The Aspirations of the Indigenous Rotuman People in Fiji, as
Reflected in National laws & International Legal/Policy.
By: Anselm Herman (17 October 1999)
Email: anselm@justicemail.com
An objective of the decade is the promotion and protection of
the rights of indigenous people and their empowerment to make choices
which enable them to retain their cultural identity while participating
in political, economic and social life, with full respect for their
cultural values, languages, traditions and forms of social organization.
The Indigenous Rotuman People were ceded to Great Britain in November
1879 by the Chiefs of Rotuma and were thus annexed to the Colony
of Fiji. At the outset, it must be noted that the Indigenous Rotuman
people are a distinct ethnic group of people with their own language,
custom, and culture from that of the Indigenous Fijian people.
However, due to the colonial ties that Rotuma had with Fiji, Britain,
and consequently the annexation of the island thereof, the laws
in Fiji are applicable in Rotuma in so far as permitted by the
inhabitants of Rotuma. This recognition of difference began as
far back as 1879 and thus the present National Laws as they represent
this aspiration shall be briefly expounded.
At the outset, it would be imperative to define these indigenous
aspirations and values with regard to the Rotuman peoples. As with
most other indigenous and minority groups globally, the most important
aspiration for recognition, is that of the cultural uniqueness
of the Rotuman people who comprise 2% of the total population of
Fiji. It is thus, the quest for the preservation of the distinctly
rich cultural heritage, linguistics, and customary institutions.
However, most importantly it is the in-alienation of territory,
which is the Land and the values attached thereof. It is the ideology
and attachments to land in a more secular and intrinsic sense rather
then land purely as an economic entity. As Professor Garth Nettheim
stated
"the relationship of indigenous peoples to their land
is of a qualitatively different nature from the relationship of
non-indigenous peoples to land so that it requires differential
treatment in order to achieve substantive equality of outcome."
In all, the National laws in Fiji would as the Reeves Report suggests "guarantee
the rights, protect the interests and take account of the concerns
of indigenous..Rotumans and all other ethnic groups". Thus, the
paper shall briefly outline the Constitutional recognition then
the Statutory Specifics which applies these aspirations.
To begin with, Chapter 2 (Compact) of the 1997 Constitution of
the Republic of Fiji states that "the people of the Fiji Islands
recognise that, within the framework of this Constitution and other
laws of the state, the conduct of government is based on the following
principles:
- The rights of the..Rotuman people include their right to governance
through their separate administrative systems;
- Affirmative action and social justice programs to secure effective
equality of access to opportunities, amenities or services for
the..Rotuman people..are based on an allocation of resources
broadly acceptable to all communities.
Although these do not give rise to legal rights or duties the
recognition has a moral, as opposed to legal force and thus as
stated in the Reeves Report "people can see that the rights they
hold dear will remain constitutionally protected, no matter what
type of government takes office."
Secondly, and also in relation to the Constitution, section 186
states that:
"Parliament must make provision for the application of
customary laws and for dispute resolution..(having) regard to the
customs, traditions, usage's, values and aspirations of the..Rotuman
people"
This is the formal recognition of Rotuman custom, which reflects
the practices and usage's established over time. Thus, these customs
could be given the force of law, which is customary law. This would
reflect the aspirations of the indigenous Rotumans to regulate
themselves to some extent and perpetuate their distinct customary
practices.
In relation to international law concerning the application of
customary law, the ILO Convention 169 on Indigenous and tribal
people provides in article 8 subsection 1 that "In applying national
laws and regulations to the peoples concerned, due regard shall
be had to their customs or customary laws". Thus, the provision
mentioned in section 186 of the Constitution is in line with International
law and Policy with regards to indigenous peoples such as Rotumans.
Apart from these Constitutional provisions, the Rotuma Lands Act
(Cap 138) was enacted to prohibit the alienation of land to non-Rotumans,
except by a lease. This is reflected in two International Conventions,
namely the ILO Convention 169 on Indigenous and Tribal Peoples
articles 13 to 19 and the Draft Declaration on the Rights of Indigenous
People.
Secondly, the Rotuma Act (Cap 122) establishes the Council of
Rotuma, which comprises of seven customary chiefs representing
the seven districts apart from the District officer, Medical officer
and Agricultural officer.. The Councils duty at section 16 is to "consider
all such questions relating to the good government and well being
of the Rotuman Community in the island".
The council is also empowered to make regulation to be obeyed
by the Rotuman community in Rotuma relating to peace, order and
good government and may further make penalties for breach not exceeding
imprisonment for five months or a fine of $100.
Most importantly, it should be noted that the district chiefs
continue to be elected in accordance with Rotuman custom as provided
for under the legislation at section 18. In essence, these provisions
recognise the distinct identity of the Rotuman community and thus
the creation of an internal governing mechanisms.
The International policies concerning the governance of groups
is reflected in article 8 of the draft Declaration on the Rights
of Indigenous People which provides that "Indigenous peoples have
the collective and individual right to maintain and develop their
distinct identities and characteristics, including the right to
identify themselves as indigenous and recognised as such".
Thus, the maintenance and development of the customary institution
whereby chiefs are able to make regulations for the "good governance
of the Rotuman people" is clearly in line with International law.
However, it may be noted that this method of governance may be
termed indirect rule by Fiji, that is the recognition of customarily
existing structures for the purpose of facilitating and implementing
the memoranda of the new regime, that is the Parliamentary so called
democracy.
Overall, as has been seen, National laws in Fiji are in line with
the United Nations objective in the promotion and protection of
the rights of indigenous people such as the Rotumans, by empowering
them to make choices through the Council of chiefs in order to
preserve their distinct cultural identity while participating in
political, economic and social life. This respect is evident in
the National laws which reflect aspirations to preserve and practice
Rotuman culture, customs, traditions, usage's, values, language
and way of life, in essence it is the Rotuman peoples right to
be different wherever they may be on this planet.
