Visions of the Future: The Prospect for Reconciliation
Reconciliation, like self-determination, is a buzz word in Indigenous circles. The co-existence of different cultures within a single, modern pluriethnic state, requires agreed upon understandings of the meanings of these terms - but this poses a problem for those Indigenous peoples who have adopted the rhetoric of self-determination as it applies in international law. In a western political tradition, self-determination is a concept without an ethnic dimension. It is about land and not people. It refers to the territory of the world's two hundred or so nation states but not the several thousand ethnic minorities who claim similar nationhood and a state of their own.
For many Indigenous peoples, self-determination is autonomy, being able to set one's own agenda on one's own land. In legal parlance, it is secession, or more specifically, external self-determination. The related term, reconciliation, is recognition and respect for differing ways of being, of perceiving the land, and of modernity. Reconciliation therefore implies internal self-determination and, for some Indigenous peoples, there is a fatalistic quality to the term. It suggests compromise, and resignation to an existence within the framework of an existing territorial state. But for others, reconciliation suggests that Indigenous people have a bargaining position in their dealings with governments: that notions of territoriality, cultural practice, and ideas of development, are in conflict and must be reconciled for the greater good.
The term reconciliation means many things to many different peoples, and for it to become a reality - not just a lofty goal -there must be implemented significant structural and societal changes. The situation of Indigenous peoples varies greatly. Most are a long way from achieving either internal or external self-determination, even though the satisfactory resolution of internal dissent is a priority for governments and Indigenous peoples alike. In some settings, colonial doctrines of legitimization still form the conceptual basis for the relationship between governments and Indigenous peoples - and neither self-determination nor reconciliation is on the horizon. For the Ituri forest peoples of the Congo, for example, there is a complete denial by government, of Ituri rights of prior occupancy. The original inhabitants are viewed as illegitimate occupiers of territory and not worthy of the rights of the `civilized'. Consensual incorporation into the state is rare indeed and, in many instances, the marginalized underclass status of many Indigenous peoples will not change without, at a minimum,the establishment of democratic governance. In the case of Native Hawaiians, the Amungme of West Papua and so many other peoples, the dominating `other' has acquired sovereignty `illegally' through its own imposed constitutional laws, and it is only `alien' governments that speak of reconciliation. For Indigenous peoples in such circumstances, self-determination is synonymous with secession (or external self-determination), even though the possibility of such an outcome is extremely limited. In Canada, where reconciliation is an important item on the national agenda, there is a willingness by the government to investigate the evolving relationships between Aboriginal peoples, governments, and society at large - even though the forms of reconciliation being pursued are not always what the Indigenous peoples themselves envisage for their own futures. Negotiated agreements on land rights are being pursued in British Columbia; a new political jurisdiction with an Inuit majority has been inaugurated (Nunavut); and the consociational arrangements in the western Northwest Territories are inspiring new forms of ethnic governance elsewhere in the country, and there is a momentum of reform that is unparalleled - even while Quebec pursues independence, and the United Nations condemns Canada for its failure to implement the findings of its own Royal Commission into the embattled status of its Indigenous nations.
International law stresses stability over disintegration of states and most international legal opinion is that the right of self-determination does not include the right to secede. This is a recourse of last resort - if internal self - determination is denied - and oppression and discrimination persists. For some governments the issue of self-determination begins and ends with this threat of dismemberment of the state. While some indigenous peoples define self-determination in this way i.e. as full independence, most now take a functional approach - the right to control their institutions, territories, resources, social orders and cultures without interference, and the right to establish their relationships with the dominant society on the basis of consent. Eight significant external influences in the trend include:
- Amendment of national constitutions and the pursuit of a multicultural agenda stressing mutual understanding and co-existence.
- Activist Supreme and High Court decisions. In the absence of progressive action by the legislature, the impetus for the recognition of native sovereign rights has often come from court decisions, in particular Australia, the Philippines, New Zealand, and Canada.
- Lending policies of organizations such as the World Bank.
- International Year and Decade of the World's Indigenous Peoples, and the Year 2000 International Year of Culture and Peace, which stress partnerships between Indigenous peoples and states, and the important potential contribution of Indigenous people through their traditional knowledge, creativity, and unique cultural and artistic heritage.
- The policies of multinational corporations towards indigenous peoples. Under pressure from human rights groups, multinational corporations are sharing ideas and adopting policies of best-practice in their dealings with Indigenous peoples.
- International covenants like the ICCPR, ICESCR and ILO 169. Some States are signatories to, and have obligations to observe, instruments, which promote the voice and vision of Indigenous peoples through a process of consultation. Internal self-determination (reconciliation) is mandated in the Draft Declaration on Indigenous Peoples.
- The ubiquity of a human rights discourse amongst Indigenous peoples and ethnic minorities and, concomitantly, of the necessity for the recognition of group as well as individual rights in international covenants.
- The 1998 report by UN Special Rapporteur Miguel Alfonso Martinez on treaties, agreements and other constructive arrangements between States and Indigenous peoples.
The aim of this nine year study by Martinez was to analyze the role of treaties in the history of European overseas expansion, to look at the contemporary significance of such instruments, and to examine their potential value as the basis for governing future relationships between Indigenous peoples and States. His view? Promote the establishment of an international conflict-resolution mechanism on indigenous issues through the UN: `modalities for redressing the effects of the historical process of land dispossession suffered by Indigenous peoples and the implementation/observance of indigenous treaty rights.' (Martinez 1998)
He indicated that it is the unanimous opinion of geographically dispersed Indigenous peoples that existing state mechanisms are unable to satisfy their aspirations. There is a widespread desire by Indigenous peoples to establish a solid, new and different kind of relationship with States, quite unlike the acrimonious and adversarial relations that have marked previous relations. Either there needs to be full compliance with existing treaty documents, or entirely new instruments need to be negotiated with the full participation of Indigenous people.
There is also a significant external push in the direction of reconciliation as a consequence of the burgeoning sales of Indigenous arts and crafts on a global market, the booming business of ecotourism on remote tribal lands, and the flowering of `new age' movements tapping into Indigenous `energies' and `integrity'. In these cases, the proscribed interaction is often based on the assumption that Indigenous peoples have sovereign rights to the lands they occupy, whether or not their title, or even their presence, is `officially' recognized.
Indigenous peoples are not passive respondents to these external stimuli. They are actively pursuing self-determination through all available means and mass communication and the electronic transfer of information is facilitating the sharing of ideas and strategies. This issue of the Cultural Survival Quarterly is based on such a premise.
One of the few avenues for pursuing change at the domestic level is by appeals at international forums in Geneva of New York, and more and more Indigenous people are availing themselves of this opportunity. It is often threats to a nation's international standing - through embarrassing revelations of poor treatment of domestic Indigenous populations - that inspires reform at home. But the powers of Indigenous peoples to direct this process along specific desired paths are limited. Consider Aboriginal Reconciliation in Australia. Even though a priority of government and of many Indigenous nations, the process has faltered because the Prime Minister has refused to apologize to Aborigines for past injustices, even though this is an essential stage of the reconciliatory process. South Africa's Truth and Reconciliation Commission, likewise, was heralded as a necessary part of the healing process for a divided nation, but bitterness surrounds the awarding of amnesty to the perpetrators of hate crimes. The Philippines Indigenous Peoples Rights Act 1997, a landmark piece of legislation acknowledging the rights and freedoms of Indigenous tribes, has been ruled unconstitutional by the Supreme Court because it is contrary to the regalian doctrine - -a law which once justified Spanish colonial expansion. Guatemala's Historical Clarification Commission, the recently completed referendum on independence for East Timor, and Mexico's San Andres Accord, are also spoken of as potentially ground-breaking reconciliatory acts. In the later case, even though the Mexican Government initiated a process of reform following a civil uprising by Zapatistas, the current regime seems unwilling to take part in a re-thinking of internal arrangements in states with substantial Indigenous populations. A stalemate ensues and will not be overcome until there is some sort of federal devolution of power.
Preconditions for Internal Self-Determination
The type of reconciliation envisaged by many Indigenous peoples has four major dimensions or aspects:
The first is the religious dimension, and there are several significant indigenous models that provide guidelines for indigenous visioning. Perhaps one of the most widely known was North America's Iroquois Confederation. In about the fifteenth century, five nations (Mohawk, Oneida, Onondaga, Cayuga, and Seneca) developed a sophisticated confederacy, a sort of league of nations, in which notions of liberty were absolute and there was no kind of superiority of one nation over another. Banished were all notions of servitude (Maybury-Lewis 1992:240). An alliance stressing unity in diversity, the confederacy, guided by the Great Law of Peace, protected its member nations from external threats. In 1664, the Iroquois were intending to send a peace embassy to the French, to begin the process of uniting Native Americans and Europeans under the great law, but the reconciliatory party was ambushed by Algonquian allies of the French, and the opportunity for a lasting rapprochement between Aborigine and Settler in North America was lost.
International law aided and abetted the domestication of relations with Indigenous peoples through the recognition of treaties of cession and concepts such as the law of nations, the doctrines of discovery and conquest, terra nullius, and the standard of civilization. Settler societies became successor states, and as a consequence, Indigenous peoples have had to endure administrative control, dispossession from their territories, forced assimilation, and genocide in some instances. One might wonder how reconciliation could still have a sacred dimension in such settings. And yet for New Zealand's Maoris, the 1840 Treaty of Waitangi is a revered document. In the 1970s, Maori united and demanded justice and adherence to the sacred principles of this hallowed charter, inspiring widespread cultural revitalization and renewed interest in concepts such as Whaau - extended family, Hapu - sub-tribe, Iwi - tribe, and Waka - origins. Across the Tasman Sea in Australia, it is often said by Aborigines that only when there is respect and recognition for the sanctity of the Dreaming, or traditional Aboriginal religion, will there be any possibility of a rapprochement between `black' and `white' Australians (McIntosh 1999). And in places such as the Northern Territory, Aboriginal oral history and sacred tradition are accepted as evidence in land claim court hearings - an important first step in this process.
The second dimension of reconciliatory preconditions is for Indigenous people to speak with one voice and overcome the bitter legacy of the colonial policy of divide and rule. At the grassroots level, talk of secession and even armed struggle is prevalent in many instances. However, emphasis is also being placed by representative bodies at more inclusive levels of membership, on internal self-determination or reconciliation, as a means of securing what Martinez refers to as `the preservation, promotion and effective realization of the historical rights of indigenous peoples, including their human rights and freedoms'. Yet, this process of affirming traditional rights while pursuing a pan-Indigenous agenda is often divisive.
The third precondition is for Indigenous people to be fully involved in the political and economic life of a nation. In terms of development, the key considerations are consultation and informed decision-making - with full knowledge of the anticipated social and economic impacts. At present, the approach of development agencies ranges from: 1. viewing Indigenous people as being unworthy of negotiation, and the total disregard for their rights; 2. coercion and perhaps bribery of key Indigenous leaders with the resulting divisive splits in a community; 3. persuasion with compensation; and 4. where planned projects are in line with the Indigenous group's economic and social development plans. This latter approach is a desired outcome of the reconciliation process, and Indigenous populations such as the Guambiano of Colombia have devised a `Plan de Vida' or `Program of Life', in which they dictate the terms of their engagement with the outside world in their own time and in their own way.
The final precondition for reconciliation is the development of international standards concerning Indigenous peoples. While UN covenants stress internal self-determination, there is no clear understanding on how to facilitate a reconciliation process, except through the provision of a conflict resolution measure at an international level - which of course is an important start. In different settings, different priorities obtain. In West Papua, the path to reconciliation can only begin by ending government-inspired terrorism; in Australia, a necessary prerequisite is land rights and compensation; for the Bedouin of Israel, it is having access to health, education and other services; for the U'wa of Colombia, it is perhaps being left alone; and for the Taino of Puerto Rico and Cuba, it is about proving one's continued existence as a people. In a case such as the Jarwas of the Andaman Islands, the first step is to begin a dialogue - for the Government and these Indigenous people have been in the precarious situation of first contact for many years.
Once all these preconditions are met, only then can the reconciliation process begin and new forms of political association developed between Indigenous peoples and states. But there are significant obstacles.
- The legal category `Indigenous', a legacy of European colonization in places such as the Americas, Australia and New Zealand, is problematically applied in Africa and Asia, yet it provides representatives of First Nations with a legitimacy and a language for their political struggles. In international law, however, there is no generally accepted definition of `peoples' for the purposes of self-determination, and the Draft Declaration on Indigenous Peoples does not define the term `Indigenous'.
- The much-lauded ILO Convention 169, (which only 13 states have ratified) does not expressly recognize Indigenous rights. A procedural convention, it implores states to behave in certain ways towards Indigenous peoples. A consultative process is mandated, but there is no requirement of Indigenous people's consent to government action, including removals from indigenous territories. Governments remain the arbiters of Indigenous rights on all issues.
- Article 1 of the Draft Declaration on Indigenous Peoples states that Indigenous peoples have the right to self-determination in accordance with international law, but Article 4 says that nothing in the Declaration will diminish or threaten the territorial integrity of legitimately constituted states. Notions of self-determination for Indigenous peoples and of the sanctity of frontiers are therefore principles in collision.
The articles in this issue of the Cultural Survival Quarterly speak primarily to the quest for internal self-determination and the facilitation of a reconciliation process. Reviewed are case studies that confront the simplistic notion that self-determination is easily defined - or that there is a single course of action to be followed. Widely differing strategies are being employed by Indigenous peoples as they struggle to redefine relations with domineering alien nations- and establish the baseline for consultation over development on lands to which they have traditional attachments.
Martinez, J. 1998. Study on treaties, agreements and other constructive arrangements between States and indigenous populations. Final Report of the United Nations Special Rapporteur. Unedited version.
Maybury-Lewis, D.H. 1992. Millennium. Tribal Wisdom and the Modern World. Viking, New York.
McIntosh, I.S. 1999. Aboriginal Reconciliation and the Dreaming. Warramiri Yolngu and the Quest for Equality. Cultural Survival Series on Ethnicity and Change. Allyn and Bacon, Boston.
Article copyright Cultural Survival, Inc.