Transcript Archives and Indigenous Human Rights Brad Morse, Dean of

Archives and Indigenous
Human Rights
Brad Morse, Dean of Law
University of Waikato
Melbourne 12 October 2010
1
My Mandate
Briefly highlight:
•Current state of International Law on Indigenous
Rights re Indigenous knowledge & culture
• Domestic Recognition of Indigenous Rights & SelfDetermination in Canada and Aotearoa
•Key Legal & Practical Challenges:
•Whose knowledge? Whose records? Who owns the
tangible & intangible manifestations of that knowledge?
Who controls access & usage & for what purposes?
2
International Human Rights
Development
• Human Rights (HR) moved from the nearly
exclusive purview of domestic law to an
International Law (IL) concern in aftermath of
WW II via UN Universal Declaration of HR
[followed by ICCPR & ICESCR 1966]
• Decolonisation of 1960s & focus on
dictatorships & civil oppression in 1970s shift
from individual HR focus to include collective
rights
3
Demanding State Accountability
•
1970s begin call for redress of state
sanctioned violence & injustice re demands:
1. Justice – prosecution of violent offenders &
reparations for victims
2. Truth – uncover extent of injustice & identity of
victims [especially the disappeared & murdered]
3. Memory – ‘Nunca mas’ of Argentina; ‘Never
again’ of Holocaust stress need for
comprehensive, accurate & publicly accessible
records for HR abuses
4
State Libraries & Archives (L&As)
•
L&As often great ally of HR movement as are
main repository of critical documents,
photos, etc but can be seen as ‘enemy’ via:
1. Restrict access to scholars & state officials
2. Compelled to withhold due to state secrecy &
privacy laws
3. Regard as subject to control/ownership of
individual ‘creator’ of material not of people doc
may be about or who are the ones recorded
5
Status of Paper
• Western societies give pre-eminence to what
is on tangible paper [maps, photos, docs, etc]
as do L&As – seen as accurate sources of info,
of telling the ‘truth’
• Emphasizes written records of literate
societies, with docs of governments &
colonisers over oral ones that can lead to
tragic legal & cultural results [Yorta Yorta]
6
NGOs as L&As
• Focus of HR movements in part on keeping memory of
injustice alive, recording it more fully & promoting maximum
access
• Vast array of initiatives over past 40 yrs by trade unions
[Memoria Abierta], non-profits [USC Shoah Foundation],
NGOs [International Centre for Transitional Justice, etc]
• Some have established massive L&As that become major
source for other NGOs, scholars, survivors, TRCs
• Their archival work helped formulate principles that TRCs seek
to implement or used to mobilize social change
• 2003 UNESCO decalre that L&As of # of HR orgs should be
designated as documentary heritage and cultural patrominy
of states and globally via its Memory of the World Program
7
Indigenous Peoples & Settler States
• Colonisation and political dispossession creates
special elements over & above internal economic,
ethnic or religious conflicts within states as it is a
Foreign State imposed upon Indigenous Peoples;
hence state L&As are perceived as part of state
apparatus intended to sustain the state & its
hegemony
• Relative powerlessness of Indigenous Peoples
coupled with non-literacy & possessions as = to
‘artefacts’ vs written records, to be ‘preserved’ by
L&As create inevitable suspicion & remoteness
8
International Law & SelfDetermination
• International Law has recognized “selfdetermination of peoples” at least since
creation of United Nations in 1945.
• Article 1 of both ICCPR & ICESCR of 1966 [in
force in 1976] declare: “All peoples have the
right of self-determination…freely pursue
their…cultural development.”
• BUT governments argued for decades this
right N/A to Indigenous Peoples (IP) in settler
states
9
UN DRIP
•Declaration on Rights of Indigenous Peoples passed
overwhelmingly by UNGA on 13 Sept 2007 143-4 [with
Aus & NZ subsequently endorse] after 25 years of work
•Art 3 adapts language of ICCPR & ICESCR & states:
“Indigenous peoples have the right to self-determination.
By virtue of that right, they freely determine their political
status and freely pursue their economic, social
and cultural
development.”
•BUT not left at this, as Art 4 modifies Art 3 & seem to
place as internal S-D, especially with Art 46 declare
can’t threaten territorial integrity & subject to
limitations determined by law
10
Autonomy & Self-Government
Article 4 - “Indigenous peoples, in exercising their right to selfdetermination, have the right to autonomy or selfgovernment in matters relating to their internal and local
affairs, as well as ways and means for financing their
autonomous functions.”
Suggests clear recognition of right of Indigenous
peoples to govern own affairs, which would include
establishing own L&As
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Recognition of Internal Development
Article 5 - “Indigenous peoples have the right to maintain and
strengthen their distinct political, legal, economic, social and
cultural institutions, while retaining their right to participate
fully, if they so choose, in the political, economic, social and
cultural life of the State.”
• Reflects a dual citizenship concept that Indigenous
peoples have full right to engage in dominant society,
including playing a major role in L&As, while also
ensuring their unique institutions flourish
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Articles 3-5
• 3 contexts: (1) ability influence national
decision-making; (2) have power devolved or
recognized (3) state is to recognize IP’s own
political & legal institutions
• US generally meet 2 & 3 not 1
• Can meet all 3 in some places but not most
• Australia not meet any
• NZ meet 1 but not 2 & 3
13
Cultural Rights & Identity
• Following on recognition of right of IP to life &
liberty as well as be free from genocide,
Article 8 (1) declares: “Indigenous peoples and
individuals have the right not to be subjected to
forced assimilation or destruction of their culture.”
[see art 27 ICCPR]
• Bur DRIP also focus more on collective identity
in Articles 11-13
14
Customs & Traditions
Article 11(1)Indigenous peoples have the right to practise and revitalize their
cultural traditions and customs. This includes the right to maintain, protect
and develop the past, present and future manifestations of their cultures,
such as archaeological and historical sites, artefacts, designs, ceremonies,
technologies and visual and performing arts and literature.
(2)States shall provide redress through effective mechanisms, which may
include restitution, developed in conjunction with indigenous peoples,
with respect to their cultural, intellectual, religious and spiritual property
taken without their free, prior and informed consent or in violation of their
[i.e., Indigenous not state] laws, traditions and customs.
This build on UNESCO Conventions on the Safeguarding of
Intangible Cultural Heritage of 2003 & Protection and
Promotion of the Diversity of Cultural Expressions of 2005
Puts clear onus on states to provide appropriate forms of
redress for cultural property taken without consent along
with obligation to recognise ongoing Indigenous rights to
control how their cultures are practised as well as presented
15
Spiritual & Religious Protection
Article 12 (1) Indigenous peoples have the right to manifest, practise, develop
and teach their spiritual and religious traditions, customs and ceremonies;
the right to maintain, protect, and have access in privacy to their religious
and cultural sites; the right to the use and control of their ceremonial
objects; and the right to the repatriation of their human remains.
(2)States shall seek to enable the access and/or repatriation of ceremonial
objects and human remains in their possession through fair, transparent
and effective mechanisms developed in conjunction with indigenous
peoples concerned.
Softer provision than Article 11 on return of objects; no
other form of remedy beyond return or access; &
more of an internal focus akin to freedom of religion
16
Indigenous Intangible Heritage
Article 13 (1) Indigenous peoples have the right to revitalize, use, develop
and transmit to future generations their histories, languages, oral
traditions, philosophies, writing systems and literatures, and to designate
and retain their own names for communities, places and persons.
(2) States shall take effective measures to ensure that this right is protected…
• Is this a right solely internal to Indigenous communities to do
these things?
• Or is it a right to control how “histories, languages, oral
traditions, philosophies, writing systems and literatures” are
transmitted to anyone? If so, then it compels L&As, as well as
museums & state educational institutions, to engage in
partnerships to determine how best to proceed in this space.
17
Intellectual Property
Article 31 (1) Indigenous peoples have the right to maintain, control, protect
and develop their cultural heritage, traditional knowledge and traditional
cultural expressions, as well as the manifestations of their sciences,
technologies and cultures, including human and genetic resources, seeds,
medicines, knowledge of the properties of fauna and flora, oral traditions,
literatures, designs, sports and traditional games and visual and performing
arts. They also have the right to maintain, control, protect and develop their
intellectual property over such cultural heritage, traditional knowledge, and
traditional cultural expressions.
(2) In conjunction with indigenous peoples, States shall take effective
measures to recognize and protect the exercise of these rights.
Reflects response to Western Intellectual Property law’s inadequacy to
protect Indigenous intellectual property [except re trademarks] as copyrights
& patents are time limited [not in perpetuity], want an identified legal creator
[vs community or intergenerational transfer]; favours ultimate public
dissemination [vs sacred knowledge that improper or illegal to disclose] but
will it work??? WIPO been working for over decade & CBD since 1992 but no
success so far
18
Right to Continued Cultural Identity
• Article 34: Indigenous peoples have the right
to promote, develop and maintain their
institutional structures and their distinctive
customs, spirituality, traditions, procedures,
practices and, in the cases where they exist,
juridical systems or customs, in accordance
with international human rights standards.
19
DRIP Limitations
• Not binding on states [unless = international
customary law]
• No mechanism for enforcement via a treaty body
• No formal UN monitoring body [although PFII could
choose to do so & UNHRC, CERD, etc can clearly refer
to DRIP in complaints & periodic reports]
• Many states have little intention to honour
• Unclear how some of its phrases should be
interpreted or implemented
20
Practical Challenging Local Issues
• Control - who decides who can see & who cannot [for
religious or other reasons]
• Display/disclose – who decides what can be publicly displayed
& how
• Ownership – who ‘owns’ it really [if ownership even makes
sense in many heritage contexts]
• Individual vs Collective re privacy, FOI, intellectual property,
inheritance issues
• Promoting access – many L&As are capital city focussed with
restricted access & view in person – none of which fit most
Indigenous needs
• Diversity of IP means different needs & rules [eg, restrictions
re speaking of deceased or not]
21
Some Domestic Precedents
Australia led way globally in: developing legislation to
protect sacred & significant geographic sites; AIATSIS
as key early entity to record traditional knowledge,
music, languages, etc as ‘preserver’ before
disappeared that shift role under Aboriginal control
US in: human remains protection & repatriation,
development of archival protocols & co-management
of museum collections
22
Aotearoa Guardianship Arrangements
Te Papa Tongarewa Museum of NZ’s unique role
via Kaitiakitanga = “the protection and
preservation of the taonga [gifts] of our
ancestors for future generations” & fully
functioning Marae
1. Karanga Aotearoa Repatriation Programme – work with iwi to
repatriate human remains from overseas
2. Work collaboratively with iwi to design exhibitions with
kaumātua (elders) in residence
3. National Services Te Paerangi work with iwi via training,
funding & assisting iwi develop own collections
23
From Moral Goal to Commitment
• Te Papa began to embrace Treaty partnership
principles as clear moral goal by early 1990s via
bicultural curatorial policy [recruit & train Maori as
staff & seek iwi as advisers in museum's curatorial
operations]
• Move quickly to Kaitiakitanga re: (1)what museums
do retain & that are made known, (2)repatriate
human remains & confiscated or stolen taonga,
(3)offer to relinquish specific items on community
demand
• Have been some major returns, especially of whare
whakairos [meeting houses]
24
Implementing Goal in 21st Century
• Principles apply not only to objects but also to
visual representations
• NZ National Museums & L&As now treat
photos of Maori objects and people as under
Kaitiakitanga principles via establish
consultative bodies to determine accessibility,
how should be displayed (if at all), & possible
reproduction
25
Canadian Constitution
• Constitution Act, 1982, s. 35(1) “the existing
aboriginal and treaty rights of the aboriginal peoples
of Canada are hereby recognized and affirmed”
• S. 35 creates space in which Aboriginal peoples can
assert that their inherent aboriginal rights
encompass full rights to retain or regain possession
of & develop all aspects of their cultural identity
including promoting their ‘oral memory’. Although
largely untested in CDN courts, it has changed
behaviour of state L&As & larger museums
• Also permits assertion of historic or modern treaties
as vehicle for revamping status quo
26
Confirming Control by Treaty
• Nisga’a Nation Treaty, Ch 17
– Recognise vital import to cultural & sacred beliefs
of continuing relationship to significant treasures
– Confirm ownership of “any Nisga'a artifact
discovered within Nisga'a Lands”
– Allocate ownership of identified Nisga'a “artifacts”
in possession of Cdn Museum of Civilization &
Royal BC Museum between museums & Nisga’a
27
Nisga’a Precedent
–Commit both museums to return all objects on 2 lists – 276
spiritual objects returned 15 Sept 2010 to be housed in new
Nisga’a Museum
–Create mechanism to reach custodial agreements re Nisga’a
role re artifacts to be retained by museums & enable future
transfers
–Create presumption that all objects coming from Nisga’a
people or territory are Nisga’a artefacts
–As part of Treaty, this agreement has constitutional protection
cannot be altered without mutual agreement of all 3 parties
–Nisga’a Nation = 3rd order of sovereign government with
legislative power re culture & cultural property so can also
enact its own laws in field
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Conclusions
• Technology is transforming scene to cause online access to explode;
reproduction to be unlimited to enable multiple possession of objects; 3D
digital virtual recreation & revision of objects & environments enhances
capacity to present things in broader context but also to ‘get it wrong’ on
an incredibly believable scale; & on and on
• All of this creates new challenges – does the perfect copy of a sacred
object contain its spiritual [for good or ill] significance? Do guardianship
obligations accompany the copy?
• No domestic or international legal instrument can fully compel changes in
human behaviour but we have seen in recent years major shifts in
international law, in the laws of some states & in relationships between
Indigenous & non-Indigenous peoples.
• Changing visions of these relationships been occurring rapidly in the
context of state institutions like libraries, archives, museums & other
repositories of cultural patrimony due to the good will of their staff &
change in public attitudes – these changes are only just beginning
• Maori concept of kaitiakitanga is an attractive principle for other peoples
& nations to consider
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