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Traditional native approaches to ocean governance
How can these ideas of kinship and harmony be translated into Western notions of governance? What happens when the resources of the sea are scarce and need to be rationed through some system of allocation?
When the Third United Nations Conference on the Law of the Sea began its work in the early- and mid-1970s, a study was prepared under the auspices of the Congress of Micronesia, in part to illustrate the long history of Micronesian use of the surrounding sea and in part to address these questions of governance. (Nakayama and Ramp 1974) This report reaffirms that the sea is a controlling and transcendent part of the life of the islanders, who live on tiny land areas:
Though essential, the land is tiny and relatively barren. It provides people with protection from the elements and a place to eat and sleep in comfort. But the real focus of life is on the sea. The sea provides food and tools and the medium to transport an islander from one cluster of humanity to another. As compared to the power and moods of the sea, the land is insignificant, humble, dull. The rhythm of life is dictated by the sea. The turbulence of the sea tells people when they can travel and when they can't. It controls the habits of fish and the habits of the human seeking them. The sea sustains life with the food it provides, but also carries the potential to end it in the fury of one of its periodic rages. The sea challenges people, tests their character, provides life with drama and meaning.
The report examines the traditional practices in Micronesia and concludes that the basic concepts used throughout these islands are that "proximity determines ownership" and that there should be "pragmatic accommodations to competing interests among individuals and groups of people combined with a mutually understood but unspoken sense of fairness." (Ibid.)
Each island community has an area of exclusive rights in the lagoon, if it is an atoll, and in the nearby offshore area. This area extends to the point where the reef ecology gives way to the deep sea species of fish. Beyond this area is an area of non-exclusive rights, where others can fish, but even there it is clear that the closest island community has preferential rights. Other islanders passing through these non-exclusive zones can fish while they travel, and the fish is considered to be a gift to the intruding islanders. If their catch is excessive, they are expected to take their fish to the island and present it to the local chief, in recognition of the adjacent island's superior rights to the fish; the local chief will then return a portion to the intruders. (Ibid.)
A French scientific expedition led by Louis de Freycinet visited the waters around Guam in 1819 and confirmed that the islanders there had a keen sense of ownership of the offshore waters. He reported that fishers would sometimes drag behind their canoe a device called a "poio," consisting of a hollow half-coconut-shell and a hemispheric rock, filled with chewed coconut meat. The fish would be attracted to this device while the fisher canoed through the fishing grounds of others to his own ground, at which point he would harvest the fish with a net. If, however, the fisher was caught luring the fish away from the other areas, "he would receive the death penalty." (Amesbury and Hunter-Anderson 1989, describing the research of Freycinet 1824)
Thus, although the Micronesian islanders in traditional times had no concept of owning the sea in the Western sense, they did view the surrounding sea as their domain, just as native Americans in North America had a sense that the forests and plains were their hunting grounds.
Asking a Micronesian who owns the sea is like asking him who owns the lagoons or the land. Or like asking an inhabitant of a continental nation who owns the mountains, forests, deserts, lakes, or rivers. To a Micronesian the answer is obvious. A nation's territory is its surface habitat, and the sea is at least as important a part of a Micronesian's surface habitat as is the land. (Ibid.)
... Micronesians own the sea. They own it because they live in it. They own it because until this century they have been the only people to use it for purposes other than transit. They own it because they have sailed it for thousands of years. They own it because they learned how to tame it and cope with its awesome power before anyone else did. They own it because they are totally dependent upon it for survival - both the subsistence form of survival of days past and the more materialistic form of the uncertain future. They own it because over the past centuries they have devised a system for defining and allocating the rights in the sea and for passing those rights on from one generation to the next. (Ibid.)
The current Governor of Guam, Joseph Ada, has expressed this same view as follows:
Life and sea. Bread and water. Past and future. For islands, and particularly, for small islands, the elements of our lives cannot be easily or logically separated by that thin line where the ocean lies with the shore. Within our genes we carry the memory of our fathers and mothers as they explored and fished and birthed and died atop the bosom of the unfenced seas. Within our own memory, we carry the pain of the prison that is created when we are confined to the land because others, with other agendas, control our environmental heritage. (Ada 1991)
The native Hawaiians also had carefully delineated rules to govern access to the nearshore fisheries surrounding the main Hawaiian islands. These islands were divided into pie-shaped land divisions extending from the mountains to the coasts, which were called "ahupua'a." The community living in the ahupua'a had exclusive rights to the fish in the adjacent coastal area out to the reef area or to the point where the coastal waters turned into deep ocean waters. At many parts of the coast, artificial fish ponds were constructed and maintained to cultivate coastal fish for the benefit of the community living on the adjacent lands. These coastal fisheries were regulated by the "konohiki" who was the administrator for the chief.
The konohiki became familiar with the patterns and habits of each fish species and determined how and when fishing should take place to ensure the survival of the species, while also allowing the community to have regular access to fish for eating. During certain periods and at certain locations, the konohiki would establish a "kapu" to prohibit fishing, to allow the fish to replenish themselves or to protect a species during its reproductive period. Beyond the near-shore area, the regulation was less restrictive, and persons from other areas could fish for the deep-ocean species. (Meller 1985; Morgan 1986; Anders 1987; Murakami and Freitas 1987; Pacific Fisheries Consultants 1990; Murakami 1991)
Native Hawaiians fished actively far from their coasts. Families and communities found especially fertile areas above seamounts, information of which they passed on orally to their offspring but tried to keep secret from others. They also sent exhibitions to the northwest Hawaiian Islands to bring back fish from those distant areas. (Ibid.)
The Maori similarly restricted access to their fisheries in order to protect against overfishing. Among their traditions is "[a] tale of careless men robbing once rich reefs and an unforgiving Tangaroa claiming back the mauri of his bounty. And from that story came a certainty that created a tradition of respect for the gifts that are given to humans, and a realization of the need for balance in all things." (Jackson 1992)
In recent years, the native Hawaiian community has been active in asserting rights to the ocean and its resources. Native Hawaiians state, for instance, that the submerged lands surrounding Hawaii and the water column above these submerged lands were all part of the Crown and Government Lands illegally acquired by the United States in 1898 without the consent of, or compensation to, persons of Hawaiian ancestry. These illegally acquired properties are now commonly referred to as the "ceded lands" because they were ceded by the illegally constituted "Republic of Hawaii" to the United States at the time of annexation in 1898. A large portion of these properties were then transferred to the State of Hawaii at the time of statehood in 1959. The State of Hawaii has acknowledged that the submerged lands are part of these "ceded lands." (Attorney General of Hawaii 1982)
The Office of Hawaiian Affairs (OHA) has been active, together with other native Hawaiian groups, in asserting that the Hawaiian people are entitled to a substantial share of the ocean resources surrounding Hawaii. On 2 September 1989, the Office of Hawaiian Affairs issued a Draft Blueprint for Native Hawaiian Entitlements which included the following paragraph among the claimed entitlements:
4. Submerged Lands and Offshore Waters.
Native Hawaiians have an interest in the living and nonliving resources of submerged lands and offshore water in the exclusive economic zones and territorial seas surrounding the Hawaiian Islands, Johnston Atoll, Palmyra Island, and Midway Island. Native Hawaiians are entitled to half of all revenues received by the U.S. government from these resources. Native Hawaiians are also entitled to harvest half of all resources in these areas. Both the living and nonliving resources should be co-managed by appropriate federal and state agencies and OHA, or any successor Native Hawaiian entity developed pursuant to the process set forth below, in an environmentally sensitive manner designed to preserve these resources for future generations.
The phrasing of this claim has presented some interesting challenges, because some of the Trustees of the Office of Hawaiian Affairs have felt uncomfortable referring to "nonliving resources" in light of their spiritual heritage which sees all things as part of the life force. It has been decided that in future versions of this document, the phrase "living and nonliving" will be omitted, and the claim will be simply for the "resources" of the sea.
The idea that the claim should be for half of all the revenues and resources of the offshore area came from a 1974 decision in the case of United States v. Washington. That decision required the judge to give a modern interpretation to a nineteenth century treaty between the United States and the Indian tribes of the Pacific North-west in which the United States had confirmed that the tribe had an absolute right to take fish from certain rivers in the State of Washington, without any limitation in time, except as Congress might otherwise determine. Because the non-Indian population was fishing actively in these rivers, and thus depleting the fish stocks, Judge Boldt ruled that the Indians should be entitled to half of all the fish caught. This decision had the effect of sharply curtailing the fish that could be caught by non-Indians and protecting the rights guaranteed to the Indians in the earlier treaty.
Guam has similarly claimed jurisdiction over the resources of the seabed, subsoil, tidelands, and adjacent waters. This claim extends throughout the 200-mile exclusive economic zone, which the Guam Legislature claimed through Public Law 15-114, passed on 24 March 1980. (Ada 1991) The Commonwealth of the Northern Mariana Islands (CNMI) has also made such a claim (King 1991), and both Guam and the CNMI are negotiating with the United States government to secure greater authority over their offshore resources. In 1990, the President's special representative to the CNMI agreed that the CNMI should have greater control over its offshore resources, but the US State Department has objected, and the matter remains unresolved. (Guerrero 1992)
The Maori have been pursuing their claims to the offshore resources through the Waitangi Tribunal, which was established to reexamine and restore the rights of the Maori under the 1840 Treaty of Waitangi between Great Britain and the Maori chiefs. That treaty states that the British Queen "confirms and guarantees" to the Maori chiefs and tribes "the full exclusive and undisturbed possession of their Lands, Estates, Forests, Fisheries and other properties." The history of New Zealand has, however, been otherwise, and the Maori have lost most of their resources. (Waitangi Tribunal 1988)
In recent years, the Maori tribes have been seeking to restore rights to the various fisheries in the bays and offshore waters around their islands. One recent report of the Waitangi Tribunal emphasized the importance of the offshore resources by noting that "the products of the aquatic economy provided Maori with their only animal food apart from birds, dogs and rats, and any portion of sea could hold for them much higher value than any equal area of land." (Ibid. at xiii.) The Maori were skilled at fishing and were active traders during the nineteenth century. The Maori fished far offshore, with fishing sites identified as far as 48 miles from the coast. (Ibid. at 197.) One European observer reported in 1886 seeing the Maori use a net 1,900 metres long in the Bay of Plenty, catching 37,000 "good sized" fish and many other smaller ones. Another observer during this period reported a shark hunt involving 50 canoes and 2 boats carrying 1,000 Maori which caught 7,000 sharks. (Ibid. at xiv.) The current efforts to restore fishing rights to the Maori involve judicial challenges, legislative activities, and negotiations among the different parties. (The ocean claims of other native peoples, particularly those in the Arctic areas, are collected and summarized in Valencia and VanderZwaag 1989.)
International recognition of the rights of indigenous peoples
Coalitions of indigenous people have been working industriously to seek international recognition of their claims. The two principal forums for these discussions have been:
1. the International Labour Organisation (ILO), which sponsored the 1989 Convention Concerning Indigenous and Tribal Peoples in Independent Countries, and
2. the Working Group on Indigenous Populations of the UN Human Rights Commission's Sub-Commission on Prevention of Discrimination and Protection of Minorities.
The 1989 ILO Convention is written in somewhat general terms, because it is designed for all indigenous peoples in all their different situations, but it has some provisions that make it clear that these peoples have real rights to resources that must be respected. The Convention uses the term "land" to cover "the total environment of the areas which the peoples concerned occupy or otherwise use." (Article 13(2).) Article 14(1) states that:
The rights of ownership and possession of the peoples concerned over the lands which they traditionally occupy shall be recognised. In addition, measures shall be taken in appropriate cases to safeguard the right of the peoples concerned to use lands not exclusively occupied by them, but to which they have traditionally had access for their subsistence and traditional activities....
Article 7(1) is also relevant:
The peoples concerned shall have the right to decide their own priorities for the process of development as it affects their lives, beliefs, institutions and spiritual well-being and the lands they occupy or otherwise use, and to exercise control, to the extent possible, over their own economic, social and cultural development. In addition, they shall participate in the formulation, implementation and evaluation of plans and programmes for national and regional development which may affect them directly.
At the meetings of the Working Group on Indigenous Peoples, efforts have been underway for the past several years to draft a Universal Declaration on the Rights of Indigenous Peoples, which would be adopted by the UN General Assembly. (ECOSOC 1990) The 1989 draft's listing of rights contained several provisions that are related to the claims to ocean resources of indigenous peoples:
14. The right to special measures to ensure their ownership and control over surface and substance of resources pertaining to the territories they have traditionally occupied or otherwise used including flora and fauna, waters and ice sea.
15. The right to reclaim land and surface resources or where this is not possible, to seek just and fair compensation for the same, when the property has been taken away from them without consent, in particular, if such deprival has been based on theories such as those related to discovery, terra nullius, waste lands or idle lands....
The idea that native peoples have rights to offshore waters and resources is gaining greater recognition. The traditional rights of these peoples to these areas justify their claims to continue to make use of the offshore resources. Their traditions will continue to guide them in these uses, and they will endeavour to use these resources in a manner that is harmonious with, and respectful of, the oceans and the creatures that live in it.
Because the claims of indigenous peoples to participate in the bounty of the ocean are just and linked closely to their historical uses, it is appropriate to support these claims and seek modern and innovative ways to allow native peoples to govern ocean areas once again. The rest of us will also benefit by being able to observe and learn from an approach toward resource use that is not exploitive but rather is designed to recognize the kinship links between all parts of the natural environment.
Ada, Joseph. "Guam's EELZ." Pacific Sunday News, 27 October 1991, p. 14.
Amesbury, Judith R., and Rosalind L. Hunter-Anderson (Micronesian Archaeological Research Services). Native Fishing Rights and Limited Entry in Guam. Prepared for Western Pacific Regional Fishery Management Council, Honolulu, September 1989.
Anders, Gary C. Native Hawaiian Rights in a Regulated Fishery: An Exploratory Analysis. (Pacific Islands Development Programme, East-West Centre, Honolulu, August 1987)
Attorney General of Hawaii. Opinion letter written by the Department of the Attorney General, Land Transportation Division, to the Chair of the Board of Land and Natural Resources, State of Hawaii, 24 June 1982.
Economic and Social Council (ECOSOC, United Nations). Discrimination Against Indigenous Peoples (analytical commentary on the draft declaration on the rights of indigenous peoples (E/CN.4/Sub.2/1989/36) by Erica-Irene A. Daes for the Sub-Commission on the Prevention of Discrimination and Protection of Minorities), E/CN.4/Sub.2/1990/39 (11 July 1990).
Freycinet, Louis de . Voyage Autour du Monde . Paris : Pill et Aine, 1824 . Unpublished translation by Sylvia Cheng, Micronesian Area Research Center, University of Guam, Mangilao.
Guerrero, Lorenzo I. de Leon. Testimony on H.R. 3842 before the House Committee on Merchant Marine and Fisheries, 4 February 1992.
International Labour Organisation. Convention Concerning Indigenous and Tribal Peoples in Independent Countries. Adopted by the General Conference, 27 June 1989.
Jackson, Moana. "Indigenous Law and the Sea." In: Van Dyke, J.M., G. Hewison, and D. Zaelke, eds Freedom for the Seas in the 21st Century: Ocean Governance and Environmental Harmony, pp. 41-48.
King, Victoria. "Comment, The Commonwealth of the Northern Marianas Islands' Rights Under United States and International Law to Control Its Exclusive Economic Zone." University of Hawaii Law Review (1991), 13: 477.
Laenui, Poka (Hayden Burgess). "An Introduction to Some Hawaiian Perspectives on the Ocean." In: Van Dyke, J.M., G. Hewison, and D. Zaelke, eds Freedom for the Seas in the 21st Century: Ocean Governance and Environmental Harmony, pp. 91-102
Meller, Norman. Indigenous Ocean Rights in Hawaii. Sea Grant Marine Policy and Law Report, University of Hawaii, December 1985.
Morgan, Joseph R. "Watersheds in Hawaii: An Historical Example of Integrated Management." In: Easter, K.W., John Dixon, and M.M. Hufschmidt. Resources Management: An Integrated Framework with Studies from Asia and the Pacific. Boulder: Westview Press, 1986.
Murakami, Alan T. "Konohiki Fishing Rights and Marine Resources." In: Kapilialoha MacKenzie, Melody, ed. Native Hawaiian Rights Handbook, pp. 173-195, Honolulu: Native Hawaiian Legal Corporation/Office of Hawaiian Affairs, 1991.
Murakami, Alan T., and Bob Freitas. Native Hawaiian Claims Concerning Ocean Resources. Paper presented to the Hawaiian Ocean Affairs Conference, East-West Center, Honolulu, 7 August 1987.
Nakayama, Masao, and Fredrick L. Ramp. Micronesian Navigation, Island Empires and Traditional Concepts of Ownership of the Sea. Report prepared for the Fifth Congress of Micronesia, Saipan, 14 January 1974.
Pacific Fisheries Consultants. 1990. Native Hawaiian Fishing Rights (Phases 1 and 2). Honolulu, July 1990.
United States vs. Washington, 384 F. Supp. 313 (W.D. Wash. 1974), aff'd 520 F.2d 676 (9th Cir. 1975), cert. denied, 423 U.S. 1086 (1976).
Valencia, Mark J., and David VanderZwaag. Maritime Claims and Management Rights of Indigenous Peoples: Rising Tides in the Pacific and Northern Waters. Ocean and Shoreline Management, 12 (1989):125-67.
Van Dyke, J.M., G. Hewison, and D. Zaelke, eds Freedom for the Seas in the 21st Century: Ocean Governance and Environmental Harmony. Washington, DC: Island Press, 1993.
Waitangi Tribunal. Muriwhenua Fishing Report. New Zealand Government Printing Office, (June 1988), 22