The unity of the republic vs. living together on the same land: New Caledonia from colonization to indigenousness: law at the center of a major culture issue

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 Feillet)