formal constitutional restructuring of their
relationships with Canada. And further, it is a good bet that the
Indigenous peoples who make the most progress will be those who enjoy
or establish the most internal harmony and genuinely responsive govern-
ments—whose collective ‘self’ which is to do the determining is most
whole and democratic.
In the end—although there is really never an end—the autonomy
enjoyed by Indigenous peoples in a country like Canada cannot, I
suppose, be as full and unqualified as that of a people who form their
own independent state. The degree of integration into the colonisers’
political system and culture is necessarily greater for Indigenous peoples
in a country like Canada than it is for other people. Most Aboriginal
people in settler states, along with their Aboriginal identity, share citizen-
ship with non-Aboriginal people in a state established by the settlers. The
Nisga’a Agreement recognises the Nisga’a people as citizens of the
Nisga’a nation and as citizens of Canada. It is my belief that autonomy
and integration, rather than being antithetical conditions, complement
one another. The Indigenous peoples whose autonomy is the furthest

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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).

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Unfinished Constitutional Business?

15. Canada, Royal Commission on Aboriginal Peoples, Report, above n 1 Vol.


2, Part One, p. 109.
16. See Peter H Russell, Constitutional Odyssey: Can Canadians Be A Sovereign
People? (Toronto, University of Toronto Press, 1992), pp 93–4.
17. Ibid p 93.
18. Ibid p 94.
19. In its 1999 decision on Quebec secession, the Supreme Court of Canada
rejected Quebec’s claim that it had a right to secede unilaterally from Canada
based on the internationally recognised principle of the right to self-determi-
nation. See Reference Re: The Secession of Quebec (1998) SCR 217.
21. Ibid Section 25.
22. For a discussion, see Canada, Royal Commission on Aboriginal Peoples,
Report, Vol. 5.
23. On the importance of recognising the difference between multiculturalism
and multinationalism, see Will Kymlicka, Finding Our Way: Rethinking
Ethnocultural Relations in Canada, (Toronto, Oxford University Press,
1998).
24. See Russell, Constitutional Odyssey, ch 2.
25. ‘Can Canadians Become A Sovereign People? – The Question Re-visited,’ in
Stephen Newman, American and Canadian Constitutionalism in
Comparative Perspective, (Albany, University Press of the State University of
New York, forthcoming).
26. Canada, Minister of Indian Affairs and Northern Development, Gathering
Strength: Canada’s Aboriginal Action Plan (Ottawa, Minister of Public
Works and Government Services, 1997), p 13.
27. Canada, Minister of Indian Affairs and Northern Development, Aboriginal
Self-Government: The Government of Canada’s Approach to
Implementation of the Inherent Right and the Negotiation of Aboriginal
Self-Government (Ottawa, Minister of Public Works and Government
Services, 1995).
28. Section 41 of the Charlottetown Accord stated that, ‘The Constitution of
Canada should be amended to recognize that the Aboriginal peoples of
Canada have the inherent right of self-government within Canada.’
29. See Sarah Pritchard, ‘The United Nations and the Making of a Declaration
on Indigenous Rights,’ (1997) 89 Aboriginal Law Bulletin 4.
30. Delgamuukw v British Columbia (1997) 3 SCR 1010.
31. For a full account, see Jens Dahl, Jack Hicks and Peter Jull (eds), Nunavut:
Inuit Regain Contol of Their Lands and Their Lives, (Copenhagen,
International Work Group for Indigenous Affairs, 2000).
32. Indian and Northern Affairs Canada, ‘Working Group Report Confirms
Success of Claims Implementation in Yukon,’ Media Release 1-01156, June
5, 2001
33. For a discussion of constitutional options, see The Constitutional Working
Group, Common Ground: Consultation Handbook (Yellowknife, 1999).
34. Calder v Attorney-General British Columbia (1973) SCR 313.
35. For a discussion of the treaty see the special issue of BC Studies on the
Nisga’a Treaty (Winter 1998/99).
36. Nisga’a Final Agreement, ch 11.
37. Ibid section 22.

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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,

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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

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persons, political and legal definitions of indigeneity can be limited or can


have certain degrees.
Self-determination is about having the ability to make decisions by, for,
and about a particular person or community, without undue limitations
on freedom. Just what constitutes an undue limitation or restriction is of
philosophical, cultural, and legal interest. A person or group may employ
a form of restricted self-determination based upon social, economic,
religious, or legal rationale. Coming from a different geographical place,
having different social, economic, religious, spiritual, legal, or ontological
values, worth, or traditions, may cause some individuals or groups to
exist peripherally to a hegemonic power axis that permits self-determina-
tion for only some individual nations.
The concept of self-determination can be intimately linked with
indigeneity by understanding self-determination practices. Traditionally
in the Americas, many Indigenous people held large amounts of self-
determination, until a dominating outsider community exerted colonial
power (passive or active) over the group, thus vanquishing the peoples’
ability to protect communal self-determination. Colonial practice
however, has not usurped individual Indigenous self-determination as
understood in many American Indian communities. Partly this did not
happen because the duty to safeguard the culture and landbase for future
generations was a duty held largely by individuals of the community,
rather than the group as a political entity.
Sovereignty is about having political power to exercise community or
individual self-determination. Notions of indigeneity and self-determina-
tion intimately relate to ideas about sovereignty. Sovereignties outside a
sustainable community can invest colonial hegemonic powers in social,
economic, religious, legal, political, land based, historical, or other
framework structures of a community, thereby surreptitiously removing
forms of sovereignty among a people. Sovereignty however, can also
mean extending a respect to other persons and/or communities as equal
to one’s own, based upon a principle of equal self-respect. A sovereign
nation may extend to others a respect equal to itself or it’s own comm-
unity, based upon a principle of sameness or difference with equality.
Even though something may be different about the other, equal treatment
prevails, grounded in a notion of respect.
When sovereignty does not extend equal treatment to others, this
unequal treatment ought to be justified by some principle of non-equity
based upon a difference that matters morally with respect to the exercise
of freedom. A requirement to treat others differently in the exercise of
freedom might be morally justified by a prediction of great harm if one
were to do so; or that equal treatment will eventually bring about a
serious injustice. It is important to note here that equal treatment does not
imply same treatment.

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In the context of colonialism, an important question about removal of


sovereignty, is how one comes to hold a view that a particular differential
treatment is justified, whether ‘paternalistic’ or ‘colonial’. Colonised
individuals (and communities) can be convinced that unequal treatment
(same or different treatment) is justified. When this occurs, the colonised
learn to see the world through the eyes of the coloniser. It is suggested that
when an agent of removal (for example, in the context of American
Indian, Australian, or South African history) is able to convince a
colonised victim that unequal treatment is justified, the victim learns to
see from the eyes of the ‘other’. This process is termed ‘internal colonisa-
tion’, and means that the difference principle is integrated into an
individual, and sometimes a communal consciousness. Internally
colonised people and communities can exercise only limited freedom, or
self-determination.
Internal colonisation differs from external colonisation in that the
mechanism of the former is to create a victim that willingly participates
in subordinating itself to the other. External colonisation generally means
an appropriation of material and/or economic resources. Internal coloni-
sation is seen by many to be more vindictive than external colonisation,
because internally colonised people cannot imagine fighting for full sover-
eignty. The first step toward decolonisation (self-determination or sover-
eighty) is to imagine freedom. Only upon imagining freedom can one
begin to believe that one can be free, and hence that a community can
be free.
In a society of equal respect for self and others, individual sovereignty
(over one’s own affairs) and equal respect for all, can mirror community
sovereignty over affairs of the community, as that community engages in
relations with individuals and other communities. For, just as individual
sovereignty can be manifested in actions of self-determination, out of
respect for individual autonomy, so also communal sovereignty can be
manifested in actions of communal self-determination, out of respect for
community autonomy. When individual self-determination is not
exercised by individuals in community, lack of personal freedom dimin-
ishes the entire community, by making the sovereignty of the state greater
than that of the individuals. Hence individual sovereignty, exercised on
behalf of the individual and community, makes a communal sovereignty
strong.
Familiarity with decision-making processes in a particular community
can permit insight into values that operate within that particular
community. In a society entertaining high degrees of personal and
communal self-determination, individual and communal self-determina-
tion may be grounded in, among other things, a value of respect for
human decision-making processes in relation to all life, whether similar
or different from human life. This appears to be the case for at least many

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Indigenous communities in the Americas, as seen in Indigenous under-


standings of metaphysical and ontological relations with all living beings.
Most especially this respect for all living beings is played out in environ-
mental politics with the struggles to protect landbases and life on those
landbases, including the waters. Making a decision to resurrect or
continue Indigenous practices that respect nature, in a struggle against
economic corporate and governmental intrusions that fail to respect
nature, is to make individual and communal decisions about values worth
holding.
A community that views itself as a sovereign entity, and that does not
permit its members to exercise high degrees of self-determination, might
be based on a fundamental belief in an inequality between the sovereign
entity and individual members of that entity regarding decision-making
practices. This is frequently the situation in economic theft of natural
resources.
The US government and corporations operating in the Americas have
a long history of disregarding Indigenous rights when economic gain is at
stake. In the Americas, mobilised institutional military powers sustain a
situation where some persons, and not others, acting on behalf of institu-
tionalised entities, are permitted to exercise high degrees of autonomous
personal decision-making power. Those persons exercising higher degrees
of decision-making as backed by a militarised state, manifest practices of
fundamental inequality among different groups, and unfairness with
those who cannot exercise such degrees of autonomous decision-making.
Extending an equal respect principle for self-determined decision-
making to all persons in a community could manifest a communal valuing
of, certeris paribus, individual equality, regardless of, or because of,
difference.
Either way, what may be essential to a community that permits equal
autonomous decision-making among individuals of that community
(whether understanding difference as a factor or not) is the warranting of
equal respect as manifested in self-determined decision-making by
individuals. A community not entertaining an equal respect principle
among individuals of a community (perhaps manifesting a negative value
respecting difference) would affirm unequal exercise of individual self-
determined decision-making. Affirming a justified unequal exercise of
individual personal self-determination would manifest a devaluing of
individual human experience over the valuing of sovereign self-determi-
nation, whether colonial or not.
Understanding how self-determination and sovereignty are related to
principles of equality and respect, and how they both exhibit values of
autonomous decision-making by individuals and groups, can enable us to
ascertain some important features of hegemonic colonialism, with respect
to self-determination, as practised against Indigenous peoples, and in the
instant case, against American Indians. Understanding hegemonic relations

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is essential to recognising hidden power structures that inform how


beliefs about indigeneity, self-determination, and sovereignty reinforce
one another.

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.

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Hegemonic relations between the colonisers and the colonised pervade


discussions about how to care for America’s land. In the Americas
colonized Indigenous people share the status of having historical
memories associated with our land. These memories include stories about
sacred places and the need to protect these places, as definitive aspects of
who we are in the world. A person manifesting values of an Indigenous
identity to the Americas will readily be accepted in Indian Country. Such
acceptance can change however, depending upon whether an individual
self-conceives as having ontological powers associated with being a
member of a community with a history of being colonised, as distinct
from powers associated with being a member of a community with a
history of doing the colonising.
The history of colonial America allows definitions of who is or who is
not to be counted as Indigenous or non-Indigenous to the Americas, to be
a political issue. Any contemporary academic assessment of this matter
emerges from a framework of contemporary hegemonic power structures
that continues to disadvantage particular individuals and groups of
individuals identified (or not) and identifying (or not) as members of
Indigenous groups.
Are we caught then in an effort to connotatively, and hence denota-
tively identify Indigenous people and peoples? Are we like philosophers
mulling which came first, the chicken or the egg? In an effort to identify
Indigenous people and peoples of the Americas, is it important to assess
shared characteristics? If we cannot know with clarity certain identifiable
characteristics of those we speak about, then how can we possibly talk
about this difference making a political difference? I believe we can
identify Indigenous values, and that identifying these values may be a first
step in articulating Indigenous nations’ politics.
Only if we can clearly articulate what indigeneity is, can we say that
the Bureau of Indian Affairs either does or does not have it right. And
getting it right is important politically! Some individuals and groups hold
(as I do) that, out of respect for self-determination, Indigenous matters
(including definitions of indigeneity) can only be resolved properly by
Indigenous individuals and groups. Others claim that since Indigenous
people or groups can only be identified by first articulating abstract
notions of what indigeneity is, and then applying those definitions,
resolving matters of indigeneity must wait until we can agree on a defini-
tion of who counts as Indigenous. However, because colonial hegemonic
relations would inform presumptions of abstract definitions, questions of
Indigenous politics may require pragmatic approaches to resolution.
Whether one adopts the more practical method of identifying Indigenous
people and groups via a commonly held value system, or via an abstract
definitional system, Indigenous politics are on the international scene,
and bring with them ontologies and values that deserve philosophical
analysis.

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There are important differences in land relations depending upon


whether one is engaging with an Indigenous ontology or not. And with
ontologies, come values. If only for pragmatic reasons, some demarcation
lines must be laid, about what it means to engage in Indigenous relations
with land and all our landed relations. By using the word ‘land’ here, I
now mean to refer to all living things in a space-place area of the earth,
where all human sharing of metaphysical and ontological understanding
and resources, inheres in landed relations as communally absorbed.
In order to draw cognitive lines of demarcation about what it means to
relate indigenously to a landbase, we must be able to articulate what
those relations amount to. Articulating a particular type of respect for all
our relations will identify those who practise an Indigenous ontological
way of being in the world. I propose that Indigenous being with the land
(being of the land, or landed) is a way of being that survives interdepend-
ently with the land, in all its physical, spiritual, and sociological ways of
being. Ways of being that indigenously interact with the land can be
distinguished from ways of being on and acting on the land. The former
type, being with the land, understands that what is important about that
way of being is knowing that intimacy with, and interdependence of, all
our relations with the land are as important (to human survival) as the air
we breathe. This way of being understands that what is important about
itself and the land is a difference that justifies different treatment of
humans from other beings perceived as living with the land, but that this
difference does not justify an unfair, or unequal treatment of beings which
are unlike ourselves.
As seen in the histories of confederacies in pre-colonial America,
Indigenous being is also political. Non-Indigenous communities’ tradi-
tional political, colonial, and legal lines of demarcation among nation
states, countries, or even continents, which define where any particular
place begins or ends, are merely historical abstract lines drawn (on a
globe) and enforced by militarised nation states. To reflect upon currently
established international (and national) global borders is to reflect upon
a history of hegemonic and genocidal colonial self-determination
exercised by historically ruthless monarchies of church and state against
Indigenous peoples. It is to reflect upon artificial separations of land use
that bear no relation to sacred ontological place, or the place of humans
on the land.
When newcomers came to the Americas, Indigenous peoples were seen
as lacking any rights to self-determination. This belief was based upon
hegemonic religious and political theories of manifest destiny the new-
comers brought with them. King Ferdinand’s speech to the Arawak upon
arrival in the Americas in 1453 clearly articulates the allegedly justified
psychological, political, and physical powers of taking.
If we look at the Americas’ historical colonial backdrop, we see the
results of practices exercised by the newcomers’ hegemonic groups that

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re-enacted and aggregated their hegemonic power relations in the Americas


to create types of political divisions, and people (and hence ontological
frameworks) that were permitted to exist upon American soil. What
person or what value has counted as indigenous to a particular place or
area has been, without exception, recorded according to European eyes
gazing upon peoples that the Europeans had no ability to understand or
know. An example is the textbook European denial of Asian and African
presence in the Americas prior to the European presence. For Europeans
to admit non-European presence in the Americas prior to European
presence would be to acknowledge a superior naval force. Now, in the
21st century, the historical gaze of Europeans turns back upon
newcomers to the shores, as Indigenous people share our stories and our
historical worldview, which differs from the dominant culture’s history. It
is hoped this sharing of Indigenous worldview will bring about a respect
for Indigenous cultures and sovereignty in the Americas.
Because contemporary problems of colonisation of peoples, resources,
and landbases have come about as a result of unjustified colonisation,
newcomers should have a special accountability to the Americas to ensure
that there is a turn-around of ideology in favour of more fair and equitable
Indigenous worldviews. The current historical global and political
Indigenous movements are being directed by people from traditionally
disenfranchised Indigenously oriented nations. This disenfranchisement
by church and nation states, as well as the United Nations, bonds Indig-
enous peoples in a common struggle to ascertain basic rights of self-deter-
mination. These struggles strive for an equal human dignity and respect
in decision-making, and embrace long-term political struggles that engage
different ways and ontologies of being to exist in the world on an equal
footing. Many non-Indigenous people are also engaging this global Indig-
enous movement, so powerful is the morality and ontology of its being.
Because histories of colonisation have disrupted Indigenous peoples’
self and communal sovereignty, a new global Indigenous political move-
ment emanates a message of returning to traditional local values regarding
ontological, spiritual, economic, political, and cultural ways of being in
and with all our relations. Moreover, industrialised nations that have lost
contact with their Indigenous communities are now being asked to inves-
tigate their cultural Indigenous roots living as community members prior
to the rise of the church/nation states. One of the problems with
newcomers to the Americas, as suggested by Vine Deloria Jr,1 is that they
have lost their sense of place, their sense of being rooted in a communal
space, where all aspects of that geographical area are interwoven with
personal and communal identity.
The global political Indigenous movement is a human rights movement
because the issues arise from what is perceived by many to be unfair
discriminatory applications of racist colonial doctrine. As a simple example,
discriminatory colonial practices demand unequal value placed on religious

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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

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a way of being in the world that understands human interdependence


with land and all our relations to the land. Rather, Indigenous ways of
being are based in sound scientific principles held to be true about the
universe. As Indigenous groups communicate with one another, and artic-
ulations about ontologies of belief and value systems that conserve
natural resources are shared, it becomes obvious that sustainable ways of
being on the earth may in fact be evaluatively superior to the consuming
industrial ways of being that continue to deplete natural resources.
Following in the footsteps of Vine Deloria Jr, Annette M Jaimes, Guerrero
and Ward Churchill,2 is the Indigenous echo that resounds against global
colonial powers which usurp Indigenous land sustainability: ‘I am an
indigenist!’

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

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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

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and political autonomy and self-determination interact with the phenom-


enal world. The thinking being of self-determination for Indigenous
peoples must first be thought into the world.
In this context of thought, an Indigenous, though still colonised
metaphysics and ontology, could hold only a limited notion of communal
self-determinism in the context of colonialism. Self-determined decision-
making cannot occur in a communal sense outside the context of coloni-
alism, unless it is first thought. Hence, to realise itself in the phenomenal
world, a visionary would first have to think self-determination outside the
colonised context of limited freedom.
Thinking thoughts come from the world itself, from the dream world,
which is interdependent with the phenomenal world. Thinking, which is
of the world, interacts with the world, and with world possibilities of
coming into being, via continuous interdependent animated changes and
interactions, among non-discrete and non-binary dualist notions. Once
an idea about freedom is thought, only then can it come into being as
being, and interact with phenomenal being as communal world reality.
Thought comes from the social milieu of ontological and metaphysical
beliefs about the world that individuals are born into and hold. This
milieu is a social world of thought that always creatively operates inter-
dependently with the phenomenal world. Thinking self-determination
then, is the first step to making it real; or, when it is thought it becomes,
and when it becomes it is creatively thought into real being. This is the
first step of a self-determined, individual and communal freedom becoming
manifested in human action.
Because we humans are of nature, we cannot be different from, or
stronger than nature. Hence, all of our human thinking is both empo-
wered and limited by our abilities as humans to engage in creative
thought as human nature creating itself, or thinking ourselves into being.
There is nothing that comes outside of nature to reveal to us the meaning
of freedom, autonomy, or self-determination. Humans, as part of nature,
cannot think into being ideas of autonomy and self-determination outside
of our human thinking abilities. Yet once thought, such ideas can become
shared, resulting in an imagined communal reality. The ability to exercise
this imagined communal reality however, becomes a political issue, and
subject to phenomenal hegemonic control by others—most especially by
individuals representing church and nation states.
An American Indigenous theory of human action respects individual
(communally-inspired) human choice, because what makes human beings
unique individuals is our ability to undertake unique intentional human
actions of creative human thought. Human action is action we under-
stand to be of nature, and hence interdependent with all things of the
universe. Because humans are of nature, all human action is natural
action. Yet thinking humans, being of nature, have the capacity to change
nature, including human nature.

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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.

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Yet still, it is only within the context of understanding the ontological


and metaphysical importance of individual human choice, arising from a
social milieu of value, that a political theory of self-determination for a
community can make any sense. Hence, for Indigenous thought, the
metaphysics, and hence ontology of self-determination of individuals and
communities are interdependent and causally related. As indicated, it
takes cooperative individual thought of many members of a community
to crystalise an ontology of common thought, or in the case at hand, to
institutionalise the policy of going to war. From this perspective, it is only
among a majority of similiar thinking individuals that a tribal decision-
making process can be brought to life, or can be made a creative possi-
bility in the world. Thus it requires many similarly oriented, thinking
individuals to creatively think the possibility of a tribal consciousness of
individual self-determination and decision-making to come about in the
world.
This system of ontological checks and balances in decision-making
regarding political activities, can ground a human political democracy in
a metaphysic of self-determination and communal autonomy. These
checks and balances can ground us in a sense of whom we are account-
able to for creation and affect in the universe. The Anishinabe word,
‘Ayaanwayamizin’, frequently uttered as a type of ‘goodbye’ when one
leaves a place, loosely translates to ‘Beware, Tread Carefully’. The reason
this is said is to remember always that all things are connected and inter-
dependent. And so it is for individuals in community, that one ought to
beware that all actions have further consequences in the universe, and
thus one ought to ‘tread carefully’ even in one’s thinking about the
universe, and in so doing respect autonomous creation and existence for
all our relations. This principle of treading carefully can also be grasped
as a moral principle of accountability to and awareness of how one is
affected by, and affects all things in the universe.
Returning now to our example of an individual contemplating the
decision whether to follow a tribe or community into war. America’s
Indigenous communities frequently maintained the right to this decision-
making process rested solely within an individual, rather than a group. If
the tribe successfully brought about a personal accountability of each
individual to contemplate these things in the best interest of both self and
community, then the best of tribal thought and the best of tribal decision-
making would come about, as a result of each individual member’s partic-
ipation in the decision-making process. Checks and balances of individual
and communal action could be had, along with a unique role of partici-
pation for each individual tribal member. In this way, respecting the inter-
dependencies of (1) individual personal autonomy in freedom of
decision-making affecting a community, and (2) communal survival to
meet the needs of individuals, would manifest the tribe’s decision as
grounded in its members.

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This way of understanding how community decisions are made was


radically different from anything known anywhere else in the world at the
point of colonisation of the Americas.4 This way of understanding oneself
as interdependent with, and in relation to the community, as part of the
community of decision-making and decision-makers, was not borrowed
from America’s Indigenous cultures at the time of the drafting of the
United States Constitution (though much else was!). And yet, in this
notion rests the perfection of balancing individual and community
accountability, and the theory of preserving individually confederated
tribes. For what was applicable to the individual, would also be appli-
cable to each tribe, and what applied to each tribe, would be applicable
to the confederacy, creating a moral consciousness toward unified
decision-making.
If a tribal member could persuade another or many that it would not
be in the best interests of one, and perhaps many, to go to war, then it
might be accepted as not being in the best interest of the group to go to
war. If a person had such persuasive tendencies, that person might be seen
as a visionary. As a tribal visionary that person would have an obligation
to the telling, and would become a leader and effectuator of tribal
decision making. In this way leaders would not be chosen by the people,
but would rise to a leadership occasion on behalf of the people and all of
our relations.
An example of this type of visionary in American Indian history can be
understood in a careful reading of the oratory of Tecumseh in the late
eighteenth century, as he tried to create a new confederacy that would
stand against the recently created confederacy of American states.
Another example of this balancing of visions among communal leaders
can be see in Pushmataha’s response to Tecumseh when he says that it is
not in his tribe’s best interest to break promises to this new American
Confederacy, for he had only recently gone into treaty relations with
them. Pushmataha wanted to give the new American Confederacy an
opportunity to show a new good will. However, Pushmataha’s vision had
not experienced the devastation Tecumseh had of the Great Lakes Tribes,
when they became divided among themselves in the French and English
wars that engaged the Plains and Northern Woodlands tribes. Nor had he
experienced the strong successes of Confederacy, such as used by the
English against the French. Pushmataha had not known the strength of
American Indian Confederacies, for the Confederacy of the Five Nations
had not been able to keep his people safe from the colonial powers.
Pushmataha chose to join forces with the new government, the govern-
ment of ammunition.
This example of how the individual fits with and is engaged in interde-
pendent relations with communities shows us how an unlimited sense of
freedom and autonomy or self-determination cannot be had among human
beings. For we are products of our communities; and as thinkers we are

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Unfinished Constitutional Business?

products of our community of thinkers. That is why the role of vision-


aries is so important to American Indian traditions.
The visionary embraces the best of creative activity in human thought
that exists in a tribal group. The visionary exemplifies freedom of tribal
thought, and its interdependence, as enabled by a community of human
thought, that exists interdependently within all of creation. Indeed, the
visionary is led to solitude, to the being of the outdoors, of nature, in
seeking a vision. The visionary, among nature, is led to contemplate
examples of nature that manifest organised activity, and apply these
organising principles to human activity.
American Indian visionaries manifest tribal values and insight, and are
the leaders of, and healers for, political change. Visionaries hold no
special status, for they must remain among people as equals to maintain
balance. Yet without such visionaries we cannot think our being, as self-
determining nations, into being in the world. And this is what colonial
governments understand clearly: visionaries play a central role in
organised community activity. Witness the killing of people like John
Kennedy, Martin Luther King, and of Wowovka, Geronimo, and many
more American Indian visionaries during the rise of colonial power. For
when visionary activities threaten the commodified organisation of
economic capitalist structures that support the new global economy, it is
visionaries who become targets of extermination. Indigenous people have
learned this lesson well over more than five hundred years of European
colonisation.
In this context, it is difficult for American Indians to have public vision-
aries, or to share visions. Our experience at Wounded Knee, Sand Creek,
Bear Butte and elsewhere have shown this clearly. There appears to be no
place for spiritually balanced decision-making and moral accountability
for self-determined existence for American Indians, so long as we are
thought into being dependent nations, who must be gover-ned, even on
our own treatied landbases, as inferior human beings.
If the American Indian indigenist movement is to succeed, we must
think beyond our colonised borders of decision-making. We must think
ourselves into being as autonomous economic, social, political, spiritual,
and cultural entities that enter into confederacies with other nation states,
as interdependent, but never solely dependent, in our relations with them.
Mutual self-respect and self-determination are the key principles of a
sovereignty that is enduring, and that can last for so long as the grass
grows and our children eat. This is the promise of an American Indian
sovereignty, and this is the promise of American Indians to our continued
struggles against the colonisation we have encountered.
If the United States of America had known more about the metaphysics
of the Confederated Native Nations, they might not have been so quick
to disregard our political being in the world as inferior to theirs. But new
Nations will arise within the global indigenist movement, and with these

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nations will come autonomy and self-determination. They will teach


those who have colonised them the logic of cooperation and interdepend-
ence. It is hoped Indigenous people of the world, everyone, will bring a
sense of balance and an accountability to the well-being of the
Confederated, or United, nations. But if not, we will still come, and we
will be self-determined.

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

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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

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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:

Indigenous communities, peoples and nations…which having a


historical continuity with pre-invasion and pre-colonial societies
that developed on their territories…are determined to preserve,
develop and transmit to future generations their ancestral territo-
ries, and their ethnic identity, as the basis of their continued
existence as peoples, in accordance with their own cultural
patterns, social institutions and legal systems.2

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Magwaro

It will be proposed that both national and international institutions


and instruments designed to safeguard Indigenous rights, particularly in
accordance with ‘formal’ legal systems, have been unsuccessful.
I also highlight illustrative models that demonstrate the difference in
dispute management paradigms with particular reference to the
ownership of conflict in a generalised Indigenous context as well as a
formal Western model. This is to emphasise the contextual difficulty
faced by Indigenous communities in conforming to formal Western legal
systems that usurp their conflicts and consequently, an ability to re-concil-
iate disputants and communities collectively.
The recognition of Indigenous dispute management within human
rights law is imperative since law and culture are unique community
resources and the ideas of justice and fairness must be steered by the
global community as a whole. It has long been recognised that the legal
arrangements to protect Indigenous rights are unsatisfactory.3

Indigenous Dispute Management is an Integral Aspect of


Property and Self-determination
Indigenous dispute management as ‘property’
Christie states that in industrialised countries there is too little internal
conflict, the latter is attributed to monopolisation of conflicts by ‘profes-
sionals’ leaving disputants without ownership of their conflicts.4 It
follows from this analysis that not only is Indigenous conflict usurped by
the state and ‘professionals’; arguably, the resulting ability to re-conciliate
the disputants and reintegrate the offender into the community is also
taken away from Indigenous communities forced to resolve their conflict
under the adversarial system.
World cultures depend upon the fundamental building blocks of law
and heritage to maintain social coherence. Whilst laws in many
Indigenous cultures have been personalised, the law in Western cultures
has been formalised. The formalisation of the law has been achieved
through the bureaucratic and technocratic complexities of the legal
system, which is intrinsically difficult to understand without the use of
legal experts or ‘professionals’. However, modern legal jurisprudence is
continually exposing the link between law and culture and alternative
methods of resolving disputes even in formal adversarial systems.5
Christie is at pains to explain that lawyers and the state ‘steal’ conflicts
from disputants.6 However, Christie does not explain why governments
steal conflicts that are non-pecuniary, or the paradox that the state ‘simul-
taneously needs to reduce conflicts’.7 In a Western society, the legal
networks in the administration of justice ensure state intervention and
decrease both individual and community participation. Since the adver-
sarial system of law as adopted from the United Kingdom has long been
recognised as protecting real property rights, it is arguable that socio-legal

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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

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Magwaro

through a culturally specific method of dispute management which is


‘amoeba-like’ in its non-formalistic approach to managing disputes.
I have attempted to figuratively depict the difference in formal and
communitarian management of justice and the manner in which disputes
might be owned within formal and communitarian legal paradigms. The
illustrations are meant to be general only and emphasis must be given to
the ‘ownership’ paradigm as it relates to litigation as property.

Figure 1. Formal/adversarial litigation as property model

Figure 1 indicates that although litigation is at the center of the adver-


sarial system, litigants do not have ownership of their conflicts which is
generally in the hands of legal ‘professionals’ and the state. The triangle
depicts the formal structure of a system comprising of Parliamentary
sovereignty, a policy-making executive that enforces the law, and a
judiciary that interprets statute and relies on the doctrine of precedent.
What is perhaps not obvious is that the adversary system fosters rather

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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.

Figure 2. Communitarian dispute management model

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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.

Indigenous Dispute Management Inherent in Self-determination


Once it is recognised that conflict is property and an important aspect of
Indigenous socio-legal culture, then it follows that there is an internation-
ally recognised right to safeguard this aspect of property and that it can
be expressed as a form of self-determination. Communitarian societies
are most likely to suffer the consequences of the formal legal paradigm as
the state and legal profesionals usurp their commonly owned cultural
property manifest in their management of disputes. It is observable from
this analysis that the value of conflicts and dispute management in a
communitarian culture is based on common ownership of an in exhaus-
tive cultural resource.
In this approval, recognition of self-determination is recognition of the
inherent rights of Indigenous people to customary law. As far back as the
1930s and in particular during the 1970s, Indigenous groups have used
international shaming to bring to light injustices they suffered.21 It is
therefore important to ascertain whether Indigenous rights will be better
protected through a political process in international rights law or through
domestic legislation and courts, including a ‘treaty of commitment’ or bill
of rights legislation.
Article 3 of the Draft Declaration on the Rights of Indigenous Peoples
describes the right to self-determination as involving the free choice of
political status, including the freedom to pursue cultural development in

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Unfinished Constitutional Business?

the same terms as Article 1 of the International Covenant on Civil and


Political Rights (ICCPR).22 Under Art. 1 (1) of the ICCPR 1966 the right
is that:

[a]ll peoples have the right of self-determination. By virtue of that


right they freely determine their political status and freely pursue
their economic, social and cultural development. (emphasis added)

Article 4 provides that:

Indigenous peoples have the right to maintain and strengthen their


distinct political, economic, social and cultural characteristics, as
well as their legal systems, while retaining their rights to participate
fully, if they choose, in the political, economic, social and cultural
life of the State.

It remains controversial whether indeed the reference to ‘all peoples’ in


Article 1 incorporates Indigenous peoples, but read in context with
Article 4, it should be read as applying to Indigenous communities
generally. Theoretical debates about which rights are preferred and to
whom they apply have clouded the spirit of the rights regime and Afrikan
nations in particular, have often disagreed with the apparent ‘western
flavour’ of the UN.23 Gardiner-Garden quotes Professor Barsh with
whom I agree, stating that:

[t]he relevant legal issue is not whether Aboriginal people were, or


are now ‘sovereign’, but whether they have a right to become
independent through the exercise of self-determination…The
principles of self-determination and decolonisation appear appli-
cable.24

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.

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Magwaro

Indigenous Punishment and ‘Relativism’


The discussion so far has raised the prospect that Indigenous peoples, if
they are able to retain their methods of dispute management will find
themselves in a position of punishing disputants—a role reserved for the
formal adversarial system but widely practiced by Indigenous peoples
nonetheless. There is controversy whether penalties in Indigenous customary
laws infringe international human rights ‘standards’. Piotrowicz and Kaye
state that these perspectives challenge, ‘…the absolute nature of human
rights obligations.’27 However, Dodson highlights the failure of the socio-
political and criminal justice systems in addressing Indigenous rights and
incorporating self-determination.28 This suggests that most Western
adversarial models are currently in contravention of Indigenous rights
and that it is appropriate to address this issue in light of both perspec-
tives.
There is obvious potential for abuse in the ability to take different
approaches to rights. One of the major theories informing the modifica-
tion of international rights is the theory of ‘cultural relativism’. Proponents
of this approach argue that rights need to be ‘interpreted’ and ‘applied’
with regards to the cultural context of a society.29 Cultural relativism
must not be seen as the ‘dividing’ theory between Indigenous cultures and
international human rights.30 It is asserted that the universality of human
rights has been clearly established and recognised by international law.
This seems to support the idea that no culture can legitimately express
preference to its own values.
Nevertheless, cultural relativism does not provide practical instances of
how to achieve ‘relativism on an international rights platform, particu-
larly where the most entrenched practices are those of Indigenous minori-
ties. It thus provides Indigenous legal systems few guarantees. Having
said that, I do not investigate here the different methods of ‘sentencing’ of
violent crimes.
International reluctance towards further protection of Indigenous self-
determination is perhaps based on historical Western suspicion of
Indigenous laws and dispute management. However, in Milirrpum v
Nabalco Pty Ltd and the Commonwealth, Justice Blackburn commented
about Aboriginal laws in Australia:

[I]f ever a system could be called ‘a government of laws, and not of


men’, it is that shown in the evidence before me…I hold that I must
recognise the system revealed by the evidence as a system of law.31

It is concluded that some communities have harsh punishments; how-


ever, Indigenous dispute management, cannot be disregarded nor can self-
determination be excluded for this reason. In fact, Western penology is
seen as being of itself inhumane yet this is not criticism on court systems
but criticism on ‘penology’.32

217
Unfinished Constitutional Business?

It is worth noting that internationally, Indigenous people have claimed


a right to self-determination of their ‘laws within a framework of mutual
cooperation with the national community’.33 It follows therefore that
reciprocal initiatives must be passed from states in order to establish compli-
mentary systems of law that meet community and national expectations.
A development in Queensland, Australia has been the concept of a
Murrii Magistrates Court. This is supposed to decrease Indigenous over-
representation in the criminal justice system and ensure that people are
not punished twice under Anglo-Australian and Indigenous laws, a form
of double jeopardy that the Indigenous people of that country have long
suffered.

Formal Protection of Indigenous Legal Systems


It is important to view human rights law and its implications on Indig-
enous people in light of all the disadvantages they face in the Western
confines of justice. Indigenous rights include political, economic and
social rights and in all these aspects they are disproportionally disadvan-
taged.34 This view is not largely controversial—what is perhaps not
agreed is what can be done on an international level to safeguard commu-
nitarian rights. However, before examining the international milieu, it is
important to examine the protection of Indigenous legal systems on the
domestic front.

Comparative Analysis: Canada, New Zealand and Australia


The common law has developed rules of statutory construction, which
tend to reduce the degree of legislative encroachments on rights and
freedoms. The idea of a bill of rights and treaty has been advanced in
New Zealand through the Treaty of Waitangi Act 1975 (NZ), which has
evolved to become a ‘social contract’ calling on Maori and whites to fulfil
their mutual obligations in ‘good faith’.35
In Canada, treaty rights are affirmed under the Constitution Act
1982. In Australia, the greatest protection of Indigenous legal systems has
been that afforded by common law incorporation of a right to self-deter-
mination.36
It is therefore important to examine the treatment of Indigenous people
in a comparative way, drawing from New Zealand, Canada and
Australia. The purpose of this comparative illustration is:
• primarily to indicate that Indigenous peoples in Westernised nations
face similar treatment, and
• to emphasise the need to recognise Indigenous dispute management as
an element of self-determination on an international level as a possible
alleviant of the recurring disadvantages caused by domestic Western
legal systems.
There remains no Australian equivalent to the safeguards proposed in
other common law jurisdictions, despite the Report of the Council for

218
Magwaro

Aboriginal Reconciliation which explored options for documents to uphold


the notion of a ‘treaty’ as a non-statutory measure of Indigenous rights
protection.37 Constitutional changes were recommended to include
‘constitutional recognition of Bill of Rights with specific reference to
indigenous peoples’ rights’, and ‘constitutional entrenchment of a justi-
ciable right of indigenous self-government in relation to specified areas
…’ which includes recognition of customary law.38
However, Commissioner Wyvill in the 1991 Queensland Regional
Aboriginal Deaths in Custody Report, stated that while self-management
was part of the government’s policy on Indigenous people the political
and administrative structures did little to facilitate genuine change.39 Five
years later, Grose, with whom I agree, stated that those who oppose
‘special’ rights for Indigenous peoples view Indigenous claims as
inequitable and ignore the realities of Indigenous dispossession and hold
to the ‘legitimation of the current legal and constitutional’ ideals by which
the Indigenous peoples continue to suffer.40
I would argue that there has been no significant improvement in the
status of Indigenous peoples with particular regard to their right to
ownership of their legal systems. Indeed, there is evidence to suggest that
as long as there is no self-determination in the administration of juvenile
justice, more Indigenous youths will continue to be incarcerated.41
Canada remains the only country in the world in which Aboriginal and
treaty rights are constitutionally entrenched.42 Nevertheless, Canada’s
treatment of Indigenous peoples has been likened to white supremacist
regimes that existed in South Africa.43 The Canadian legal system incar-
cerated nearly seventy percent of ‘status Indians’ at some point by the age
of twenty-five.44 As for New Zealand, it is agreed that the Maori people
are over-represented on the ‘negative side’ of the social economy and are
under-represented on the ‘positive side’.45 In all three countries there has
been an increase in welfare-type funds and access to legal and social insti-
tutions; despite this, Indigenous suicides in Australia have increased over
the past thirty years.46
Undoubtedly, the greatest impact has been felt in the criminal justice
system where, if law is viewed as property belonging to a community, it
is clear that Indigenous people rate high amongst those disempowered,
indicated in Aboriginal deaths in custody.47 Perhaps it is fair to say that
Western legal theories and laws that define crimes, over-criminalise
Indigenous people who could otherwise benefit from communitarian
dispute management solutions.
Bailey asserts that Indigenous people in Australia, and in most countries,
face two particular problems: their identity as ‘Indigenous’ and their
‘minority’ status.48 In that respect, Indigenous traditions of dispute manag-
ement in particular are subsumed in a formal legal structure that impacts
on their customs, redefines them in a foreign context and asserts confli-
cting rights on their traditional property, whether it be intellectual, legal
or real property.

219
Unfinished Constitutional Business?

For these reasons, it is thought that customary dispute management


needs to be embedded in an international human rights framework, ‘on
the grounds that their survival as distinct societies is contingent on
aboriginal control over social and cultural development’.49 It is also clear
that the domestic measures taken by Western nations in particular have
done little in advancing the protection of Indigenous self-determination
and in particular Indigenous legal systems manifest in dispute manage-
ment.

Modification and Clarification of International Indigenous


Rights Law
It was asserted earlier that international laws need to be modified,
Indigenous rights have come a long way and this needs to be reflected in
human rights law generally. In 1945, the International Court of Justice
(ICJ) was established as the principle organ of the United Nations. The
jurisdiction of the ICJ is based on the consent of member states. The ICJ
does not have jurisdiction in relation to criminal law cases and relies upon
the good faith of member states in observing its decisions. The UN
Security Council is able to make recommendations or decide upon
measures to give effect to any ICJ judgements. This stimulates a commit-
ment to compelling member states to observe ICJ decisions, but the effec-
tiveness of this approach is certainly questionable.
Besides the ICJ, the UN plays a supervisory role, which is implemented
by the Human Rights Committee (HRC). Member states are required to
produce periodic five yearly reports on measures adopted to give effect to
rights recognised in the Covenant.
Article (1) 2 of the Covenant allows only state parties to the Protocol
to communicate concerns to the HRC, which is incongruous for
Indigenous concerns about encroachments on their right to self-determi-
nation and preservation of their own dispute management systems.
Pritchard states that ‘all available domestic remedies’ have to be
exhausted under Article 2 before UN intervention.50 However, it has been
illustrated that domestic avenues at best consist of a plethora of policies,
even treaties and constitutional entrenchments to no avail—the structures
in place are as safe as a smoke screen.
Unfortunately, UN procedures themselves remain ineffective because
they are not bridled with legal authority to enforce rights on sovereign
nations nor can they effect change of member state’s internal policies by
coercion: such is a tenet of international law. Nonetheless, sanction,
shaming and dialogues are increasingly important instruments in effecting
Indigenous rights, particularly if Indigenous leaders themselves are
involved.
Both the International Covenant of Civil and Political Rights and
International Covenant of Economic, Social and Cultural rights 1976,
come under the Universal Declaration of Human Rights 1966 with

220
Magwaro

equality of force and persuasion. However, within the rights regime, so


called ‘first’ and ‘second’ generation rights have been given greater
attention than so-called ‘third generation’ rights by some jurists.51 This is
due to Western notions that some rights are more fundamental than
others, hence the westernisation, as opposed to the ‘globalisation’ of the
rights regime.
It is important to address the misconceptions around third generation
rights that attempt to protect Indigenous communities. It is conceded that
civil and political rights or so-called ‘first generation’ rights are less
expensive as they merely require the state not to interfere with the
individual. Cultural and environmental rights for instance impose and
require a greater duty of care on the part of the state. By modifying and
clarifying Indigenous rights, it will be easier to safeguard them and ensure
their inherent nature.
It is thought that it is unclear who is supposed to be the subject and the
addressee of third generation rights. However, if Indigenous rights to self-
determination are understood in a communitarian context and inter-
preted in a cultural context in which they have their existence, such
questions can easily be rebutted as not being culturally specific enough to
ask the real question which is simply—how can third generation rights, in
particular Indigenous cultural rights be implemented? I assert that a great
deal of cooperation from domestic and international communities is
essential to this topic.
Malanczuk purports that ‘successive generations of human rights
replacing each other is unsound’.52 In certain respects, Malanczuk’s
concern about the replacement of certain rights by others has some
validity and I would agree to an extent.
So-called ‘generations’ of rights are merely academic and have no
practical bearing on socio-legal issues faced by many Indigenous societies.
For some, this may be the most contentious argument here because it
challenges the traditional framework in which the rights regime has been
developed and contextualised. It is asserted that interpreting and modifying
human rights in accordance with a culturally sensitive milieu is clearly
different from ‘replacing’ some rights with others. The fact that there are
two Covenants under the UDHR is indicia of the fact that it is not
possible to encompass all rights in a single document with a singular
interpretation and that modifications should occur.
It is apparent the ‘third’ generation rights protect basic philosophies of
communitarian societies as well as individualism. Furthermore, it is a
misconception to assume that community rights are inconsistent with
individual rights in Indigenous societies which are not homogenous
merely because of their ‘Indigenous’ or ‘minority’ status.
It is thought that because the common law is not in consonance with
the cultural mores of an Indigenous community, it is impossible to fully
relay onto those people the principles of Western legal thought. Kulcsar

221
Unfinished Constitutional Business?

calls for a ‘re-interpretation’ of laws and legal cultures in order to over


come this deficiency.53 There needs to be a modification and clarification
of international rights law with particular reference to Indigenous self-
determination.
It is difficult to answer the question whether domestic recognition of
Indigenous self-determination such as in Canada and New Zealand (and
to a limited extent Australia) is appropriate as the high watermarks in
Western countries. In my view these models have failed because they exist
on a formalistic as opposed to communitarian model. For these reasons,
adequate recognition of Indigenous rights is needed at an international
level where the forum need not be formalistic.

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.

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Coulter, R, (1995), ‘The Draft UN Declaration on the Rights of Indigenous
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Dodson, M, and Pritchard, S, (editor), (1998), Indigenous Peoples, the United
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Fleras, A, and Elliott, L J, (1992), The ‘Nations Within’: Aboriginal-State
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Gardiner-Garden, J, (1992), Aboriginality and Aboriginal Rights in Australia,
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and New Zealand, Oxford Press: Auckland.
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Wrongs, UNESCO Publishing: London.
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Mabo and Others v Queensland, (No. 2), (1992), 175 CLR 1.
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Law, Routledge: London.
Milirrpum v Nabalco Pty Ltd and the Commonwealth, (1971), 17 FLR 141.
Meggitt, J M, (1965), Desert People: A Study of the Walbiri Aborigines of Central
Australia, chicage: University of Chicago Press.
Othman, N, ed Bauer, R J, and Bell, A D, (1999), The East Asian Challenge for
Human Rights, UK: Cambridge University Press.
Pheko, S, (1990), South Africa: Betrayal of a Colonised People—Issues of
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December 1988, AGPS: Canberra.
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Human Rights, UK: Cambridge University Press.
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International And United Nations Human Rights Instruments


And Related Documents
The African Charter on Human and Peoples’ Rights (27 June 1981).
The Draft UN Declaration on the Rights of Indigenous Peoples.
International Convention on Civil and Political Rights (16 December 1966).
Optional Protocol to the UN Covenant on Civil and Political Rights
(16 December 1966).
The Universal Declaration of Human Rights (10 December 1948).
the UN Covenant on Economic, Social and Cultural Rights (16 December 1966).
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2002.

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Magwaro

Other Internet References


http://www.govt.nz/aboutnz/treaty.php3, sited April 2002.
http://www.unhchr.ch/Huridocda/Huridoca.nsf/TestFrame/e1ece8a337f1766bc12
56b21004eceef, sited April 2002.
http://www.un.org/ecosocdeve/geninfo/indigens/dpi1608e.htm, sited April 2002.
http://www.thecouriermail.com.au, sited June 2002.

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?

African Charter on Human and Peoples’ Rights, Kluwer Law International:


Canada; respectively.
24. Gardiner-Garden, J, (1992), Aboriginality and Aboriginal Rights in
Australia, Department of the Parliamentary Library: Canberra.
25. Burke, P, (editor), (1995), The Skills of the Native Title Practice: Aboriginal
and Torres Strait Islander Commission Report, The Unit: Canberra. p 90.
26. Ibid. p 28.
27. Piotrowicz and Kaye, (2000). p 10.
28. Dodson, M, and Pritchard, S, (editor), (1998), Indigenous Peoples, the
United Nations and Human Rights, Federation Press: NSW.
29. See Ayton-Shenker, D, The Challenge of Human Rights and Cultural
Diversity, In: United Nations Background. Note http://www.un.org/rights/
dpi1627e.htm, UN Department of Public Information, DPI/1627/HR:March
1995.
30. Symonides, J, (editor), (1998), Human Rights: New Dimensions and
Challenges, Brookfield: Ashgate p 24.
31. Milirrpum v Nabalco Pty Ltd and the Commonwealth, (1971), 17 FLR 141.
Ibid. p 267–8.
32. Christie, N, Op cit.
33. The Self-Determination of Indigenous Peoples in International Law:
Commission on Human Rights Sub-Commission on the Promotion and
Protection of Human Rights Working Group on Indigenous Populations
Nineteenth Session, 23–27 July 2001: http://www.unhchr.ch/Huridocda/
Huridoca.nsf/TestFrame/e1ece8a337f1766bc1256b21004eceef, sited April
2002.
34. Bailey, P, Op cit.
35. See 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. p 179.
36. Mabo and Others v Queensland, (No. 2), (1992), 175 CLR 1.
37. Report of the Council for Aboriginal Reconciliation (1994), The Institute:
Canberra. p 158–9.
38. Ibid. p 159–60.
39. Royal Commission into Aboriginal Deaths in Custody Regional Report of
Inquiry by Queensland, Commissioner Wyvill, QC, (Canberra, AGPS 1991),
pp 137–8.
40. Grose, P, Affirming Indigenous Rights: A Queensland Frieze, (1997), 4 (1)
AJHR 70.
41. 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/vo14/no3/cunneen.html#fn5.
42. Fleras and Elliott, (1992), Op cit. p 8.
43. Ibid. p 8.
44. Ibid. pp 17–18.
45. Ibid. p 173.
46. Tatz, (1994). p 166–7.
47. Royal Commission into Aboriginal Deaths in Custody, Interim Report, 21
December 1988, AGPS: Canberra.
48. Bailey, P, Op cit.

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Magwaro

49. Fleras and Elliott, (1992). Op cit. p 23.


50. Pritchard, S, (1998). Op cit. p 86.
51. Malanczuk, P, (1997), 7th ed, Akehurst’s Modern Introduction to
International law, Routledge: London.
52. Ibid.
53. Kulcsar, K, 1992, Modernisation and the Law, Akademiai Kiado: Budapest,
p 214. Ibid. pp 214–15.
54. Note efforts made to change this in The African Charter on Human and
Peoples’ Rights, http://www.unhchr.ch.
55. Kulcsar, K, Op cit. pp 127–9.

227
15 Sovereignty as a Trojan Horse: How the
Convention on Biological Diversity
Morphs Biopiracy Into Biofraud

Joseph Henry Vogel

An important art of politicians is to find new names for institu-


tions which under old names have become odious to the public.
Charles-Maurice de Talleyrand

Neoliberal policies cannot be derived from either classical or


neoclassical economic science; on the contrary, they must be
understood in the context of power relationships set in the
contemporary world
Liisa North and Ricardo Grinspun
[translation mine]

Almost as soon as ‘privatisation’ entered the modern lexicon, it became


an odious institution—associated with the rigged sale of state-owned
assets and the subsequent enrichment of crony capitalists. Few in the
public intuited the economic meaning of privatisation: the conversion of
social benefits and social costs into private benefits and private costs.
Ironically, economic theory can also explain why privatisation is a dirty
word. Nothing is more profitable than privatising benefits and socialising
costs and therein lies the reason why ‘neoliberal policies [such as privati-
sation]…cannot be derived from either classical or neoclassical economic
science.’
Genetic resources are a prime example of privatisation having more to
do with ‘power relationships set in the contemporary world’ than with
economic theory. Rather than arguing for a symmetrical reform, both the
North and South have long preferred an asymmetrical reform: the privati-
sation of just their benefits and the socialisation of just their costs. For the
North this has meant that the South would leave its genetic resources in
the public domain but recognise Northern intellectual property rights
(IPRs) over any value added; for the South, that the North would put the
value added to genetic resources into the public domain by not exercising
any IPRS.
The Convention on Biological Diversity (CBD) seems to be a sound
compromise: the South would recognise the IPRs over the value added to

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.

Sovereignty as a Trojan Horse


Sovereignty over genetic resources is a salient feature of the CBD and is
mentioned in several key places (see Glowka et al, 1994), beginning with
the Preamble:

The Contracting Parties, reaffirming that States have sovereign


rights over their own biological resources...

and in Article 3 Principle:

States have, in accordance with the Charter of the United Nations


and the principles of international law, the sovereign right to
exploit their resources pursuant to their own environmental
policies...

and in Article 15 Access to Genetic Resources:

Recognizing the sovereign rights of States over their natural


resources, the authority to determine access to genetic resources
rests with the national governments and is subject to national legis-
lation.

Sovereignty enables a property right, in the economic sense of the term


(Barzel, 1989), to emerge as countries exclude industries from access to
their genetic resources. This is explicit in Article 19, Handling of
Biotechnology and Distribution of Benefits:

Each Contracting Party shall take all practicable measures to


promote and advance priority access on a fair and equitable basis
by Contracting Parties, especially developing countries, to the
results and benefits arising from biotechnologies based upon
genetic resources provided by those Contracting Parties. Such
access shall be on mutually agreed terms.

229
Unfinished Constitutional Business?

Although the drafters of the CBD may congratulate themselves for


having overturned the old doctrine of the ‘common heritage of mankind’,
the economist would be more reticent to applaud. They would point out
that what is of interest to industry is not biological diversity per se, and
sometimes not even genetic resources, but secondary compounds that
derive from biological diversity. These compounds are usually diffused
among species, which are diffused across international borders. An
example is paclitaxel, the active ingredient in the billion dollar
chemotherapeutic taxol. Paclitaxel is found in both Taxus brevifolia of
the new world and Taxus baccata of the old. In other words, the biochem-
ical is diffused over both species and international borders. With respect
to bioprospecting and benefit sharing, the economist predicts that
industry will seek access to diffused secondary compounds where access
is cheapest or free.
The non-ratification of the CBD by the US poses a monumental threat
to benefit sharing worldwide when secondary compounds are pandemic
and found somewhere within US jurisdiction. Genes in the US are still res
nullius, the property of nobody. Taxus brevifolia is not alone. Consider
the extent of biological diversity that falls under the jurisdiction of the US
but is part of larger ecosystems that fall under the jurisdiction of CBD
ratified countries: Hawaii, Guam, and Samoa (ecosystems similar to those
found in the jurisdictions of South Pacific Island nations), Alaska
(Canada and Russia), continental US (Canada, Mexico, and Caribbean
nations), Puerto Rico (Latin American nations), ex situ genebanks,
botanical and zoological gardens, and possibly even US embassy grounds.
Industry can presently enjoy free access to much of the biological diversity
of the world by bioprospecting within US territory. Merely by having this
option and threatening to exercise it, industry can also enhance its
bargaining position in bilateral negotiations for access to genetic
resources in those 170+ countries that have ratified the CBD.
Given the mobility of capital and the assumption of cost minimisation
by industry, the economist would also predict, ceteris paribus, that a
comparative advantage has emerged for the US in biotechnology simply
because the US has not ratified the CBD. This became apparent shortly
after the ratification of the CBD in December 1993. For example, the
chairman of the pharmaceutical giant, Bayer AG, expressed diplomati-
cally the rationale for the relocations of laboratories: ‘North America
[US] has not replaced Germany as a location for business, but there are
certain innovative activities which are best performed in the US’ (Nash,
1994, D5). While foreign firms were coming to America to test their
genetically modified organisms (GMOs), American firms, using the same
logic, were staying home to bioprospect. Pfizer Inc, the US-based pharma-
ceutical giant, began directing its sampling efforts within US jurisdiction
(RAFI, 1994, 5).

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The Conference of the Parties to the Convention on Biological


Diversity
A Conference of the Parties (COP) to the CBD meets every two years
(previously every year) to discuss both interpretation of the Articles of the
CBD and their possible implementation. Over the trajectory of these
talks, the delegates never seem to broach the implications of ‘what if the
US never ratifies?’ Perhaps the delegates are
• maintaining the hope that the US will soon ratify,
• viewing such a query as gauche, or
• ignorant of neoclassical economic science.
This chapter will assume that all three causes are at play and show that
fundamental reform is needed regardless of whether or not the US ratifies.
The sovereignty of each nation to negotiate access militates against any
nation capturing a significant benefit and therefore defeats the objectives
of the CBD to share benefits and conserve biological diversity.
Competition among countries drives the price of access down to the
marginal cost of botanical samples-a nominal fee-thereby restoring the
‘common heritage of mankind’ de facto. This simple economic hypothesis
has been confirmed over the time that the CBD has been in force. Early
Material Transfer Agreements (MTAs) were negotiated with the
International Cooperative Biodiversity Groups (ICBG) for royalties as
low as 0.2 percent (RAFI, 1994) and recent proposals by Novartis show
little improvement—a paltry 0.5 percent (Peña-Neira 2002). The future is
no brighter. The Biodiscovery Discussion Paper issued by the Queensland
Government of Australia in May 2002 suggested a scaffolding of
royalties, which upon analysis, boil down to an effective rate of 0.3
percent.
One may wonder why the economic implications of sovereignty did
not occur to the drafters of the CBD in 1987 when they met under the
auspices of the United Nations Environment Programme (UNEP) in
Nairobi, Kenya. The working sessions lasted until just hours before the
inauguration of Rio’92 when Heads of State were presented the text for
signature. One suspects the economic argument would have surfaced in
the five years of negotiating the language of the CBD. I posed this
question to an attorney who was present during the working sessions in
Nairobi and was told, with a sigh, that yes the detrimental effects of
competition and non-cooperation by the US were perceived and voiced
during the arduous negotiations. Unfortunately, economics did not
prevail. The attorney attributed the insistence on sovereignty to a brute
nationalism by developing country representatives, adding that the resist-
ance by the US was also ignored due to the belief that peer pressure would
make the US cooperate. Such hope was not totally baseless: the mass
extinction crisis was picked up by the media in 1986 and transformed
into an international cause célébre, largely by US environmentalists.

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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:

Sovereignty over genetic resources and their derivatives (including


traditional knowledge) is a right to participate in an oligopoly and
is not the right to engage in bilateral contracts that deny all
countries a share of the economic rents.

The Neoclassical Justification for a Cartel over Genetic


Resources and Pesky Non-Rational Behaviour
Many delegates to the COP meetings will immediately perceive the
advantages of forming a cartel over biological diversity but be non-
plussed that such advice emanates from ‘neoclassical economic science’.
They will see it as a contradiction to the theory learnt in the general
curriculum at university and now given lip service in neoliberal reform.
Ever since Adam Smith, students of economics have been taught that the
removal of barriers promotes entry into markets and that the resulting
competition will enhance efficiency and even equity if the winners are
obliged to compensate the losers through taxes and subsidies.
In the case of bioprospecting, such competition is both inefficient and
inequitable and the explanation draws from the peculiar economics of
information. In technologically advanced economies, a certain class of
goods exists that is extremely costly to create but nevertheless extremely
cheap to reproduce. Almost all goods that experience this cost structure,
viz, extremely high fixed costs coupled with extremely low marginal
costs, are based in information (e.g., software, publications, symbols).
Once the producer of the information good releases that good to the
public, they have almost no control over its consumption given the inade-

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quacy of the usual exclusionary mechanisms (e.g., guards, fences, locks


and keys). Therefore, the granting of a monopoly through intellectual
property becomes the exclusionary mechanism that permits innovators to
recoup the fixed costs of innovation.
Under IP protection, any competition through illicit copying is legally
deemed theft. However, because IPRs are granted by national legislation
and yet markets are global, a comparative advantage emerges in favour
of trading partners who do not have IP legislation or do not enforce the
legislation they have. To correct the inefficiencies and inequities of inter-
national trade in pirated information, the TRIPS agreement of GATT
obliges all member countries to institute IP where presently none exist or
when enforcement is weak.
Surprisingly, the rationale for IPR has an exact analogue in the realm
of biology. Although biological diversity is not an intellectual good, it is
an information good and the term ‘genetic information’ is common in the
scientific literature. Evolutionist Richard Dawkins (1995, 19) goes so far
as to assert ‘genes are pure information’. In the language of neoclassical
economic science, one may say that ‘biological diversity exhibits a cost
structure analogous to that of intellectual goods: extremely high opportu-
nity costs in the maintenance of habitats (analogous to fixed costs) but
extremely low costs of accessing components of those habitats (analogous
to marginal costs)’ (Vogel, 1994). Hence, competition in biological
diversity will drive the price of samples down to their marginal costs and
deprive countries from recouping the opportunity costs of conservation.
The role of the economist, practicing the ‘universal grammar of social
science,’ is to explain to the delegates of the COP that if one accepts
monopoly patents, copyrights, trademarks as legitimate instruments to
enable the emergence of a market for artificial information, then one
should also accept oligopoly rights over genetic resources to enable the
emergence of a market for natural information. Countries of origin
should fix a royalty rate and distribute economic rents. Countries with
industries that want genetic resources should enforce the terms of the
cartel as payment promotes a sustainable supply. Whereas TRIPS is the
legal vehicle to achieve monopolies through patents, copyrights, and
trademarks, the CBD can become the legal vehicle to achieve an oligopoly
over biological diversity.
Admittedly, this argument is somewhat abstract and may suffer the
same fate as the objections to sovereignty expressed in Nairobi.
Nevertheless, advocates of an oligopoly should not lose sight of the fact
that economic science is also a rhetorical enterprise (McCloskey, 1983).
Few people outside the profession can define the word ‘oligopoly’; more
worrisome still are those who confuse it with oligarchy. For clarity in
communication, the synonym ‘cartel’ seems preferable to ‘oligopoly’.
However, industry may persuade the public against a cartel by exploiting
the emotional impact of the pejorative connotations of this word, viz,

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gambling, drug trafficking, and prostitution. Anticipating such tactics,


biodiverse-rich countries may agree that a cartel is needed but prefer a
word that is less odious to the public. China, Brazil, India and nine other
nations seem to have done just that when they met in Cancún, Mexico in
February 2002 to form the ‘Alliance of Megabiodiverse Countries’
(Stevenson, 2002). Under the aegis of an alliance, they launched a cartel
and declared inter alia its objectives:

(d) To explore jointly ways to interchange information and


harmonize our respective national laws for the protection of
biological diversity, including associated knowledge, as well as for
access to genetic resources and the distribution of benefits derived
from its use...
(h) To drive the development of an international regime that
promotes and effectively safeguards the just and equitable distribu-
tion of benefits from the use of biological diversity and its compo-
nents. This regime should consider, inter alia, the following elements:
the certification of the legal provenance of biological material,
prior informed consent and mutually agreed terms for the transfer
of genetic material as prerequisites for the application and issuance
of patents, in strict adherence to the conditions of access granted
by the countries of origin of this material.

Inasmuch as the strength of the cartel is in its logical consistency with


neoclassical economic science, the megabiodiverse countries erred greatly
in choosing a name. Whereas ‘cartel’ is provocative and means business,
the word ‘alliance’ seems pusillanimous and implies accommodation.
Education of politicians and the public is not so hopeless that one should
forever discount their endorsement of a cartel simply because the word
has other associations. Indeed, Northern industry has successfully
persuaded governments to respect monopoly IPRs in the CBD despite the
odious connotations of monopolies. Article 16(5) reads:

The Contracting Parties, recognizing that patents and other intel-


lectual properties may have an influence on the implementation of
this Convention, shall cooperate in his regard subject to national
and international law in order to ensure that such rights are
supportive of and do not run counter to its objectives.

Is it too heroic to assume that these same Contracting Parties cannot


now accept a biodiversity cartel? In September 2002, the President of
Venezuela, Hugo Chávez, became the first world leader to speak openly
in favour of a ‘biodiversity cartel’ (Doyle, 2002). The venue was well
chosen: The Earth Summit, Rio+10 in Johannesburg, South Africa.

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The CBD as a Legal Vehicle for the Cartel


To accomplish cartelisation, the COP should issue a special protocol to
the CBD that allows a two-tier reward structure for bioprospecting. At
the higher level, is the value-added to genetic information through
taxonomy and quality control, at the lower level is the economic rent
for the ability to supply the raw material. Inasmuch as some experience
in the former does exist, one can observe the percentage of that value-
added (approximately 2 percent). What should be the economic rent? If a
cartel were already functional, the rate would emerge in a market where
genetic resources compete with rational molecular design and genetic
engineering. But the cartel is not yet operative and the observable
royalties in MTAs reflect the outcome of competition and the elimination
of economic rents. In other realms of information goods where monopo-
lies do obtain, such as those covered by copyright, the royalty is typically
15 percent. Vogel (1994, 1995, 1997, 2000) has suggested 15 percent on
net sales of biotechnologies with 2 percent going to the country of contact
for the value added to the genetic information in taxonomy and prepara-
tion of extracts and the other 13 percent to be divided among all
countries that could have supplied the same piece of biological diversity
in proportion to the existence of that genetic information in the country.
Besides providing real incentives to conserve biological diversity, this
seemingly high royalty rate may also succeed in persuading the Parties to
the CBD that they must give up some of their hard won, albeit illusory,
sovereignty over biological diversity and subject themselves to the rigour
of a cartel.
Fixing the royalty rate at 15 percent has a subtle advantage. A flat rate
eliminates the huge transaction costs of negotiating what will be the
royalty rate on each and every secondary compound that results in a
biotechnology. I suggest that the cumulative transaction costs of negoti-
ating the royalty rate for each MTA is far greater than the sum of the
differential values in those cases where an even higher royalty rate could
have been negotiated. A fixed royalty rate would also remove the
taxonomic hurdle that confronts biologists worldwide: whereas biodi-
verse-rich countries now thwart international movements in specimens
for fear of clandestine bioprospecting on those specimens, a cartel would
encourage such movements for the simple reason that correct classifica-
tion facilitates participation in shared royalties.
A Special Protocol to the Convention on Biological Diversity (see
Article 28) would lower the transactions costs of organising the cartel
while imposing symmetry between the privatisation of both benefits and
costs, thereby increasing efficiency and contributing toward global equity
between North and South. Of utmost importance is the prevention of any
non-ratified CBD country from enjoying a comparative advantage in

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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.

Traditional Knowledge Associated with Genetic Resources and


Ethnobioprospecting: An Extension of the Same Economic
Analysis
Ethnobioprospecting is the search for secondary compounds in species
that have been used by traditional peoples. The knowledge associated
with genetic resources can greatly augment the probability of a ‘hit’ in
screens for bioactivity. Although the CBD contemplates benefit sharing
when such knowledge is utilized in R&D, the CBD is not clear regarding
the rights of traditional communities over those benefits. Weak language
is characteristic of all mention of community rights. For example, in the
Preamble, Paragraph 12:

The Contracting Parties, Recognizing the close and traditional


dependence of many indigenous and local communities embodying

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traditional lifestyles on biological resources, and the desirability of


sharing equitably benefits arising from the use of traditional
knowledge, innovations and practices relevant to the conservation
of biological diversity and the sustainable use of its components.
[emphasis added]

As the anthropologist Posey (1996, 7) discerns, ‘The word “desir-


ability”, in itself, is hardly strong enough to bind the State to legal imple-
mentation, besides which, no criteria for or mechanisms to implement
this concept are provided in the CBD or elsewhere.’ Although preambles
are inspirational and not legally binding, not much stronger language is
found in the articles. For example, in the often cited Article 8(j):

Each Contracting Party shall...Subject to national legislation,


respect, preserve and maintain knowledge, innovations and
practices of indigenous and local communities embodying tradi-
tional lifestyles relevant for the conservation and sustainable use of
biological diversity and promote their wider application with the
approval and involvement of the holders of such knowledge,
innovations and practices and encourage the equitable sharing of
the benefits arising from the utilization of such knowledge, innova-
tions and practices.

Shelton (1995, 25), is also quite circumspect: ‘...the state’s obligations


are limited to ‘encouraging’ the equitable sharing of benefits. No right to
compensation is explicitly recognised.’ Despite non-committal wording
like ‘desirability’ and ‘encouraging’, the CBD does provide sufficiently
strong wording to empower benefit sharing. The word ‘approval’ in
Article 8(j) would logically enable ‘holders of such knowledge’ to
withhold that knowledge if they do not perceive ‘equitable sharing of the
benefits arising from the utilization of such knowledge, innovations and
practices.’ Just as the implication of sovereignty in Articles 3 and 15
enables countries to withhold access to genetic resources, the withholding
of ‘approval’ by traditional communities can become a legal basis to exact
payment. By withholding approval, traditional communities can also
withhold access until they feel that compensation is adequate.
Despite the possibility of achieving benefit sharing through with-
holding approval, there are three basic problems that bedevil ethnobio-
prospecting. The first is the problem of public domain. Much of the
traditional knowledge associated with genetic resources is already in the
public domain and beyond legal claim. It is archived not only in libraries
around the world but can also be found on-line through the Natural
Products Alert Website (NAPRALERT) which indexes over 150,000
abstracts of natural products chemistry. The second problem is competi-
tion. Much traditional knowledge is diffused among communities and
ethnic groups and competition will drive the price of access down to the

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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.

The Problem of the Public Domain


Non-governmental organisations from developing countries often suggest
that the solution to the first problem is a sui generis legislation that demands
compensation for traditional knowledge already in the public domain.
Adoption of such legislation would probably be a feat far more chall-
enging than the ratification of the CBD by the US or the establishment of
a biodiversity cartel. It would mean that the law would have to be retroac-
tive, a violation of one of the most basic premises of legal theory. Retro-
activity would also open a Pandora’s Box if holders of expired IPRs
demand equal treatment. Because of these fundamental problems, any sui
generis legislation is probably decades away; in the meantime, more and
more traditional knowledge will enter the public domain through publi-
cations (and quite quickly at that through NAPRALERT). The obvious
solution to this problem within the existing IP regime is not to publish
any ethnobiology and protect traditional knowledge as a trade secret
accessible only through private contracts.
A word of caution: this recommendation is only to prevent traditional
knowledge not yet in the public domain from entering the public
domain—any knowledge already in the public domain should not be
hampered through secrecy—on the contrary, it should be utilised and
promoted.

The Problem of Competition


Withholding from publication all new ethnobiological knowledge is not
enough to achieve benefit sharing. The royalties negotiated for access to
still unpublished knowledge may not be much greater than zero for the
same economic reason that frustrates random collection bioprospecting:
competition. Each community sharing the same knowledge has an incentive
to underbid its neighbouring community in order to capture the same
contract being offered. Perhaps the most sensational case of selling cheap
occurred in the Ecuadorian Amazon. In May 1986, a chief from the
Secoya community of Ecuador exchanged some Banisteriopsis caapi (yagé
in the local language) for two packs of Marlboro cigarettes to a person
whom he would later describe simply as a ‘gringo’ (COICA, 1996). That
‘gringo’ was Loren Miller of the International Plant Medicine Corpo-
ration who was interested in Banisteriopsis caapi for its known psychoac-

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Vogel

tive properties as an hallucinogenic. Miller applied for a plant patent from


the US Patent and Trademark Office and was subsequently granted Plant
Patent No. 5.751. Regardless of what one thinks of the fairness of the
deal, the fact remains that Loren Miller acted within the law at that time.
Any criticism of the outcome should not be directed against Miller but
against the laws and institutional structures that still permit such outcomes.
One revisits the problem that the CBD did not foresee the economic
consequences of competition. The Special Protocol to the CBD, could
correct this problem. Rather than interpreting the right of each comm-
unity to withhold approval as a right to engage in ethnobioprospecting,
the CBD should specify that it is the right to join in a cartel over ethno-
bioprospecting and receive a portion of the economic rents with other
communities that also share the same knowledge. The institutional details
of achieving such a cartel are highly complex and would include the
establishment of regional databases, the filtration of inputted traditional
knowledge against the contents of NAPRALERT to determine what is
and is not in the public domain, and the securement of Prior Informed
Consent from traditional communities. (See Vogel et al. (2000).

The Problem of Joint Ownership over Genetic Resources


Associated with Traditional Knowledge
The third problem with ethnobioprospecting is probably the most
explosive. Most of the genetic resources associated with traditional know-
ledge are cultivated in the environs of the communities. Recall that the
state is sovereign over genetic resources and could circumvent ‘approval’
by simply collecting in the general proximity of a settlement. Never-
theless, to avoid the costs of conflicts and enhance the probability of
‘hits’, it would probably be far more profitable for the state to cooperate
with the communities and share the royalties from ethnobioprospecting.
How much should the state (or more accurately, the cartel of states)
receive for being sovereign over the genetic resource? And how much
should the communities (or more accurately, the cartel of communities)
share for their associated knowledge? Microeconomic analysis can shed
much light on what are the limits of sharing.
The problem for the state is to maximise biotechnology profits, π,
which equals revenues (the royalty rate, p, it receives on sales, Q) less
costs (the royalties rate, c, it pays to the communities). However, Q is also
a function of c. In other words, one expects with higher royalties
paid to the communities, more useful traditional knowledge will be
divulged and more ‘hits’ commercialised; Q will rise but not indefinitely
as diminishing returns set into c. A simple function that expresses this
relationship is the square root. Suppose that the relationship between the
reward to the communities and the final product can be characterized
by Q(c)=a √c. Expressed mathematically, the general problem for the

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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

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monetary compensation? Here behavioural economics has much to offer.


In the synthetic literature of economics and psychology, it is well known
that status is a strong motivating force (see, for example, Alhadeff, 1982,
Frank, 1985). One suspects that a shaman closely involved in the
selection of public goods for his or her community will receive enhanced
prestige and be more willing to participate in ethnobioprospecting.
Ironically, by exploiting the non-rational behaviour of status-seeking, one
can facilitate the internalisation of an externality that habitat conserva-
tion affords (viz, biological diversity for bioprospecting) and enhance
both efficiency and equity.

Australia as a Scientific Control and Matrioshka Trojan Horse


It is both a play on words and a cliché to claim that economists suffer
‘physics-envy’ due to the lack of controlled experiments. Inasmuch as
more than 170 countries have ratified the CBD, there is sufficient
variance to test causes and effects in the morphing of biopiracy into
biofraud. Australia becomes a scientific control for many of the key
variables in the preceding analysis. Unlike an Ecuador or a Brazil,
Australia is a biodiverse-rich country that does not share most of its
habitat with neighbouring countries. As an OECD country with a
decently remunerated bureaucracy, the federal government of Australia
does not suffer the asymmetries in negotiating powers vis-ą-vis industry
as witnessed in the developing countries. In other words, Australia is a
lucky country indeed and does not have to wait for a Special Protocol to
the Convention on Biological Diversity to extract an economic rent from
bioprospecting.
Australia has done exactly the opposite of what neoclassical economic
science prescribes, confirming the wisdom of North and Grinspun at the
opening of this chapter. The federal government has devolved the
authority to negotiate access to the state level, which in the case of
Queensland, has further devolved that authority to the landowner.
Inasmuch as the sovereignty of nations has proven itself a Trojan Horse,
then sovereignty of lower levels of government is a veritable
Matrioshka—a Russian doll with a seemingly infinite number of smaller
Trojan Horses inside. In other words, Australia has needlessly created
competition among its states, and more disconcertingly, one of its states,
Queensland, has created competition among its landowners: The Code of
Ethical Practice for Biotechnology in Queensland (Queensland Govern-
ment, 2001, 9) establishes that the state ‘will negotiate reasonable benefit
sharing arrangements’ when collected on state-owned lands, and when on
private lands, ‘ensure that prior informed consent of the landowner is
obtained and will negotiate reasonable benefit sharing arrangements with
the landowner’.
The position of the Queensland Government confirms not just the
assertion that neoliberal policies must be understood in the context of

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Unfinished Constitutional Business?

power relationships but also the wisdom of de Talleyrand that ‘an


important art of politicians is to find new names for institutions which
under old names have become odious to the public.’ In the Queensland
Biodiscovery Policy Discussion Paper (Queensland Government 2002),
the word ‘bioprospecting’ has been replaced with the seemingly less
odious term ‘biodiscovery.’ Fortunately or unfortunately, Queensland
politicians have not mastered the important art of finding new names.
The ‘discovery’ in ‘biodiscovery’ holds negative connotations for
Aboriginal peoples and may ironically reveal its intent when viewed from
distant cultures. For example, the translation of ‘discovery’ in Portuguese
is ‘exploraćčo’ which also means ‘exploitation’; when Brazilians translate
‘biodiscovery,’ the neologism will be understood as ‘bioexploitation’.
The devil is in the details and the Discussion Paper is rich in detail.
Suffice it here to analyse but a few, beginning with the short shrift given
money in the proposed benefit sharing. On page viii, the reader is
presented with several examples of the benefits from biodiscovery:
‘employment generation, research and training opportunities, and R&D
infrastructure development’. However, these so-called benefits are just the
inevitable consequence of doing business in biotechnology. Rephrasing
those most famous words of Adam Smith: ‘It is not from the benevolence
of the butcher, the brewer or the baker that we expect our dinner, but
from their regard to their own interest’ (Lerner, 1937, 11), one can assert
that it will not be from the benevolence of the biotech executives that we
expect employment, training or R&D, but from their regard to their own
interest. Unpacking this and other nested ‘benefits’, one encounters
progressively diminutive Trojan Horses.
If employment is the objective of the state government, then a strong
case can be made against any public subsidy. The Discussion Paper cites
‘the AZGU [AstraZeneca R&D Griffith University] strategic alliance has
resulted in the investment of AUD 60M in biodiversity research in
Queensland, the employment of 43 scientific and support staff…’. One
can quickly compute that biotechnology is capital-intensive to the tune of
A$1.4m per employee. By facilitating biotechnology, the government is
actually diverting capital away from labour-intensive sectors, which could
absorb more of the under- or unemployed. However, according to The
Discussion Paper, the biotechnology industry will be able to calculate
employment as a ‘non-monetary’ benefit to reduce the royalties it will pay
(page 34). This is elaborated in the ‘Explanatory Notes to Model Benefit
Sharing Agreement,’ item 11.5 ‘Reduction of Royalty Rate and Minimum
Performance Value’. The percentages appear in Schedule 1: 10 percent on
the first AUD 40M, 5 percent on the next AUD 30M and 3 percent there-
after. These parameters should be put in context of the costs of R&D
as cited in the excerpted table from Kate and Laird (1999, 9).
Pharmaceuticals can cost US$50m in R&D and take up to 15 years to
bring to market. To justify such a huge investment, the expected revenue

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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?

and socialising costs emerges with respect to Genetically Modified


Organisms (GMOs). Although insurance is the mechanism from ‘neoclas-
sical economic science’ that could be applied to biosafety, insurance is
conspicuously absent from the Code Instead, the Code quotes the Gene
Technology Bill 2001 (Qld), which establishes ‘penalties up to 5 years
imprisonment and fines up to A$1.1m’. One may seriously doubt whether
a white-collar criminal will spend five days much less five years in jail;
even more unlikely than jail time is the estimate that the damages will
equate to a piddling A$1.1m. Exotic species, the model for transgenic
weeds, can cause billions of dollars of environmental damage.
Consilient with the privatisation of benefits and the socialisation of
costs, the Queensland Government seems to be saying that markets work
with respect to the benefits generated from access genetic resources but
markets don’t work with respect to the costs of GMOs. To forecast the
effect of such an asymmetry, one can learn from history. The suppression
of insurance as a mechanism to handle biosafety has its analogy in ‘the
context of power relationships’ of the nuclear industry circa the 1950s in
the US. Through the Price-Anderson Act, the energy industry was able to
socialise the costs of nuclear reactors by limiting liability to US$560m.
The analogy between nuclear and biological technologies also extends
to the Public Relation campaigns. In the wake of Hiroshima, the US
government actively promoted an ‘atomic utopia’ (Hardin, 1993, 148)
and something similar is afoot today in Australia. The Department of
Primary Industry in the Queensland Government assembled a glossy
insert into the local Sunday newspapers (July 2002) entitled Silence of the
Gene (apparently oblivious to the Oscar-winning film Silence of the
Lambs). In this insert, eight scientists are showcased smiling with close-
up shots from the mid-forehead to mid-chin. It remains to be seen
whether the public views these biotechnologists as ‘heroes’ from ‘The
Smart State’ (the Queensland logo) or as Dr Strangeloves from How I
Learned Not to Worry and Love the GMO.

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.

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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
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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
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COICA. 1996. Coordinadora de las Organizaciones Indígenas de la Cuenca
Amazónica. Nuestra Amazonia, Revista 8. Quito, Ecuador.
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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.
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haunted world: science as a candle in the dark. New York: Random House.
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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

yet still reflecting the circumpolar emphasis upon political innovation.


Australia, meanwhile, is grappling with the limitations and potential of a
century-old constitution lacking potential for reform and reconciliation
with its Indigenous peoples.
Meanwhile difficulties of proof consequent upon the dispersal of
Indigenous communities during the lengthy periods of ‘assimilation’ have
made problematic the promise of the 1992 High Court decision in Mabo
v Queensland,4 a case that changed the course of Aboriginal land rights
in Australia by recognising native title to land.

The Two ‘Predominant Elements’ of Aboriginal Rights


Svensson distinguishes between two ‘predominant elements’ of
Indigenous rights. The first refers to the rights of self-determination that
essentially include political rights. Land rights however:

…can either be territorial rights to land and water, or rights and


ability to develop traditional natural resources, such as sovereignty
over a land base sufficient to maintain a particular way of life.5

For Svensson, cultural survival is closely connected to self-determina-


tion and political rights ‘and the crucial question is the quality of that
right’.6 Following Svensson’s analysis, the Saami Parliaments are more
closely aligned to political rights, whereas the recent recognition of
Nunavut territory in Canada is more closely aligned to territorial rights
since it involves sovereignty over a land base sufficient to maintain a way
of life.
Confined and redefined by the national borders imposed upon them,
the Saami people within the Nordic nations have concentrated on the
achievement of political rights such as self-determination. The President
of the Saami Parliament in Norway, Sven-Roald Nysto, observed that the
right to self-determination is not an ‘ordinary right’ but a ‘human right’
— all peoples have the right of self-determination under the International
Covenant on Civil and Political Rights (ICCPR) and under the
International Covenant on Economic, Social and Cultural Rights (ICESR).7
The national elections to the Saami Parliaments, the prime political insti-
tutions of the Saami people, have both consolidated their institutional
role as agents of self-determination and reinforced the extent to which
they operate within recognisable Western democratic political constraints.
Self-determination is a collective human right of peoples. It can mean
many things: freedom from political and economic domination by others;
self-government and the freedom to make decisions about family,
community, culture and country. It can take many forms, from regional
agreements to community constitutions, depending on each community’s
needs and aspirations. The inalienable right to self-determination of all

249
Unfinished Constitutional Business?

peoples is enshrined in identical terms by Article 1 of both the ICCPR and


the ICESR. By paragraph 1 of that Article, all peoples must be allowed to
‘freely determine their political status and freely pursue their economic,
social and cultural development’. In particular, all peoples must be free to
‘dispose of their natural wealth and resources…’ and a people must never
‘be deprived of its own means of subsistence’.8 General Comment 12 to
Article 1 of the ICCPR states that:

Paragraph 3, …is particularly important in that it imposes specific


obligations on States parties, not only in relation to their own
peoples but vis-ą-vis all peoples which have not been able to
exercise or have been deprived of the possibility of exercising their
right to self-determination. …It stipulates that ‘The States Parties
to the present Covenant, including those having responsibility for
the administration of Non-Self-Governing and Trust Territories,
shall promote the realization of the right of self-determination, and
shall respect that right, in conformity with the provisions of the
Charter of the United Nations’. …It follows that all States parties
to the Covenant should take positive action to facilitate realization
of and respect for the right of peoples to self-determination.9

The Current Situation of the Saami People


There have never been a great many Saami and it is now estimated that
there are 60,000 Saami altogether in Norway, Sweden, Finland and
Russia, with about half living in Norway.10 It has been estimated that
more than 2000 years ago, the Saami ancestors were already established
in the present-day Saami areas. As in countries as diverse as Greenland
and Australia, the Indigenous Scandinavians live in extremely harsh
conditions. Historically the Saami culture has been identified as part of
the circumpolar culture. As for so many Indigenous people, concerted
immigration and assimilation policies, coupled with cultural oppression,
have resulted in a significant weakening of major features of the Saami
culture.11 The Saami once lived in most of what is now Finland and large
parts of what is now Norway as well as in Sweden, and in Russia. The
establishment or expansion of these nations in much of the ancient Saami
land has resulted in the division of the Saami, who are now citizens of
four different states. In fact, their current living situation has been charac-
terised as within ‘the imposed Nation States boundaries of Norway,
Sweden, Finland and Russia’.12 In Nysto’s view, the Saami are ‘not a
people that have traditions for living within or establishing national
borders’ and the ‘borderless cooperation’ of the Saami in earlier times
remains an ‘untapped potential’ for future cooperation in programs for
Barents cooperation, Barents Euro-Arctic cooperation and Nordic
cooperation.13

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BA Hocking

An initial question concerns the definition of the Saami as Indigenous


people in the Nordic countries. It is worth recalling the argument that
colonialism in itself has irretrievably shaped the definitions of Indigenous
peoples and minority groups. Minde, for example, argues that:

The dominant view as to what constitutes ‘Indigenous peoples’ has


been from the outset affected by the ‘conquest’ of the New World
by the Europeans. In short, according to this view of the situation,
minority groups emerged as a result of colonial migration.14

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

Saami Political Goals and Constitutional Status in the Nordic


Countries
In making the right to self-determination their primary political goal, the
Saami people in the Nordic countries argue that they possess both collec-
tive and private rights to their land, and that ILO Convention 169
provides support for this.18 The Saami further argue that since they have
inhabited and used their traditional territories from time immemorial,
any settler state is precluded from claiming any ‘right of discovery’ or
‘right of occupation’.19 The Saami challenge to the claims of the Nordic
states for sovereignty has until recent times been mainly concerned with
land use and ownership—the question at issue in the famous Taxed Lapp
Mountains case20—and with broad cultural rights. Land usage, and in
particular the traditional occupations of reindeer herding and husbandry,
fishing and hunting, have consistently been the focus of the political activ-
ities of the Saami. Reindeer farming issues have tended to dominate in
Saami politics.21 However, the Saami people have until recently occupied
sparsely populated regions where their interests are unlikely to translate

251
Unfinished Constitutional Business?

in the representative political system and the path of translating political


demands into legal rights has thus been characterised by bold starts and
occasional retreats. In this respect there are clear similarities with the
difficulties faced by Australia’s Indigenous people who are scattered across
electorates and who have also been described as ‘politically alienated’.22
There is an historic foundation for Saami rights. The 1751 Lapp
Codicil gave a formal status for the traditional view that the reindeer-
herding Saami have a right of use to outlying fields. It provided the Saami
with a form of internal self-government and its precise aim was to
preserve the Lapp Nation.23 The Lapp Codicil provides the historical
starting point for an analysis of Saami rights. It represents a treaty of sorts
with the Saami people consequent upon the establishment of a border
between Sweden and Norway in 1751.24
The Codicil enshrined the Saami’s right to cross the border freely as
part of their seasonal reindeer herding migration. However, this treaty
was one that neither recognised nor denied the Saami right to ownership
of their ancestral land.25 It is now clear that the Codicil did not recognise
land title. Yet Korpijaakko maintained in her groundbreaking study of
indigenous land title that the Saami in the seventeenth and eighteenth
centuries had clear title to the lands they occupied based on the laws of
that time, and that these rights have never been abrogated in law.26
Because it granted the Saami the right to self-determination, the 1751
Lapp Codicil has been called a Magna Carta.27 However, it has also been
observed that since its provisions applied only to reindeer-herding Saami,
the Codicil effected a division of the Saami ‘not only into separate states
but also into separate groups within each state’.28 The distinction between
the Saami people based on reindeer herding has persisted ever since the
Lapp Codicil.
The recognition of reindeer herding as a traditional Saami activity is
the most significant formal recognition of the cultural livelihood of the
Saami people. Korsmo has suggested that the series of reindeer manage-
ment laws, beginning in 1886 provide the ‘major regulatory regime
developed specifically for the Saami’.29 In Norway, which has the largest
number of Saami, the right to own and breed reindeer is regulated by the
Reindeer Husbandry Act of 1996. The country is divided into reindeer
grazing areas and the Saami have an exclusive right to the trade. The
Saami enjoying this right can also hunt and fish without permits. In
contrast, non-reindeer herding Saami have to purchase licences from a
state-owned land and forest company.30 These distinctions drawn
between Saami people have also been considered ‘a curtailment of tradi-
tional Saami rights’.31 It must also be emphasised that there is far from
universal support for the designation of the Saami solely as reindeer
herders, which could be seen as implying that they form an occupational
group with idiosyncratic land access, use and needs.

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BA Hocking

Saami’s Constitutional and Political Status in the Nordic


Countries
Each of the three Nordic nations has taken some steps to provide the
Saami living in its territory with some form of constitutional status and
protection. There are common features to the protection offered and in
each case the political processes pursued have led to the establishment of
Saami Parliaments or Assemblies whose ‘lack of an identifiable land base’
has in one view ‘provided both an impetus and a means for Saami to
pursue their territorial aspirations’.32

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

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defending the interests of the Saami, representing them in international


forums, and most significantly, of ensuring that Norway fulfils its obliga-
tions to the Indigenous population under international law.
According to these constitutional amendments, the Saami and the
Norwegians are two peoples living in one country. It could have been
assumed that these developments heralded steps towards the recognition
of the right to self-determination by the Saami in Norway. Yet a report to
the Storting, the Norwegian Parliament, on the Norwegian Saami policy38
published in the autumn of 2001 took, in the view of Sven-Roald Nysto,
the direction of co-determination rather than self-determination.39
According to Nysto, co-determination fails to meet the demands for self-
determination pursuant to the ICCPR.40 Above all, the reindeer breeding
rights should be protected in the same way as other land-user rights. To
ensure that such protection is effective, the Saami should be given an
opportunity to submit their views in advance on measures that might
constitute more than a minor encroachment on reindeer breeding rights.
They should also be entitled to have those measures examined by an
impartial body with knowledge of reindeer breeding and the land
required for that purpose. The report recommends that where measures
are taken that have an adverse effect on reindeer breeding rights, the
Saami should be entitled to compensation.41 Furthermore, the Saami
should be given the same possibility as other groups to transmit their
hunting and fishing rights outside their own community in exchange for
payment.42 The report also deals in some detail with the ICCPR require-
ment that states recognise the Indigenous people’s right to use land which
they have traditionally used together with others over time, their right to
have land claims examined in a judicial process and the stipulation that
the Indigenous peoples be given the opportunity to exert influence on the
use, management and conservation of natural resources when such
measures affect them. Norway’s commitment to ILO Convention 169 was
placed under considerable pressure when the Norwegian government
insisted upon ‘consultations’ rather than ‘negotiations’ over a proposed
Finnmark Act which is to deal with land management in Finnmark
County and finally to:

‘…close the process commenced in the 70s and 80s in Norway


following the controversy over Sami land rights in connection with
the establishment of a hydroelectric power plant in Alta’.43

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

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Unfinished Constitutional Business?

Swedish approach, which focuses on protection of culture, remains that


of imperialist days.44
However, like Norway and Finland, Sweden has established a Saami
Parliament, the purpose of which is decided by the Riksdag, the Swedish
Parliament, and regulated by law.
As an institution, the Swedish Saami Parliament was heralded as an
exercise in self-determination and a mechanism for self-rule, which could
function instead of the Riksdag or local governments, or in competition
with them. Indeed, the Saami Parliaments have been called ‘a democratic
experiment designed to strengthen Saami participation in the decision-
making process’.45 However, the reality is that the Saami Parliament in
Sweden is a state administrative authority and not a people’s forum. It has
been described as merely a ‘state administrative body with a regulatory
task’ as well as criticised:

The Sami Parliament’s formal status is an example of the basic


antagonism that exists between the Sami’s rightful needs and the
will of the State, or lack of will, to cooperate on a political solution
that offers the Sami influence and self-determination.46

The Saami Parliament in Sweden is thus recognised as a compromise


solution. On the one hand, there was a need to create a basis for cooper-
ation and influence by the Saami in the Swedish democratic process, on
the other hand Sweden wanted to do this without changing the
Constitution and compromising the democratic ideal of public elections
or diminishing the power of elected Swedish organisations. The Saami
electorate has thus no power beyond the voting rights they have in the
Swedish Parliament or at the local level. Voting rights in the Saami
Parliament give to the Saami voter no formal rights other than the right
to have a popularly elected leadership to the state administrative
authority—this has been called ‘a version of a “laymen’s directorate”’.47
The Swedish Saami Parliament differs from other Saami national organi-
sations in that it has the competence to launch initiatives on Saami issues.
This enables the Saami to raise the issues they are engaged with and to
represent those issues as an organisation with the democratic backing of
the people against the pressures of other state administrations, the Govern-
ment and the Riksdag. However, the Saami Parliament has inevitably
found it difficult to unify its diverse roles. It is, at the one time, a national
administrative body as well as an elected body of the Saami people and
obliged to take up their interests. Similar tensions between preserving the
nation state as an organic whole and accommodating other institutional
political pressures are visible in all the three Nordic states thus attesting
to what has been referred to as ‘the ambivalence of Nationhood’ in this
context.48

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Relevance of ILO Convention 169 in the Nordic States


The ILO Convention 169 on Indigenous and Tribal Peoples in
Independent Countries contains a number of provisions designed to
protect Indigenous and tribal peoples. In addition to special measures to
promote the economic and social rights of the peoples concerned, the
states that accede to the Convention must take steps to protect the land,
culture and environment of their Indigenous people.49 From the Nordic
states, Norway was the first country to ratify the ILO Convention in
1990 while Denmark ratified it in 1996. Finland is in the process of
accepting it.
The Swedish Government has avoided ratification of the Convention
but the issue has been under consideration for some time. Sweden has
argued that Norway’s ratification of the Convention was a statement of
intent rather than a statement of binding law. A Swedish inquiry into the
issue of ratification, set up in 1997, looked at Norway’s experience and
found that, when ratifying the Convention, the Norwegian Government
had considered that the existing Saami usufructary right to take and use
the profit of their lands satisfied the Convention’s requirements, but that
later ‘the Samerettsutvalget commission of inquiry appointed by the
Norwegian Government reached a different conclusion and the problem
has not yet been fully resolved’.50
It may be that the Norwegian experiences of the ILO Convention
partly promoted Sweden’s inquiry. The Report considers the question of
whether Sweden can ratify the Convention and if so, what measures
would be required to enable it to comply with the provisions. It outlined
measures that Sweden would be required to take to enable it to comply.
The Report notes that the greatest obstacle to ratification by Sweden has
been the conditions set down by the Convention with regard to land
rights. For example, Article 14 of the Convention requires states to
recognise the ‘rights of ownership and possession’ of the peoples
concerned over the land which they ‘traditionally occupy’. In the Report,
‘traditionally occupy’ is seen to denote:

land which the indigenous peoples have traditionally had access to


for their subsistence and traditional activities, that is, had predom-
inant influence on.51

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

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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.

Saami Political Achievements in the Nordic Countries


When looking at the political achievements of the Saami in the three
Nordic countries, one of the most successful claims has been the
campaign for Saami linguistic rights. It has resulted in language courses
for the Saami, as well as official recognition of the Saami languages in the
sense that Saami children may receive education in their own language
and learn about their culture and heritage. Linguistic rights have been
emphasised by the Saami and deemed highly important for the reason
that without particular protection the Saami languages would vanish and
the Saami culture be significantly weakened.
Some of the Saami institutions have also been politically active both at
the Nordic and international levels. The issue of self-determination is
central to the joint program that has been drawn up by the Saami
Parliaments of Finland, Norway and Sweden in conjunction with the
United Nations International Decade of Indigenous People. Indeed, the
representation of the Saami people politically has become more common,
for example, through their involvement in the United Nations Working
Group on Indigenous Populations56 which will report on the development
of human rights in their respective countries. As a result of such work, the
Nordic countries feel compelled to comply with their international
obligations, as their violations can be reported to the United Nations
through the Working Group. Yet from this, another limitation has
emerged. The Saami people have been denied a seat in the Nordic
Council, the highest body of co-operation among the Nordic countries.
Ironically, the basis of this denial lies in their lack of identifiable territory
and political self-management. Thus, the Saami cannot participate
equally in the political process in Council because of the historical
treatment that has taken their territory from them. The Saami Conference
demanded in 1992 that the Nordic countries commence work on a

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Nordic-Saami Convention. Following on from a Nordic Council meeting


in March 1995, a working group was established in 1996 to examine the
issue and the Saami Parliaments in Norway, Sweden and Finland decided
to collaborate through a special parliamentary council.57 The Sami
Convention is to ‘harmonize the rights of the Sami people in Norway,
Sweden, Finland and Russia’.58 A proposed draft should be ready by the
end of 2005, and it should harmonise with international law principles
such as those contained in ILO Convention 169 and the UN Draft
Declaration on the Rights of Indigenous Peoples’.59

The European Dimension


The accession of both Finland and Sweden to the European Union has
provided another dimension to the recognition of the Nordic Indigenous
peoples’ human rights, particularly in Finland. In this context, European
Community law becomes relevant through Protocol Number 3 of the
Accession Treaty of Sweden, Finland and Austria. The Protocol largely
resulted from the initiative of Norway, even though Norway ultimately
decided not to join the European Union. According to the Protocol, all
European Union member states recognise the obligations and commit-
ments of Sweden and Finland with regard to the Saami people under
national and international law. These refer also to the dependence of
traditional Saami culture and livelihood on primary economic activities,
such as reindeer herding husbandry in traditional areas of Saami settle-
ment.
Scheinin considers that in legal terms, the core of Protocol 3 is in
Article 1, which provides that the European Community Treaty does not
hinder Finland and Sweden from granting the Saami people exclusive
rights to reindeer husbandry within the traditional Saami areas.60 The
Preamble of the Protocol is relevant also and could be applicable even in
relation to issues such as mining controversies if they were to raise
matters falling within the framework of European Community law.
Protocol No. 3 can also be understood as one element in the trend
towards more multiculturalism in the European Union context. The
Council of Europe has, according to Scheinin, been ‘somewhat slow’ in
building the legal framework for minority protection.61 There is no
provision similar to Article 27 of the ICCPR in the European Convention
on Human Rights and Freedoms. However, the situation has changed
somewhat as the Council of Europe has adopted the Charter for Regional
and Minority Languages and a Framework Convention for the Protection
of National Minorities.

Key Limitations to Status of the Saami: Political Processes are


Not Territorial Rights
The key limitation of the constitutional and political developments
concerning the status of the Saami is that the powers of the Saami

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Unfinished Constitutional Business?

Parliaments do not extend to the use and management of the traditional


Saami land. There are historical explanations for the reluctance to
improve the status of the Saami in this respect—just as there are counter-
explanations for the different status of Indigenous peoples in Australia.

Cases on Saami Land Rights in Sweden


When looking at the status of Saami land rights in the Nordic states,
Sweden in particular appears reluctant to recognise any claimed Saami
territory as more than ‘ownerless’ land. A case called Skattefjall (‘the
Taxed Lapp Mountains Case’) was decided by the Supreme Court of
Sweden in 1981.62 It had an important impact on the developments
concerning the land rights of the Saami in Sweden. The case concerned a
dispute about the ownership of land, by the Saami mainly in the northern
parts of Jämtland county. The outcome was that the Swedish state was
regarded as the owner of the land and that the rights of the Saami were
limited to user rights.63 The Swedish Supreme Court indicated that the
Saami have reindeer grazing and fishing rights in the area, drawing upon
the Swedish Constitution. The Court also rejected the argument that
nomadic peoples cannot acquire title to land, seeming to lend some
support for the views that the Saami could possess land rights.64
It has been observed that there is considerable inconsistency with
respect to recognition of the rights of the Saami in Sweden. Bengtsson
notes that the Saami have had their rights to hunting and fishing
acknowledged based on immemorial customary right, for instance in the
Skattefjall case. However, in contrast to others who possess hunting and
fishing rights, the Saami are not allowed to manage these rights
themselves and to freely grant hunting and fishing licences.65 Instead, the
authorities do this for them. Hence both interference by the state and
private landowners hinder the full development and enjoyment of these
rights by the Saami.
The Skattefjall case also had an impact on the political movement
amongst the Saami people. It has been said that the ‘political mobilisation
amongst the Saami almost collapsed for a while, and ambiguity appeared
within the Saami movement as to whether a tenable strategy had been
pursued’.66 Somewhat paradoxically, the Norwegian Alta-Kautokeino
conflict had similar consequences.67 That dispute focused on the Saami’s
attempts to halt the construction of a dam on Saami territory in Norway.
Saami reindeer owners affected by the project combined with the
Norwegian Society for the Conservation of Nature to bring the case to
court in 1979. The Saami lost the case, however the Norwegian Supreme
Court recognised their right as an ethnic minority, to the protection of
Article 27 of the ICCPR and also the rights of the Swedish reindeer-
herding Saami in the Norwegian territory close to the Swedish border.68
As a result, political struggle ceased to be so widely utilised, although in
the past decade, it is clear that the globalisation of both economy and

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politics has produced ‘new strategic possibilities for indigenous peoples’69


and that those possibilities are being widely recognised and embraced by
the Saami as well as by other groups.
Recently there has been another high profile legal dispute concerning
Saami rights in Sweden. The Harjedalen dispute derives from the recog-
nition of the user rights of the Swedish Saami and concerned the use of
winter grazing lands for reindeer in Harjedalen. The private landowners
challenged the use of their land by the Saami as feeding areas for reindeer
in the winter. The question was whether the Saami reindeer herding right
extended to privately owned lands. The Saami argued that the right did
encompass the winter pasture on the private property and that it was
based on enjoyment from time immemorial, custom, international law
and the fact that Sweden has recognised those rights in the reindeer
management laws.70 The Saami argued that they had been on the territory
first, using evidence from an archaeologist to support their case. The
landowners used evidence from another archaeologist that cast sufficient
doubt upon the precise ethnicity indicated by the archaeological findings.
The Saami lost the case in the District Court in 1996,71 and an appeal to
the Court of Appeals was rejected in February 2002. In one view, the
landowners and large timber companies initiated the case because of
the damage caused to their property by the winter reindeer grazing.
According to another, more conceptual view, the judges ‘could not
connect beginning, middle, and end to their satisfaction; nor could they
legitimize an out-of-state-time wholeness that would have sublimated the
frozen points on the ground into a vision of cultural continuity’.72
When discussing the cases concerning the right to land by the Saami, it
may be useful to take a comparative look at Australia. The decision by
the Australian High Court in the Mabo case in 1992 recognised native
title to land amounting to the acknowledgment that cultures change and
adapt to major events. Nysto said in 1998 that:

I have a superficial knowledge of the conditions of the Australian


indigenous peoples. I also have the impression that they live under
rough social conditions. At the same time, I have the impression
that they have had their rights to land and sea recognised in a far
better way than the Saamis.

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,

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Unfinished Constitutional Business?

proving the continuity of connection before a ‘white’ legal Tribunal or


Court has been an insurmountable hurdle for many groups. While land
and its resources are intrinsic and central to Aboriginal culture and sense
of self, land is also essential to meaningful self-determination and sustain-
ability. At the same time, it is a potent element of economic and political
power in the community generally.
The comparative analysis reveals a different emphasis between Sweden
and Australia in fostering and protecting the land, water, sea and resource
rights of the Indigenous citizens. However, the emphasis in Australia has
changed since Mabo, especially with the change of federal government in
1996 and subsequent amendments to the Native Title Act.73 An obvious
difference between Australian and Nordic models of Indigenous political
participation is the significant difference between the Saami Parliaments
and the Aboriginal and Torres Strait Islander Commission (ATSIC) in
Australia. ATSIC was established by the previous labor federal govern-
ment as an independent statutory authority but has since been abolished
by the conservative federal government. It constituted the main policy
making, administrative and advocacy body for Aboriginal peoples. While
it formed the principal agency in the government’s Aboriginal and Torres
Strait Islander Affairs portfolio, with regional representatives elected by
Aboriginal people, ATSIC did not have the status of a parliament.

Finnish Land and Resources Jurisprudence Concerning ICCPR


Article 27
One of the most important legal mechanisms for the development of
Indigenous rights is Article 27 of the ICCPR protecting the way of life of
minorities in the context of cultural minority rights. According to this
provision, persons belonging to ethnic, religious or linguistic minorities
shall not be denied the right, in community with other members of the
group, to enjoy their own culture. For the Saami, the importance of
Article 27 is the link between reindeer herding as part of the Saami liveli-
hood and as an integral part of their culture making its protection vital
for the continuing development of their rights. In Finland, Article 27 has
been interpreted to cover reindeer herding as an essential part of the
Saami culture. With this link between culture and livelihood established,
the protective umbrella of the Covenant has the scope for expansion,
although it is dependent on legal interpretation. Scheinin divides the
significant case law dealing with Article 27 into cases, which form part of
more general international case law, involving consideration by the
United Nations Human Rights Committee of the legal interpretation of
Article 27 itself. Then there are the Scandinavian domestic cases involving
Article 27 in relation to logging and mining activities.74
In the first Lansmen case75 before the Human Rights Committee, the
Saami living in the area near the village of Angeli objected to the local
municipality’s granting of a licence to a private company to start quarrying

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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

Rights of Usage are Not Land Ownership


Notwithstanding rights of usage for reindeer herding and other tradi-
tional activities, the ownership of traditional Saami lands in northern-
most parts of Finland remains uncertain. While the area is theoretically
state-owned land administered by the National Forestry Board, disputes
have occurred in relation to logging activities in areas considered Saami
homeland. It is significant in this context that Article 27 has been
approved as a legal basis for Saami rights by Finnish courts. In 1993 four
Saami reindeer herders from the village of Angeli claimed the National
Forestry Board was in breach of Article 27 of the ICCPR and sought
prohibition of logging or road construction in particularly significant
areas of winter herding forest. The Inari Court of First Instance denied
this claim but the plaintiffs’ appealed to the Rovaniemi Court of Appeal.

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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

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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.

Do Only Negative Obligations of Non-Interference Arise From


Article 27?
There are some unresolved legal issues pending in Finland. One concerns
the actual wording of the ICCPR providing that minorities must not be
denied the right to enjoy their own culture. It remains unclear whether
this means that only negative obligations of non-interference arise from
the provision. If this should be resolved as implying broader positive
obligations, the protective scope of the Covenant would be far greater
than presently. Some Indigenous groups have been reluctant to rely upon
Article 27 because of its reference to ‘minorities’ and not to ‘peoples’.
However, this has been clarified somewhat, by the Human Rights
Committee’s General Comment No 23, which includes discussion on this
point.85 The Comment refers to the manifestation of culture and a partic-
ular way of life associated with the use of land resources by Indigenous
peoples, a right which may include traditional activities like fishing,
hunting and the right to live in reserves protected by law.
With the greater strength of international human rights obligations and
their implications at the domestic level, it would seem that a lot has been
achieved in respect of the human rights of the Saami in Finland. The task

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Unfinished Constitutional Business?

in Finland would now seem to be one of building upon this recognition,


towards new self-government, to the achievement of the Saami’s own
school system, and to making the language not only official but
functional in practice. Furthermore, there is the ever-pressing need to find
finance, to push members of the Finnish Parliament to provide more
money. That the Human Rights Committee has spoken of a state duty
concerning the effect of its activities speaks of possible broader obliga-
tions in the future. The HRC’s General Comment refers to:

A state party’s obligation to ensure that the existence and the


exercise of this right are protected against their denial or violation.
Positive measures of protection are, therefore, required not only
against the acts of the State party itself, whether through its legisla-
tive, judicial or administrative authorities, but also against the acts
of other persons within the State party.86

Furthermore this requires ‘measures to ensure the effective participa-


tion of members of minority communities in decisions which affect
them’.87 So it is arguable that the state’s obligations may include early
consultation on projects that will affect any aspect of Saami culture;
allowing Saami participation in policy making, particularly in relation to
environment and land use in their traditional grazing areas; and in negoti-
ation of contracts or licences that will affect their traditional grazing
lands or their cultural practices.

The Status of the Saami: Canada and Australia Compared


The Status of the Nisga’a and the Inuit in Canada
Developments in Canada in this area have combined the political rights
and territorial rights more clearly. Key developments include the land-
mark Nisga’a treaty, the ‘Nisga’a Final Agreement’,88 a settlement between
British Columbia, the Nisga’a people and Canada, in respect of the rights
and title of the Nisga’a Nation. The Nisga’a rights under Section 35 of
the Canadian Constitution have been modified into treaty rights.
The general provisions of the treaty provide that the Nisga’a continues
to be an aboriginal people under the Constitution Act 1982, and that it
continues to be entitled to the rights and benefits of other Canadian
citizens. The lands owned by the Nisga’a amount to almost 2000 sq kms
of the lower Nass Valley and are held in fee simple (the most extensive
and absolute title to land in terms of the rights of ownership it confers),
not as reserve lands under the Indian Acts.
According to the Agreement, the public have access to the Nisga’a
public lands for hunting, fishing and recreation but the Nisga’a
Government may restrict access based on public safety and the protection
of environmental, cultural or historical features. The Agreement details
such things as Nisga’a allocations and sale of salmon, harvesting of

266
BA Hocking

wildlife, conservation and management of fisheries, and annual manage-


ment plans for harvests.89
The Nisga’a Nation is given the right to self-government and authority
to make laws under the Final Agreement. The government comprises the
Nisga’a Lisims Government (Nisga’a Nation) and four Nisga’a Village
Government (Nisga’a Villages) and functions under the umbrella of the
Canadian federal and provincial governments, in a similar way to other
local governments in Canada. The government is structured according to
a Nisga’a Constitution, which provides for elections and for review of
administrative decisions of Nisga’a public institutions. Also the Canadian
Charter of Rights and Freedoms is to apply to the Nisga’a Government
and its institutions together with the Criminal Code of Canada and the
federal and provincial laws of general application unless varied in the
terms of the agreement.
With the approval of the provincial Cabinet, the Nisga’a Government
can provide full policing services on their lands in the same manner as in
larger municipalities. Under the Agreement the Nisga’a can also establish
a Nisga’a Court to have jurisdiction over Nisga’a laws on Nisga’a lands,
although accused persons may choose to have their cases heard in the
Provincial Court instead of the Nisga’a Court. Fiscal financing agree-
ments are negotiated every five years, and the Nisga’a Government has
authority to levy direct taxes on citizens on Nisga’a lands.90
Canada has also recently created the Inuit territory of Nunavut
(meaning ‘our land’ in Inuit). This represents the culmination of the
joining of Inuit generations in a ‘protest movement which soon centred
on land and sea claims, and the demand for a self-governing territory’.91
Nunavut involves a duality of claims and governance and has been seen
from the Australian perspective as:

a model for reconciliation with its negotiated indigenous constitu-


tional relationships, reformed or new political institutions, clear
enforceable land and sea rights, decision-making institutions in
Inuit control, an increasingly indigenous public service, indigenous
cultural autonomy and reinforcement, special mechanisms for
indigenous economic and employment development, a full recog-
nised indigenous political community with full and equal political
membership in the opportunity and benefit structures of citizenship
in the contemporary nation-state, and governing power for a large
region.92

However, these moves towards territorial governance in Canada have


been marked by protracted delays and represent the culmination of years
of negotiation between the Inuit and the Canadian state. In that respect
the process has been far more protracted than the cumulative legal devel-
opments in Australia since the High Court recognised native title to land
in Mabo. A question that emerges when comparing the developments in

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.

Some Comparisons with Australia


While it is difficult to adequately summarise the key developments
concerning Indigenous rights in Australia, two key events stand out. With
Australia lacking both a treaty and specific constitutional protection for
Indigenous rights, the first event of a specific significance was the 1992
Mabo case, in which the High Court of Australia recognised native title
to land. The second was the report of an Inquiry into the effects of
various government policies of separating Aboriginal and Torres Strait
Islander children from their families from the late nineteenth century
through a large part of the twentieth.94 Underlying both of these examples
can be seen attempts to debate and achieve some form of reconciliation
between indigenous and non-indigenous Australians, taking issue with
‘questions of future justice and past and present injustice’.95
Yet, as Patton suggests, official responses to both problems, that of
native title and that of the stolen generation have contributed to the
failure to achieve full reconciliation in Australia and reflect symptoms of
the underlying reasons for this failure.96 Pat Dodson, a prominent
Aboriginal spokesperson, member of the Yawuru people of the Kimberley
in Western Australia, and chair of the Council for Aboriginal
Reconciliation from 1991 to 1997, argued that a treaty should be drafted
between the Australian Government and the Aboriginal peoples, based on

268
BA Hocking

recommendations by the Council.97 It has been suggested that ‘the re-


emergence of demands for a treaty at the end of the reconciliation process
is not without irony since the establishment of a Council for Aboriginal
Reconciliation was a political response to the failure of treaty proposals
put forward in the period leading up to and after the 1988 Bicentenary of
European settlement/invasion’.98 In Patton’s view, claims for a treaty
reflect a view of reconciliation, which recognises Indigenous claims to
sovereignty, given that ‘the weight of authority strongly suggests that the
legal path to establishing the sovereignty of Australian indigenous people
is blocked’.99

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?

It might be suggested by way of conclusion that the jurisprudence


outlined here illustrates that the Saami have achieved more elaborate
political rights—or at least formal mechanisms for political participation
consequent upon —whereas they lack the important legal right to land
and territory eligibility (in itself a contested matter).107 In contrast, the
situation in Australia is almost the opposite; there has been some very
limited progression towards recognition of native title, not necessarily
through the courts,108 but little progress towards a reinvigoration or even
articulation of political rights.109 Whereas Nunavut has been seen as
‘achieving self-determination through a land claim and public govern-
ment’.110
The claims of rights of the Saami people and the responses of the
Nordic states to those claims—particularly the reinvigoration of the
proposed Saami Convention—also provide us with a yardstick against
which we can measure the Australian developments since the High Court
decision recognising native title to land in Mabo No 2 and the fate of
Justice Brennan’s emphatic call for recognition of ‘the expectations of the
international community’.

Notes

1. Svensson T, ‘Right to Self-Determination: A Basic Human Right Concerning


Cultural Survival. The Case of the Sami and the Scandinavian State’ in An-
Na’im AA (ed) Human Rights in Cross-Cultural Perspectives (Pennsylvania
Studies in Human Rights, University of Pennsylvania Press, Philadelphia,
1992), 363–84, at p 363.
2. See also Hocking, BA, ‘Evaluating Self-Determination of Indigenous People
Through Political Processes and Territorial Rights: the status of the Nordic
Saami from an Australian perspective’ (2002) Finnish Yearbook of
International Law 289–323
3. ‘The Sami Parliament: an Ongoing Evolution’, Saami Parliament
(Sametinget), available through the Saami Parliament website at:
http://WWW.sametinget.se/english/st/index.html.
4. Mabo v Queensland (No 2) (1992) 175 CLR 1
5. Svensson T, op cit, at p 363
6. Ibid, at p 367.
7. Nysto SR, ‘Citizenship, self-government, self-determination: A comparison
of aboriginal peoples in Canada and Saami people in Norway’, Seminar on
Self-Determination, Oslo, 5 November 2001.
8. ICCPR Art 1, para 2.
9. United Nations Office of the High Commissioner for Human Rights,
‘General Comment 12: The right to self-determination of peoples’ (Art 1), 13
March 1984, para 6. See also the Draft Declaration on the Rights of
Indigenous Peoples, Preamble, Art 3, and Art 31.
10. Haetta OM, The Sami: an Indigenous People of the Arctic, Gurholt, OP
(trans), Davvi Girji o.s., 1996, at p 12.
11. Ibid., at pp 12, 13, 14.

270
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12. Nielsen J, ‘Indigenous Rights to Self-Government and Self-Determination:


An Inuit Arctic Perspective’ in Indigenous Human Rights, S Garkawe, L
Kelly and W Fisher (eds). Sydney Institute of Criminology Monograph Series
2001, 158–80, at p 178.
13. Nysto, op cit at p 4.
14. Minde H, ‘The Making of an International Movement of Indigenous
Peoples’ in Horn F, Linguistic Rights of Minorities. Juridica Lapponica no 9,
Northern Institute for Environmental and Minority Law, 1994, p 90 at p 90.
15. Ibid.
16. Baer LA 1994, ‘The Saami of Scandinavia and Russia’, Spring Cultural
Survival Quarterly 51 at p 51
17. As Nielsen explains, referring to the reasons for not including the Russian
Inuit in his discussion. ‘“Inuit” refers generally to the people living in the Far
East of Russia (Chukotka), Alaska (USA), Northern Canada and Greenland,
formerly known as Eskimos. …The situation of Inuit (Yuit) living in
Chukotkan Siberia in Russia is not dealt with here, due to the fact that they
have been under the control of the former Soviet Union and still suffer
immensely under that control, even since its break-up. The desperation and
severity of their situation is known to the rest of the Inuit community, while
the scientific community has also shown increasing interest in their issues’.
Nielsen, op cit at p 159.
18. Convention (No 169) concerning Indigenous and Tribal Peoples in
Independent Countries, Adopted on 27 June 1989 by the General
Conference of the International Labour Organisation at its seventy-sixth
session; entry into force 5 September 1991; UNTS 1650 p 383; ratified by
Norway 19 June 1990.
19. Baer, op cit, at p 52.
20. Swedish Supreme Court, NJA 1981 p 1. The Court in that case found that
the Saami had never had any title to the Jämtland mountains under dispute,
but left open the question as to the position in more northern mountain
areas. See Bengtsson P, ‘Small-game hunting from the point of view of civil
law and constitutional law’, available from the Sami Parliament website. See
also Svensson, op cit at p 376.
21. Sjolin R, ‘The Sami in Swedish Politics’ in Jahreskog B (ed), The Sami
National Minority in Sweden (Almqvist & Wiksell International, Stockholm,
1982), 77, at p 83.
22. Ibid at p 84.
23. Ibid at p 230. Smith C, ‘The Development of Sami Rights since 1980’ in
Loven og livet (Universitetsforlaget, Oslo, 1995) 223, at p 231 (address
published as ‘Becoming Visible’, Proceedings of the Conference on
‘Indigenous Politics and Self Government’ University of Tromso, (1995), at
p 65 ff)
24. The Codicil was an addendum to the Stromstad Treaty by which the
Swedish-Norwegian border was defined. (At that time, Norway was in fact
part of Denmark. It remained so until 1812, when it became part of Sweden,
finally gaining independence in 1905. Finland was part of Sweden, and
remained so until 1808, when it was conquered by Russia, although it
maintained its judicial system. Finland gained its independence in 1917.) See
Marainen J, ‘The Swedish-Norwegian Convention on the Right of the

271
Unfinished Constitutional Business?

Migratory Sami to Reindeer Grazing Lands’ in Jahreskog B, op cit, p 62, at


p 63.
25. Henriksen JB, ‘The Legal Status of Saami Land Rights in Finland, Russia,
Norway and Sweden’ (1996) 2 Indigenous Affairs 2 at p 9.
26. Korpijaakko-Labba K, Legal Rights of the Sami in Finland during the Period
of Swedish Rule: A Survey of the Past, Thoughts on the Future (Circumpolar
and Scientific Affairs Publication Series, 93–106, 1993)
27. Forrest, op cit., citing Sillanpää L, Political and Administrative Responses to
Sami Self-Determination (Finnish Society of Sciences and Letters, Helsinki,
1994), at p. 38.
28. Marainen J, ‘The Swedish-Norwegian Convention on the Right of the
Migratory Sami to Reindeer Grazing Lands: General Background
Conditions and Consequences of the Convention’ in Jahreskog B (ed) The
Sami National Minority in Sweden, (Almqvist & Wiskell, Uppsala, Sweden,
1982), p 62–76 at p. 64.
29. Korsmo F, ‘Resonance and Reduction of Indigenous Claims in Western Legal
Thought: The Place of the Origin’ (unpublished article, courtesy of the
author), at p. 1.
30. Until early 1996, the Saami reindeer owners carried the burden of proof for
the reindeer grazing rights on land owned by private legal entities. With the
adoption of a new Reindeer Husbandry Act in 1996, the burden of proof
with respect to any claim for non-existing reindeer grazing rights was passed
to the landowner. This is a significant change in terms of Saami right to use
their traditional lands, particularly in the southern Saami areas where the
reindeer grazing land is, to a large extent, owned by private legal entities.
31. Henriksen, op cit, at p. 12.
32. Korsmo F, ‘Claiming Territory: the Saami Assemblies as Ethno-Political
Institutions’ (1996) 20 Polar Geography 163–179 at p 163.
33. Horn F, Linguistic Rights of Minorities (Juridica Lapponica no 9, Northern
Institute for Environmental and Minority Law, 1994), p 55.
34. Note that in 2000, a new Finnish Constitution entered into force; the
recently reformed provisions for basic rights and liberties were re-enacted in
the new Constitution.
35. See Indigenous World 2005. http://www.iwgia.org/graphics/Synkron-
Library/Documents/publications/Downloadpublications/IndigenousWorld/C
ircumpolarNorth.pdf [accessed 27 July 2005]
36. Haetta, op cit, at p 69. The Saami Parliament was opened in 1989.
37. In order to be included in the register, the person must declare that they
speak the Saami language or have one parent or a grandparent who can
speak Saami.
38. White Paper on the general principles underlying Norwegian policies
towards the Saami people, submitted to the Storting August 2001. The basis
of the Norwegian Government’s policies towards the Saami people is that
the Norwegian state was originally established on the territory of two
peoples: the Norwegians and the Saami. They both have the same right to
maintain and develop their language and their culture. The aim of the
Government’s policies is thus not to give the Saami a special position, but to
reverse the negative effects of the previous policy of Norwegianising the
Saami culture.

272
BA Hocking

39. Nysto, 2001, op cit, at p 2


40. Ibid.
41. In June 2000 a fund of NOK75 million was established to provide economic
compensation for losses endured by the Saami for the period of assimilation
and Norwegianisation: paper by State-Secretary Anders JH Eira, ‘A
Comparison of Aboriginal peoples in Canada and Saami in Norway’, paper
to the Nordic Association for Canadian studies in co-operation with the
Canadian Embassy, Kommunal og regionaldepartementet; IMER and
Maktutredningen multidisciplinary conference, 5 November 2001.
42. Nysto, 2001, op cit, at p 2.
43. See Indigenous World 2005. http://www.iwgia.org/graphics/Synkron-
Library/Documents/publications/Downloadpublications/IndigenousWorld/C
ircumpolarNorth.pdf [accessed 27 July 2005]
44. ibid.
45. ‘The Sami Parliament: an Ongoing Evolution’ available through Saami
Parliament (Sametinget) website
46. ‘The Sami Parliament’s Task’ available through Saami Parliament website
47. Ibid.
48. Sangeetha Chandra-Shekeran, ‘Challenging the Fiction of the Nation in the
‘Reconciliation’ Texts of Mabo and Bringing Them Home’ (1998) 11 The
Australian Feminist Law Journal 107.
49. See ILO Convention 169 Part II
50. Samerna—ett ursprungsfolk i Sverige—FrĆgan om Sveriges anslutning till
ILO:s konvention nr 169: Betänkande av utredningen om ILO-konvention
nr 169, Heurgren S (Chair), 1 March 1999, SOU 1999:25, ‘English
Summary’ p 23–9, at 29. See also Eira op cit, p 1: ‘It has been the opinion
of the Government that the obligations under the ILO Convention in this
respect [self-government] have been met by the measures already established
according to the Saami Act.’.
51. Ibid, at p 25
52. Ibid, at p 26
53. Ibid.
54. Ibid.
55. Ibid.
56. Established for the International Decade of Indigenous Peoples, pursuant to
Economic and Social Council resolution 1982/34, a subsidiary organ of the
UNHCHR’s Sub-Commission on the Promotion and Protection of Human
Rights. Information about the Decade and Working Group can be found at
the UN’s website: http://www.unhchr.ch/indigenous/decade.htm (accessed 2
April 2002)
57. Brenna, op cit, at p 9.
58. See Indigenous World 2005. http://www.iwgia.org/graphics/Synkron-
Library/Documents/publications/Downloadpublications/IndigenousWorld/C
ircumpolarNorth.pdf [accessed 27 July 2005]
59. ‘This, together with Norway’s Finnmark Act of 2003 and arguments over
Crown title to resources in Finnmark, are among the current pressing devel-
opments. See Peter Jull, ‘Finnmarksloven (‘The Finnmark Act’)’, Australian
Indigenous Law Reporter Vol 8, no. 3 (2003) p 69.

273
Unfinished Constitutional Business?

60. Scheinin M, ‘Principles of Justice, Human Rights and Constitutional


Principles within the European Union: a Comment’, in Paasivirta E and
Rissanen, K (eds), Principles of Justice and the Law of the European Union,
(KATTI, Helsinki, 1995) pp 101–13.
61. Scheinin, 1995, op cit, at p. 101.
62. NJA 1981 p 1, Supreme Court of Sweden, 29 January 1981.
63. Henriksen, op cit, at p. 15.
64. Ibid. See also the discussion of the case by Svensson, op cit, at p. 376 ff.
65. Bengtsson B, ‘Encroachment of Sami Property Rights’ Svenska Dagsbladet,
30 Oct 1993.
66. Minde, op cit, at p. 118.
67. HR 1982 at p. 35, Supreme Court of Norway
68. Korsmo, 1996, op cit, at p. 164.
69. Horn F, Linguistic Rights of Minorities (publication of the Northern Institute
for Environmental and Minority Law, Juridica Lapponica no 9, 1994), at p
128.
70. Minde, op cit, at p. 4.
71. District Court of Sveg, 21 February 1996. Following the Saami’s loss in the
District Court in the Harjedalen case, an application was filed by 40
landowners in the District Court of Österrund in July 1998, claiming that
the Saami community in south-west Jämtland had no right to access land for
winter grazing. For an overview of the Swedish court cases, see: Borchert N,
Land is Life: Traditional Sámi Reindeer Grazing Threatened in Northern
Sweden.
72. Minde, op cit, at p. 3.
73. See Hocking, B.A., and Stern, E., ‘W(h)ither the Human Rights of
Indigenous Australians (From Wik to Wickedness?) (1998) 67 (4) Nordic
Journal of International Law 393–422
74. See Scheinin M, ‘The Right to Enjoy a Distinct Culture: Indigenous and
Competing Uses of Land’ in Orlin TS, Rosas A & Scheinin M (eds) The
Jurisprudence of Human Rights Law: A Comparative Interpretive
Approach, (Institute for Human Rights Ābo Akademi University, Turku,
Ābo, 2000), pages 159–222.
75. Lansmen et al v Finland, (Communication No 511/1992), HRC Final
Decisions, UN Doc CCPR/C/52/D/511/1992 , 8 November 1994.
76. The complainants cited two earlier decisions of the HRC: Ivan Kitok (No
197/1985) and B Ominayak and members of the Lubicon Lake Band v
Canada (No 167/1984), to support their claim, as well as ILO Convention
No 169. Prior to the complaint to the HRC, 67 members of the Angeli local
community had appealed against the quarrying permit to the Lapland
Provincial Administrative Board, without success, and to the Supreme
Administrative Court, where they specifically invoked Art 27 of the
Covenant. On 16 April 1992, the Supreme Administrative Court dismissed
the appeal without addressing the alleged violations of the Covenant. For
discussion of the earlier cases, see Scheinin, op cit.
77. Scheinin, op cit, at p. 169
78. Scheinin, op cit, at p. 168.

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

On 26 January 1788, there was a change of sovereignty over the newly


discovered land mass of ‘Terra Australis’, and the Indigenous peoples
inhabiting this ‘Great Southern Land’ suddenly became British subjects,
without their consent being obtained or indeed required. Moreover, the
British colonisation of the land subsequently known as New South Wales
took the form of dispossession of the Indigenous population from their
lands as English settlers established settlements on the newly acquired
territory. The Aboriginal people of Australia were among those
Indigenous people who endured this form of British colonisation; these
colonies were known as settled colonies as distinct from conquered,
ceded, purchased, inherited, Crown and so on. The situation of Indigenous
people in Australia was thus comparable with that of the Maoris in New
Zealand, the Indians and Inuit of the continent of North America, and the
Indigenous peoples of British settled colonies in Africa.
The experience of British colonisation in those places classed constitu-
tionally as ‘settled’ involved the introduction of so much of the common
law system as was suitable to the new colony. In the experience of non-
common law nations, the new colonies were ruled by an introduced civil
law system. These colonisers included inter alia the Swedes, Germans,
French, Spanish, Portuguese, Belgians, Dutch, and, more recently, Japan
and former colonies such as Brazil, Malaysia and Indonesia. These experi-
ences of colonisation have influenced the United Nations Working Party
definition of Indigenous people, the decisions in the Western Sahara
(International Court of Justice), Sami (Swedish Supreme Court), and
Mabo (Australian High Court) cases and, in particular, Justice Brennan’s
concept of sovereign community. The Bangalore principles in interna-
tional law and the way in which the Australian use of international
human rights norms can locate an agenda for self-determination, may be
able eventually to give effect to the concept of sovereign communities laid
down in the Mabo case.

The Sovereign Community Concept


In the Mabo case, the Australian High Court held that, constitutionally,
Australia was a settled colony. Further, that it was a settled colony already
occupied before British settlement by Indigenous peoples with their own
system of laws and customs governing their communities, including

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.

Time for a Treaty


It is clear that Indigenous people in many colonised lands seek, through
international law, to regain at least some of what they have lost. So long
a time after the 1788 change of sovereignty, the appropriate treaties to be

278
BJ Hocking

concluded between Australia’s Indigenous peoples and the state and


federal governments would be of reconciliation.
This is the unfinished constitutional business a decade after Mabo and
more than 200 years since that initial incomplete change of sovereignty.
It is no longer adequate to have merely an implied treaty accompanying
the establishment of the title of sovereign to Australia. It is time to make
a legal closure of the 1788 change of sovereignty and, through a series of
treaties, formally establish the complete legal constitutional title to the
territory of Australia. Then the foundation treaty accompanying the
acquisition of Australia’s territorial sovereignty would no longer be
simply an implied treaty; it would be a formal treaty that would bring
about the final legitimisation of Australian sovereignty, and in addition it
would accord to the Indigenous peoples their founding rights as prior
sovereigns and to the nation state its properly concluded legal position as
the internationally recognised sovereign over the territory of Australia.

279
Index

Aboriginal All Stars football, 82 agricultural education in Hawaii,


Aboriginal and Torres Strait Islander 153–4
Commission (ATSIC), 24, 32, 55, ahupuaa model of land maintenance,
75, 82, 216, 262, xx 135, 136, 153–6
Aboriginal and Torres Strait Islander Akana, Akoni, 147
Social Justice Commissioner, 15, 55 Albertini, Jim, 154
Aboriginal deaths in custody, 54, 219 Alliance of Megabiodiverse Countries,
Aboriginal Land Councils, 32, 34 234, 245
Aboriginal Land Rights (Northern Alta-Kautokeino conflict (Norway),
Territory) Act 1976, 33–8, xvii 260
Aboriginal Land Trusts, 34 Aluli-Meyer, Manulani, 150
Aboriginal law in Canada; denied by American Confederacy, 205
judges, 174 American law, 114, 191
Aboriginal leadership in Australia, 74, animals introduced into Hawaii, 136,
75, 77–8, 83, 87, xx 151
Aboriginal legal systems, 37, 56, 88,
Annexation Club, 140
89, 217, see also customary law
annexation of Hawaii by United
Aboriginal Olympic team, 91–2
States, 140, 141–2
Aboriginal organisations, 77–8, 79
anthropologists in land claims, 35,
Aboriginal political representation,
36, 40, 41, 46
89–92, 115, 276
anthropology, forensic, 41, 46
Aboriginal Provisional Government,
89–92 ANZAAS Conference, Adelaide
acceptability of witnesses in land (1980), 64
claim courts, 35, 41 Aotearoa, see New Zealand
Accession Treaty of Sweden, Finland Arawak peoples, 197
and Austria, 259 Area Assemblies (Solomon Islands),
Adivasi (India), 3, 5, 6 163
adversarial legal systems, 41, 67, 211, Armed conflict, Solomon Islands,
213–4, 217 1998-2000, 166–7
African Commission on Human and Arnhem Land, 34
Peoples’ Rights, 16 Arthur Andersen, 243
African Commonwealth nations; lack Arusha (Tanzania), 212
of participation in WGDD, 16, assimilation, 38, 40, 48, 49, 60, 173,
19, 29 250, xviii
agreements, 22, 120, 171, 172, 178, ATSIC, see also Aboriginal and Torres
179, see also legislative agreements Strait Islander Commission

280
Index

ATSIC Conference on National Policy bioprospecting, 230, 232, 235, 236,


(2002), 77 243, 245; in Australia, 241–4, 245
ATSIC National Women’s Conference biotechnology, 229, 235, 236,
(1992), 64 239–40; in Queensland, 241–3
Australia, Aboriginal affairs, 24, 74, biotechnology advantages from non-
77, 78, 90, xx; constitutional ratification of CBD, 230
limitations, 249, 268; Department Blount, James, 141
of Aboriginal Affairs, 24; Depart- bombing practice in Hawaii, 151–2
ment of Prime Minister and border crossing freedoms for Saami,
Cabinet, Indigenous Policy Unit, 250, 252
76–7; House of Representatives, Borroloola Land Claims, 36–8
Legal and Constitutional Affairs Botswana, 5
Committee, 85–6; legal systems, boundaries, national, 4, 6, 50, 52,
10, 37, 62, 67–71, 88–9, 218, 219 163, 197
(see also High Court of Australia); boundaries, traditional, 38, 195, 200,
Legislation: Aboriginal Land 249, 250, 257
Rights (Northern Territory) Act Bradley, John, 36, 38, 40
1976, 33; Commonwealth Brazil, 26, 234, 243
Electoral Act, 85; Migration Act Brennan, Frank, 84, 277
1958, 91; Native Title Act 1993, Brennan, Justice, 270, 277, xxii
24; Native Title Amendment Bristol-Myers Squibb, 240
Act1996, 25, 262; Racial British Columbia, 57, 181–4, 185,
Discrimination Act 1975, 67–70; 186, 268, 275, viii; see also
Sex Discrimination Act 1984, 67; Nisga’a Nation
Minister for Aboriginal Affairs, 37, British Columbia Treaty process,
76; participation in WGDD, 15, 183–4
16, 17, 20, 21, 24–6; self-determi- British sovereignty over Amerindian
nation policy, 24, 26, 52; settle- nations, 172–3
ment history, 48, 54; treaty, 268–9 British subjects, 121, 277
Buala Communique, 167
backlash against Canadian agree- burial site desecration in Hawaii,
ments, 183–5, 186, 189 145–6, 149
Bagyeli people (Cameroon), 5 Burke, Edmund views on constitution-
Bakgalagadi peoples (Botswana), 5 alism, 178–83
Bangladesh, 7; participation in
WGDD, 15, 16, 17, 19, 20, 21, Calder case (1971), 57, 181
23–4, 26; signatory to ILO Cameroon, 5
Convention 107, 16 Campbell, Gordon, 182–3
Barsarwa/San peoples (Botswana), 5 Canada, 170–89, 266–8;
Bayer AG, 230 Comprehensive Claims Policy, 23;
belated State-building (term), 118, Constitution, 173, 175–6, 177,
123, 124–5, 127, 128 180, 218. 266; Criminal Code,
benefit sharing, 229, 230, 236–44 267; Indigenous sovereignty within
Berman, Howard, 3 the nation, 3, 52, 279 (see also
bi-legal systems, 222 Nunavut Territory); Legislation:
Bill of Rights for Australia, 219, xxii Constitution Act 1867, 173;
Biodiscovery Discussion Paper Constitution Act 1982, 218, 266;
(Queensland), 231, 242, 243 Indian Act 1876, 173, 177;
biofraud, 236, 241, 243, 244 Parliament: Special Constitutional
biological diversity, 228–47 Committee, 175–6; participation in

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

community dispute management, (CERD), 22–3, 25, 67;


210–5 Recommendation XXIII, 5, 19
community justice initiatives, 58 Cook, Captain James, 135, 137
community traditional knowledge of cooperative programs in Nordic
genetic resources, 236–41 countries, 250
compensation, 65, 82, 237, 238, 240; COP, see Conference of the Parties to
in New Zealand, 123; in Solomon the Convention on Biological
Islands, 166–7; to Saami peoples, Diversity
255, 273 corruption, 79
competition over biological diversity, cosmology of Kanaka Maoli, 155
231, 232, 233, 237–8, 241–2 Costa Rica, 240, 243
compounds derived from biological Council for Aboriginal Affairs, 32
diversity, 230 Council for Aboriginal Reconciliation,
confederacies in America, 197, 205, 55, 84, 218–9, 268–9; survey, 77
206, 207, 208 Council of Europe, 259
Conference of the Parties to the Council of Ministers (Solomon
Convention on Biological Diversity Islands), 163
(COP), 231–5 courts, 35, 37, 41–2, 164, 213–4, see
conquered colony, 277, xvi also under names of individual
consent, see informed consent courts
conservation of genetic resources,
Cree Nation, 22
229, 232, 233, 235, 237
criminalisation, 47, 49, 50
constitution, Fiji, 163; Finland, 272;
Crown lands, 34, 88, 90, 92, 124,
Hawaii, 138, 139, 140; Norway,
132; New Zealand, 124, 132
255; Solomon Islands, 159–65,
cultural renaissance in Hawaii,
167–8, xx; United States, 113, 114
149–51, 152, 153–7
Constitutional Review Committee
cultural rights, 2, 13, 64, 66, 221,
(Solomon Islands), 167
222, 253, 274, see also
constitutional rights, 57, 108, 269,
International Covenant on
xx, xxi; Australia, 48, 56, 57, 70,
219, 249, 268, 279, xvi, xxii; Economic, Social and Cultural
British North American colonies, Rights; denied in Hawaii, 134,
172; Canada, 18, 21, 171, 173, 138, 145–6; of Saami, 253
175–80, 182, 266, 267; for Saami, customary law, 10, 210, 215, 217,
248, 251, 253–6, 259–60; New 222, xviii; in Australia, 55, 216,
Zealand, 23, 114, 121, 124, 126 218, 219; in Solomon Islands, 159,
(see also Treaty of Waitangi) 164, 165, 166
constitutionalism, 107, 171, 178–83,
xx decision-making processes, 5, 58, 96,
consultation rights, 4, 96, 265, 266 162, 193–4, 207–8
contractualism, 118, 120, 125–7 Declaration of Independence 1835
Convention for the Elimination of (New Zealand), 120, 131
Descrimination Against Women, 67 Declaration on Friendly Relations, see
Convention on Biological Diversity, United Nations; General Assembly;
228–33, 241, 244–5; non-ratifica- Friendly Relations Declaration
tion by United States, 230, 231–2, decolonisation, 21, 24, 32–33, 47,
245; Special Protocol (proposed), 126, 185–6, 190, 208, xxi
235–6, 239 Deeds of Settlement (New Zealand),
Convention on the Elimination of All 125
Forms of Racial Discrimination deep colonising (term), 32–33, 43, 49

283
Unfinished Constitutional Business?

deforestation programmes, 5, 263–4, Eisenhower, Dwight, US President,


275 151–2
Delgamuukw decision (Canada), 179, Elections, Australia, 85, 87, 91;
186 Canada, 183, 267; New Zealand,
Dene Nation, 174, 181, 183, 184 108–9, 110, 112, 114; Papua New
Department of Aboriginal Affairs Guinea, 162; Saami Parliaments,
(Australia), 24 249, 253–4, 256; United States, 113
Dialogues on Indigenous Rights in the employment, 51, 68–9, 84, 145, 242;
Commonwealth, 11, 12–13 merit system, 68–9; opportunities
differential citizenship (term), 58–9 through self-government, 84
discriminatory legislation in Australia, environment, 231, 257, see also
48–9, 62, 67 United Nations Environment
diseases introduced into Hawaii, 137 Programme
dispossession of indigenous popula- environmental damage, 4, 148,
tions, 5, 10, 38, 96, 219, 261–2, 151–3, 244
277, xvi environmental rights, 14, 90, 182,
dispute management, 58, 68, 69, 194, 221, 266
93–104, 159, 165, 210–27, xxii equal respect principle, 194
disputes over use of Saami land, equal rights, 14, 61–2, 83
263–5 equality before the law, 48, 49, 51
documentation of land claims, 42
ethnobioprospecting, 236–41
Dodson, Mick, 15, 55
European Community law, 259
Dodson, Patrick, 76, 268–9
European Convention on Human
Dole, Sanford, 142
Rights and Freedoms, 259
Draft Declaration on the Rights of
European Union, 5, 6, 259, 265
Indigenous Peoples (2000), 1,
exclusionary processes, 47, 48, 50,
13–28, 54, 65, 67, 259; Article 3,
62, 75, 107
3, 13–28, 170, 179, 215–6, xvii;
Article 8, 2, 29; Article 4, 14; lack
Federally Administered Tribal Areas
of Commonwealth participation, 6
Dukelow, Oliver, 153 (Pakistan), 21
Duro v Reina, 53 Ferdinand, King of Spain, 197
Fiji, 7, 15, 16, 17, 163
Earth Summit, Rio+10, Johannesburg, Fijian Council of Chiefs, 87
South Africa, 234 financial settlement of Treaty of
ecological sustainability, 243 Waitangi claims, 122, 132
economic effects of armed conflict in Finland, 253–4, 262–5; cases on
Solomon Islands, 166–7 Saami land rights, 262–5;
economic implications of biological Constitution, 253, 272; govern-
diversity, 230, 231, 232–6, 239–40 ment relations with the Saami,
economic rent for biological diversity, 253–4, 265; Legislation: Act on the
232, 233, 235, 236, 239, 243, 244 Use of the Saami Language before
economic rights, 2, 13, 32, 83, 124, Public Authorities 1991, 253;
194 Mining Act 1965, 264–5;
Ecumenical Coalition for Third World Parliament Act 1991, 253; Saami
Tourism, 147 Act 1996, 253
educated Indigenous people in land First Nation delegates to Maine
claims, 40, 41 Parliament, 106, 108, 112–13, 114
education, Hawaii, 149–50, 153–4; of First Nation Indian-European
Saami, 258, 266 relations in North America, 171–2

284
Index

First Nation sovereignty, 113, 114, Harare Commonwealth declaration,


129 1991, 6, 7
fishing rights, in Canada, 185, 275; Harjedalen dispute, 261, 274
Norway, 252, 255; Sweden, 260 Havemann, Paul, 59, xv
forensic anthropology, 41, 46 Hawaii, treatment of Indigenous
Foucault, Michael, 53, 74 people, 133–58
Framework Convention for the Protec- Hawaii Declaration, 147–8
tion of National Minorities, 259 Hawaiian Homes Commission Act,
Framlingham (Victoria), 90 143
free speech rights, 75, 76 healers, traditional, 10
Friday, Graham, 37 health and well-being through self-
fund from net sales of biotechnolo- determination, 203, 208
gies, 236 Helm, George, 153
Herron, John, 76
genealogies, 35, 39 High Commissioner for the Western
General Agreement on Tariffs and Pacific, 160
Trade TRIPS agreement, 233 High Court of Australia, 24, 82, 84,
genetic resources, 228–47 261, 267, 268, 270, xvi
Genetically Modified Organisms, High Court of Solomon Islands, 164
243–4 Hoa Aina O Makaha (Oahu), 153–4
Geronimo, 206 Hokulea (Hawaiian development
Geve, Fr Augustine, 166
project), 149
Ghana, 7
Hokulea (Kanaka Maoli canoe),
global Indigenous movements, 198,
150–1, 155–6
199, 206–7
Homelands, Hawaii, 143, 145, 148
globalisation effects, 50, 221, 222,
Honiara, 163, 166
260–1
hotel construction, Hawaii, 145–6
governance, 3, 9, 48, 53, 58, 63, 121,
housing, Hawaii, 146, 148
184, xv, xviii; Hawaii, 138;
Howard Government (Australia);
Solomon Islands, 159–69
governance, Indigenous, 3, 48, 51, 55, attitudes to Indigenous issues, 25,
56, 63–7; Canada, 179–82, 248, 74–81, 83; opposition to Article 3
267 (see also Nunavut, Nisga’a); of Draft Declaration, 17, 21, 24,
New Zealand, 120, 121, 124; 55
Solomon Islands, 161 Howard, Jeanette, 77
government in Hawaii, loss of Howard, John, 76
Kanaka Maoli representation, 138 human rights, 107, 198, 221, see also
Gray, Justice, 36–7 Commission on Human Rights;
Guadalcanal Liberation Front, 166 National Human Rights
Guadalcanal Provincial Assembly, Institutions; international law, 1, 9,
163–4 28, 133, 210, 214, 217, 220,
Guadalcanal Revolutionary Army, see 221–2, 262–6; international laws
Isatabu Freedom Movement in domestic legislation, 222
guaranteed political representation, Human Rights and Equal
107, 108, 110, see also identified Opportunity Commission
Parliamentary seats (Australia), 69
Guyanese Amerindians, 5 Human Rights Committee (UN), 4, 7,
22, 156, 220, 262–3, 264, 265
Hall, Dana, 146 human rights in Hawaii, advocates
Hall, Harry, 78 for, 141, 142, 144; loss of, 137–40,
Hanson, Pauline, 75, 76, 81 143–45

285
Unfinished Constitutional Business?

hunting rights, Norway, 252, 255; informed consent, 4, 5, 19, 52–3,


Sweden, 260 101–2, 126, 171, 234, 239, 241
hydroelectric power plant, Alta, intellectual property holders, 236
Norway, 255 intellectual property rights, 10, 66,
228, 233, 236
ICCPR, see International Covenant on International Bill of Rights, 133, see
Civil and Political Rights also International Covenant on
ICESCR, see International Covenant Economic, Social and Cultural
on Economic, Social and Cultural Rights (ICESCR), International
Rights Covenant on Civil and Political
identification with country, 39 Rights
identified Parliamentary seats, 106 International Cooperative Biodiversity
identity, 38, 39, 40, 84, 86, 91, xxi; Groups (ICBG), 231
proof of, 35–6, 43 International Court of Justice, 220, 278
Inari Court of First Instance, 263 International Covenant on Civil and
INBio, 240, 243 Political Rights (ICCPR), 216, 220,
incorporation process, 33, 38 221, 249, 255; Article 1, 1, 14, 19,
Independence Constitution (Solomon 216, 250; Article 27, 4, 253, 259,
Islands), 159 260, 262, 263, 264, 265
India, 5, 7, 16; participation in the International Covenant on Economic,
WGDD, 16, 17, 20, 29
Social and Cultural Rights
Indian lands obtained for setlement in
(ICESCR), 7, 220, 221, 249;
Canada, 174
Article 1, 1, 14, 19, 250
indigeneity, 195–200; definition,
International Decade of the World’s
191–2
Indigenous People, 15
Indigenous and Tribal Populations
international human rights law, 1, 9,
Convention 107 (1957), 7
28, 133, 210, 214, 217, 220,
Indigenous autonomy within nations,
221–2, 254, 255, 262–6, xxii
2, 3, 22, 57, 86–92, 107, 175–8,
International Indigenous Women’s
179, 190
Indigenous dispute resolutions, 210–27 Conference (1989), 64
Indigenous leadership, 23, 87, 95, international intellectual property
139–42, 162–5, 167, 199, see also protection, 233
Aboriginal leadership International Labour Organisation,
Indigenous peoples, definition, 2, 11, 4, 6, 7, 257; Convention 169
18, 24, 210, 251, 277 Concerning Tribal and Indigenous
Indigenous political representation, Peoples, 4, 18, 251, 255, 257–8,
106–15 259, 268, xxi
Indigenous sovereignty, 113–4, 172; international law, 1, 222
in Australia, 54, 64, 82, 83, 86–92, influence on domestic Indigenous
277 policies, 222, 269; sovereignty, 52
Indigenous women, 61–73, 62–7, 69, International Organisation of
70 Indigenous resourc development, 19
Indigenous-State relations, 22, International Plant Medicine
118–32, 171 Corporation, 238
individual rights, 2, 11 international policing, 53
individual sovereignty, 193 International Work Group for
Informal Intersessional Consultation, Indigenous Affairs (IWGIA), 3,
Geneva, 2002, 28 16–17, 21, 23
information as a commodity, 232–3 intertidal zone claims, 38

286
Index

Inuit governance, 3, 22, 180, 248, dispossession of traditional owners,


249, 267–8 5, 10, 38, 96, 219, 261–2, 277,
Inuktitut language, 180 xvi; Hawaii, 138–9, 144, 148–9,
Isaac, Annie, 33 152–3; identification with, 5,
Isatabu Freedom Movement, 166 195–7, 207–9
Islands in the Sun: the legal regimes land claims, Australia, 34–8,
of Australia’s external territories xvii–xviii; Canada, 177, 179, 180,
and Jervis Bay Territory, 86 181, 184, 270; Hawaii, 151–2;
IWGIA, see International Work New Zealand, 118–27
Group for Indigenous Affairs Land Commissioners, 34, 36–7
IWGIA report, 23, 27 Land Councils, 32, 34, 40
land rights, 4, 5, 16, 32, 33–4, 65,
Johnson, William, 172 121, see also native title; Australia,
Jones, Roger, 177–8 25, 33–46, 49, 51, 65, xvii–xviii;
Judd, Gerrit P., 138, 139 Canada, 22, 173–4, 180–2; for
Judicial and Legal Services Saami people, 248, 249, 252, 255,
Commission (Solomon Islands), 164 257–8, 260–5, 268
Jumma people (Bangladesh), 24 land title, 65, 121, see also native title
justice systems, 41, 48–51, 54–9 landowners in Queensland and
biological diversity, 241
Ka Pae Aina, see Hawaii Langton, Marcia, 65
Kahoolawe, Hawaii, 151–3 language, banning of Hawaiian
Kailua, Hawaii, 148–9 language, 149; immersion schools
Kalakaua, King David, 139 in cultural revival in Hawaii,
Kalkaringi Statement, 56 149–50; Inuktitut official language
Kamehameha V, 139 of Nunavut, 180; Maori and
Kanaka Maoli, 133–58 English versions of Treaty of
Keke, Harold, 166 Waitangi, 121, 130; non-English
Kenbi Claim, 40 speaking Maori MPs, 109; political
Kenilorea, Sir Peter, 167 use of, 74–5, 76; use of Saami
Kennedy, John, 206 language in Finland, 253, 254,
Kenya, 5, 16, 17 266, 272; vernacular languages in
Kerr, Duncan, 85–6 Solomon Islands, 159, 160
Kimberley community, 90 language schools, 149–50, see also
Kimberley Land Council, 57 Kula Kaiapuni Hawaii school
King, Martin Luther, 206 Lansmen case, 262–4, 274
Kingstown Declaration on Land and Lapp Codicil 1751, 252, 272
Development, 10 Lapp Nation, 252
kinship in Maori disputes, 95, 96, 99, Law, see also and legislation under
100, 102 jurisdiction; common law;
kinship structures, 39, 66 customary law; international law
knowledge, traditional, 40, 41–2, 66 Law Reform Commission of Solomon
Koori Grapevine 2002, 77 Islands, 165
Korsmo, Fae, 252, 269 laws in Australia, 36, 37, 54, 66–8,
Kuhio, Prince Jonah, 143 84, 88–9, 91; movie made by
Kula Kaiapuni Hawaii school, 150 Yanyuwa people, 46
laws of nature, 201
Labrador Inuit, 184 lawyers, 35, 36, 40–1, 211
Land, as the basis of Indigenous leadership, 23, 78, 87, 95, 139–42,
economy, 83, 88, 90, 239–41; 162–5, 167, 199

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

attempts to extinguish, 23, 25; Northwest Territories (Canada), self-


Australia, 249, 261, 278; in government negotiations, 181
Canada, 23, 57, 174, 180, 181 Norway, Constitution, 254; govern-
Native Title Act, 1993, 24, 262 ment relations with the Saami,
Native Welfare conferences, 60 254–5, 260, 272; Legislation:
Natural Products Alert Website Finnmark Act 2003, 254, 255,
(NAPRALERT), 237, 238, 239 xxi; Human Rights Act 1996, 254;
Nault, Robert, 184 Reindeer Husbandry Act 1996,
navigators in Hawaii, 150, 151 252, 272; Saami Act 1987, 252
negotiation of agreements, 22, 54, Norwegian Society for the
65–6, 179 Conservation of Nature, 260
neo-colonialism (term), 47, 48, 49–51 Novartis, 243
New South Wales Legislative Council Nuclear Free and Independent Pacific,
Inquiry (1998), 106, 115 154
New Zealand, Legislation: Maori nuclear technology, 244
Land Act 1993, 93, 97–100; Maori Nunavut Territory, 3, 22, 180, 248,
Land Amendment Act 2002, 249, 267–8, 269, 270
100–4; Maori Representation Act Nuu-chah-nulth Tribal Council on
1867, 269; Runanga Iwi Act 1990, Vancouver Island, 184
97; Treaty of Waitangi Act 1975, Nysto, Sven-Roald, 249, 250, 255, 260
218; Maori seats in Parliament,
106, 108–12, 269; Maori-state Ogiek (Kenya), 5
relations, 96, 118–27; Olympic Games, 91–2
Parliamentary Electoral Law One Nation Party, 75, 76
Reform Select Committee, 112; Orang Asli (Malaysia), 3
participation in the WGDD, 16, Organisation of American States, 6
17, 20, 23, 26 ownership of conflict, 211, 213
Ngai Tahu Claims Settlement Act ownership of Saami lands in Finland,
1998, 119, 122, 123–5, 132 263–5, 268
Ngati Turangitukua Claims Settlement ownership-sharing over genetic
Act 1999, 119, 122 resources, 238, 239–40
Nigeria, 16, 17
Nisga’a Nation Agreement with Pacific Order in Council 1893 (UK),
Canada and British Columbia, 160
181–4, 186, 266–7 paclitaxel, 230
nomadic pastoralism, 268, see also Pakistan, 7, 107; participation in the
reindeer herding rights WGDD, 16, 17, 20–1
Nordic Council, 258–9 palm oil production, 167
Nordic nations, 26, 248–76, see also Papua New Guinea elections, 162
Finland; Norway; Sweden Pascoe, Bruce, 79–80
Norfolk Island, 57, 85–7, xvii passports for Indigenous people, 91
Norman, Dinah, 33 pastoral leases, 25, 65
Norman, Leonard, 33 patrilineage, 38
North American Coordinate Center peace education, 153–4
for Responsible Tourism, 147 peaceful protest by Kanaka Maoli,
North Australia Research Unit, 90 134, 140–1, 144, 153, 154
Northern Territory Aboriginal Pearl Harbour naval base, 143, 151
Constitutional Convention (1993), penology, 217
56 Pfizer Inc, 230
Northern Territory Government, 36, 37 Pitcairn Island descendants, 57, 85

289
Unfinished Constitutional Business?

plant patents, 238–9


poem: ‘The politics of a racist game,’ racism, 62–3, 67–70, 76, 82, 199, see
[v], vi also systemic racism
police in Indigeous communities, 57 anti-racist strategies, 64
policing, 47–60, xviii racist policies, 48, 50, 51, 62
political rights, 2, 21, 51, 83–90, 107, rangatiratanga (Maori assets), 121–2,
221, 249, 266 124
political status, 1, 13, 22, 47, 50–1, Reconciliation Convention (1997), 76
55, 64, 134, 137–8, xvi; of Saami reconciliation in Australia, 25, 249,
peoples, 252–6, 259–60, 270 268–9, 279, see also Council for
Polynesian culture, 135 Aboriginal Reconciliation
Position of the Indigenous Delegates Redfern community, 90
on Self-Determination, 13 referendum 1967, 48
Pouakani Claims Settlement Act regional agreements, 57, 181, 249
2000, 119, 122 Regional Assistance Mission to the
prevention of non-ratified CBD Solomon Islands, xx
countries from economic advantage registration of traditional landowners,
in biotechnology, 235–6 33, 34–5, 39, 43
Price-Anderson Act (US), 244 reindeer herding rights, 251, 252,
principle of strongest has right to 258, 259, 262, 268, xxi; Finland,
prevail, 190–1 253, 254, 262, 263–5; Norway,
Principles for Crown action on the
252 , 255, 260, 272; Sweden, 260,
Treaty of Waitangi, 122
261, 274
prisons, 219
Reindeer Husbandry Act 1996
privatisation of genetic resources,
(Norway), 252, 272
228, 244
religious imperialism, 136, 137, 138,
Privy Council Judicial Committee,
148, 190, 192, 197, 198–9
1888, 174
religious rights, 13, 14, 66, 152, 262
promotion of biotechnology, 244
removal of children, 38, 55–6
property rights, 211–2, 229
protection of Maori assets, 121 reservations, Canada, 22
Provincial Council (Solomon Islands), resource management, agreements
163 with Indigenous peoples, 184;
public domain, 237–8 ahupaa model in Hawaii, 135,
punishment, 217–8 136; joint Maori-State participa-
Pushmataha, 205 tion, 124
Pyro, Jimmy, 33 Revised Draft Universal Declaration
on the Rights of Indigenous
Québec and Cree Nation agreement, 22 Peoples, 13
Québec nationalism, 18, 175–6 right to self-determination, 1–2, 3,
Queen of England, 160, 161 13–31, 52, 54, 186, 216, 220, 249,
Queensland, citizenship rights on 250, 255, xvii; Australia, 17, 55,
reserves, 60; competition over 56, 218; Canada, 21, 170–89;
biological diversity, 241–2; indige- Saami people, 251–2, 255
nous seats in Parliament right to work, 51
(proposed), 276; Legislation: rights, see also Draft Declaration, and
Nature Conservation Act 1992, 243 specific rights
Queensland Biodiscovery Policy Rio ‘92, 231
Discussion Paper, 242, 243 riots at Old Parliament House,
Queensland Legislation Review Canberra (1996), 75–6
Committee (1991), 56, 57 road construction, Guyana, 5

290
Index

road construction destroying (see also rights to self-determina-


Indigenous lands, 5, 34, 84 tion)
Robinson, Mary, 12–13 self-government, 2, 14, 20, 22, 249,
Rose, Deborah, 33, 35–6, 49 278, see also indigenous sover-
Rovaniemi Court of Appeal, 263–4 eignty; for Saami, 252, 258, 266;
Royal Botanic Gardens-Kew, 240 in Australia, 54–7, 65, 82–92, 219;
Royal Commission into Aboriginal in Canada, 3, 22, 57, 171, 176–85,
Deaths in Custody, 54; Queensland 267; in Hawaii, 141, 149
Regional Report, 219 self-identification, 2, 35, 84, 191
Royal Commission on Aboriginal settled colonies, 54, 173, 277, 278, xvi
Peoples (Canada), 170, 177, 178–9 shaman, 240–1
Royal Commission on the Electoral shared government, 106, 171
System (1986), 111 Sir Edward Pellew Group of Islands,
Royal Proclamation of 1763 giving 36
constitutional arrangements for Skattefjall, see Taxed Lapp Mountains
British North American posses- Case
sions, 172, 173, 177, 181 social justice in Australia, 15, 55
royalties, 65, 90 social service delivery in Australia,
from biological diversity, 231, 232, 64–5, 90
235, 238, 239, 240, 242–3 Society of Pitcairn descendants, 85–6
Russian Saami, 251, 271 socio-economic status, 64
Solomon Islands, government,
Saami Conference, 258–9
159–69; Legislation: Customs
Saami Consultative Committee, 254
Recognition Act 2000, 164; Local
Saami Convention, 259, 270
Courts (Amendment) Act 1985,
Saami Parliaments, 248, 254–5, 256,
165; Local government Act 1964,
258, 259–60, 262, 269, xxi
163; Provincial Government Act
Saami peoples, 248–76, xxi
1981, 163
sacred site protection, 34, 66
Solomon Islands Independence Order,
sacred sites, 195–6; Hawaii, 145–6,
147, 152 1978, 160
safeguarding communitarian rights, South Africa
218–9, 222–3 South Dakota decision to take
sale of Maori land, 109 Indigenous lands, 208, 209
San (Bushmen), 16 South Island, New Zealand, 132;
Sápmi (Saami territory), 251 legal agreement, 119, 123–5
Saxon-American dispute management, sovereignty, 47, 51–4, 190, 192–3,
212 203–7, 208, 277–9, xviii; Canada,
Schedule 1 grants for Aboriginal land, 174–5, 176; Hawaii, 143;
34–5 Indigenous sovereignty, 54, 64, 82,
Scheinin, Martin, 259, 262, 263, 264 83, 86–92, 113, 119, 277; New
Scott, Kim, True Country, 78–9, 80 Zealand, 23, 121; over genetic
sea rights, 65, 267 resources, 229, 231, 232, 235
Seccombe, Mike, 77, 81 Saami people, 251
secession, 2, 20; proposals in Canada, Spain, 26
175, 176, 188 spiritual relationship with natural
Secoya community (Ecuador), 238–9 world, 135, 136, 146, 147, 153–7,
secrecy over ethnobiology not in 194, 198, 201–2
public domain, 238 spiritual rights, 2, 13, 35, 65, 66
self-determination (term), definition, Sproat Ohana, 154–5
106–7, 190, 192, 200–3, 249–50 Sri Lanka, 17

291
Unfinished Constitutional Business?

Statehood convention, Darwin traditional knowledge of ethnobi-


(1998), 56 ology, 236–41
statehood for Hawaii, 143 traditional landowners, 33, 34, 42, 64
Stevens, John L, United States Trask, Haunani Kay, 137, 138–9
Minister, 140 treaties, 51, 52, 70, 119, 120, 128–9,
stolen generation, 25, 38–40, 76–77, 139, 172, 180, 278
268 treaty, between Saami, Norway and
Strathclyde Institute for Drug Sweden, 252; in Australia, 70, 77,
Research, 240 268–9, 278–9; in Canada, 177,
Stromstad Treaty which defined 278
Swedish–Norwegian borders, 271 Treaty of Waitangi, 9, 23, 96, 111,
Sub-Commission on Prevention of 112, 114, 117, 119, 120–4, 126–7,
Discrimination and Protection of 129, 130–1, 278, xvi
Minorities, 14–15 Treaty on the European Economic
sugar companies in Hawaii, 143 Area, 265
Supreme Court of Canada, 23, 185, tribal allegiances, 159, 160, 162, 166
188, 189 Trudeau, Pierre, 176
Supreme Court of Norway, 260
Supreme Court of Sweden, 260 Ulufa’alu, Bartholomew, 166
Surinam, 240 United Airlines, 145
sustainability of cultures, 190
United Kingdom, annexation of
sustainable development, 10–11
Hawaii, 136, 138; government of
Svensson, Tom G., 248, 249, 269
Solomon Islands, 160; participa-
Swan Valley Noongar Community, 77
tion in the WGDD, 16, 17, 20, 27;
Sweden, cases on Saami land rights,
self-determination policy, 27
260–2; government relations with
United Nations, 7, see also
the Saami, 255–6, 257, 260, 261
Committee on Economic, Social
Switzerland, 26
and Cultural Rights; Human
systemic racism, 69
Rights Committee and other
tainted evidence (term), 40 organisations under its jurisdiction;
Tanzania, 17, 212 Charter, 19, 20; Declaration on
taro (sacred plant of Kanaka Maoli), Granting Independence to Colonial
135, 147, 153, 156 Countries and Peoples (1960), 185;
Taxed Lapp Mountains case, 251, General Assembly, 156; Friendly
260, 271 Relations Declaration, 20, 21, 28;
taxonomy, 235 Secretary-General’s report, 2002,
Tecumseh, 205 25; High Commissioner for
terra nullius, 24, 182, 278 Human Rights, 12–13; Security
territorial integrity, 19–20, 21, 23–4 Council, 220; World Summit on
Thailand, 212 Sustainable Development (WSSD),
Thompson, Nainoa, 150 10
thought, 202–3 United Nations Environment
tikanga Maori (law), 99, 100, 102 Programme (UNEP), 231
Toohey, Justice, 36 United Nations International Decade
Torres Strait Regional Authority, 57 of Indigenous People, 258
Tourism, Hawaii, 143, 145–8 United Nations List of Non-Self-
Townsville Agreement, 166 Governing Territories, 143
traditional connections with the land; United Nations Working Group on
Australia, 261–2 Indigenous Populations, 258

292
Index

United States, Constitution, 113, 114, WGIP, see Working Group on


205; National Register of Historic Indigenous Peoples
Places, 152; Navy, 140, 151–2; White Australia policy, 62
non-ratification of CBD, 230, white government in Hawaii, 140
231–2, 245; recognition of White House, Washington, 156
Indigenous sovereignty, 52 white male supremacy, 62, 67, 68, 69
United States in Hawaii, 139, 140–9,
white race privilege, 62–3, 66, 68–71,
151–3
see also colonisation
United States Supreme Court, 53
Universal Declaration of Human Whitlam Labor government
Rights 1966, 220–1 (Australia), 24
University of Illinois–Chicago, 240 Williams, Nicole, [v]–vi
urban Indigenous people, 40, 97, 118 Wilson, Woodrow, US President, 142,
143
values, 153–7, 196–7, 200, 206 women, 61–73, xviii; in land claims,
Vancouver, Captain, 136 33, 39–40
Venezuela, 234, 245 women’s conferences, 64–5, 67, 70
Vienna Declaration and Programme Working Group on Indigenous
of Action, 19 Peoples (WGIP), 1, 2, 13–15, xv
violence, Government reaction to, 76
Working Group on the Draft
visionaries, 205–6
Declaration on the Rights of
voting in elections, 85, 108; Hawaii,
139; Pakistan, 21; Solomon Indigenous Peoples (WGDD), 1, 3,
Islands, 162 15–29
World Bank, 5
Waikato Raupatu Claims Settlement World Conference on Human Rights
Act 1995, 119, 122–4, 125, 132 1993, 19
Waikiki, 147 World Conference on Women, Beijing
Waipa Ahupuaa Learning Center, (1999), 67
154–5 World Summit on Sustainable
Waitangi Tribunal, 122 Development, 10
Warnarrwarnarr-Barranyi Claim, Wowovka, 206
36–7
WSSD, see World Summit on
weapons in Hawaii, 136
Sustainable Development
welfare policies, 51, 278
Western political systems, in Hawaii,
136, 137, 139; in Solomon Islands, Yanyuwa people, 33, 36–40, 46
159, 160–3, 167 Yorta Yorta people, 276, xvi
Western Sahara case, 277, 278 Yukon self-government, 180–1
WGDD, see Working group on the
Draft Declaration Zimbabwe, xvi

293

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