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Abstract
New Caledonia experienced from 1853 to 1945 the right of conquest. The French self-styled universalist Republic, oblivious of human rights, flouted all its basic standards. Consequently, for most Kanaks (the principal indigenous people of the territory), Custom became a matter of the respect they claimed for their collective values and identity. Their claim has produced legal, institutional and judicial evolutions during the past 30 years. In respect of personal status, the Kanaks, French citizens, can keep their own customary law if they so wish. In 1982, a local government set up civil courts with customary assessors to implement Customary law. The 1988 Matignon Accords and the 1998 Noumea Accord went further by organizing the coexistence of several legal orders on the same land. The latter Accord enshrines in the French Constitution the acknowledgement of a ‘Kanak people’ besides the ‘French people’, and of Kanak customary law as part of the French legal system. This promotes a ‘native’ policy, and a devolution which suggests that France is no longer a ‘Single and Indivisible Republic’ but a federal state. The Noumea Accord's two keystones are respect for (cultural) identities and a ‘common destiny’ project amounting to the establishment of a New Caledonian citizenship. ‘Kanak Customary Status’ (the legal concept of ‘Kanak identity’) roots this ‘citizenship’ in a common, shared Pacific islands’ system of values. Personal status can thus be seen as a means to escape the colonial impasse by opening up to the Law of the Other. This is the key to the success of a ‘common destiny’ grounded on respect for various cultural heritages, while case law is gradually taking into account the Kanak cultural dimension. This process from colonization to indigenousness shows that Law is still now, perhaps more than ever, the linchpin of a major political project.
What are our rights on Kanak lands? I will answer without hesitation the rights of conquest […] I do not think I need to emphasize this basic principle of our Law. Should we deny the right of conquest, I wonder what we would all be doing here. (Governor FeilletFootnote)
Acknowledgements
I express my gratitude to Thomas Burelli and to Pr. Gordon R. Woodman for their wise counseling and support.
Notes
1. Paul Feillet, governor of New Caledonia from 1894 through 1903, put an end to New Caledonia as a penal colony and substituted for it a settlement movement by free settlers from mainland France. This policy revived the process by which New Caledonia Kanaks were evicted from their ancestral lands.
2. Noumea Civil Court (tribunal de première instance), 26 April 1922, New Caledonian Meat Company Ltd vs. Boniface, Revue de législation et jurisprudence coloniales (Rec. Dareste) 1922, 234–237. This ruling states that the natives do not have the right of property in their lands. They are merely allowed the ability to use these lands as if on loan. So, it is in their capacity as a borrower that native Boniface has the right to take legal action against a cattle-raising farm for redress of the damage caused to their crops by the cattle's roaming around.
3. The clan as a legal entity was not to be eventually fully recognized until two other recent rulings: Noumea Court of Appeals, 22August 2011, RG no. 2010/531, Clan Tiaouniane vs. Poady et GDPL clanique de Baco; Noumea Court of Appeals, 22 August 2011, RG no. 2010/532, Clan Tiaouniane vs. SAEML ‘Grand projet VKP’.
4. 24 December 1867 Ordinance, Article 2: ‘tribes [actually the Districts with the big chiefdoms at their heads] are liable from an administrative and civil standpoint; as a result, they are likely to be sentenced to damages resulting from crimes or misdemeanors perpetrated on their territories by gatherings or by mobs, either against persons or against public or private property’.
5. One example is: Noumea Civil Court (tribunal de première instance), 13 June 1923, Consorts Caujolle vs. Tein Mangou et autres, Dareste 1924, 3, 221.
6. Noumea Court of Appeals, 19 September 1933, Dydime dit Farge, Penant 1934, 86–87.
7. Noumea Court of Appeals, 28 February 1920, Dame Hanawassé vs. son mari, Revue de législation et jurisprudence coloniales (Rec. Dareste) 1920, 96–99.
8. ‘Nowadays the causes of this drop are known. First epidemics, followed by alcoholism and leprosy, but mostly the psychological shock induced by distress and the fact that this isolated population was abandoned and all of a sudden dazed by the sight of new races, especially Europeans, who could get away with murder and who seemed to be successful in all their undertakings’.
9. A local government headed by the pro-independence leader Jean-Marie Tjibaou.
10. Order no. 82-877, dated 15 October 1982, establishing customary assessors on the New Caledonia territory in the original jurisdiction court and on the Court of Appeals (JORF – French Official Gazette – 17 October 1982, 3106).
11. Cass. crim., 10 octobre 2000, no. 00-81.959.
12. Noumea Court of Appeals, 19 September 1933.
13. Noumea Court of Appeals, 23 November 1987.
14. Rau (1906–1988) was a judge acting in New Caledonia from 1933 through 1938; he authored Institutions et Coutumes Canaques [1944], new edition: Paris, L’Harmattan, 2006, 194 pp. He also authored La vie juridique des indigènes des Iles Wallis [1935], new edition: Paris, L’Harmattan, 2007, 104 pp.
15. Cass. Civ. 2ème, 6 February 1991, Bulletin civil 1991, II, no. 44.
16. Matter referred to the Court, 16 December 2005, opinion no. 2005/11, Bulletin civil, opinion no. 9, 13.
17. Matter referred to the Court, 15 January 2007, opinion no. 2007/ 1, Bulletin criminel 2007, avis, no. 1.
18. Loi organique no. 99-209 du 19 mars 1999 relative à la Nouvelle-Calédonie, JORF, 21 mars 1999, 4197.
19. Opinion dated 16 December 2005.
20. Cass. Civ. 1ère, 1 December 2010, Bulletin civil 2010, I, no. 251.
21. 13 June 1989 Act, no. 89-378, including miscellaneous provisions relating to judicial organization in New Caledonia, JONC (New Caledonia Official Gazette), 27 June 1989, 1402. The Act established two ‘subdivisions’ of the Noumea original jurisdiction court, one in Koné (Northern Province) and the other in We (Loyalty Islands). This law defines the status of non-professional assessors in New Caledonia courts (including customary assessors).
22. Noumea Court of Appeals, 3 September 1990, RG no. 348/1989, ruling no. 196/1990, MP vs. époux Waho (supplementary judgment regarding Monique Nyipi's birth certificate). Noumea Court of Appeals, 3 September 1990, RG no. 316/89, ruling no. 195/90, Ministère public vs. Bosse et Nomoigne (supplementary judgment regarding Lorenza Nomoigne's birth certificate).
23. Precedents are all on the same line: Noumea Court of Appeals, 15 January 1992, RG no. 345/90, ruling no. 16/1992, MP vs. Cadin et Tein; Noumea Court of Appeals, 15 January 1992, RG no. 416/90, ruling no. 17/1992, MP vs. Gravina et Wajoka; Noumea Court of Appeals, 15 January 1992, RG no. 420/90, ruling no. 19/1992, MP vs. Waihico et Tanaka; Noumea Court of Appeals, 15 January 1992, RG 422/90; ruling no. 21/1992, MP vs. Edinval et Goropoumawan; Noumea Court of Appeals, 15 January 1992, RG no. 425/90, ruling no. 24/1992, MP vs. Ali Mohamed et Tillewa.
24. Gaining access is possible to persons whose parents had customary status, and who can prove that for five years they have the social behavior and (cultural) way of living complying with the claimed customary status, and who use this possibility before they reach the age of 21. (This age limit has been removed by case law.)
25. Noumea Court of Appeals, 29 September 2011, RG no. 2011/46 Procureur Général vs. Saïto; Noumea Court of Appeals, 19 April 2012, RG no. 2011/384 Procureur Général vs. Poadey; Noumea Court of Appeals, 19 April 2012, RG no. 2011/383 Procureur Général vs. Poadae.
26. Cass. Civ. 1ère, 26 June 2013, no. 12-30.154, Bulletin civil 2013, I, no.139, Procureur Général vs. Poadey (Capitaine Citation2013; Dauriac Citation2013).
27. See two Cour de Cassation opinions dated 16 December 2005 and 17 January 2007.
28. Cass. Civ. 1ère, 13 October 1992, Bulletin Civil 1992, I, no. 248.
29. 1 December 2010.
30. The 13 June 1989 Act, no. 89-378, mentioned above. By establishing ‘neighborhood’ courts, located in areas heavily populated with Kanaks, this Act made it possible to set up customary courts as early as 1990.
31. Talking about the Thio village, where his court was located, he wrote, ‘There, I was virtually cut off from any contact with natives: to give lands to settlers, they had pushed Kanaks into reservations where they lived, confined in their tribes like rare and endangered species. Joining them was a real trek…’.
32. Noumea Court of Appeals, 11 October 2012, RG no. 2011/425, Pearou vs. Kahea specifies that when lands have been given to accede to ‘a request made in accordance with the link to the land’, these lands are ‘customary lands’ within the meaning of Section 18 of the 19 March 1999 organic Act (no. 99-209), and they can be managed only within the framework of a customary structure (an association under local specific law) and not under ordinary law (Economic Interest Grouping) in order to comply with the exceptional legal plan protecting these lands.
33. Noumea Court of Appeals, 22 August 2011, RG no. 10/00531 and RG no. 10/00532.
34. Noumea Court of Appeals, 11 October 2012, RG no. 2011/531, Imbert vs. Daoulo. This ruling states that, according to customary principles, the children belong to the father's clan insofar as the maternal clan has given it to then publicly and solemnly during a customary procedure. Besides, in Kanak custom, in theory, when the child has been given to the father, it is up to the father's clan to support and raise the child, who, through the customary procedure, has become a full member of the paternal clan. As a result, a father's claim requesting the mother to take part in child support will be dismissed, the child having become, by the clan's will, a member of the paternal clan. Other rulings to the same effect are Noumea Court of Appeals, 9 September 2013, RG no. 2012/59, Jewine vs. Yeiwene; Noumea Court of Appeals, 16 September 2013, RG no. 2012/339, Ministère public vs. Ujicas et Livoholo; Noumea Court of Appeals, 12 December 2013, RG no. 2013/9, Waia vs. Cejo. It follows from these similar well-established precedents, grounded both on customary standards and Section 35 of the 3 April 1967 proceedings, that the fate of children is predicated on the agreements concluded. If the children have been given to the father's clan (after ‘customary procedures’), they are members of this clan. They are meant to hold within the clan a specific social function, and they must be educated within the clan according to their customary ranking; they will belong to the clan indefinitely. Conversely, if they have not been given to the father's clan, they remain members of the mother's clan, and they will stay there all their life. In short, the child's status is protected from the trials in the couple's life, the child being a full member of the clan and not an object of dispute for their father or mother, notably in case they separate. In any event, being a father does not imply a legal status, nor does it imply duties or obligations toward the child, since fatherhood, even grounded on a biological reality, is exclusively a social fact instituted by customary standards.
35. See Section 44 in the Order of 3 April 1967 concerning the ‘Customary Registry’ (stated to be for ‘deliberation in relation to the civil status of citizens of particular status’, the last phrase referring to Kanak customary status citizens), which deals with birth certificates, adoptions, marriage certificates and proceedings, divorce proceedings and death certificates for citizens living under Kanak customary status, hence the full scope of what is called in French ‘l’état civil’.
36. Noumea Court of Appeals, 28 April 2011, RG no. 2010/54, Imeot vs. Imeot.
37. Noumea Court of Appeals, 24 April 2013, RG no. 2012/503, Waute vs. Pujapujane.
38. See note 34.
39. Noumea Court of Appeals, 29 September 2011, RG no. 2011/46, Procureur Général vs. Saïto. In the same vein: Noumea Court of Appeals, 19 April 2012, RG no. 2011-384, Procureur Général vs. M. Poadey. See also Gourdon Citation(2011).
40. Organic Act no 99-209 of 19 March 1999, Section 12, paragraph 1.
41. Organic Act no 99-209 of 19 March 1999, Section 13, paragraph 4, and Section 14.
42. Cass. Ass. Plén., 11 December 1992 (two rulings), Bull. 1992, AP, no. 13.
43. Cass. Civ. 1ère, 26 June 2013, no. 12-30.154, Bulletin civil 2013, I, no. 139, Procureur Général vs. Poadey. See also Capitaine Citation(2013) and Dauriac Citation(2013).
44. Noumea Civil Court (tribunal de première instance), 13 June 1923, Consorts Caujolle vs. Tein Mangou et autres, Revue de législation et de jurisprudence coloniales (Recueil Dareste) 1924, 3, 221–225.