Kanak’s quest for identity: the influence of citizenship on the construction of customary law in New Caledonia
Kanak’s quest for identity: the influence of citizenship on the construction of customary law in New Caledonia
Clotilde Fontaine, ATER, Histoire du Droit, Université de Limoges.
According to the given definition of citizenship, a citizen is a member of a specific community that provided a distinct source of identity. This identity sometimes appears as a major issue for the former colonies’ inhabitants. On November 4, 2018, New Caledonians voted to decide upon the sovereignty of their territory. 56,4% expressed their opposition to a full independence. The second referendum on the independence of New Caledonia in October 2020, rekindles debates on the citizenship and sovereignty of this former colonial territory.
After years of trouble, a revision of the French Constitution was organized through the Accords de Nouméa (Noumea’s Agreements), finalized on the 5th May 1998. The 1999’s Organic Law defines the state competences that would be transferred to New Caledonia’s institutions. This legislation also organizes these institutions and their functioning. From then on, New Caledonia shares its sovereignty with France, as a sui generis territory. The second article of the Accords de Nouméa also creates a New Caledonian citizenship. It was thought to encourage native people and immigrants to become a unique community based on a destin commun, a common destiny. This specific status impacted the construction of law in this regional authority. Full recognition of the Kanaks’ identity goes through the elaboration of the country’s law (la loi du pays). This paper offers an overview of both New Caledonia’s turbulent history and the identity issues faced by its inhabitants.
Keywords : New Caledonia, citizenship, customary law.
According to the given definition of citizenship, a citizen is a member of a specific community that provides a distinct source of identity. This identity sometimes appears as a major issue for the former colonies’ inhabitants. The second referendum on the independence of New Caledonia, on 4 October 2020, rekindles debates on the citizenship and sovereignty of this former colonial territory. Geographically, this island is located tens of thousands of kilometres from Europe and often appears as a little-known territory on international and European levels. This paper offers an overview of both its turbulent history and the identity issues faced by its inhabitants.
In 1774, the British navigator James Cook landed in New Caledonia. This territory became a French colony in 1853, two centuries later than other French Overseas Territories such as Martinique, Guadeloupe, or Reunion. The ethnologist Rosselène Dousset Leenhardt considers New Caledonia’s colonisation to be one of the worst: from the time of colonial settlement until 1917, Melanesian uprisings were common, but they were constantly feared by settlers and authorities alike. As a result, the native Kanak population was reduced by half between 1866 and 1921 (from 45 000 to 27 100) whereas Europeans, people from Wallis and Futuna, French Polynesia and Vanuatu, as well as Indonesian or Vietnamese workers, progressively arrived on the island for nickel mining.
From 1860 to 1999, New Caledonia was defined by 13 different legal statuses. This institutional instability mostly contributed to the insurrectional crisis leading to the 1980’s events. In 1946, New Caledonia became a Territoire d’Outre-Mer (French Overseas Territory), which is a more autonomous status than the Départements d’Outre-Mer (French Overseas Departments) like Guadeloupe, Martinique, Guyana, or Reunion. Even if this territory was considered as a sui generis regional authority, the native people, the Kanaks, still claimed their independence. From 1970, the political scene was agitated by the creation of a separatist political party, the Kanak and Socialist National Liberation Front (Front de libération nationale kanak et socialiste). The following decades were characterized by political struggles and conflicts between the French government’s actions and the natives’ independence movement. This period of extreme violence ended in 1988 with Ouvéa’s cave hostage taking, where separatist militants took 27 hostages. The military response resulted in 19 Kanaks’ deaths and 3 police officers (gendarmes). After this dramatic episode, French government and both New Caledonian separatist and anti-independence political parties negotiated the Accords de Matignon, which led to a decade of relative stability.
Ten years later, a Constitutional revision was organized through the Accords de Nouméa, finalized on the 5th May 1998. The article 77 of the French Constitution states that an Organic Law defines the state competences that would be transferred to New Caledonia’s institutions. This legislation also organizes these institutions and their functioning. According to the agreements, full recognition of the Kanaks’ identity goes through the elaboration of the country’s law (la loi du pays). New Caledonian institutions took a step further towards sovereignty: being prepared and applied by a government, some acts would have a legislative force. Consequently, the 1999’s Organic Law provided that a legislation could be proposed on the initiative of the Caledonian Congress and the Caledonian Government. The first one is composed of 7 representatives from Loyalty Islands, 15 from the North province and 32 for the South. All representatives are elected for five years. Members of the Caledonian Government are elected by the Congress; the President of the Government represents New Caledonia, directs the administration and appoints public jobs. Moreover, a High Commissioner of the Republic is appointed by the French President’s decree and deliberated in the Council of Ministers. He controls the powers of Caledonian institutions and provinces but also the legality of their acts. The High Commissioner finally promulgates the law of the country, along with the President of the Government’s countersignature. From then on, New Caledonia shares its sovereignty with France, as a sui generis territory.
The second article of the Accords de Nouméa also creates a New Caledonian citizenship. It was thought to encourage native people and immigrants to become a unique community based on a destin commun, a common destiny. The agreements also provide a self-determination referendum: on November 4, 2018, New Caledonia’s inhabitants voted to decide upon the sovereignty of their territory. 56,4% of the inhabitants rejected full independence. As a result, New Caledonia’s special status ruled by the thirteenth title of the French Constitution will still be applied until October 2020. As 53,3% of the inhabitants recently expressed again their opposition to a full independance, a third referendum could be held by 2022.
Regarding the legal history of France’s overseas territories, a special relationship between citizenship and local laws can often be observed. Why does New Caledonia appear as a specific example among them? After years of troubles, a New Caledonian citizenship has been progressively created in this former penitentiary colony (I). This specific status impacted the construction of law in this sui generis regional authority, as part of its inhabitants are ruled by a statut civil coutumier, which is a special customary civil status recognized by the French Constitution (II).
1. Penal colony, political exiles, and free settlers: the diversity of New Caledonia’s population
The different legal statuses given to New Caledonia implied different waves of immigration to this territory (A). This population diversity progressively generates a redefinition of the Kanak identity (B).
A- Alienation of the Melanesians’ lands and the first insurrections
In 1843, the first French Catholic missionaries paved the way for soldiers, administrators, and settlers. On September 24, 1853, Admiral Febvrier Despointes took formal possession of New Caledonia. This new territory became a penal colony in 1864, ten years after the publication of the law officialising penal colonies. According to Napoleon III, criminals would now be exiled to execute their hard-labour sentences. 22 542 people were sentenced to transportation to Noumea’s forced-labour camp. From 1872 to 1876, political prisoners were also deported to New Caledonia after the events of the Paris Commune in 1871. For example, Louise Michel, one of the first French anarchist women, spent seven years in New Caledonia.
In 1872, Adolphe Thiers’ government decided to send the Communards to New Caledonia. The law published on March 23 established that people convicted to hard-labour would go to Nouméa, those sentenced to déportation to a fortified enclosure in Ducos’ peninsula and the ones sentenced to simple déportation to another island, l’île des Pins. This decision was criticized by Governor La Richerie. Indeed, France had concluded a convention with the Great chief of Kounié’s tribe, leader of the native people living on the island. The island was still directed by the Chief but supervised by the French administration. Members of the tribe were strongly attached to their land and the Governor was afraid of their reaction regarding the arrival of political deportees. Consequently, he suggested that the 200 indigenous people of the West coast should be moved to the East coast, so that it could become a territory of déportation. The Kounié’s tribe kept more than two-thirds of the territory, mostly consisting of the more fertile land. This first expropriation has been followed by many others, caused by the French colonial politics.
Two waves of migrants arrived in New Caledonia from 1850 to 1880. First, some merchants, explorers, sailors, and miners came by themselves. The second wave was encouraged by the colonial Ministry. Farmers, workers, and craftsmen were attracted by colonial propaganda and, by the promise of material benefits. They belonged to the poorest social classes of the rural metropolitan world and were able to travel thanks to the administration’s support. As they took part in a real centre of colonisation at the beginning of the twentieth century, New Caledonia progressively appeared as a settlement colony. But what kind of material advantages could the French government promise? Land. This is one of the main reasons why France led the strictest colonial politics. Even though it had renounced applying the cantonnement (see below) of the natives everywhere else in the Empire, France started to relegate Kanak people to native reserves, such as the native Americans or the Aboriginal Australians.
One of the specialists of New Caledonia, Isabelle Merle, defined the policy of cantonnement as a military logic of repression of the populations that is legally dressed by using the term cantonnement. This term was initially employed in the Forestry Code to change the right of use into the right of ownership, on a reduced part of forest and land. Because of this policy, native people were progressively expropriated from their land, so that the most fertile land could be offered to the Europeans. Expropriation was also used to give land to convicted people who were forced or encouraged to live on the island after their hard labour. By two decrees of 1859 and 1868, these reserves became territories out of reach for the colonists but arbitrarily allocated by the colonizers to the tribes. France has set up a vast spoliation of land in New Caledonia. The cantonnement in these reserves has destroyed the exchanges and relationships between territories.
The Kanaks started to rise up during the first twenty years of colonisation, but those revolts were followed by a strong repression. In 1878, an insurrection was led by the Great Chief Ataï against the expropriation of land for the benefit of convicted people. On June 25, 1878, the Melanesians unleashed a major war against the “White world” within their territory. Local revolts that had virtually ceased since 1869, were progressively followed by an insurrection that was well prepared and organized. The scale of the military operations, in which troops were composed by hundreds of Kanak warriors, surprised the colony’s administrators. The Melanesians tried to get rid of the Whites to recover their land so that the tribes could live as before. Going beyond the limited framework of spontaneous revolts, overcoming the linguistic, geographical, and social divisions characterizing their civilization, the Kanaks organized themselves on a vast scale to stand up against the colonial machine. The rebellion lasted ten months. On the White side, more than 200 people died, and 200 stations were looted and burned; on the Melanesian side, more than 1,200 Kanak people were killed, among whom a large proportion of leaders. This first global insurrection was followed by other ones, especially in 1917 when the chiefs of the Atéou and Tiamou tribes burned their huts in protest. After World War II, the situation started to evolve.
B- A new definition of the Kanak’s identity: a Caledonian citizenship
From 1944 to 1947, several measures were taken by French government. The most important one was the abolition of the Code de l’indigénat, which had been applied in New Caledonia since 1887. This Code used to distinguish two categories of citizens: French citizens (of metropolitan origins) and French subjects (the Melanesians). According to the Code, the Kanaks were deprived of most of their liberties and political rights. In terms of civil law, they could only conserve their personal status, i.e. their religious or customary origins.
As the Code de l’indigénat was abolished, all former French colonies required a new status. The 1946’s French Constitution sanctioned this transformation. Even if Guadeloupe, Martinique, Guyana, and Reunion became Départements d’Outre-Mer (French Overseas Departments), it remained quite complicated to find a solution for New Caledonia. Therefore, it became a Territoire d’Outre-Mer (French Overseas Territory) where two statuses still coexisted: a civil French status for migrants and a local status for native people. Consequently, even if New Caledonia was recognized as part of France, its original inhabitants were not given the right to vote. Civil rights have been gradually obtained for all the Melanesians. An order of August 22, 1945 granted the right to vote to certain categories of Melanesian people, such as veterans, customary chiefs, ministers of religion and educational instructors. Consequently, only 267 members of the Kanaks elite could vote. A law published on May 23, 1951 partially extended their voting rights and it is only in 1957 that all the Melanesians were given the right to vote. From then on, the natives experimented with representation between 1946 and 1958: they could vote for local representatives in the provincial assemblies.
During the 1970s, many French people arrived in New Caledonia, thinking it would be easier to earn money than in Metropolitan France. The gap between Native and White people increased, symbolized by the apparition of a new word: Caldoche. The geographer and New Caledonia’s specialist, Alain Saussol, explained that the term Caldoche began spreading during the 1970s economic boom, in reaction to the influx of new metropolitan invaders attracted by New Caledonia. It qualifies a person of European descent, born on the island. The 1970s also symbolized the beginning of a political change with the creation of the Kanak and Socialist National Liberation Front (Front de libération nationale kanak et socialiste). The political scene started to seize identity issues. The main lines of the separatist project were written by Socialist Kanaks. The Kanak and Socialist National Liberation Front wanted New Caledonia to become a free and sovereign state, called Kanaky. Kanak people should get the right to express their desires and emancipate themselves from France’s domination. But separatists also wanted the creation of a common culture, integrating all the other cultures existing on the territory.
After the 1980s troubled era, the Accords de Nouméa finally resolved the critical situation. On May 5, 1998, they recognized a double legitimacy of the first occupants but also of the communities that had subsequently arrived. They created a New Caledonian citizenship attributed to the French people and their descendants who arrived before 1998. Therefore, New Caledonian citizens have two exorbitant rights unlike the French living in New Caledonia. They vote for the self-determination ballot but are the only ones to elect the members of the provincial assemblies and the Congress. The Kanak people are recognized by institutions: New Caledonian citizenship coexists with French citizenship. Through those agreements, France also wanted to protect and defend Kanak culture and their identity signs. The custom appears as a sign of this culture: it is now a symbol by which the Melanesians claim their autonomy. The Organic Law, published on March 19, 1999 in application to the agreements, defined the rules related to citizenship, the electoral system and employment in New Caledonia. It consecrated in its first title the customary civil status and property. As a result, a Caledonian Customary Senate was created to control any decision related to the Kanak’s identity signs, to customary civil status or to customary land.
2. Recognition of Kanak customary law as a guarantee of New Caledonian citizenship
Legal pluralism is an extension of legal anthropology. According to this approach, State law cannot claim monopoly on the production of law and standards practised in a country, a fortiori in a colonised country. In colonial law, State law coexists with a primary right that became more or less recognized, but which continues to govern indigenous populations. Anthropology then makes it possible to legally qualify situations regarding cultural relations in the original society and then in a society of legal pluralism. New Caledonia is a relevant example for the use of these two methods. While it was initially planned in 1866 that the French courts would apply French law to the Native (A), the legal and institutional recognition of Kanak custom only became stronger (B).
A- Custom, traditional law or customary law?
The colonial order originally applied to New Caledonia resulted from a unilateral act of taking possession. While the policy of cantonnement initially suppressed indigenous territories and destroyed tribes, it then gave way to the reconstruction of clans and chiefdoms based on the same original customary principles, reconfigured in a new context.
During the first violent phase of colonisation, the ethical norm ignored custom as a normative system. In New Caledonia, it is almost impossible to know the content of custom before colonisation. In Kanak society, the law is a lived and archaic right. It is oral in nature, repetitive and transmitted from generation to generation. In the second phase of colonisation, State law tolerates custom. After having reconstituted the clans in the reserves from the 1870s, the French colonial administration recognized the role of custom as a regulator in the life of the population. So-called « administrative » chiefdoms were established: they were responsible for maintaining order in the reserve and fostering good relations with the French colonial administration. An administrative chief is then appointed per district, relayed by small chiefs and councils in elders in each clan. The policy of cantonnement, spoliation and expropriation were all traumatic experiences for Kanak society. How can it then reconstitute its social structure after losing its land, along with some members of the clan, causing the disappearance of lineage?
We shall return here to the distinction made by legal anthropologists between traditional law and customary law. Traditional rights correspond to the pre-colonial experience, to custom in its purest existence. Customary law is formed through contact with the colonial administration. New Caledonia is a perfect illustration of this distinction: the policy of cantonnement favoured the emergence of customary law in opposition to traditional law, making it impossible to understand Kanak custom as traditional law.
The first Europeans who tried to reconstruct Kanak custom were not jurists but ethnologists. The first one was the missionary and ethnologist Maurice Leenhardt. Founder of the « Do Neva » mission, he is the author of several books on this subject. It was not until 1944 that a magistrate became interested in Kanak custom. It was Eric Rau, author of the “Institutions et coutumes canaques”. This jurist thus compares the Kanak clans to autonomous cities, completely independent of each other’s territories. They have their own language and seek to preserve their particular interests. Like a sovereign state, the clan exercises the regal rights of legislation, justice, and coercion. Eric Rau asserts that custom governs the internal functioning of the clan in relation to its territory, as well as its relations with the other clans present in the chieftaincy or on neighbouring territories. The exercise of justice in Kanak society is a means of regulating society that is linked to the social structure and each of its components. Within each clan, self-discipline is exercised where only internal sanctions were taken. Alternative methods of conflict resolution are favoured in the event of conflicts outside the clan: mediation, conciliation, and arbitration. For example, in the case of a land conflict between two clans, the designated mediator is a member of a third clan with historical authority over the land.
What legitimacy should be given to these post-colonial studies on the content of Kanak custom by foreign observers? This raises questions about Maupou’s assertion that Kanak society has succeeded in rebuilding its clan society by preserving the essence of its rites and values despite persecution and spoliation. The clans have certainly retained their structure, composition and customs, but what about the content of their custom, i.e. the traditional law, and the exercise of justice? Until 1930, the French courts did not recognize the customary law and refused to apply it. The Kanaks are indeed referred to their judge by the French courts. However, these customary authorities are not judges: tribal chiefs are appointed by the colonial administration. Since the granting of Caledonian citizenship in 1946, State law has finally established a legal dualism by giving way to custom and establishing a customary civil status.
B- Towards a customary legal order
Pursuant to the Accords de Nouméa and in accordance with the article 77 of the French Constitution of October 4, 1958, the Customary Senate was established by the Organization Act of March 19, 1999. Article 2 of the Organic Law provides that New Caledonia’s institutions include the Congress, the Government, the Customary Senate, the Economic and Social Council and the Customary Councils. The originality of these institutions lies in its partial material competence: it is in fact limited to the Kanak identity. It is not a customary authority strictly speaking, since its creation is provided for in the Accords de Nouméa in order to promote full recognition of Kanak identity. Thus, its role is the subject of topic for debate: representing custom or the Kanak population? Opinions differ on this issue.
For some, there is no link between traditional structures and the Customary Senate. Like the administrative chiefdoms, this Kanak authority is recognized and funded by the public authorities. Customary senators are appointed by the Customary Councils, which are the customary authorities responsible for interpreting the custom of their customary area to the authorities that refer the matter to them (assemblies, High commissioner, administrative or jurisdictional authorities, etc.). As noted above, these Customary Councils are not historical customary authorities: they were created by the French colonial administration. And the only historical customary authorities, i.e. the Councils of Elders or the Councils of Clan Chiefs in the tribes, are not directly involved in the appointment of senators. It is then understandable why the link between the Customary Senate and customary authorities, representing custom, is controversial.
According to the Accords de Nouméa, the Customary Senate is more of a body taking account of the customs and traditional rules specific to Kanak society than as a representative body of Kanak society. It is the indigenous population of the territory’s specificity that was highlighted more than the population itself. In any case, the Customary Senate is invited to formulate, or even write, not the rules of traditional law but of customary law. As soon as it was established in 1999, the drafting of a law of the country on customary acts became a priority. The Accords de Nouméa provides for the legal authenticity of decisions taken by customary palaver. Palaver is a modern term used to describe the meeting of two individuals to discuss a subject or make decisions. The country’s law (la loi du pays) was passed in 2007. It creates officiers publics coutumiers, i.e. customary public officers, to draft customary law. They draft and authenticate acts of recognition, adoption, marriage, or death of persons of customary status. This creation raises several questions: does not putting customary acts in writing contravene the very nature of Kanak custom, which has always been of oral tradition? As a result, do these customary acts not in fact only serve French law? How can customary law and common republican law be placed on an equal footing?
In 2014, the Customary Senate promulgated the Kanak People’s Charter in order to combine reasoned writing of orality in a cooperative legal pluralism. It is the result of a process of self-definition and self-construction initiated by each chiefdom. This text establishes Kanak Customary Law in the legal field of New Caledonia and the State. It consecrates a legal system of customary law that is able to coexist with the common law legal system. From a legal point of view, its usefulness is essential for the courts. The custom is officially recognized as the source of the special law governing the status of persons with customary civil status, property, and customary land. Almost all chiefdoms have adopted this Charter, which is based on Kanak custom. It is thus established as an element of political demand in favour of Kanak cultural identity.
(1882), Nouvelle-Calédonie. Insurrection des tribus canaques des circonscriptions de Bouloupari à Koné, massacres des 26 et 27 juin et 11 septembre 1878, liste nominative des victimes, Nouméa.
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 Laure Bausinger-Garnier, La loi du pays en Nouvelle-Calédonie. Véritable norme à caractère régional (Paris: L’Harmattan, 2001), 22.
 Florence Faberon, “Le fédéralisme, solution française de décolonisation: le cas de la Nouvelle-Calédonie”, Revue française de droit constitutionnelle, 101, no. 2 (2015): 66.
 Sylvie Jacquemart, “Inventer la Nouvelle-Calédonie”, Annuaire des collectivités locales, no. 9 (1989): 61-79.
 Law of 30 May 1854.
 From 1854, French law make a distinction between déportation, which is a political punishment (a déporté is a political convict ; for example Louise Michel, Rochefort or Dreyfus) and transportation, which is an execution of the sentence of hard-labour (people should be transported to a penal colony).
 Unlike the other Communards, she interacted with the Kanaks and wrote two books that give us precious information about their culture and languages: her memoirs, Souvenirs de Calédonie and Légendes et chants de gestes canaque.
 Bernard Brou, “La Déportation et la Nouvelle-Calédonie”, Revue française d’histoire d’Outre-mer, 241, no. 65 (1978): 501-518.
 Eric Soriano, La fin des Indigènes en Nouvelle-Calédonie: le colonial à l’épreuve du politique 1946-1976, (Paris: Karthala, 2014), 45.
 Isabelle Merle, “De l’idée de cantonnement à la constitution des réserves: la définition de la propriété indigène”, in En pays Kanak. Ethnologie, linguistique, archéologie, histoire de la Nouvelle Calédonie, ed. Alain Bensa, Isabelle Leblic, (Paris: Maison des sciences de l’homme, 2000), 217-234.
 Law of 26 July 1957
 Christine Pauleau, “Calédonien et Caldoche”, Mots, La Nouvelle-Calédonie après les accords de Matignon. Désignations et identités en Nouvelle-Calédonie, no. 53, (1997): 48-65.
 Mireille Darot, “Calédonie, Kanaky ou Caillou? Implicites identitaires dans la désignation de la Nouvelle-Calédonie”, Mots, La Nouvelle-Calédonie après les accords de Matignon. Désignations et identités en Nouvelle-Calédonie, no. 53 (1997).
 Stéphanie Graff, “Quand combat et revendications kanak ou politique de l’Etat français manient indépendance, décolonisation, autodétermination et autochtonie en Nouvelle-Calédonie”, Journal de la Société des Océanistes, 134, no. 1, (2012), 61-83.
 “La théorie du pluralisme juridique peut servir à mettre à jour et à décrire le phénomène empirique qu’est la pluralité des foyers et des systèmes normatifs, ce qui permet alors d’appréhender un sujet d’étude à travers une approche explicative dite pluraliste”, Ghislain Otis, Méthodologie du pluralisme juridique (Paris: Karthala, 2012), 9.
 Régis Lafargue, La coutume face à son destin (Paris: LGDJ, 2010), 13.
 Do Neva means real country.
 Maurice Leenhardt, Notes d’ethnologie néo-calédonienne (Paris: Travaux et mémoires de l’Institut d’Ethnologie, 1930) ; Maurice Leenhardt, Documents néo-calédoniens (Paris: Travaux et mémoires de l’Institut d’Ethnologie, 1932) ; Maurice Leenhardt, Gens de la Grande Terre (Paris: Travaux et mémoires de l’Institut d’Ethnologie, 1938).
 Eric Rau, Institutions et coutumes canaques, (Paris: L’Harmattan, 2005) 54.
 Raphaël Mapou, Analyse dialectique des transformations du droit en Nouvelle-Calédonie. La civilisation kanak face à l’impérialisme juridique de la France (Paris: L’Harmattan, 2020), 171.
 Noumea Court of Appeal, 19 September 1933.
 Jean-Louis Halpérin, “La coutume en Nouvelle-Calédonie en attente de décisionnaire(s)?”, in Les décisionnaires et la coutume: contribution à la fabrique de la norme, ed. Géraldine Cazals, Florent Garnier (Toulouse: EHDIP, 2017), 475.
 Raphaël Mapou, Analyse dialectique des transformations du droit en Nouvelle-Calédonie. La civilisation kanak face à l’impérialisme juridique de la France (Paris: L’Harmattan, 2020), 364.
 Law of 15 January 2007.
 Raphaël Mapou, Analyse dialectique des transformations du droit en Nouvelle-Calédonie. La civilisation kanak face à l’impérialisme juridique de la France (Paris: L’Harmattan, 2020), 383-406.
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