The equivocal definition of indigeneity and ambivalent government policy toward self-determination in New Zealand's health and foreign policy apparatus.

Author:Roach, David
 
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INTRODUCTION

Defining indigeneity can serve as the first step in crafting a productive challenge to existing norms of governance and control in New Zealand. In addition, indigeneity can meaningfully inform liberal-egalitarian philosophy, largely through an exposition of collective rights.

In the New Zealand case, a nascent domestic policy of encouraging self-determination and autonomy for indigenes in certain contexts (especially health services) occasionally comes into conflict with the country's international policy regarding sovereignty. This conflict serves as a microcosm of international debates surrounding the indigeneity construct. At present, while there is no official international definition of indigeneity, there have been attempts which have resulted in "working definitions." These attempts invariably combine two distinct characteristics of indigeneity which introduce ambiguity: subaltern status and first occupancy. (1,2) These disparate elements create an iteration of Said's "hybridity," and reflect the sometimes uncomfortable marriage between multiple nations within a larger state. In turn, by exploring the efforts at defining indigeneity, we can gain insight into the internal conflict which affects current government relations with indigenes.

In this essay, we argue that a definition of indigeneity is of fundamental importance for indigenous/government relations. This is expanded upon via a discussion of links between definitional considerations regarding indigeneity and conflicts between domestic and international policy in New Zealand. These conflicts are most strikingly demonstrated by New Zealand's "no" vote on the 2007 UN Declaration on the Rights of Indigenous Peoples (DRIP). Domestic health policy concerning Maori and international policy concerning indigenes are, perhaps, irreconcilably different. This difference represents a difficult conundrum of control: domestic health efficacy may require devolution of power, while international sovereignty may require greater centralisation.

THE DEFINITION OF INDIGENEITY

"Man is unjust--and he invented justice." (Ferreira Gullar) (3)

No official definition of indigeneity has ever been agreed upon at the international, intergovernmental level. This situation arises in part because of the controversial nature of the indigeneity construct. Important aspects which have become associated with "indigeneity" are occasionally interpreted as illiberal or retrograde. This is especially true in the case of group membership serving as a determinant of rights. Involuntary and unalterable group membership (e.g. ethnicity) is a more difficult basis for rights in liberal thought, especially when compared to basic rights like free speech or free association which are predicated on plastic, individual choice.

Indigeneity rests on the recognition of "collective" or "group" rights, which can be interpreted as conflicting with individual rights in important ways. Indigenous rights challenge assumptions of the Westphalian emphasis on the primacy of the nation-state, particularly (in the New Zealand case) the attempt to share state sovereignty among domestic nations.

As with other rights constructs (e.g. protections against "torture," and determining rights for "refugees") a definition of the entity in question is a necessary precondition for substantive recognition of any other portion of the construct. This is especially true in the case of indigeneity. As such, we will begin by examining the etymological and historical roots of the major current conceptions of indigeneity.

Native American Studies professor Jace Weaver notes that "Indigeneity is one of the most contentiously debated concepts in postcolonial studies ... Even the term itself is disputed." (4) This debate about definition is both heated and novel. Legal scholar Benedict Kingsbury notes that:

Over a very short period, the few decades since the early 1970s, 'indigenous peoples' has been transformed from a prosaic description without much significance in international law and politics into a concept with considerable power as a basis for group mobilization, international standard-setting, transnational networks, and programmatic activity of intergovernmental and nongovernmental organizations. (5) This transformation has heralded a significant evolution in international rights conventions, and calls into question core assumptions about the nature of human rights (particularly the primacy of individual rights vis-a-vis group rights).

Creating a definition of indigeneity is both philosophically and legally an important step in the attainment of justice. Foucault suggests that "political practices resemble scientific ones: it's not 'reason in general' that is implemented, but always a very specific type of rationality. The striking thing is that the rationality of state power was reflective and perfectly aware of its specificity." (6) The specificity of the nation is fundamental to its power.

From the indigenous perspective, if peoples are located within a language and a justice system that does not recognise their worldviews, injustice will be the result. This is particularly relevant to the definition of indigeneity within international bodies, influenced by Western individualist legal philosophy. Derrida argues in his treatise on law and authority:

It is unjust to judge someone who does not understand the language in which the law is inscribed or the judgment pronounced, etc. We could give multiple dramatic examples of violent situations in which a person or group of persons is judged in an idiom they do not understand very well or at all. And however slight or subtle the difference of competence in the mastery of the idiom is here, the violence of an injustice has begun when all the members of a community do not share the same idiom throughout. (7) At the international level, a conception such as indigeneity, dependent as it is on collectives and group assent to a particular definition, requires similar care in ensuring a common idiom. Care must be taken for a definition not to amount to an imposition by the powerful on subaltern groups. The involvement of "indigenes" in the creation of such a definition will obviate this concern. The involvement of "indigenes" implies not merely group self-definition (as with local/tribal membership requirements), but also involvement of indigenous peoples in any UN definition enterprise. Notably, the Declaration on the Rights of Indigenous Peoples (DRIP) "has the distinction of being the only Declaration in the UN which was drafted with the rights-holders, themselves." (8)

The effort to define indigeneity in a way that is legally meaningful and philosophically agreeable has vitally important consequences. Indigeneity is the most recent iteration of a host of roughly synonymous concepts including "autochthonous," "native," "aboriginal," "first nations" and others. Both the UN and the International Labour Organisation (ILO) have officially synonymised "indigenes" with "tribal peoples" within the past two decades. (9,10) While the profusion of terms reflects the diversity of the indigenous circumstance, the number only adds to a growing matrix of definitional complexity. One study which examined 700 pieces of Australian legislation found 67 different definitions of indigeneity. (11) In some legal jurisdictions, "finding an acceptable conception of tribe is not merely an academic requirement but ... also a constitutional and legal one." (12) The definitional exactitude required only increases as international conventions gain credence and gravity.

Furthermore, legal rights frequently colour what are seen as ethical, moral, or fundamental rights. "That which is legal becomes that which is moral ... The law is normative." (13) If nation-statesand-the international community with which they are aligned--are to do justice to the conception of indigeneity (and to "indigenes" themselves), arriving at a workable international definition is a necessary precondition. A workable definition, in turn, cannot be achieved without recognition of the etymological origins of the modern indigenous construct.

ETYMOLOGICAL ORIGINS OF THE MODERN INDIGENOUS CONSTRUCT

During the colonial period, British officials used the term "native" as synonymous with "subject to colonisation" and as an antonym for "settled by free Europeans" in order to gain moral sanction for the formal appropriation of land. The term initially carried no connotation of original occupancy of lands. (14) Those who received the native label were singled out for colonisation/settlement. The term simultaneously marginalised indentured labourers and non-Europeans, and gave moral cover for the motivations of empire. Upon colonisation, the "native" label served as a clear badge of otherness and separation.

The native construct has a peculiar and significant etymology that throws important light on modern conceptions of indigeneity. The earliest usages of the word "native" date back at least to the 1400s, predating entry of the word "indigenous" into the English corpus by more than 200 years: (15) "The firste peticion was that he scholde make alle men fre thro Ynglonde and quiete, so that there scholde not be eny native man after that time." (16) These earliest uses unambiguously equate "native" with "serf." This use is reproduced continuously through the colonial era, and to the exclusion of other usages. Eighteenth-century dictionaries define the word "native" thus: "In ancient Deeds, he that is born a servant." (17) The residue of this usage persisted in reference works through the end of the nineteenth century: "In feudal times, one born a serf. After the Conquest, the natives were the serfs of the Normans." (18)

It was probably only through interaction with other colonising empires--especially the Spanish and French--that the English construct of "nativeness" began to include attributes related to original...

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