a th Paul de Deckker and Jean-Yves Faberon (editors) Asia Pacific Press at The Australian National University © Asia Pacific Press 2001 Published by Asia Pacific Press at the Australian National University. This work is copyright. Apart from those uses which may be permitted under the Copyright Act 1968 as amended, no part may be reproduced by any process without written permission from the publishers. The views expressed in this book are those of the authors and not necessarily of the publishers. Asia Pacific Press Asia Pacific School of Economics and Management The Australian National Unversity Canberra ACT 0200 Ph: 61-2-6249 4700 Fax: 61-2-6257 2886 Email: [email protected] Website: http://www.asiapacificpress.com National Library of Australia Cataloguing-in-Publication entry ISBN 0 7315 3661 4 1. Customary law -Australasia. 2. Customary law - Oceania. I. Faberon, Jean-Yves. II. de Deckker, Paul. 305.8994 Translation by Tim Curtis of the original French publication: Coutume Autochtone et Evolution du Droit dans le Pacifique Sud, Universite franc,;aise,(Editions) L'Harmattan, Paris, 1995 (ISBN 2 7384 3469 X) Production: Asia Pacific Press (Matthew May, Tracey Hansen) Cover design: Annie di Nallo Design Cover photo: Peter Hendrie, Pacific Journeys, Melbourne Printed in Australia by Southwood Press Contents Contributors vii Abbreviations viii Preface ix Custom and the law Norbert Rau/and Part One The position of indigenous custom in the rules applying to the French Overseas Territories 2 Legal adaptations to local sociological particularities 35 GuyAgniel 3 Customary rules in New Caledonia 63 The Customary Council of the Territory of New Caledonia 4 Customary rules in French Polynesia 80 Bruno Saura 5 Customary rules in Wallis and Futuna 118 Antonia Trouilhet-Tamole and Emeli Simete Part Two Indigenous custom and the jurisprudence of the French Overseas Territories 6 Custom and the magistrate: approach and practice in New Caledonia 128 Fote Tro/ue 7 The magistrature and custom: questions and answers on approach and practice in New Caledonia 134 Bernard de Gouttes 8 Customary law and custom in Polynesian jurisprudence 141 Rene L. Calinaud and Camelia Domingo-Neti 9 Customary legal proceedings in Wallis and Futuna 156 Olivier Aimot Appendices First debate 173 Jean- Yves Faberon, Chair Second debate 179 Louise Peltzer, Chair Contributors Guy Agniel, Lecturer in Public Law, French University of the Pacific, Tahiti Olivier Aimot, First President of the Noumea Court of Appeal Rene L. Calinaud, Adviser to the Papeete Court of Appeal (French Polynesia) Paul de Deckker, Professor in Social Anthropology and Vice-Chancellor, University of New Caledonia Bernard de Gouttes, Attorney-General to the Noumea Court of Appeal Camelia Domingo-Neti, Genealogical expert, Head of the Service of Polynesian Affairs to the Presidency of the Government of French Polynesia Jean-Yves Faberon, Professor of Public Law, seconded to the University of New Caledonia and Director of the Institute for Overseas Law, University of Montpellier 1 Louise Peltzer, Lecturer in Oriental languages and civilizations, French University of the Pacific, Tahiti and Representative of the President of the autonomous government of French Polynesia Norbert Rouland, Professor of Legal Anthropology, University of Aix-Marseilles Ill, Marseilles Bruno Saura, Lecturer in Polynesian Civilisation, French University of the Pacific, Tahiti Emeli Simete, representative of the Procureur de la Republique, Noumea Antonia Trouilhet-Tamole, Court of Mata-Utu Foto Trolue, Judge of the Tribunal de Premier Instance, Noumea Abbreviations ADRAF Agence de developpement rural et d' amenagement fancier ATPF Archives du Territoire de la Polynesie fran�aise BSEO Bulletin de la Societe des Etudes CCCT The Customary Consulting Council of the Territory CSCE Conference sur la Securite et la Cooperation en Europe DOM-TOM French Overseas Departments and Territories EEPF Evangelical Church of French Polynesia EFO Etablissments Fran�aise de l'Oceanie FLNKS Front de Liberation Nationale Kanak Socialiste GDPL Groupement de Droit Particulier Local ILO International Labour Organisation JSO Journal de la Societe des Oceanistes RPCR Rassemblement pour la Caledonie dans la Republique TOM French Overseas Territories UN United Nations Preface In 1994 we conducted a multidisciplinary research program, combining both law and anthropology, into the place of indigenous custom in the development of law in the South Pacific. At that time we were already convinced, and remain so today, that it was necessary to bring a diversity of approaches to the subject. Through a diversity of disciplinary approaches, as just intimated, the phenomenon known as 'custom' requires just as much an anthropological analysis as one from a perspective of the discipline of law. Custom is the reality upon which law was originally based. Added to this is the usefulness of a political analysis, provided by both the academic and the practising lawyer. And on top of this is the diversity of the areas of our study. For French academics who are particularly interested in the phenomenon of custom in the French territories of the Pacific, it is unthinkable that we should limit ourselves to the zone of French influence. Obviously, custom is essentially Melanesian or Polynesian, and it would be a very blinkered view to explore only Kanak, Tahitian and Wallisian data, even though they constitute a strong field of interest. When the French Republic solemnly recognised the rights of the Kanak people, too long spurned, at the time of the signing of the NoumeaAccord of 5 May1998, one could only remember thesame steps taken by the Prime Minister of New Zealand in the name of the Crown, on 22 May1995, with respect to the Maori people. So it was that we resolutely sought to learn the lessons which we could glean from theAustralian, New Zealand and Papua New Guinean worlds. After all, it is Pacific people who are the subject of our study. Andwe managed to bring together the comments and testimonies of the most qualified people of those countries: a range of well-known people explained their different situations and problems and the ways used to resolve them. They all addressed the same question: how does one affirm and restore the original rights of indigenous peoples? The studies which are brought together in this volume may be characterised by the diversity of the countries concerned, and by the Custom and the law diversity of the facets under consideration: land rights, mining rights, legal guarantees which are the very foundations of democracy. They all have a common ambition: to foster the notion of the right to be different, and the peaceful co-existence of the different communities present in the South Pacific. Paul de Deckker and Jean-Yves Faberon 1 usto an el Norbert Rouland One of the biggest and perhaps main foundations of the Republics is to accommodate the State to the character of its citizens, and the edicts and decrees to the nature of places, persons, and times ...which means that we must diversify the State of the Republic to fit the diversity of places, following the example of a good architect who accommodates his or her building according to the materials found on site. J. Bodin, La Republique, V-1 (1577) ... One cannot see why all provinces of a State, or even all States themselves, should not have the same criminal laws, civil laws, commercial laws, etc. A good law should be good for all people, just as a true proposition is true for all. Condorcet (1780) Indigenous custom and the development of European Law in the French territories of the Pacific In a few words this topic throws us into the turbulence of the French legal tradition.1 Custom? For Montesquieu, it was the 'reasoning of fools', and therevolutionary legislator, like our current law manuals, sought to efface it as a sourceof the law. Indigenous? To the annoyance of theUnited Nations, France refuses to recognise this concept2 anymore than it accepts that of minorities:3 Article 2 of the 1958 Constitution proclaims the legal equality of all citizens ' ...without distinguishi ng origin, race, or religion',and affirms their linguistic unity.4 The territories? The demarcation of territorial administrative regimes and the limited variety of legal regimes in the national territory do not Custom and the law undermine the indivisibility of the republic, which continues to establish the unity of normative power. Although the 1958 Constitution explicitly refers to the 'territoires d'ou tre mer'5 and their populations,6 by recognising the right to self-determination, it nevertheless states that ' .. the principle of the indivisibility of the republic, as well as the principle of equality, insists on the unity of the French people and thusforbids any differentiation between citizens constituting a same people' .7 The Constitutional Council of 9 May 1991, stated that theconcept of the 'Corsican people' was 'contrary to the Constitution, which only recognises the French people, composed of French citizens, without distinguishing origin, race, or religion'. Custom and the development of thelaw? Although thisquestion doesn't place law in opposition to custom, it does distinguish between the two concepts. Sliding down the hierarchy of norms, from the Constitution to the most banal of administrative directives, we remain in the mapped out world of the law. When it comes to custom, however, we are disorientated enough that the outline of our familiar idol becomes blurred-is that law, pre-law, or a fact waiting to evolve into a norm? The coarseness of political events further confounds this legal uncertainty. Inthe French overseas territories, custom is not just an object of theoretical speculation, but can become a political assertion, or a basis for affirmations of identity. InNew Caledonia, the drama at Ouvea led to reforms institutionalising custom and 'custom people', if only on consultative grounds. In Guyana, the Amerindians invoked their indigenous rights to their territories, languages and cultures.