Indigenous Rights and the Proposed Constitution

Opinion by Crosbie Walsh

Moses:  "iTaukei rights are not threatened!"

In an earlier article I said that fear and lack of knowledge seemed to be major influences in many of the ethnic Fijian submissions made to the Constitution Commission. The fear I referred to was that of losing their land,  institutions, culture, language and customs.  There seemed to be confusion among many iTaukei on the rights and attributes of their indigenous ethnicity (what others call First Nations) and their rights —and others' rights— to full and equal citizenship.

A recent posting on  Luveiviti, one of the older anti-Bainimarama and pro-ethnic "Fijian rights" blogs, seems likely to add to the confusion.  In a  recent posting they published the opinions of a "Mr Peter Jones" on the current constitution dialogue and what it could mean for ethnic Fijian rights.  I do not know of Peter Jones but the blog  credits him as "One of our much valued Indigenous experts."

What this says for their other experts, I do not know but I do know his opinions warrant close examination because they reflect and confirm the mistaken views of  many extreme nationalists, in Fiji and elsewhere, and because he sees the proposed constitution as likely to undermine indigenous rights.  

The main thrust of his argument is that the constitution currently being considered could destroy indigenous rights (not to be confused with human rights  that belong to all citizens)  and in doing so it would be running counter to important UN and ILO declarations on indigenous peoples.

The UN and indigenous rights
There are three UN decisions that apply to indigenous peoples:

• The ILO Convention No. 169, 1989,  largely concerned with protecting indigenous rights of land ownership.  that was ratified by 18 countries, mainly in Latin America, Denmark, Norway, Netherland, Spain and Fiji.
• The United Nations Declaration on the Right of Indigenous Peoples (UNDRIP) 2007 that was adopted by the UN General Assembly, but with Canada, the U.S., Australia and New Zealand voting against and a number of other countries abstaining.  
• United Nations-Indigenous Peoples Partnership (UNIPP) that focuses on "marginalised and excluded groups." Its primary concerns are: exclusion from decision-making; loss of lands, forestry, fishing; children deprived of education; treatment of women evidenced in statistics such as having a higher maternal mortality rate than the majority population.

iTaukei as an  indigenous people?
Peter Jones singled out certain clauses in the  UNDRIP  for special attention.  I will address these later but first it is important to consider the intent of the declaration, and who  UN members  understood to be indigenous people, for while there is no  doubt iTaukei are Fiji's indigeneous people),  iTaukei society today meets few of the UN's assumptions on the consequences of being indigenous.    

The UN saw indigenous people to constitute a minority, and usually a very small minority in a country's population.  They were generally seen as  living in communities located on their traditional land. There were other  indigenous people mixing with the mainstream populations but most of them shared the common socio-economic characteristics of deprivation and exclusion.    

The purposes of the UNDRIP
The Declaration's purposes were (1) to protect these indigenous people against discrimination and injustices by charging member states with the responsibility of ensuring their material welfare. In other words, to guarantee their equal citizenship and, if need be extend special help, to ensure equality; (2) to protect them from enforced assimilation or integration in the mainstream population, and to protect their lands, forests, fisheries; their institutions;  their cultures, histories, oral traditions. and culture. 

Nowhere in the Declaration is the word "indigenous" defined, but Fiji is a party to the Declaration, and many ethnic Fijians see themselves  protected by the Declaration, however inappropriately it defines their  situation in Fiji. For most years since Independence indigenous Fijians have held the political and military control of the State.  They can hardly be considered an oppressed minority. 

iTaukei have no  need for UN protection
It is  important for Peter Jones and indeed for all iTaukei to realize: they do not need the UN to protect them. They are by far the majority population and their  rights  are written into the 1997 Constitution, and will, without doubt, be rewritten into the 2013 Constitution.  If protection other than that extended to the indigenous people was ever needed in Fiji, it was to marginalised groups like the part-iTaukei KaiSolomoni  and other vulagi who some iTaukei leaders, like Adi Asanaca Caucau, called "weeds" to be rooted out and sent back to India.  

Rights, as we are constantly told, come with obligations but there was nothing in the UN Declaration that covered the possibility of when a minority becomes a majority and threatens to attack the human rights of  non-indigenous citizens. No  iTaukei nationalist has shown any concern about  others' rights, or for  matching rights with obligations. 

The Land Bogey - again
The full text of  Peter Jones's letter is republished below. I will  discuss the main claims and leave readers to draw their own conclusion from his letter.  

He starts by assuming "Bainimarama is advocating ... a free market capitalist approach to Fiji, its people and land."  Later, in elaboration, he states that this:

 "will also slowly divest the land from indigenous people, allowing it to be bought by corporations and exploited or developed without any future voice of indigenous people. It is much easier for Commodore Bainimarama to encourage foreign investments (mining, tourism, etc.) if he can say that there are no indigenous Fijians, everyone has had an equal voice, and that the land is for sale (because when you take land out of collective ownership and allow it to be owned by individuals, more often then not you can buy that land from those individuals for a fairly low price - but usually not from the collective group). It is essential that indigenous Fijians keep the land in collective ownership. "

The claim can only be described as scaremongering.  The Bainimarama Government has been trying to increase the amount of land used for  productive purposes and obtain better returns for land owners. Land ownership was never threatened.  Opponents of the Bainimarama Government have pointed a finger at the new Land Banks but joining these banks is voluntary, and government participation ensures a guaranteed return to owners.  The only fair claim is that 99 year leases are too long. I would personally prefer different lengths of tenure to reflect the investment needed.  Thus, a farming or forestry lease could be shorter than a  mining  or commercial property lease, depending on each  situation. No iTaukei land has been sold. In fact, the opposite has occurred with some state leases being returned to iTaukei ownership.

System of voting could deny rights?
Peter Jones's second claim is that by Bainimarama:

"advocating for the elimination of ethnic voting, he is essentially advocating for the end of indigenous  rights. Similarly, proportional representation would deny indigenous voices." 

 Jones seems to think that a system of voting will "deny indigenous people their voice."  It is difficult to see how this will occur when  well over half of those elected by whatever system are likely to be iTaukei.  It also ignores the fact that the use and misuse of indigenous voting has been a major cause of political instability, and that many Fiji citizens, of all ethnicities, have already spoken out in favour of proportional representation and the abolition of the communal seats.  Further, nowhere in the UNDRIP is there any mention of voting, and if there were would be to ensure that indigenous people had the right to vote, which iTaukei have had for over 40 year since Independence!

Common citizenry could threaten rights?
He then proceeds to discuss "a common and equal citizenry" and draws the same conclusion. It will deny iTaukei their rights:

"Likewise, a common and equal citizenry would deny any recognition of indigenous Fijian people. These are very common "goals" or statements put forward in modern capitalist based democracy. If you eliminate any of the indigenous voices, make everyone the exact same in terms of rights, land rights, representation, etc., it will deny indigenous people their voice."

Equality is not sameness
Here he falls into the old trap of confusing equality with sameness. No one is suggesting that all Fiji citizens should be treated the same.  Many groups, such as the disabled, the poor, and of course, the iTaukei have their special needs, and if these needs are not met or strived for, they will not have been treated equally.  Living in a "modern capitalist based democracy" does not change the situation.  This is the democracy Fiji has had since Independence.  It is what governments do with democracy that counts. This Government has shown no interest in eliminating iTaukei voices, or in limiting their "rights, land rights, representation"  Mr Jones has created a straw man and then proceeded to knock it down.

iTaukei sovereignty?
His last paragraph raises the issue of the Great Council of Chiefs (he does not know it was a government-created, and not a traditional,  institution, so it could hardly be covered by the UNDRIP). He then goes on to say iTaukei should:

 "demand that the government work with them on a government to government relationship. Indigenous people are recognized as sovereign people under UNDRIP and ILO 169 (which Fiji ratified), and have a right to decide how they want their land and heritage to develop."

This raises the question of iTaukei sovereignty and their right to exercise their own  sovereignty within the Fiji State.   To some extent, Fiji, with its numerous iTaukei institutions,  already has a parallel system of government but this is a long way from what may be inferred from full blown sovereignty.  

A nation is not a state
I suspect the original confusion lies with the United Nation. They were dealing with indigenous groups with  different types of social organization. Some were referred to as ethnic minorities, others as tribes or tribal confederations.  All were to be treated as First Nations people.  The  word "nation" is often interchangeably  with "state" but there is an important difference.  A state may include people of different nationalities, sometimes with their own geographies and degrees of autonomy, and sometimes  these "nations" may need protection, but nowhere  do any of these "nations"  enjoy  sovereignty. 

No modern State will allow a nation  to contest sovereignty within its own borders, and this is probably why Canada, the USA, Australia and New Zealand refused to sign the ILO Convention, and why NZ has contested the idea of full Maori sovereignty that some Maori extremists seek.  

Excuse me for these two euphemisms, but it is disingenuous and mischievous for Peter Jones to claim iTaukei have the sort of sovereignty  that enables them to talk with government on a "government to government" basis.

The special place for iTaueki in Fiji
Ethnic Fijians enjoy First Nation status in Fiji.  They have a special place in the life of the country.  But they are not an oppressed indigenous people and they are not  sovereign. 

Fijian citizens who are not iTaukei willingly recognize their special status and I think most iTaukei are happy with this status.  I doubt that many  want sovereignty within the State that would diminish the rights of other  citizens.   I think they would accept  a fair Fiji where all citizens are treated with respect according to their needs.

Those who claim otherwise, such as Luveiviti and Peter Jones, are trying to pull the wool over the eyes of ordinary iTaukei and so derail the Constitution process, a process that should result in a much better Fiji than it was in the past.  If they love Fiji, as they claim, they should be helping this process, with fair criticism and thoughtful recommendations —not with misinformation. 

Letting them loose into the public arena, with such mistaken and malicious ideas, would be doing the public a disservice. It is not that each statement is new and worthy of rebuttal. It is that each statement has been  repeated endlessly in different guises; has been endlessly answered; and there is a limit to how many times  they can and should be  answered.   The anti-Bainimararama bloggers and their extremist supporters  knows this.  Hence the repetitions. It's no wonder the PM loses his cool from time to time and lumps the moderate opposition in with the extremists.

The need for  ongoing education on the present dialogue process is obvious. But it would probably be more effective  if a modern Moses would stand up in every pulpit in the land and proclaim:  iTaukei rights are not being threatened!

Peter Jones's text in full in Luveiviti

I am not familiar with all of the documents or reports, but from what is contained here, it sounds like Commodore Bainimarama is advocating for a free market capitalist approach to Fiji, its people and land. By advocating for the elimination of ethnic voting, he is essentially advocating for the end of indigenous rights. 

Similarly, proportional representation would deny indigenous voices. Likewise, a common and equal citizenry would deny any recognition of indigenous Fijian people. These are very common "goals" or statements put forward in modern capitalist based democracy. If you eliminate any of the indigenous voices, make everyone the exact same in terms of rights, land rights, representation, etc., it will deny indigenous people their voice.

It will also slowly divest the land from indigenous people, allowing it to be bought by corporations and exploited or developed without any future voice of indigenous people. It is much easier for Commodore Bainimarama to encourage foreign investments (mining, tourism, etc.) if he can say that there are no indigenous Fijians, everyone has had an equal voice, and that the land is for sale (because when you take land out of collective ownership and allow it to be owned by individuals, more often then not you can buy that land from those individuals for a fairly low price - but usually not from the collective group).

It is essential that indigenous Fijians keep the land in collective ownership, continue to fight for reinstatement of the GCC, and demand that the government work with them on a government to government relationship. Indigenous people are recognized as sovereign people under UNDRIP and ILO 169 (which Fiji ratified), and have a right to decide how they want their land and heritage to develop. Commodore Bainimarama continues his assault on indigenous rights, and if he continues and gets his way, he will simply work the laws until there is no such thing as indigenous Fijian people (as they are trying to do in Bangladesh, by taking the word "indigenous" and substituting "ethnic minority" in government documents and laws), simply Fijians.