Faculty lunch: September 4, 2003

WHO WAS HERE FIRST? TWO ESSAYS ON INDIGENEITY AND SETTLEMENT Jeremy Waldron

I attach written versions of two recent lectures I have given one in Wellington last December and one in Tel Aviv last June on the theme of occupation and settlement. The first the Wellington lecture poses some hard questions about the notion of indigeneity and the rights of indigenous peoples. I remain unpersuaded that the general duty of a government to do justice to all the people living in a territory is trumped by any special duty it owes to those of the inhabitants who can claim indigenous descent. The second lecture the one given in Tel Aviv begins on p. 29. It takes some work that I have done over the past twenty years on issues relating to historic injustice (its rectification and supersession) and applies that to the difficult situation of relatively recent settlements in the territories of the Gaza Strip, the Golan Heights, and the West Bank occupied by Israeli forces since 1967. The essays are united by their insistence on a principle which I have called elsewhere the principle of proximity. The principle of proximity holds that people have a paramount duty to come to terms with, and to deal justly with, those with whom, they are, in Kants phrase, unavoidably side by side in a given territory, irrespective of cultural or national affinity, irrespective of issues about whose ancestors were here first, irrespective of any history of injustice that may have attached to the process by which these people came to be side by side in the that territory. I regard this as a fundamental principle of political theory, though it is routinely denied by modern communitarians, nationalists, and defenders of identity politics. Its effect, in the context of the present papers, is to deny that nay special privilege attaches to the original or indigenous inhabitants of the land and to deny also that any special opprobrium attaches to settlers or settlements, so far as duties of justice or the basis of political organization are concerned.

2002 Quentin-Baxter Memorial Lecture December 5, 2002

Victoria University of Wellington, Law School Forthcoming in Vol. 1 of New Zealand Journal of Public Law

Indigeneity? First Peoples and Last Occupancy*

1. An abstract question I want to begin by apologizing for the title that I have given this lecture. The term "indigeneity" is something of a mouthful. You won't find it in the Oxford English Dictionary, which insists on "indigenousness" or the ugly "indigenity" (which it describes as rare). Like its near-synonym, "aboriginality," the word "indigeneity" forms an abstract noun from a term we use to apply to certain peoples living in the world. The Oxford English Dictionary defines "aboriginality" as "[t]he quality of being aboriginal; existence in or possession of a land at the earliest stage of its history."1 In a similar way, "indigeneity" is derived from "indigenous" which means "[b]orn or produced naturally in a land or region; native or belonging naturally to (the soil, region, etc.)," from indu, an old Latin root meaning "within" (like the Greek <*@<, endon) and gignere meaning "to beget."2

* A large number of people, in New Zealand and elsewhere, have discussed these issues with me in a way that has been helpful to the development of this lecture. I am particularly grateful to Chief Justice Sian Elias, and Hon. Justices David Baragwanath, Kenneth Keith, John McGrath, Bruce Robertson, and John Smellie; and also to Ismay Barwell, Susan Bathgate, Andrew Butler, Claire Charters, Michael Doogan, Rachael Ennor, Alex Frame, Claudia Geiringer, Maurice Goldsmith, Briar Gordon, Mark Henaghan, Les Holborow, Kirstin Howard, Will Kymlicka, Ian Macduff, Bill Mansefield, Matthew Palmer, John Robson, Carol Sanger, Fergus Sinclair, Gwen Taylor, Jindra Tichy, Bridget Waldron, and Tania Warburton. Emphatically: they are not responsible for what follows; many of them will disagree with what I have made out of the advice and the materials they provided for me.

Oxford English Dictionary, on-line edition accessed 10/23/02.

2 Ibid. The etymology of "indigenous" is from Late Latin indigenus, from Latin indigena, n., native, from Old Latin indu, endo in, within + Latin gignere to beget.

Though it is not in the dictionary - not yet - "indigeneity" is already a term of art in the politics and philosophy of cultural rights and the rights of First Peoples. Though the etymology is fascinating, I am mainly interested in the abstract concept. And I make no excuse for talking about abstractions - because the question I want to ask is about the bearing of this abstract idea of indigeneity on situations that are quite concrete and immediate in relation to our present concerns in New Zealand, and to similar or partly analogous concerns in Australia and North America. With regard to New Zealand, I want to ask: what does it add to our understanding of situations like the one in New Zealand, as between Maori and the Crown, or between particular iwi or hapu3 and the Crown, or between Maori groups of all sorts and other groups in society (whether they are pakeha4 or other immigrant groups) - what does it add to describe Maori as the indigenous people of these islands? For example: a large number of New Zealanders maintain that what is plainly a multi-cultural reality in this country should be described, at least for certain legal and political purposes, as bi-cultural. In other words, what a sociologist from overseas would have no hesitation in describing as a clear and straightforward example of a modern multi-cultural society, with an array of different communities each with its own traditions and its own problems interacting more or less loosely in the overall social fabric of the country immigrant groups, from Asia, from Europe, from the Pacific, the indigenous peoples, as well as the pakeha majority (that is, the descendants of the first two or three generations of white settlers) - it is thought that this plainly multi-cultural reality should continue to be described as bi-cultural, for certain legal and political purposes.5 Now what role does the concept of indigeneity play in the privileging of some groups over others in this plainly counterfactual characterization? That's one question we could ask about the work that "indigeneity" does in our selfdescriptions.

3 "Iwi" is a Maori word referring to tribal groups. "Hapu" is similar, referring to sub-tribal kinship communities, on a somewhat smaller scale than iwi. [NZ readers should bear with these little italicized explanations: they are for the benefit of non-NZ readers.]

4 "Pakeha" is a Maori word used to refer to Europeans. It is used now as a term of self-reference by New Zealanders of European descent as well. I believe it originally menat something like goblins.

5 Bi-national, perhaps, recognizing that the polity was founded in the union of two nations (just as the United Kingdom is tri-national); but why bi-cultural? For a suggestion that "bi-cultural" is just a more popular surrogate for "bi-national," see Augie Fleras, "Politicizing Indigeneity: Ethno-politics in White Settler Dominions," in Paul Havemann (ed.) Indigenous Peoples' Rights in Australia, Canada, and New Zealand (Auckland: Oxford University Press, 1999), p. 207.

(And we must remember that if we are asking a question about the impact of the abstract concept indigeneity - asking what it adds to our description of the situation here in New Zealand - then what it adds ought to be roughly the same as what it adds in other situations, in Australia, for example, or in North America. If you have a society that is ostensibly multi-cultural, comprising communities of many different groups - some the descendants of settlers, a large number of diverse immigrant groups, as well as the descendants of slaves, migrant workers, earlier colonists (Hispanic or French), and so on, and also some communities to which the term "indigenous" can be applied - if you have that multi-cultural reality, does the presence of the last of these groups, the indigenous peoples, justify describing the society as bi-cultural rather than multi-cultural? Is that how we should describe Canada, for example, or the United States? And if - as I believe - such a description would be preposterous in North America, then why exactly does the concept of indigeneity make this peculiar difference in New Zealand?) Similar questions may be asked about our history? In a process where we are currently trying to come to terms with various forms of injustice perpetrated in New Zealand over the past 150 years, how important is it to bear in mind that these were not just any old injustices but injustices perpetrated against the indigenous inhabitants of these islands. No doubt the Crown acted oppressively to many groups; no doubt it still does. But it is widely believed that injustices perpetrated against Maori, or against particular iwi in particular areas of Aotearoa,6 are more egregious or in some other sense specially salient, not only on account of their extent and their human consequences, but just because they were perpetrated against tangata whenua - the original people of the land. Or, to shift the focus slightly: the Treaty of Waitangi7 has been given a status in our constitution that is plainly superior to the status accorded to other treaties that the Crown has entered into (plainly superior to ANZUS, for example).8 In considering the importance of the Treaty after all these years -

"Aotearoa" is a Maori word used now to refer to New Zealand.

7 The Treaty of Waitangi, signed in 1840, between Maori chiefs and a representative of the British crown, whereby the chiefs ceded sovereignty to the Crown, in return for guarantees of security, respect for their chieftainship, and the protection of their property, their treasures, and their cultural and economic rights. For transcripts and translations, see http://aotearoa.wellington.net.nz/back/treat.htm

8 ANZUS is the common defense treaty between Australia, New Zealand and the United States. The United States suspended its defense guarantees to New Zealand under ANZUS in 1986 as punishment for New Zealand's anti-nuclear policy.

indeed, well after the normal half-life of most treatises between peoples - how important is it that this was a treaty between the Crown and not just any people but between the Crown and the indigenous peoples of this land which the Crown now purports to govern? In the considering the manner in which it is interpreted9 - a style of interpretation, I might add, that would bring envious tears to the eyes of the most activist liberal on the American Supreme Court - how important is it that the text of the Treaty is not just any text but one that bears the signature of the chiefs of the indigenous peoples of New Zealand? So that's the sort of question I wish to ask. What is important about indigeneity? And I want to ask also what principles or what legal or political ideas does indigeneity invoke, which explain its importance? One particular idea which I should like to pursue quite closely in this evening's lecture is this. Long before people became interested in indigeneity as such, or in the post-colonial situation of indigenous peoples, or in the public morality and constitutional law of settler societies - long before people took an interest in any of that, legal and political thought in our tradition came up with what is known as the Principle of First Occupancy. It's a principle that holds that the first person, or the first people, to take possession of a piece of land acquire special rights over it, so far as property and sovereignty are concerned. Many who now talk about indigeneity seem to believe that this venerable principle is key to understanding the importance that attaches to the description of a people as indigenous. It is key, they say, to distinguishing the claims of groups like Maori or Native Americans from the claims of other groups - like immigrant groups or the descendants of slaves - in these modern societies. That's what I want to discuss. My fear is that theorists of indigeneity have taken up this Principle of First Occupancy without sufficient examination: they have taken it up in a relatively uncritical way. I think it needs more careful examination. Three caveats before I go any further. (1) Though we are gathered here this evening in Wellington, this is not just a talk about New Zealand, but about indigeneity in all the contexts in which the term is employed. (2) It is not an exhaustive treatment of indigeneity. There are aspects of this topic that I will not have time to discuss at all, but which do need discussion. I think particularly of the issue of cultural rights, and of the special concern that a people may have for

9 See Matthew Palmer, "The Treaty of Waitangi in Legislation," New Zealand Law Journal, June 2001, 207 at 209-10.

the preservation of their culture in its original habitat,10 which may well distinguish their claims - and distinguish them honorably - from cultural claims put forward by (say) immigrant groups.11 I am not going to discuss that this evening, though I have written on cultural rights elsewhere;12 and this lecture forms part of a larger project in which those issues will be extensively discussed.13 There are also some further problems with indigeneity that I will not discuss, in particular the notion of descent - as in "indigenous peoples are the descendants of the original inhabitants of a territory." I will not discuss those problems, though I am persuaded by some things that Bill Oliver says in Coates and McHugh's Living Relationships volume that this too is a difficulty.14 (3) I am conscious that I am not the first to address these issues. Alison Quentin-Baxter is the editor of a substantial volume on the rights of indigenous peoples;15 and as we shall see two other New Zealanders - Benedict Kingsbury (of NYU)16 and F.M. (Jock)
10 "The fundamental importance of cultural survival ... is the point of the whole process." - Joe Williams, "A Summing up," in Alison Quentin-Baxter (ed.) Recognising the Rights of Indigenous Peoples (Wellington: Institute of Policy Studies, 1998) at 191. See also Ken S. Coates, "International Perspectives on Relations with Indigenous Peoples," in Ken S. Coates and P.G. McHugh (eds.) Living Relationships: The Treaty of Waitangi in the New Millennium (Wellington" Victoria University Press, 1998), p. 73.

11 There are other also issues about the status and responsibilities of immigrants, which distinguish them necessarily from indigenous peoples. Consider this point (put forward originally in a Canadian context): "'The Indians, the Inuit and the Metis did not immigrate to Canada as individuals or families who expected to be assimilated. Immigrants chose to come here and to submit to Canadian laws and institutions.' (Thomas Berger, as quoted in Benedict Kingsbury, "Competing Conceptual Approaches to Indigenous Group Issues in New Zealand Law," Univ. of Toronto Law Journal, 52 (2002), 101, at p. 123.). And there are issues about modes of life - forms of economy that are more subsistence-based, oriented towards living off the land, in contrast with modern urbanized economies; sometimes notions of indigeneity pick up on that. See Coates, "International Perspectives," supra note 10, at pp. ___.

12 My publications on this include: 'Minority Cultures and the Cosmopolitan Alternative,' University of Michigan Journal of Law Reform, 25 (1992), 751-92 (reprinted in Will Kymlicka (ed.) The Rights of Minority Cultures (Oxford: Oxford University Press, 1995); 'Multiculturalism and Melange,' in Public Education in a Multicultural Society, ed. Robert Fullinwider (Cambridge University Press, 1996) ; Cultural Identity and Civic Responsibility, in Will Kymlicka and Wayne Norman (eds.) Citizenship in Diverse Societies (Oxford: Oxford University Press, 2000); Taking Group Rights Seriously, in Grant Huscroft & Paul Rishworth (eds.) Litigating Rights: Perspectives from Domestic and International Law (Oxford: Hart Publishing, 2002), 203-220; "One Law for All: The Logic of Cultural Accommodation," Washington and Lee Law Review (forthcoming late 2002).

13

Jeremy Waldron, Cosmopolitan Right (in draft; under contract to Oxford University Press).

14 W.H. Oliver, "The Fragility of Pakeha Support," in Coates and McHugh, Living Relationships, supra note 10 , p. 223: "Many of those groups to which the rights are ascribed today have a history of massive and continuing change, and a complicated multiple ancestry."

15 Quentin-Baxter, Recognising the Rights of Indigenous Peoples, supra note 10. [Dr. Quentin-Baxter is the wife of the professor in whose memory this lecture was given.]

16 Benedict Kingsbury:"'Indigenous Peoples' in International Law: A Constructivist Approach to the Asian Controversy," American Journal of International Law, 92 (1998) 414-57; "Competing Conceptual Approaches," supra note 11; "Reconciling Five Competing Conceptual Structures of Indigenous Peoples' Claims in International and Comparative Law," New York University School of Law Journal of International Law and Politics, 34 (2001), 189.

Brookfield17 - have written a great deal on this subject. Brookfield's account I have found particularly stimulating. I see myself in this lecture very much as fiddling with one little piece of a complicated jigsaw. My claim for a specific contribution is this: apart from the work I have done in the past on cultural rights and on the rectification of historic injustice,18 I have devoted a lot of energy to studying principles like first occupancy,19 which - as I said - are supposed to explain some of the special importance of indigeneity. I believe those principles are being invoked in this debate opportunistically and carelessly , and. I'd like to say something to redress that. I have a particular interest in theories of justice - I grew up philosophically under the indirect influence of John Rawls,20 who passed away the other day - and I have always been intrigued by the way the concept of indigeneity is used to transform what would otherwise be a forward-looking discussion of social justice. Let me explain. We might think in a good-hearted and pragmatic way that a decent society ought to struggle to make things more just, here and now and into the future for all the people and communities who are trying to make a life around here. If the resources of our society are wrongly distributed - if land, wealth, income, and power are wrongly distributed - then distributive justice demands a readjustment. Such readjustment has happened here in the past, with land reform in the late nineteenth century and with quite extensive welfarist redistribution throughout much of the twentieth century. Maybe it should happen again. But that is not enough - say some writers and politicians - if the issue is indigeneity. Indigeneity calls for a more radical approach - not just remedial measures to address maldistribution, but a restoration to the descendants of indigenous peoples of some or all of the rights - rights of sovereignty, rights of property - that were once held by their ancestors. Thus Duncan Ivison and his co-editors in the "Introduction" to their collection of essays on Political Theory and the Rights of Indigenous Peoples are adamant that
F.M. Brookfield, Waitangi and Indigenous Rights: Revolution, Law and Legitimation (Auckland: Auckland University Press, 1999).
18 See Jeremy Waldron, 'Redressing Historic Injustice,' University of Toronto Law Journal, 52 (2002), 135-60. See also Jeremy Waldron, 'Superseding Historic Injustice,' Ethics 103 (October 1992), 4-28. An earlier version of the Ethics paper was published as 'Historic Injustice: Its Remembrance and Supersession,' in Oddie and Perrett (eds.) Justice, Ethics and New Zealand Society (Auckland: Oxford University Press, 1992) 17

19

Jeremy Waldron, The Right to Private Property (Oxford: Clarendon Press, 1988).

20 John Rawls, A Theory of Justice (Cambridge: Harvard University Press, 1971) and Justice as Fairness: A Briefer Restatement (Cambridge: Harvard University Press, 2001).

the distinctiveness of indigenous claims ... is lost or rendered opaque in discussions of distributive justice. ... Indigenous claims are not just for rights to any fair share of Australian or Canadian resources, but to a particularized share....21 The idea of indigeneity is supposed to transform the discussion from a general debate about justice to a debate phrased in more Nozickian, even Lockean terms, about the priority of certain entitlements and the particular connection of owners or sovereigns to particular pieces of land or territory.22 Ivison, Patten and Sanders are quite explicit about the privilege and priority that is claimed for these entitlements over and above say the grievances and claims of other disadvantaged groups. Immigrants may complain of prejudice and discrimination, AfricanAmericans may seek reparations for slavery, but these demands for justice are different in kind from indigenous claims. The theory of indigeneity, they say, is preoccupied with "the problem of distinguishing indigenous claims from the claims of other kinds of cultural or 'societal' groups.23 And throughout their book, they treat it as a point against any putative definition of indigeneity that it may tend to minimize this distinction. 2. Two kinds of definition So let us review the way in which - or the ways in which - "indigeneity" may be defined. Plainly, it is a relative term - a people may be described as "indigenous" in relation to a certain land or territory, meaning that they are its original inhabitants. Sometimes it is treated as doubly relative, so that a people is called indigenous, first in relation to a certain land or territory, and secondly, in relation to some other people, who arrived in the land at a time subsequent to the people now called indigenous. So one might say the Maori are the indigenous inhabitants of Aotearoa because they were its first human inhabitants. Or, we may say they are its indigenous inhabitants relative to the Europeans who attempted to settle there as part of the colonial enterprise. (As one commentator has noted,24 this
21 Duncan Ivison, Paul Patton and Will Sanders (eds.) Political Theory and the Rights of Indigenous Peoples (Cambridge: Cambridge University Press, 2000), p. 10

22 Cf. Robert Nozick, Anarchy, State and Utopia (Oxford: Basil Blackwell, 1974), Ch. 7. Cf. John Locke, Two Treatises of Government [1689], ed. Peter Laslett (Cambridge: Cambridge University Press, 1988], II, Ch. V.

23

Ivison et al., Political Theory and the Rights of Indigenous Peoples, supra note 21, p. 3. Who?

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second definition more or less treats "indigenous" as synonymous with "colonized.") So there immediately, you have two styles of definition - which I will call style (a) and style (b). The original definition put forward at the 1975 World Council of Indigenous Peoples was a style (a) definition: it referred to "descendants of the earliest populations living in the area."25 But the same organization offered a style (b) definition in its draft covenant of 1984, referring to the descendants of peoples "who lived in the territory before the entrance of a colonizing population." 26 The two concepts may be co-extensive, as in New Zealand and Australia, where the populations that confronted European colonists are plausibly regarded as the descendants of the first inhabitants of these lands. But still it is necessary to be aware of these alternative styles of definition, because indigeneity in sense (b) may ground different sorts of claims than indigeneity in sense (a), and it makes a difference which ones we rely on. And it makes a difference, too, because in some circumstances the ideas will come apart. In a country like India, for example, if indigeneity is defined absolutely in terms of literal first occupancy, we have to try to go way back before the Mughal empire of the sixteenth century, before the Vedic period on which present Hindu nationalist mythology is presently based, before the Indo-Aryan invasions in the latter half of the second millennium BC, even before the early Harrapan period that laid the foundation for the Indus Civilization; we have to go all the way back to the Paleolithic peoples who settled the Indian subcontinent as early as the eighth millennium B.C. If on the on the other hand, we are talking about prior occupancy, relative (say) to the wave of European incursions into India that began in the sixteenth century or the establishment of the British Raj in the eighteenth century, then we are saying that what commands respect is a complex mosaic of layered titles, claims, and civilizations that just happened to exist there at a particular point in time.27 Plainly indigeneity in sense (b) is a variable term, depending on which empire or conquering power one is contrasting it with.

25

Cited by Kingsbury, "'Indigenous Peoples' in International Law," supra note 16, at p. 422. Idem. The OED gives this as a second special meaning of "aboriginal": 2. spec. Dwelling in any country before the arrival of later (European) colonists. 1788 BURKE Sp. agt. W. Hastings Wks. XIII. 64 This aboriginal people of India.

26

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Actually even if you just concentrate on definition (a), there is still considerable indeterminacy. There is a distinction, difficult to pin down but interesting, between being descended from the first inhabitants of a given territory and being descended from people who inhabited a given territory since the dawn of human history. It would be silly to describe the first European whalers who reached the sub-Antarctic Islands - Auckland Island, Campbell Island - as indigenous to those islands, even though they are, strictly speaking, the first peoples of those islands in the sense of not having been preceded there by any other human group. But it is not silly to describe the first human inhabitants of Aotearoa as indigenous, even though they came here less than a thousand years ago, with ancestral memories of migration from a quite different homeland. Nor, presumably, should there be any difficulty in applying the same term "indigenous" to the Maori as to the Australian aborigines, even though the ancestors of the latter migrated to Australia perhaps tens of thousand years before the former sailed to New Zealand. The fact is that humans have been migratory animals since our emergence in Africa more than a hundred thousand years ago, and it is plain that the application of the term "indigenous" to human populations is always going to be somewhat different from its application to plants for example. We have not sprung from the earth or evolved within the territories with respect to which we claim to be indigenous. Usually what is emphasized is that the indigenous peoples have strong ancestral links to the land because they have made a life there for many generations. However, this too is sometimes made relative to other peoples - in a definition (b) sort of way - as in the rather informal definition we find at the beginning of James Anaya's book, Indigenous Peoples in International Law: Anaya talks of peoples being "indigenous because their ancestral roots are imbedded in the lands in which they live ... much more deeply than the roots of more powerful sectors of society living on the same lands."28 For type (b) definitions of indigeneity, there are also intriguing riddles on the other side of the equation. If indigeneity means priority over the colonizing population, does it imply that the occupation by the colonists has gone on for a relatively short period? Professor Brookfield mentions the case of certain Nordic
S. James Anaya, Indigenous Peoples in International Law (Oxford: Oxford University Press), p. 3: "Today, the term indigenous refers broadly to the living descendants of preinvasion inhabitants of lands now dominated by others. Indigenous peoples, nations, or communities, are culturally distinctive groups that find themselves engulfed by settler societies born of the forces of empire and conquest. The diverse surviving Indian communities and nations of the Western hemisphere, the Inuit and Aleut of the Arctic, the Aborigines of Australia, the Maori of New Zealand, the Tribal peoples of Asia, and other such groups are among those generally regarded as indigenous. They are indigenous because their ancestral roots are imbedded in the lands in which they live, or would like to live, much more deeply than the roots of more powerful sectors of society living on the same lands or in close proximity."
28

countries, which have recognized the indigeneity of the Sami peoples despite the fact that the peoples relative to whom the Sami are said to be indigenous have also occupied the lands in question for millennia.29 Type (b) definitions often suggest not just temporal priority - the indigenous peoples were here before the settlers but also a great disparity between the few generations that have passed since colonization compared to the millennia in which their indigenous predecessors occupied the territory. (This aspect makes it quite difficult to define indigeneity with regard to certain groups in South Africa.) These conundrums of definition are very well known in the industry. As Ben Kingsbury observed in 1998, "[t]he development of "indigenous Peoples" as a significant concept in international practice has not been accompanied by any general agreement as to its meaning."30 The conundrums and controversies have become particularly important in Asian countries where there is considerable resistance to any definition of indigeneity that does not reference colonization. As Kingsbury notes, "several governments of Asian states argue that the concept of 'indigenous peoples' is so integrally a product of the common experience of European colonial settlement as to be fundamentally inapplicable to those parts of Asia [like China] that did not experience substantial European settlement."31 (And again, I guess one can acknowledge that point, but still try to refine an analytic definition in order to see whether indigeneity adds anything to whatever other reasons there are for concern and outrage over the injustices attendant on European imperialism.) I should say that it is not my intention to make anything of this definitional uncertainty as such. Kingsbury may well be right when he suggests that traditional analytic or positivist modes of definition are inappropriate.32 The Draft U.N. Declaration of the Rights of Indigenous Peoples at present contains no definition at all, and it may be that that is the most sensible course.33 People warn that the experiences and predicaments of First Peoples in various parts of the world are quite different, which, if true, may mean that the term "indigenous" tells

29

Brookfield, Waitangi and Indigenous Rights, supra note 17, at p. 78, quoting Sanders [1996] 2 CNLR

20, at 21
30

Kingsbury, "'Indigenous Peoples' in International Law," supra note 16, at p. 414. Ibid., p. 418. Ibid., p. 457. See in Anaya, Indigenous Peoples, supra note 28, at pp. 185 ff.

31

32

33

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us very little.34 Ken Coates suggests that the point is to let indigenous peoples define themselves,35 though that of course assumes that non-indigenous peoples under some definition will not muscle in on the act or spoil some implicitly shared sense of what all First Peoples have in common. What I do think is that the definitional uncertainties reflect an instructive ambivalence as to the basis of indigeneity's importance. In international law circles, I think a consensus has moved towards type (b) definitions of indigeneity - that is definitions like the one in ILO Convention 169 of 1989, which talks about people being "regarded as indigenous on account of their descent from populations which inhabited the country ... at the time of conquest or colonization or the establishment of present state boundaries." 36 (Though interestingly this is not a convention that New Zealand has signed.) 37 If that is so, then the points that I would like to make about the moral significance of indigeneity can be made pretty easily; but the case is more complex, though I think no less convincing, when we fall back on a type (a) definition. 3. The significance of indigeneity As I said a moment ago, indigeneity is often said to be of special significance for issues of property and for issues of lordship, sovereignty, political control, and self-determination. We have seen that indigeneity is always defined relative to a given territory and the special relationship to the land that is key to most indigeneity claims means that the issue is bound to affect property, the distribution of resources, and resource use policies as well as issues relating to sovereignty.38 So: those who believe that indigeneity is important believe that its importance consists in the challenge it poses to current patterns of sovereignty and property rights. The logic is quite simple. Indigenous peoples were not just hanging around in New Zealand, Australia or North America, waiting to be

34

See Coates,"International Perspectives," supra note 10, p. 76. Ibid., pp. 36-7.

35

36 Article 1 (1)(a) of ILO Convention (# 169) concerning Indigenous and Tribal Peoples, Adopted at Geneva, June 27, 1989. (Excerpted in Anaya, Indigenous Peoples, supra note 28, p. 194.)

37

http://www.mft.govt.nz/speech/minspeeches/unindigen.html

38 It is also said to be important for cultural rights and language issues, though there, of course, the precedence that it asserts over other cultural or language-rights claims depends in part on the special significance that it is supposed to have in respect of land, property, territory and sovereignty. See Joseph H. Carens, "Democracy and Respect for Difference: The Case of Fiji," in his collection Culture, Citizenship, and Community: A Contextual Exploration of Justice as Evenhandedness (Oxford: Oxford University Press, 2000).

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colonized. They were already living and thriving with their own systems of polity, law, and economy. Those systems of polity, law, and economy were here first; and they have a continuing status that is secured by that priority. Colonization disrupted that, often brutally, sometimes (as initially in New Zealand) despite formal guarantees that certain existing structures of property and governance would not be displaced. That brutality, with or without the betrayal of Treaty guarantees, establishes the current regime of property and sovereignty as presumptively illegitimate. Now, in some cases where a present regime is judged illegitimate, the appropriate response is to look forward to arrangements that might be more just or appropriate. But with this sort of illegitimacy - the illegitimate disruption of an indigenous regime - the remedy involves looking back to preexisting arrangements, and finding a structure now that is more respectful of those pre-existing arrangements than the colonial and settler regimes have been to date. Nothing like this, it is aid, can be claimed by other minorities. Their claims are no doubt very impressive from a moral point of view, but they are utopian: they look for justice where it has not yet existed. The claims of indigenous peoples are more grounded than that, grounded in pre-existing reality. It is, as Australian scholar Julie Cassidy has argued, a matter of reversion - she means the international law doctrine of reversion - based on the continuity of de jure sovereignty, even under adverse conditions like colonization: The right of an ousted sovereign to have sovereignty restored under the laws governing belligerent occupation is derived from ultimate de jure title or territorial sovereignty. Sovereign rights do not inure in a belligerent occupant, much less an occupant whose entry was unlawful (ex injuria non oritur jus). The sovereignty of the dispossessed peoples continues, awaiting reversion, despite the loss of territory and even total illegal annexation. ... [W]here people have been forcibly subjugated, their sovereign title continues in abeyance and can later be restored. Even a state which has been totally extinguished can resume its sovereignty when the resurrected "new" state and the old pre-colonization state are identical.39
Julie Cassidy, "Sovereignty of Aboriginal Peoples," Indiana International and Comparative Law Review, 9 (1998) 65, at 117. She cites the reversion of Hong Kong to People's Republic of China in 1997, the resurrection of Portugal's sovereignty after the invasion of Philip II of Spain, and - as a rather more problematic example - she says (ibid, at p. 118) that "It is also believed the steps taken by the United Nations towards the establishment of the State of Israel only reinforced the legitimate claims of the Jews to their historical rights. Prior to Israel's re- entry into these territories, it has been suggested the occupants (i.e., Arabian and Jordanian States) were unlawful belligerents, who therefore acquired no legal title to the country, despite its annexation. In line with this
39

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Of course, one seldom hears an argument for complete reversion to the status quo that confronted the earliest European colonizers. What people say is that "[o]bsolete versions of absolute sovereignty are being discarded for indigenous equivalents that emphasize an autonomy both relative and relational," or something of the sort.40 Still the claim to pre-existing entitlements is there in the background, underwriting the widespread belief that governments presently in power in countries where there are indigenous minorities should be pressured to make considerable changes in current arrangements for governance and in current arrangements for land ownership and resource use. The power of the idea of indigenous entitlement means that it is thought not inappropriate to disrupt current patterns of property and sovereignty - to shake them up and reorganize them in various ways - to reflect the priority of self-determination claims and the economic and proprietorial claims of indigenous peoples. 4. First Occupancy and Established Order A little while ago, I talked about two approaches to the definition of indigeneity. What I called the type (a) definition identifies those whose ancestors were the first to occupy and make a life for their community in the territory in question. The type (b) definition, by contrast, talks about prior occupancy, not first occupancy. For this definition it is enough that indigenous peoples occupied and governed the territory at the time of colonization. For definition (b), it matters not whether the so-called indigenous people were the first to inhabit a land: what matters is that they were the last to inhabit it, or be settled in it, before the catastrophic events of European settlement.

suggestion, many in the international community saw Israel's return to be a legitimate assertion of the State's right to exercise full sovereignty over its kindred lands. In discussing - though not necessarily approving of - reversionary claims, Ben Kingsbury (in "Competing Conceptual Approaches,"supra note 11, at p. 118) offers a different set of examples: Arguments for the revival of a pre-existing sovereignty differ from arguments for self-determination in relying on evidence of the former enjoyment of sovereignty rather than on a general entitlement of modern collectivities to a degree of self-governance. Thus when Estonia, Latvia, and Lithuania broke away from the Soviet Union in 1991, they claimed simply to be restoring a pre-existing sovereignty that had been illegally interfered with by unlawful forcible incorporation into the USSR in 1940-1941, although the attitudes of other states to this juridical claim varied sharply. In New Zealand, the argument is made that Maori were sovereign prior to 1840, that this collective sovereignty was recognized not only by Busby as British Resident but by the British government and was never lawfully surrendered, and that it should now be revived and made operational.
40 Roger Maaka and Augie Fleras, "Engaging with Indigeneity: Tino Rangatiratanga in Aotearoa," in Ivison et al. (eds.) Political Theory and the Rights of Indigenous Peoples, supra note 21, at p. 93.

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The two types of definition we have been considering correspond to two rather different arguments based on indigeneity. One is an argument based, as I said earlier, on the venerable Principle of First Occupancy; the other is based on a more pragmatic conservative principle of respecting existing arrangements, even if those arrangements were set up only few generations prior to the events - the colonizing events - complained of. So we have a principle of First Occupancy, corresponding to type (a) definitions of "indigeneity" and what I shall call a Principle of Established Order corresponding to the type (b) definition - i.e. corresponding to the idea that the would-be colonists ought to have respected the order already in existence among the indigenous peoples they sought to subjugate. Let me say a little about each of these principles. First Occupancy first. The principle holds that the first person or community to take possession of a resource or a piece of land gets to be its owner. Or: the first people or community to take possession of a territory get to be (or choose) its sovereign. According to this argument, aboriginal peoples gained an entitlement to their ancestral lands by virtue of being the very first human communities to claim them. Of course the Principle of First Occupancy allows that there can be successors in title: first occupancy is not supposed to be inalienable. But it is supposed to secure the starting point of an historical chain of entitlement that may then proceed through principles of legitimate transfer: the first occupant may sell his property or cede its sovereignty to another, on whatever terms they please, and then those to whom the title has been transferred in this way may transfer it again, if they choose, to another person or group and so on. A theory of this kind has a nice recursive logic to it, which the late Robert Nozick elucidated in his book Anarchy, State and Utopia.41 Justice-in-transfer is predicated on the idea that no one can be dispossessed except by his own consent, and the Principle of First Occupancy respects that too: the reason why the first occupant acquires good title is not because of anything special about occupancy42 but because of simple priority. The first occupant, the first person to act as an owner, did not have to disturb anyone else's rights in order to gain his title; but subsequent occupants would have to disturb someone else's rights; and that is why, for second and subsequent occupants, the principle of consent is required. The Principle of First Occupancy has a long and venerable history in the theory of property and sovereignty. There's a version of it in John Locke's
41

Nozick, Anarchy, State and Utopia, supra note 22, Ch. 7.

42 This is a contrast with John Locke's Labor Theory, which is based on something special about labor: John Locke, Second Treatise, supra note 22, Ch. 5; Waldron, Right to Private Property, supra note 19, Ch. 6.

14

writings on property - though for Locke the elements of labor, cultivation and perhaps moral desert are crucial, whereas in the pure Principle of First Occupancy, "occupancy" is a neutral term, referring to more or less any way in which a person or community might use or take possession of resources. It can include hunting, gathering, gardening, agriculture, recreation - virtually any form of land use qualifies.43 There's a version of the principle in Blackstone, though it has to be said it is a very hesitant version indeed.44 And you will find it too in traditional textbooks of natural law and international law.45 It even continues to be used in
43 This is an important contrast. Locke's Labor Theory is based on a substantive moral conviction about the importance of labor and its relation to personality. That conviction may well be controversial: it is certainly unlikely to afford a basis for cross-cultural consensus. In Locke's work, the reference to labor hooked up with an emphasis on cultivation as the only valid means by which land could be acquired initially as property, and this in turn fed his conviction that there were no aboriginal titles to land among what he thought of as the nomadic hunters and gatherers who confronted European settlers in the Americas in his time. See Locke, Second Treatise, supra note 22, Ch. 5, paragraphs 32, 37, and 41. See also James Tully, "Rediscovering America: The Two Treatises and Aboriginal Rights," in his collection An Approach to Political Philosophy: Locke in Contexts (Cambridge: Cambridge University Press, 1993), and Jeremy Waldron, God, Locke, and Equality: Christian Foundations in Locke's Political Thought (Cambridge: Cambridge University Press, 2002), pp. 164-70.

44 Blackstone, Commentaries, II.1: "[B]y the law of nature and reason, he who first began to use it, acquired therein a kind of transient property, that lasted of long as he was using it, and no longer: or, to speak with greater precision, the right of possession continued for the same time only that the act of possession lasted. Thus the ground was in common, and no part of it was the permanent property of any man in particular: yet whoever was in the occupation of any determinate spot of it, for reft, for shade, or the like, acquired unjust, and contrary to the law of nature, to have driven him by force ; but the instant that he quitted the use or occupation of it, another might seize it without injustice. Thus also a vine or other tree might be said to be in common, as all men were equally entitled to it's produce; and yet any private individual might gain the sole property of the fruit, which he had gathered for his own repast. A doctrine well illustrated by Cicero, who compares the world to a great theatre, which is common to the public, and yet the place which any man has taken is for the time his own. "But when mankind increased in number, craft, and ambition, it became necessary to entertain conceptions of more permanent dominion; and to appropriate to individuals not the immediate use only, but the very substance of the thing to be used. Otherwise innumerable tumults must have arisen, and the good order of the world been continually broken and disturbed, while a variety of persons were striving who should get the first occupation of the fame thing, or disputing which of them had actually gained it. ... "[A]s we before observed that occupancy gave the right to the temporary use of the soil, so it is agreed upon all hands that occupancy gave also the original right to the permanent property in the substance of the earth itself; which excludes every one else but the owner from the use of it. There is indeed some difference among the writers on natural law, concerning the reason why occupancy should convey this right, and invest one with this absolute property: Grotius and Pufendorf insisting, that this right of occupancy is founded upon a tacit and implied assent of all mankind, that the first occupant should become the owner; and Barbeyrac, Titius, Mr. Locke, and others, holding, that there is no such implied assent, neither is it necessary that there should be; for that the very act of occupancy, alone, being a degree of bodily labour, is from a principle of nature justice, without any consent or compact, sufficient of itself to gain a title. A dispute that savours too much of nice and scholastic refinement ! However, both sides agree in this, that occupancy is the thing by which the title was in fact originally gained; every man seizing to this own continued use such spots of ground as he found most agreeable to his own convenience, provided he found them unoccupied by any one else. Property, both in lands and moveables, being thus originally acquired by the first taker, which taking amounts to a declaration that he intends to appropriate the thing to his own use, it remains in him, by the principles of universal law, till such time as he does some other act which shews an intention to abandon it: for then it becomes, naturally speaking, publici juris once more, and is liable to be again appropriated by the next occupant." For an interesting discussion of Blackstone on First Occupancy, see Carol M. Rose "Canons of Property Talk, or, Blackstone's Anxiety," Yale Law Journal, 108 (1998), 601.

45 See, e.g. Sir Travers Twiss, The Law of Nations 115-16, at 194-95 (1884): "a person may take possession of a thing which has no owner, so as to acquire Rightful Possession of it; and Property is in such a case acquired simultaneously with Possession .... Such being the Law of Nature in regard to primitive acquisition on the

15

modern treatises about property and economics, in Richard Epstein's work, for example, at Chicago,46 and (as I have mentioned) in the late Robert Nozick's work at Harvard.47 It's a powerful and appealing principle, keying in as it does to intuitions we have all known since childhood: "First come, first served," and all of that. Many texts on indigeneity say that indigenous people's claims are based on something called "original occupancy," and that can certainly be read as appealing to the logic of the First Occupancy principle which I have just outlined.48 But sometimes the term that is invoked is "prior occupancy," and that is something rather different. So we move on to the second of my two principles, corresponding to the type (b) definition. In the crudest sense, the difference between the Principle of First Occupancy and a principle respecting prior occupancy, which I think of as the Principle of Established Order is the difference between first and last, or - to speak more precisely - the difference between first and penultimate. The Principle of First Occupancy looks to the dawn of time, to the moment at which the land in question was first taken peacefully into human use and possession. The Principle of Established Order looks to what was happening at a moment just before the present, just before the first European ships came over the horizon. Now it is not just a matter of time and relativity. The Principle of Established Order is opposed to the Principle of First Occupancy in a deeper sense. Established Order is a conservative principle, not a reactionary one. Its aim is to vindicate and preserve an established existent status quo, not delve into tangled historical questions about any status quo ante. It recognizes the opacity of the past, and it recognizes the dangers of holding existing systems hostage to legitimist inquiry. Irrespective of how an existing distribution came about -

part of individuals, the Law of Nations is in perfect accord with it." Twiss also cites diplomatic practice in this regard: in negotiations between the United States and Great Britain in 1826 over boundary disputes, the American plenipotentiary declared that "it may be admitted, as an abstract principle, that, in the origin of Society, first occupancy and cultivation were the foundation of the rights of private property and of National Sovereignty." Message of President Adams to Congress (Dec. 28, 1827), quoted in Twiss, at p. 202.(I am indebted to Benjamin Ederington, "Property as a Natural Institution: The Separation of Property from Sovereignty in International Law ," American University International Law Review, 13 (1997), 263, for these references.)
46 Richard Epstein, Takings: Private Property and the Power of Eminent Domain (Cambridge: Harvard University Press, 1985). For a discussion, see Eric T. Freyfogle, Owning the Land: Four Contemporary Narratives," Florida State University Journal of Land Use & Environmental Law, 13 (1998), 279.

47

Nozick, Anarchy, State and Utopia, supra note 22, Ch. 7

48 Cf. Maaka and Fleras, "Engaging with Indigeneity," supra note 40, p. 94: "Indigenous peoples have the right of sovereignty by virtue of original occupancy."

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whether it is a distribution of property or a distribution of sovereign authority - the Principle of Established Order gives it a prima facie right to be respected and left undisturbed or allowed to develop according to its own dynamic. "To disturb any one in the actual and long possession of territory," said Grotius, "has in all ages been considered as repugnant to the general interests and feelings of mankind."49 Established Order refers to the human interest in stability, security, certainty, and peace, and for the sake of those values it prohibits overturning existing arrangements irrespective of how they were arrived at. Of course it cannot be an absolute principle: there may be compelling reasons for overthrowing and reforming an existing regime. (A regime of slavery, for example, whether in the United States or on Chatham Islands, cries out for redress, however long it has been established.) 50 Now Established Order is undoubtedly an appropriate basis for condemning the injustice that took place at the time of colonization. For in the lands that were colonized there was an existing social order; there was a flourishing political and customary-legal system; there were established rules of property, recognized titles of sovereignty and governance; there was an order, which had a claim to be respected, not on account of its antiquity, but on account of its existence. European settlers might try to raise questions about the origins of the order they confronted: they might wonder whether the native chieftains had acquired their authority by violence and conquest. They might query whether the existing inhabitants of the land had appropriated their property in strict accordance with Lockean principle. And they might try to take advantage of these doubts to vindicate their expropriations on the grounds of the problematic origins of native title. But the Principle of Established Order simply prohibits that approach. Never mind its origins, the principle says. The native order existed as a stable and flourishing system when you arrived on the scene; and it was entitled to recognition and respect as such. If indigeneity is supposed to key into these values, then it can make a powerful case for reproaching the damage that colonial settlement inflicted.

Grotius, On the Law of War and Peace, Bk II, Ch. 4. 2. (Grotius also quotes Cicero - that is, Cicero, in the second book of his De Officiis - asking "what justice there can be in depriving an owner of the land, which he has for many ages quietly possessed?")
50 See Brookfield, Waitangi and Indigenous Rights, supra note 17, p. 160. See also Rekohu: A Report on Moriori and Ngati Mutunga Claims in the Chatham Islands (Waitangi Tribunal Report 2001), pp. 63 ff. [The Chatham Islands (also known as Rekohu) lie several hundred miles to the east of New Zealand. In 1835 they were invaded by people of Ngati Mutunga iwi from the mainland, and their indigenous occupants - called Moriori, a Maori people who had lived there for centuries in isolation from the mainland - were killed and eaten or enslaved, and their lands occupied. The British administration after annexing the islands in 1842 failed to end this slavery.]

49

17

So there we have two principles: First Occupancy and Established Order. Now in the very peculiar circumstances of Aotearoa/New Zealand, it is arguable that both principles apply. New Zealand has been occupied for no more than a thousand years, that is about 1% of the time that there have been human populations in the world. If we regard Maori as one people and ignore the existence and the significance of the constant territorial warfare between iwi - and I'll talk more about that in a moment - if we gloss over such things and regard the Maori as a single people, then we can say that in Aotearoa/New Zealand first occupancy equals occupancy at the time of colonization. The two things can be run together - though usually in some confusion51 - and local supporters of indigenous rights may think they do not have to choose. But of course they do have to choose because - as I said earlier - the nature of the claim makes a difference to its force, and it makes a difference, too, to the sort of scrutiny it has to be subject to. 5. Prior Occupancy: Injustice and Reversion Let's begin by looking at the application of Established Order. There is an obvious difficulty with using this principle as a basis for remedial or reversionary claims to property and sovereignty by indigenous peoples in the twenty-first century. The Principle of Established Order certainly supports the claim that injustices were perpetrated in the nineteenth century, when the pre-colonial order was disturbed and displaced, and indigenous people were attacked and expropriated. But precisely because it is a conservative principle, Established Order has the characteristic that while it condemns injustice at one particular point in time, it can equally work to vindicate established patterns of settlement that are founded upon that injustice. I said a moment ago that the Principle of Established Order is a conservative principle. Based on the human interest in stability, security, certainty, and peace, it prohibits overturning existing arrangements. It deliberately refrains from legitimist inquiry into the past, for it holds that irrespective of how an existing distribution of property or sovereign authority came about, it has a prima facie right to be respected and left undisturbed. Of course, it is just a prima facie
51 For confusion between the two, see Patrick Macklem, Indigenous Difference and the Constitution of Canada (Toronto: University of Toronto Press, 2001), p. 78. Macklem starts by saying that "claims of prior occupancy possess legal significance because they correspond to a commonly invoked principle of distributing rights with respect to land that suggests a prior occupant of land has a stronger claim to that land than subsequent arrivals," but he goes on to confuse the issue (ibid., pp. 78-9) by talking in a Lockean or Nozickian fashion about occupancy as a way in which a person or a whole people begin a chain of title by taking possession of hitherto unoccupied land.

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principle - there may be things about the modern situation that require redress or even revolution, in which case the Principle of Established Order must give way. But that cannot be for historical reasons alone; and that's an important conclusion, because it indicates that a type (b) notion of indigeneity rooted in Established Order is really incapable of adding anything distinctive to independent justicebased lines of argument for reform and change in the present. (There are three other caveats to note as well.52 (i) There will often be contestation within a community as to what its established order is and what its immanent dynamic amounts to, what direction it is tending to develop in, and so on. (ii) A given order that is up and going at a given time will of course include within itself some reference to the past and some current grievances relating to past events. After all, if someone stole my car yesterday, the thief cannot appeal to the Principle of Established Order to block its recovery. But past-oriented claims like this which are already recognized in the current regime may be distinguished from past-oriented claims which are seen as grounds for radical overthrow of the current regime. Admittedly, this distinction will be ragged around the edges. But it does not undermine - at most, it only complicates - the argument at his stage.) So: though this principle can be appealed to condemn the European incursions, it cannot easily be appealed to some hundreds of years later in order to upset existing patterns of settlement founded on those incursions. The principle which condemned the original disruption is not a principle based on the inherent legitimacy of the established title, but on the fact of its being settled. And so the same principle may be appealed to, in order to secure the twenty-first century status quo, and used as a ground for resisting any claim that we should simply reverse the original injustice. Elsewhere I have argued that claims based on historical injustice may be overtaken by events which make the distributional situation, which was established by the injustice, now just and appropriate to modern circumstances.53 Well, the argument I am making today illustrates a similar point, but in a slightly different way. If the basis of M's complaint of injustice is that M held resources in

52

I am grateful to Andrew Butler for the two points that follow.

53 See Waldron, "Redressing Historic Injustice,"supra note 18, and see also Waldron, "Superseding Historic Injustice," supra note 18. The argument may be illustrated as follows: Imagine two societies living on a large plain, each with its own source of water. One of those societies from the north - descends in predatory fashion on the other in the south, and insists on using the southerly water supply as well. That's an injustice. But if, subsequently to that, the northerly water source dries up, then the situation that the northerners established by violence now becomes the situation that justice requires. The two societies must now share the same watering hole. So in this case, you cannot move automatically from a finding of historic injustice to anything like reversion as a remedy.

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a stable pattern of established occupancy and P disturbed that pattern, then whether reversion is an appropriate remedy will depend in part on whether P has now established a stable pattern of occupancy, which is entitled to respect upon exactly the same principle as M's was. If the date of the injustice and the date of the claimed reversion are sufficiently close, that may not hold. But where as in New Zealand they are separated by a century or two, the application of Principle of Established Order to disturb current patterns of resource use or current patterns of sovereignty is problematic to say the least. (I am not saying there aren't other reasons for changing current arrangements. But simply reverting to (say) an 1839 status quo ante on the basis of type (b) indigeneity claims grounded upon Established Order will not do. The Principle of Established Order prohibits disrupting current patterns of land use and governance just as it (unsuccessfully) prohibited their disruption in the middle of the nineteenth century.) This is not supposed to be a formal argument based on prescription, though that is what it may look like.54 It looks as though I am suggesting that an initially unjust regime may acquire a title to respect because of the mere passage of time. The point is not that time, by itself washes away all crimes.55 But the passage of time can establish patterns of expectation. I guess that to the extent that prescription is involved, we can say that a prescriptive title that existed in one century cannot really survive to challenge a prescriptive title that exists in a subsequent century. That's the nature of prescription: it is designed to block claims founded in the distant past including claims based on the principle of prescription itself. Formally, however, going down this road would involve us in all sorts of controversial issues about how prescription operates in modern international law, which I do not want to get into this evening.56
54

See the discussion in Brookfield, Waitangi and Indigenous Rights, supra note 17, pp. 138-9.

As Grotius put it (On the Laws of War and Peace, II.4.1), "though time is the great agent, by whose motion all legal concerns and rights may be measured and determined, yet it has no effectual power of itself to create an express title to any property."
56 Cassidy, "Sovereignty of Aboriginal Peoples,"supra note 39, at 84-88, argues that prescription couldn't justify Australian title as against aborigines. She says "occupying" states cannot rely on their illegitimate acts of forceful dispossession to invoke a prescriptive title in a manner designed to deny Aboriginal sovereign claims. That people have long been displaced or oppressed does not convert a lawless act into a lawful one. On the other hand, Cassidy acknowledges that "there are conflicting notions of precisely what the concept entails and what the prerequisites are for creating a prescriptive title" (citing Brownlie, at 157-58). For example: Can a prescriptive title can be obtained simply with the lapse of time, supported by possession of the relevant land, in absence of positive signs of acquiescence? (She says that some writers, such as Hall, Moore, Hyde and Guggenheim, suggest acquiescence is no longer required. Can prescriptive title originate in occupation secured by force, as some writers, notably Oppenheim, have suggested? How long must the possession persist? Older authorities insisted upon immemorial possession, while other writers specified requisite fixed periods. Most modern commentators,

55

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6. What does First Occupancy add? If Established Order - and the type (b) definition of indigeneity that appeals to it will not support radical disruption of present arrangements, what about the purer and the apparently more principled idea of First Occupancy? Surely the descendants of the original inhabitants of a land have compelling claims against the present in virtue of being indigenous in sense (a). Well I have two sets of things to say about First Occupancy theory, some relating to the principle itself, and some relating to its application. (i) So far as application is concerned, obviously any notion of indigeneity based on First Occupancy is tremendously demanding on the resources of historical inquiry. (This is something which the Canadian courts have been wrestling with in recent cases.)57 It requires us to go back to the dawn of time or at least to the beginnings of human habitation in a particular territory, and determine who were the early occupants of that territory and whether there is any group which took possession of it peacefully, without dispossessing anyone else. In some contexts that is challenging beyond belief - I mentioned India at the beginning of the lecture, where a literal application of the Principle of First Occupancy requires us to go back millennia before the events reported in Hindu mythology and even before the emergence of the Indus civilization. Or just think of trying to apply First Occupancy literally in England, for example. You may say - "Well, that's just the price of the pedantry of literalism." But that won't do: if we are not working with literal first occupancy, then we are using some other principle like Established Order, and that runs into the difficulties I've already described. First Occupancy is an unforgiving theory, and there's no point using it unless you are prepared to embark on literal historical inquiry. That's what I meant when I said that the choice of principles associated with indigeneity is sometimes careless or opportunistic. You may say, "Well - whatever the case in Europe or India - at least in Aotearoa/ New Zealand things are clear. It is well known that the Maori were the first human occupants of these islands, and the literal application of the term "indigenous" to them, in sense (a), is fairly straightforward."

however, believe the length of time required varies depending upon the particular circumstances of each case. On the other side, in resisting the application of prescription, we have to ask whether there is continuity of the right sort, for the purposes of defeating the emergence of a prescriptive title, between modern legalized resistance to colonial titles in the 1980s and 1990s and original violent resistance in 1860s?
57

Refer to Delgamuukw v. British Columbia, [1997] 3 S.C.R. 1010. - check citation?

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Is it? I wonder. We know that Polynesian seafarers did not settle Aotearoa as Maori, but in distinct groups, which developed into hapu or iwi in possession of various territories, with quite distinct habitats, and often at war - including territorially acquisitive war, wars of conquest - with one another. We speak easily of "the Maori people," but for the thousand-odd years before the arrival of Europeans, Aotearoa was inhabited by diverse descent groups who shared a language perhaps, and to a certain extent a common culture, but did not conceive themselves as one people. These issues - particularly inter-iwi conflict, conquest, and expropriation, may be glossed over for various purposes - and probably they should - but they cannot be glossed over if we persist in relying on a notion of indigeneity that is supposed to hook up with a Principle of First Occupancy. Because of course First Occupancy is intensely interested in the history of territorial warfare; it is intensely interested in whether the titles for which vindication is currently sought, were established peacefully or by violence. If they were established by war and violence, then First Occupancy has no application. That's the whole point of the principle. That's because of the special moral force with which it is supposed to invest some claims and grievances, with which the Principle of Established Order (the more conservative, pragmatic principle) cannot invest them. Professor Brookfield puts the point very clearly when he says this: [T]he concept of indigenous people, if we confine it to a territory's original occupants, is morally relevant to the extent that their taking possession of an empty land gives legality to their presence (in the sense that their customary legal order becomes operative in the territory) but simultaneously gives full legitimacy as well. After all, there were no rights of prior occupancy requiring to be legally and morally extinguished. Yet if an indigenous people ... recognizes principles of conquest and seizure of power ... in their inter-tribal relations, the moral relevance of their status as strictly indigenous people in relation to intruders from another culture cannot be great.58 Maybe as a matter of comity between (say) English Common Law and Maori customary law, principles of acquisition by conquest should be recognized. Maybe we should recognize the custom of acquisition by conquest as a legal principle in what Professor Brookfield calls in a recent article the "miniature

58

Brookfield, Waitangi and Indigenous Rights, supra note 17, pp. 80-1 (my emphasis)

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international society" which operated among hapu.59 Brookfield makes that case in his book, when he says that Where the conquest was by one tribal polity over another ethnically the same as the conqueror, it may be (as in Maoridom) that inter-tribal custom was also a legitimating force: the defeat is experienced less as an 'intrusion' than conquest from outside the quasi-international society of the tribes of the same ethnicity.60 But even if the custom of acquisition by conquest is credited, that doesn't help at all with the application of the Principle of First Occupancy. The gist of First Occupancy is that special rights may attach to the peaceful occupation of unoccupied lands. Recognition of the custom does not license us to pretend that war was peace or that fighting was non-violent. Of course it is distasteful to bring up these issues of ancient history - interiwi conflict and so on - in the context of a good-hearted attempt undertaken at present to make a country like New Zealand more just. But the perspective from which it seems distasteful, the moral perspective from which this sort of historical inquiry seems like a distraction, is not and cannot be a First Occupancy perspective. It is either an entirely presentist perspective, a forward-looking perspective aiming at distributive justice, which most afficionados of indigeneity reject. Or, if it has anything to do with indigeneity, it has to do with indigeneity in sense (b), in which case the same principle of Established Order - respect for existing settlements, however they were established - which condemns this historical inquiry will also - as we saw - condemn any attempt to replace existing present-day arrangements with structures of property and governance more akin to those that existed in 1839. In other words, my argument here has the form of a dilemma. Either we accept that a First Occupancy inquiry will have to sort through various indigenous claims, putting aside those that rest ultimately on war or conquest. Or we close that line of inquiry down, but only at the cost of also precluding an equivalent inquiry into more recent war, invasion, conquest, and seizure, figuring that if the

59 F.M. Brookfield, "Moriori, Maori and the Crown: Reflections on the Waitangi Tribunal's Chathams (Rekohu) Report," New Zealand Law Review, (2002), pp. 128-9. There are limits on this, of course, which become clear in relation to the events of 1835 in the Chatham Islands, whose Moriori inhabitants were plainly "not part of that miniature international society."(Idem. See also note 50, supra.)

60

Ibid., p. 79

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conservative Principle of Established Order functions to protect violently established arrangements in 1839, it also functions to protect violently established arrangements in 1939, or 2002. (ii) In any case, First Occupancy has always been a dodgy principle, and the traditional writers on property and sovereignty, like Blackstone, are right to have been hesitant about it. The principle accords moral privilege to an occupant, in virtue of that occupant not having dispossessed anyone else. The title of such an occupant is supposed to have absolute priority over anyone whose occupancy was effected by war or violence. But in relation to territory and resources, violently dispossessing another person or another people is not the be-all and end-all of injustice, and it's not the only basis on which we might raise a moral question-mark over an entitlement. Refusing to share resources with others is also a form of injustice; refusing to modify a holding based on First Occupancy in response to demographic or other changes in circumstances is an injustice. Taking more than you need, or occupying so much that subsequent arrivals have nothing to occupy, is an injustice. All this has been understood and argued through by theorists of First Occupancy since John Locke's time. We know that Locke felt it necessary to qualify his version of the Principle of First Occupancy with the condition that there be "enough and as good left for others" after the occupation.61 And the formulation and reformulation of this "Lockean proviso" has seemed essential in the modern discussion of theories of this sort. No one now that I know of in the theory of property is willing to argue for a First Occupancy principle that is not qualified in this way,62 and very few are willing to deny that this proviso may also call one's holding into question at a later time, when circumstances change.63 In

61 John Locke, Second Treatise, supra note 22, Ch. V, paragraph 33: "Nor was this appropriation of any parcel of land, by improving it, any prejudice to any other man, since there was still enough, and as good left; and more than the yet unprovided could use. So that, in effect, there was never the less left for others because of his enclosure for himself: for he that leaves as much as another can make use of, does as good as take nothing at all."

62 See especially, Nozick, Anarchy, State and Utopia, supra note 22, pp. 174-82. I have discussed these issues in Jeremy Waldron, "Enough and as Good Left for Others," Philosophical Quarterly, 29 (1979), 319 and The Right to Private Property, supra note 19, Chs. 6 and 7. See also, as representative of a large literature: J. H. Bogart, "Lockean Provisos and State of Nature Theories," Ethics, 95 (1985), 828; Clark Wolf, "Contemporary Property Rights, Lockean Provisos, and the Interests of Future Generations," Ethics 105 (1995), 791; and Alan Gibbard, "Natural Property Rights," Nos, 10 (1976), 77.

63 See Nozick, Anarchy, State and Utopia, supra note 22, pp. 179 f., and Waldron, "Superseding Historic Injustice," supra note 18, pp. 21 ff.

24

brief, it is well understood in the literature on property that First Occupancy cannot stand on its own to legitimate disproportionate possession of land by one people to the exclusion of others who have no place else to go, simply because the former people came on the scene first. And I guess that's my point. This has been thought through, in a complex and important literature, but the bare principle gets seized on opportunistically by defenders of indigenous rights in a way that is completely impervious to these details and qualifications. What I am saying is that people need to be a little more careful about the type of property theory they implicitly buy into when they privilege indigeneity. Simple slogans like "First come, first served," and "We were here first" have never been particularly attractive sentiments in the history of property theory, and they become no more attractive by being associated with revulsion from historic injustice.64 They have often been associated with righteous indifference to others' interests, indifference even to others' needs, as people seek to retain possession of resources purely on the basis of historic priority. Since 1974 we have had the benefit - if that is the right word - of having a fully worked theory in front of us, based on exactly these intuitions, in the forms of Robert Nozick's theory of historical entitlement,65 and for more than ten years after the publication of Nozick's book, the advantages and disadvantages of theories of his kind were comprehensively discussed by social and political philosophers. True the theory presented in Anarchy, State and Utopia was radically individualist in flavor, organized around the idea of absolute individual rights, whereas in the present context we are talking about the rights of communities or whole peoples. But as Nozick recognized the logic is basically the same, and so are the difficulties:66 in both cases, people who may have an interest in resources, who may need to make use of them, are being excluded or their interest slighted simply because they were not in the right place at the right time. I guess in the end any theory of property is going to have this sort of consequence: property is almost always exclusive in some regard, and the right to exclude is generated along with other property rights by contingent events. But just for that reason, great care needs to be take in
64

Cf. Waldron, "Superseding Historic Injustice," supra note 18, at p. 28. See Nozick, Anarchy, State and Utopia, supra note 22, pp. 149-82.

65

66 Nozick, Anarchy, State and Utopia, supra note 22, p. 178: "We should note that it is not only persons favoring private property who need a theory of how property rights legitimately originate. Those believing in collective property, for example those believing that a group of persons living in an area jointly own the territory, or its mineral resources, also must provide a theory of how such property rights arise; they must show why the persons living there have rights to determine what is done with the land and resources there that persons living elsewhere don't have (with regard to the same land and resources)."

25

specifying what the contingent events are that give rise to these exclusive rights, and in specifying how they may be conditioned by circumstances. The most plausible theories of historical entitlement do this with some sort of Lockean proviso - but as we have seen that is exactly the sort of device that is likely to cast most doubt on simplistic claims of entitlement based on pure indigeneity. I don't want to go on too long about this. The details of the philosophy of property are not to everybody's taste. But once we recognize that First Occupancy does raise serious problems of exclusion and that it does have this potential for a curious imperviousness to latter-day circumstances, then we can begin to appreciate the dangers of any simple-minded application of it or of a concept of "indigeneity" founded upon it. Quite apart from the inherent creepiness of its underlying legitimism, there are considerable dangers in exposing modern distributions of power and property to the arcane details of recondite historical and prehistorical inquiry. Things are complicated enough here, once one begins to look back beyond the nineteenth century - which is what the Principle of First Occupancy requires. In circumstances more tangled than Aotearoa /New Zealand , an inquiry into First Occupancy may lead to terrible consequences. In India, for example - and this is something that Ben Kingsbury points out recognition of special rights and entitlements for having been the earliest or original occupants might spur and legitimate chauvinist claims all over India.... Claims to historical priority already feature in some "communal" conflicts and incipient chauvinist movements abound, as with the proMarathis, Hindu-nationalist Shiv Sena party in Maharashtra. In effect, if some people are "indigenous" to a place, others are vulnerable to being targeted as nonindigenous, and groups deemed to be migrants or otherwise subject to social stigma may bear the brunt of a nativist "indigenist" policy.67 These dangers are not aberrations. They are part and parcel of what First Occupancy inquiries, for that principle itself purports to license some people, on grounds of historical priority, to repudiate and marginalize the claims of others. First Occupancy looks all very well, when one considers only that the very first occupants did not have to dispossess anyone else. But if having established their occupancy, they hold the resources exclusively against everyone else in a way that is impervious of the needs of newcomers, then there is a very grave moral danger.
67

Kingsbury, "Indigenous Peoples in International Law," supra note 16, p. 435.

26

7. Is that all there is? It is time to finish. Some will say that the account I have given is excessively analytic - picking apart the notion of indigeneity, and confronting it with this crude dilemma: either a Established Order claim, which precludes radical remedy, or a First Occupancy claim, which is both inherently objectionable and anyway historically precarious. What could be better proof, my critics will say, of the proposition that the analytic techniques of Western political philosophy are out of place in this area and that "liberal arguments are ... unable to comprehend what is distinctive about indigenous claims to land and self-government."68 Maybe they is right. Or maybe I should appropriate this point, and say that, if the discourse of indigeneity really is incompatible with the discourses of Western political philosophy, then what are the afficionados of indigeneity doing appropriating principles like First Occupancy and Established Order from John Locke and Hugo Grotius? You can't have it both ways. If we want to make indigeneity respectable with these venerable principles of natural law, then we have to also be prepared to buy into all their difficulties, and face up to them responsibly. If, on the other hand, indigeneity is a sui generis notion, as the Canadian theorist James Tully has argued, generating a set of claims that, in Tully's words, do not derive from any universal principles, such as the freedom or equality of peoples, the sovereignty of long-standing, self-governing nations, or [even] the jurisdiction of a people over they have occupied to the exclusion and recognition of others peoples since time immemorial69 then it is difficult to know what to say. It can't be that discussion is over as soon as someone mentions the word "indigenous' and associates a set of claims with it. Such claims are not self-justifying. They are supposed to be heard and understood, and subject to reason and criticism and examination, on both sides of the divide, by governments as well as by First Peoples, by Crown as well as iwi, by all of us as citizens.
68 Ivison et al., Political Theory and the Rights of Indigenous Peoples, supra note 21, p. 9. And Dianne Otto has said - in "A Question of Law or Politics? Indigenous Claims to Sovereignty in Australia," Syracuse Journal of International Law and Commerce, 21 (1995), 65, at p. 97 - that all this just reflects the tendency of liberalism "to conflate broad human experience into rigid dichotomous stereotypes." She goes on: "To recognize multiplicities would free indigenous peoples from the current imperative to present themselves as a unified category. It would enable a construction of indigeneity that was diverse, multi-layered and shifting."

69 James Tully,"The Struggles of Indigenous Peoples," in Ivison et al., Political Theory and the Rights of Indigenous Peoples, supra note 21, p. 47.

27

I am aware that my discussion, this evening, is far from exhausting the debatable content of indigeneity; I said that at the beginning. I am aware, to, that the concept does have an ineffable, almost mystical element, which is difficult to fathom. Is it fair to say, as Bill Oliver says, that "[t]he notion of indigenousness often leads ... to the ascription of a timeless and sacred quality to what was simply prior occupation," a merely "rhetorical heightening of the unexceptionable fact of having been here first"?70 It may be an unexceptional fact; but what I have been doing this evening is trying to explore some of the principles in our tradition that might make it significant. And the conclusion I rest with is not the mundaneness of the question "Who was here first?" but some sense of its difficulty and danger. There are places in the world - India is one, perhaps Bosnia is another, various places in Africa provide a further and distressing set of examples - places where making that the crucial question is a deadly and vicious ingredient in social and political pathology. These frightful situations are too distant, perhaps, to be telling. But there are places closer to home - Fiji, for example - where insistence on that question has also done great harm. The difficulties, the harm and the dangers may be less apparent in New Zealand, but if we are seeking to buy into the general discourse of indigeneity, as supposed to solving our problems with our own legal and ideological resources (the Treaty of Waitangi prominent among them), then we had better be aware of the volatile substance we are playing with.

70

Oliver, "The Fragility of Pakeha Support," supra note 14, pp. 223.

28

Paper for conference on ISRAELI SETTLEMENTS & RELATED CASES

June 1-2, 2003 Minerva Center for Human Rights, Tel Aviv University

The Supersession Thesis: The Process and Legacy of Settlement

ABSTRACT: This paper examines the possibility that the injustice associated with the establishment of Israeli settlements in the Occupied Territories might (now or in the future) be superseded by changes in circumstances changes which make what was once unjust no longer unjust. It explores the application of a thesis about supersession of historic injustice put forward by the author in two earlier articles, exploring the rights of indigenous people: Supe rseding Historic Injustice, Ethics 103 (1992), 4 and Redressing Historic Injustice, Univ. of Toronto LJ, 52 (2002), 135. The present paper examines the possible bases for supersession in the case of settlements in the Occupied Territories, and it defends the Supersession Thesis against concerns about moral hazard, and against the objection that it panders too much to the effects o f pow er.

I. Its a bit of a stretch, but I am in a way a child of settlement. My ancestors came from England and Ireland four generations ago, and settled in New Zealand's South Island, in the dry mountainous region of Central Otago a semi-desert area (anomalous in those latitudes) reminiscent of parts of Northern Israel. They were farm laborers, then rabbit-hunters, then gold prospectors, and eventually orchardists growing apricots and peaches along the banks of the Clutha River. The settlements that they and their fellow colonists established scattered villages and homesteads, farms and orchards were of course nowhere near as controversial, legally and politically, and certainly nowhere near as dangerous, as the settlements we are discussing at this conference today. But they were not free of controversy. New Zealand became part of the British Empire in 1840 with the signing of the Treaty of Waitangi, whereby the assorted chiefs of the indigenous people the Maori ceded sovereignty and a right of preemption to the British Crown in return for certain assurances that their property, their chiefly authority, and their way

Maurice and Hilda Friedman Professor of Law, Columbia University, New York.

29

of life would be protected.2 In fact the way in which the Crown acquired land in the 1840s and 1850s and its subsequent use for colonial settlement has been a long-standing grievance, and many Maori groups believe probably quite rightly that there were egregious violations of the spirit and often the letter of the Treaty.3 In the North Island Maori resistance to settlement culminated in war with the British, in which after several years of bitter fighting Maori resistance was crushed. There was no war in the south, where my ancestors settled, but there are long-standing grievances. The Waitangi Tribunal, established by the New Zealand government in 1975 to address all such grievances, found that the British had acted unconscionably in the South and in repeated breach of the Treaty, when they acquired most of the South Island 34 million acres, more than half the land mass of New Zealand (and many times the size of Israel) from Ngai Tahu, the Maori tribe that inhabited the island, for just over 14,750, leaving Ngai Tahu just 35,000 acres for their own use.4 These findings were sufficient to call in question the leasehold titles of the great sheep farming enterprises that had employed my great-grandfather as a laborer. Though I live in New York, I remain a New Zealand citizen and I travel regularly back and forth to New Zealand, to this land that I regard as mine, despite this history of injustice. And I have devoted a lot of scholarly energy to thinking through these issues of historic injustice and the rights and grievances of indigenous peoples. Over the years I have become quite skeptical of the grievance industry, skeptical of the Waitangi Tribunal process and the settlements it has reached, skeptical of claims based on indigeneity, skeptical of culture and language rights, generally.5 My own views tend in a more cosmopolitan direction, emphasizing the fluidity and porousness of cultural boundaries, the importance of mixture and fracture in cultural and national identities, the significance of movement and migration in the human story (we are all the descendants of settlers), the absurdity of claims based on prehistorical first occupancy, and the importance of focusing the concerns of justice on the here and now and the needs and deserts of whoever happens to be in a given territory irrespective of how they or their ancestors

For the text of the Treaty, see http://www.govt.nz/en/aboutnz/?id=a32f7d70e71e9632aad1016cb343f900

The Ngai Tahu Report, 1991, Ch. 24, section 1. The report may be read at http://wai8155s1.verdi.2day.com/reports/ sichat/wai027l/wai027L.asp
5 I presented this skepticism recently in New Zealand in the annual Quentin-Baxter Memorial Lecture, at Victoria University of Wellington Law School, December 5, 2002: "Indigeneity - First Peoples and Last Occupancy."

30

got there.6 I am writing a book on all this at the moment, under the Kantian title Cosmopolitan Right.7 I am sure there is a significant relation between my personal background as a migrant, my ancestral background as the descendant of a settler family, and this skepticism about the moral significance of who was where first. I am sure, too, it affects my views about settlements, both in general and also in the Israeli case. How exactly it affects them is what I shall now try to explain. II. In some recent writings, I have explored the proposition that certain things which were unjust when they occurred may be overtaken by events in a way that means their injustice has been superseded.8 I call this the Supersession Thesis. In formulating this thesis, I have in mind historic injustices of the sort discussed in relation to indigenous peoples rights in New Zealand, Australia and North America. The idea is that even if wrongful acts (for example, in the course of land purchase, expropriation, and settlement) lead to an unjust situation, S1, in (say) 1860 in which some indigenous people, P, stand deprived of resources to which they are at that time morally (and perhaps legally) entitled, the persistence of that deprivation for a long period of time, in the course of which circumstances change drastically, may result in an altogether different situation, S2, which is no longer unjust relative to contemporary needs, claims, and deserts and in which no one, including the descendants of P, are deprived of resources to which they are legally or morally entitled. (Or, if in S2 the descendants of P are deprived of resources

unjust action

unjust situation

change in circumstances

just situation

-----A ----------> S1 ----->-------- / .................... / ------------> S2 ---6 See especially Jeremy Waldron, Minority Cultures and the Cosmopolitan Alternative, University of Michigan Journal of Law Reform, 25 (1992), 751-92 (reprinted in Will Kymlicka (ed.) The Rights of Minority Cultures (Oxford: Oxford University Press, 1995). I have elaborated these arguments also in the following articles: Multiculturalism and Melange, in Public Education in a Multicultural Society, ed. Robert K. Fullinwider (Cambridge: Cambridge University Press, 1996); Cultural Identity and Civic Responsibility, in Will Kymlicka and Wayne Norman (eds.) Citizenship in Diverse Societies (Oxford: Oxford University Press, 2000); What is Cosmopolitan? Journal of Political Philosophy, 8 (2000), 227-43; Taking Group Rights Carefully, in Grant Huscroft & Paul Rishworth (eds.) Litigating Rights: Perspectives from Domestic and International Law (Oxford: Hart Publishing, 2002), 203-220; Teaching Cosmopolitan Right, forthcoming in Kevin McDonough and Walter Feinberg (eds.) Education and Citizenship in Liberal-Democratic Societies: Cosmopolitan Values and Cultural Identities (Oxford University Press); and "Who is my Neighbor? - Proximity and Humanity," forthcoming in The Monist.

7 The title is that of section III of the part of Kants The Metaphysics of Morals that deals with public right. See Waldron, What is Cosmopolitan? op. cit.

See Jeremy Waldron, Historic Injustice: Its Remembrance and Supersession, in Graham Oddie and Roy Perrett (eds.) Justice, Ethics and New Zealand Society (Auckland: Oxford University Press, 1992); Superseding Historic Injustice, Ethics 103 (1992), 4-28; and Redressing Historic Injustice, University of Toronto Law Journal, 52 (2002), 135-60.

31

to which they are entitled, the injustice of that deprivation is intelligible and remediable without any reference at all to the injustice that led to S1.) The argument may be illustrated using a very simple model,9 involving three scenarios. (1) On a large bounded plain, a number of groups the Es, the Fs, the Gs, etc. appropriate water-holes He, Hf, Hg, etc. in conditions where it is known that there are enough water-holes for each group. So long as those conditions obtain, it seems reasonable for the members of a given group, G, to use the water-hole that they have appropriated (Hg) without asking permission of other groups with whom they share the plain; and it may also seem reasonable for them to exclude members of other groups, like the Fs, from the casual use of Hg, saying to them, You have your own water-hole. Go off and use that, and leave ours alone. But suppose one year there is an ecological disaster, and all the water-holes in the east of the territory dry up except the one that the members of G are using. Then in these changed circumstances, notwithstanding the legitimacy of their original appropriation, it is surely no longer permissible for G to exclude the Fs from Hg. Indeed it may no longer be in order for members of G to casually use Hg as their own water-hole in the way they did before. In the new circumstances, it may be incumbent on them to draw up a rationing scheme that allows for the needs of everyone in the east of the territory to be satisfied from this one resource. Changing circumstances can have an effect on ownership rights notwithstanding the legitimacy of the original appropriation. (2) Heres the second scenario. Suppose as before that in circumstances of plenty, various groups on the savannah are legitimately in possession of their respective water-holes. One day, motivated purely by greed, members of group F descend on the water-hole, Hg, which is used and possessed by group G, and (using violence) insist on sharing Hg with them. (What's more they do not allow reciprocity; they do not allow members of G to share the water-hole Hf that was legitimately in possession of the F group.) That is an injustice. But then, as in scenario (1), circumstances change, and all the water-holes in the east of the territory dry up except the one that originally belonged to G. The members of group F are already sharing Hg on the basis of their earlier (unjust) incursion. But now that circumstances have changed, they are entitled to share that waterhole. Their use of Hg no longer counts as an injustice; it is in fact part of

The example is drawn from Waldron, Superseding Historic Injustice, op. cit.

32

what justice now requires. The initial injustice by F against G has been superseded by circumstances.

"

= d ried-u p w ater-ho le west

= w orking wa ter-hole east

!
He!

"Hf !Hg

"

I do not think this possibility of the supersession of historic injustice can be denied, except at the cost of making one's theory of historical entitlement utterly impervious to variations in the circumstances in which holdings are acquired and withheld from others. If circumstances make a difference to what counts as a just acquisition, then they must make a difference also to what counts as an unjust incursion. And if they make a difference to that, then in principle we must concede that a change in circumstances can affect whether a particular continuation of adverse possession remains an injustice or not. In other words: what justice requires and what it condemns is not always stable over time. Justice is sometimes sensitive to circumstances and if circumstances change, justice might require us to say of a distribution of resources that was just in, say, 1860 that it is (or would be) unjust in 2003; and justice might also require us to say of a state of affairs that was established unjustly in 1860 that the existence of that very same state of affairs in 2003 is not unjust. The injustice of that state of affairs maybe superseded by circumstances. (3) In the scenario we have just considered, the impact of the change in circumstances is entirely exogenous to the actions of the various parties: there is a climate change and Hf dries up. But we can also imagine a scenario, in which the impact of the change of circumstances is partly a result of the initial injustice. The Fs invade Hg and settle in its vicinity. Had they remained in the vicinity of Hf they might have been able to move to another water-hole, He, or other water-holes in the west, somewhat further away from Hf but reachable from there, when Hf dried up. But now that is not an option: after the ecological catastrophe, the Fs are stranded at Hg and the original Gs have no choice morally but to share their water

33

resources with anyone in the vicinity, including the wicked Fs at least until such time as it becomes practicable for them to move elsewhere. Now I think that in this case the two issues the wrongness of the original injustice and the appropriate distribution of the resources of Hg among those in its vicinity are separable. Some theorists may balk at this, however, for they will say that distributional principles should be sensitive to moral desert, and the Fs became undeserving by virtue of their incursion. Fine, let us concede that. But let us assume now that we are talking not about the original perpetrators of the injustice but their infant children, many of whom will die for lack of water if they are forced to trek all the way west from Hg to He. The presence of these children in the vicinity of Hg (and their fatal distance from He) are certainly results of the original injustice; but they are not results which affect the moral deservingness of the infants. What this shows, I think, is that the change of circumstances referred to in the Supersession Thesis may include changes that are the immediate casual product of the very injustice originally complained of. The facts established by injustice facts on the ground, to use a phrase that is commonly invoked here may be among the circumstances that make the state of affairs established by the original injustice no longer unjust at some later period in time. I developed this argument in reference to case of New Zealand. Acknowledging that the early history of that country was marred by the injustice I have already referred to, still no one can deny that there have been massive changes in the circumstances of justice there in the last century or two.10 The most striking change is in population: there is now a settled population Maori, pakeha,11 and mixed-ancestry (there has been very extensive inter-marriage) which is larger by a factor of about twenty than the population in (say) 1840. There is no question of the descendants of European settlers returning en masse to England or anywhere else. Moreover the resources with which justice has to concern itself have also changed. European technology and farming, mining, and fishing methods have transformed out of all recognition the amount and the productivity of land and other resources available for use. Agriculture now supplements horticulture; mountainous hill country has become farmable; new species have been introduced; modern road, rail and other infrastructure developed; cities have been built (and most New Zealanders Maori and pakeha live

10 I use circumstances of justice here in a way that is loosely related to Rawlss use of it in A Theory of Justice, Revised edition (Cambridge: Harvard University Press, 1999), pp. 109 ff, so that it includes situations relating to scarcity and the extent and nature of the claims that are made on available resources, as well as changes in technology, attitudes etc.

11 Pakeha is the Maori (and now commonly the New Zealand) word for persons of European extraction. I believe it originally meant something like goblins.

34

in cities); and the technology of a fully developed commercial society has replaced the neolithic technology that characterized the thousand years or so of Maori occupation. In these different circumstances, it boggles belief to say that what justice requires in this territory now is anything like what justice required at the very beginning of European contact. To believe that, one would have to think that the requirements of justice are impervious to the point of oblivion to changes in circumstances. I dont mean that we should forget about historic injustice. Apologies and acknowledgments are properly demanded and at least symbolic compensation may be due to descendants of those who were originally treated unjustly.12 But many demands made by or in behalf of indigenous peoples go well beyond this, and they amount to a demand that we respond now as though nothing had happened to supersede the historic injustice. I mean to refer to the suggestion that is often heard about something like reversion as a remedy for injustice. The idea is that titles and jurisdictions unjustly appropriated in the mid nineteenth century might simply revert now to their original possessors, who would then set the terms (or participate from a privileged position in setting the terms) on which the resources in question would continue to be used by present-day inhabitants of the territory.13 And this, it is suggested, is not by way of compensation or

12

Cf. Waldron, Superseding Historic Injustice, pp. 4-7.

An example of this argument is provided by Julie Cassidy, "Sovereignty of Aboriginal Peoples," Indiana Int. & Compar. Law Rev., 9 (1998) 65, at 117, considering the possibility of reversion to aboriginal sovereignty in parts of Australia: The right of an ousted sovereign to have sovereignty restored under the laws governing belligerent occupation is derived from ultimate de jure title or territorial sovereignty. Sovereign rights do not inure in a belligerent occupant, much less an occupant whose entry was unlawful.... The sovereignty of the dispossessed peoples continues, awaiting reversion, despite the loss of territory and even total illegal annexation. She cites the reversion of Hong Kong to People's Republic of China in 1997, the resurrection of Portugal's sovereignty after the invasion of Philip II of Spain, and then as a rather more problematic example she says (ibid, at p. 118) that It is also believed the steps taken by the United Nations towards the establishment of the State of Israel only reinforced the legitimate claims of the Jews to their historical rights. Prior to Israel's re- entry into these territories, it has been suggested the occupants (i.e., Arabian and Jordanian States) were unlawful belligerents, who therefore acquired no legal title to the country, despite its annexation. In line with this suggestion, many in the international community saw Israel's return to be a legitimate assertion of the State's right to exercise full sovereignty over its kindred lands. In discussing though not necessarily approving of reversionary claims, Ben Kingsbury (in "Competing Conceptual Approaches to Indigenous Group Issues in New Zealand Law," Univ. of Toronto Law Journal, 52 (2002), 101, at p. 118) offers a different set of examples: [W]hen Estonia, Latvia, and Lithuania broke away from the Soviet Union in 1991, they claimed simply to be restoring a pre-existing sovereignty that had been illegally interfered with by unlawful forcible incorporation into the USSR in 1940-1941, although the attitudes of other states to this juridical claim varied sharply.

13

35

reparation of injustices that began and ended in the past, but rather as a way of putting a stop to on-going injustice and restoring resources and power to those who have continued all along to be entitled to them.14 Such a reversionary proposal evidently assumes that those who were entitled to the resources just before the injustice complained of began, say, in 1850 would apart from that injustice still have been be entitled to them in 2003.15 And thats what the supersession argument contests, in denying that justice is impervious to changes in circumstances. It is a way of showing that, in certain sequences of circumstances, dispossession may not continue to count as an injustice even though the events that led to it undoubtedly were an injustice. And if the dispossession does not continue to count as an injustice, then reversion cannot be conceived as an appropriate remedy. I should add that the Supersession Thesis is not just a technical theorem in political philosophy. It expresses a certain attitude towards justice. The spirit of the Supersession Thesis is that people who are thrown , in Kants phrase, unavoidably side-by-side, have no choice but to share the resources that surround them justly among themselves as though they were a new community, even if the presence of some of them in that situation is a result of injustice.16 Justice may make reference to the past, through principles of desert and Lockean entitlement;17 but its primary focus is on the present present-day people, present-day resources and on the circumstances of the present inasmuch as they affect who should get what.

III. Could the Supersession Thesis apply to the Israeli settlements in the Occupied Territories? This is an interesting question because it requires us

14 For the difference between the Supersession Thesis and models that stress compensation and reparation, see Waldron, Superseding Historic Injustice, op. cit., pp. 14 ff. In that article, I also argue that the Supersession Thesis addresses claims about injustice somewhat differently from the way they are addressed in Robert Nozicks account of justice-in-rectification in Anarchy, State and Utopia (Oxford: Basil Blackwell, 1974), pp. 152-3 and 230-1. The difference, in both cases, is that the Supersession Thesis addresses claims about on-going injustice rooted in actions that took place in the past, whereas the compensation/reparation claims associated with justice-in-rectification do not assume that the injustice is on-going.

The reversion argument also presupposes that the entities to whom injustice was done have survived into the present. This may seem easy, when we are talking about corporate entities like Maori tribes or iwi. In fact it is quite problematic, since those entities have taken on an entirely different character from the character they had a century and a half ago, and many descendants of those who were members of the relevant iwi in 1860 now live in circumstances largely untouched by the same iwi in 2003. See the New Zealand case of Te Waka Hi Ika o Te Arawa v. Treaty of Waitangi Fisheries Commission [2000] 1 NZLR 285. and the discussion in Waldron, Redressing Historic Injustice, op. cit. {See also Appendix below.}
16

15

Cf. Kant, The Metaphysics of Morals, Part One: The Doctrine of Right, paragraphs 41-44. Cf. Nozick, Anarchy, State and Utopia, p. 155.

17

36

to look at the process of possible supersession from the front-end (ex ante) rather than the back-end (ex post), as it were. In the Israeli case, we are looking at relatively recent settlements and considering what the moral effect of their long-term establishment will be, rather than looking at settlements set up well in the past and considering what the moral effect of their long-term establishment has been.18 Thats actually a salutary change of perspective; it offers an opportunity to consider the Supersession Thesis in a somewhat different light.19 It is particularly worth considering in the Israeli case, because I think some of those who live in the settlements and some of those who oppose them have in mind a possibility that is quite like the possibility envisaged by the Supersession Thesis. Those who live in the settlements look forward to the settlements becoming more legitimate with the passage of time, and those who oppose them do so urgently because they, too, have this prospect in mind and they fear it. One side wants to take advantage of the fact that those who talk now about the illegitimacy of the settlements will eventually have to come tot terms with established facts on the ground. And the other side wants to prevent the facts of settlement from becoming established and entrenched for more or less exactly the same reasons: they dont want them to be facts on the ground which people have to come to terms with. True, on both sides this talk of legitimacy may be a little distant from the abstract concerns of the moral philosopher. Legitimacy is not the same as justice. Both the settlers and their opponents are looking to legitimacy in the eyes of the world or legitimacy in the eyes of those who currently participate one or way or another in Israeli-Palestinian conflict. In other words, their notion of legitimacy may be empirical rather than moral.20 However, the gap may not be as wide as it seems; descriptive talk of legitimacy conveys an empirical report of moral attitudes, and the moral attitudes it reports may be based (inter alia) on something like the Supersession Thesis. Moreover, no matter how legitimate the settlements become in the eyes of the world, each of us still has to form a view of his own on the subject, and I want to consider thee extent to which the Supersession Thesis should affect ones view.

18 However, we should bear in mind that some of the settlements in the Occupied Territories are actually quite long-established. The territories in question were occupied by the Israeli military in 1967, and some settlements were established quickly thereafter i.e. long enough ago for two generations of descendants of the original settlers to have been born there. See Avishai Margalit, Settling Scores, New York Review of Books, September 20, 2001, for a useful summary of the history.

19 I shall not in this paper consider issues about the alleged Palestinian right of return to lands and properties seized in the process of Israels establishment as a nation. But obviously the Supersession Thesis may apply here also: for a discussion, see Andrei Marmor, Entitlement to Land and Right of Return (paper prepared for this conference).

20 Cf. the notion of legitimacy in Max Weber, Economy and Society ed. Guenther Roth and Claus Wittich (University of California Press, 1978), Vol. I, pp. 31 ff..

37

Heres how I plan to proceed. In section V, I will discuss what kind of changes in circumstances are required for the Supersession Thesis to kick in, and I will say something I hope not too ill-informed about whether those changes are occurring or are likely to occur in the case of the settlements in the Occupied Territories. Before that, however, I would like to say something general in section IV about the character and implications of the Supersession Thesis, when viewed from this temporal perspective ex ante rather than ex post.

IV. The objection that strikes many people when they consider the Supersession Thesis is that it creates a moral hazard - a reward, indeed an incentive for injustice, provided that it can be sustained for long enough. This objection may look rather remote when the contemporary situation, S2, which we are considering is separated from the original injustice, S1, by 150 years. But it presses on us quite acutely when we are actually in or near S1 that is, when we are actually watching the establishment of settlement by those who hope that any injustice in what they are doing right now will be washed out by time if their enterprise is successful. In this context, it may seem that our talk of the possibility of the supersession of injustice is irresponsible. The last thing that is needed people will say in the on-going debate about settlements policy is a moral argument that might encourage the settlers in their quest for eventual legitimacy. I think a number of points may be made in response to this objection. (") It is worth emphasizing, first, that the Supersession Thesis is not just about the passage of time. The thesis does not argue that pakeha settlements in New Zealand are now legitimate because they have been sustained for a certain number of years; nor, in the Israeli case, would the argument be that the settlements will become legitimate after a certain period of time has passed. Indeed am not aware of any arguments, even arguments about prescriptive title, that build anything on the passage of time per se.21 They tend rather to tend to rest on factors that are almost always associated with the passage of time factors such as the growth and stabilizing of expectations or the declining availability of reliable evidence about original titles, etc. Or they are argument about what time reveals: the extent of the original proprietors failure to police his holding, for example,

I guess the principle of adverse possession comes close to being an exception, though even there the justifications of it tend to refer to factors associated with the passage of time rather than the passage of time per se. See, e.g., Jeffrey Stake, The Uneasy Case for Adverse Possession, Georgetown Law Journal, 89 (2001) 2419, at 2434 ff. for a list of arguments.

21

38

the stability of certain equilibria of forces, or the long-term viability of certain conventions. I will discuss these more in section V. In fact, the changes in circumstances to which the Supersession Thesis responds need not be associated with the passage of long periods of time at all. In our model example about the water-holes, the change of circumstances is sudden: one year, all but one of the water-holes in the east dry up. (We are familiar with this sort of thing in the way that the demands of justice change in relation to sudden catastrophes, like floods.) In the New Zealand case, by contrast, the changes are largely demographic - and that does depend on the passing of generations. So, in the Israeli case, everything would depend on whether the appropriate changes in circumstances occurred, with or without the passage of time. We should bear in mind, moreover, that there is no guarantee that the changes, if any, wrought by the passage of time will work in the direction that the Supersession Thesis postulates. They may work in the opposite direction, intensifying the original injustice rather than superseding it. On my account there is nothing inevitable about the supersession of historic injustice. All that the Supersession Thesis holds is that it is possible for injustice to be overtaken by events in this way. For the sake of argument, however, I will proceed in the remainder of this section by assuming that it is quite plausible that circumstances are changing or will change over time in relation to the settlements in the Occupied Territories in a way that will trigger the Supersession Thesis. How credible that assumption is, is something we will consider in section V. For now, we are supposed to be responding to the objection that even holding this out as a possibility creates a moral hazard. ($) Let us assume, for the sake of our argument in this section, that the action of establishing settlements right now really is unjust. (Formally, this is an assumption for the sake of argument. In fact I think it is undeniable.) Now we know that most settlers and supporters of the settlements will not concede that their actions are unjust. So the Supersession Thesis is not for them. The thesis is for those to ponder who acknowledge the injustice of the settlements initial establishment but who wonder whether that moral condemnation is bound to persist. To put it another way, the Supersession Thesis presents a sobering - and a frightening prospect - for those who oppose and condemn the settlements on grounds of injustice. And it offers a measure of redemptive hope for those who participate in the settlements movement but who do so in spite of their awareness that they are doing something wrong. What sorts of injustice are we talking about? First, unjust violations of international law: the seizure of land under cover of military occupation,
39

during a period where the legal status of the territories (and hence jurisdiction over them as property) has yet to be resolved.22 Secondly, expropriation, whether or not under the cover of some legal trick, as an injustice to those Palestinians who have a claim to the land that is used for settlement.23 This includes the imposition of arbitrary formal requirements for the establishment of Palestinian title in the yes of the Israeli authorities.24 It also includes the requisitioning of land for military or security purposes and its subsequent distribution to settlers under cover of the claim that settlements promote security. Third, unjust distribution of the resources necessary for human life and flourishing ranging from water to roads to police protection in the areas affected by settlement. Fourth, the unjust (or, as to justice, the reckless and criminally inconsiderate) imposition of costs on other inhabitants of the areas subject to settlement, ranging from radical constraints on their conditions of life (freedom of movement etc.) by the measures necessary to protect the settlements through the establishment of something like apartheid to brutal initiatives that involve something approaching ethnic cleansing. Many objections to the settlements are of course objections of political or geopolitical prudence: they make the prospect of peace in Israel/Palestine much more remote; and they provide a flashpoint for conflict. They are crimes against peace rather than crimes against justice. But in a consequential sense they are also offences against justice, inasmuch as everyone has a natural duty to play their part in ensuring that just institutions can be established and to ensure that obstacles are not placed in the way of the just settlement of conflicts.25 In what follows, then, I shall assume I think quite plausibly that the actions of establishing settlements in the Occupied Territories in the period from 1967 till the present are or have been unjust in some or all of these ways. (() With those assumptions under our belts, we turn to more robust responses to the objection. The most important thing to bear in mind is the

22

Article 49(6) of the Fourth Geneva Convention (1949): see David Kretzmers paper for this conference. For the legal trick, see Margalit, Settling Scores, op. cit.

23

24 Something comparable - and similarly disgraceful - was done with regard to Mexican/Hispanic titles when California obtained its independence (and later became part of the United States).

25 Whether one thinks that the natural duty of justice does all or most of the work done in traditional political philosophy by theories of political obligation, it is I think undeniable that we have some such natural duties. For arguments to this effect, see: Immanuel Kant, Metaphysics of Morals, Part One: The Doctrine of Right, paragraph 44; John Rawls, A Theory of Justice, op. cit., pp. 99 and 293-6; and Jeremy Waldron, Special Ties and Natural Duties, Philosophy and Public Affairs, 22 (1993), 3.

40

following. If an action, A (establishing settlements in the Occupied Territories) would be unjust and A is being contemplated right now, the only thing that the Supersession Thesis recommends is that A not be undertaken. What I mean is that the Supersession Thesis does not in any way mitigate or detract from the ordinary normative implications of a theory of justice with regard to unjust actions presently being contemplated. If in action is unjust, it should not be performed, and if an attempt is made to perform it, it should be stopped. These are our primary and most urgent obligations with regard to injustice, and the Supersession Thesis imposes no qualification upon them whatsoever. The prospect that A may lead many decades hence to a situation that is no longer unjust is not a reason for not stopping A now if A is unjust now. Also, if A has already taken place and it has led to a situation, S1, that is (now) unjust, then everything possible should be done now to reverse the injustice. Again this is not affected by the Supersession Thesis. The fact that, if left undisturbed, S1 (which is unjust) might evolve over time into S2 (which is just) is not a reason not even the scintilla of a reason for leaving S1 undisturbed. (*) If anything the prospect of supersession might heighten the case for stopping or reversing the injustice of S1. If it is reasonably foreseeable that an injustice will be superseded sometime in the future, then that may be a source of additional suffering and despair experienced by the victims of the injustice, and may in that sense make the injustice worse at present.26 True, the despair associated with the anticipated operation of the Supersession Thesis is not, I think, a reason for blocking its application (once the relevant circumstances change). But it may heighten the case for blocking the injustice now, before it is superseded. (,) So far, in responding to the moral hazard objection, I have given various reasons for thinking that the prospect of the operation (in due course) of the Supersession Thesis is not a reason now for failing to stop or reverse existing injustice. But suppose the injustice does become established and circumstances are changing in a way that if the Supersession Thesis were accepted might require us to describe the results of the injustice as no longer unjust. Should we at that point refrain from applying the Supersession Thesis in order to deter similar injustice in the future? Heres the argument someone might offer: If A would be unjust, surely everything possible should be done to prevent its occurrence. If the widespread repudiation of the

26

Cf. the argument in Waldron, Property, Honesty and Normative Resilience, op. cit., pp. 34-5.

41

Supersession Thesis would make it marginally less likely that A would occur, then surely we should repudiate it. This in the final analysis is where I think the moral hazard objection is leading us. Its a claim that deserves to be taken seriously, because it rests on the importance of discouraging injustice by all meas necessary, including (if necessary) pretending that the Supersession Thesis is false. But I cannot accept the argument. For I think it is not in fact true that if A is unjust everything possible should be done to prevent it. Suppose the best way to prevent a particularly hideous injustice would be to perpetrate another injustice, which we calculate might deter the would-be performer of A. We hang an innocent man, as the old story goes, to deter other wrongdoers whose crimes would be even worse than ours. Most theorists of justice repudiate this sort of consequentialism of injustice.27 Now blocking the operation of the Supersession Thesis would be more or less exactly like that. The Supersession Thesis holds that we should do what justice requires in the circumstances of S2. To fail to do what justice requires in S2 because we thought this a good way of deterring actions like A (which might bring about unjust situations like S1) is an offensive use of injustice as a means. The claims of justice-in-S2 press upon us categorically, in a way that leaves no room for any consideration of strategy, incentives, deterrence, etc. We have no choice but to do justice in and for that situation, and let the incentives fall out as they may. If there is a moral hazard here, it is something justice simply requires us to accept.28 The upshot of all this is that we are required to take seriously both of the judgements that are involved in any application (or in the prospect of any application) of the Supersession Thesis to the case of the Israeli settlements in the Occupied Territories. If such settlements are unjust, then they should be stopped and dismantled. But it is not out of the question that if they are not stopped and dismantled, then over time and with the appropriate changes in circumstances, justice may require their maintenance and support. If that is what justice requires at that time, then its demands must be taken as seriously then, as I am saying they should be taken now, while the settlements are still young. The benefit of justice including the

27 But see Amartya Sen, Rights and Agency in Samuel Scheffler (ed.) Consequentialism and its Critics (Oxford: Oxford University Press, 1988), p. 186, for something like a consequentialism of justice.

28 I think there is perhaps more to be said here. The argument I make depends on viewing the demands of justice in a non-constructivist way: we are to regard the demands of justice in S2 as uncompromising. We are not to think of them as something we might tinker with to get a more satisfactory system of justice overall. For the case against constructivism see G.A. Cohen, If Youre an Egalitarian, How Come Youre So Rich? (Cambridge: Harvard University Press, 2000); for a response, see Joshua Cohen, Taking People as They Are? Philosophy and Public Affairs, 30 (2002) 363.

42

benefit of the Supersession Thesis is not to be withheld from the settlements just because of the folly and wrongness that surrounded their initial establishment.

V. In section IV we explored some of the moral implications of the Supersession Thesis, assuming - in the Israeli case (1) that the original establishment of settlements in the Occupied Territories was unjust, but (2) that it was possible that circumstances might change in a way that superseded that injustice. Now we must ask: how plausible is the second assumption? Even if the Israeli government does not act immediately to block or reverse the injustice of recently established settlements, how likely is that circumstances might change in such a way that would make long-established settlements turn out to be just sometime in the future? Is there a genuine prospect of supersession? The issue is not the sheer passage of time. As I said in point (") above,29 the passage of time establishes nothing; it is changes in circumstances that go along with the passage of time that may make a difference. And, as I said in point ("), there is no guarantee that this effect will accrue: circumstances may change in a way that heightens the injustice or leaves it undisturbed. What kind of changes in circumstance are we talking about? What kind of changes might trigger the Supersession Thesis? It is impossible to deal with this in any way except enumeration, and therefore the brief discussion that follows will be necessarily inconclusive. We cannot rule out the possibility that circumstances may change in unforeseen ways that reconcile unjustly established settlements with the latter day demands of justice. But we can explore some of the more obvious candidates. In what follows I shall refer to three kinds of possible change in circumstance: (i) demographic, economic and geographical changes, of the sort that were prominent in my presentation of the New Zealand example; (ii) changes in patterns of expectation; and (iii) changes in the equilibrium of forces. (i) Both in the water-holes model and in my presentation of the New Zealand case, the key change was the presence (in the vicinity of the resources in question) of large numbers of people who had no practicable choice but to remain there and make a living using those resources. In section II, the descendants of Fs could not return to their ancestral waterhole, because it had dried up, and they could not reasonably be expected to

29

Above, p. 38.

43

make the trek west to He because most of them would die on the way. In the New Zealand case there might have been a point at which it would have reasonable to expect the pakeha to return to Great Britain: some colonies did fail in the nineteenth century and the bedraggled colonists did return home (or move on to some other colony).30 But that time has long passed: individual New Zealanders do leave their country in disturbingly large numbers, but there is no place where the millions of New Zealanders of nonMaori descent could reasonably be expected to move en masse. Their ancestral homeland (the U.K.) is about as far away as it is possible to be on a globe like the earth, and anyway the government of their ancestral homeland has long since made it clear that they would not be welcome. My ancestors might have thought of themselves as British, but we their greatgrandchildren have no right of return.31 Obviously, nothing remotely like this is true or is likely to become true of the inhabitants of the Israeli settlements in the Occupied Territories. The demography, such as it is, works in the opposite direction.32 And so does the geography: all of the settlements are within a days walking distance of the state to which the settlers have a constitutionally established right of return. If the State of Israel were to accept the view that the settlements are illegitimate, it would no doubt do everything in its power to enable (probably it would use force to compel) the settlers to return to within whatever boundaries it was willing to defend. Even if all the land presently designated as Occupied Territories were to be ceded to a new Palestinian State, it is inconceivable that Israel would abandon its present settler occupants to the extent of denying them a right to return to Israel. So there is a first set of important differences. There is a difference, too, in what the settlers are hoping time will accomplish in the Occupied Territories. It is the express aim many of the settlers to expand or to be the cause or occasion of the expansion of the de jure boundaries of the State of Israel to include areas currently occupied by their settlements. If they succeed in this, they will have the same practicable choice as to whether to go on living in, say, the Jordan Valley or move to Tel Aviv as present-day Israelis have as between living in Tel Aviv

30

I believe the British colony in Patagonia was an example.

31 Commonwealth citizens with a grandparent born in the UK have a limited right of return; but the UK has shown a remarkable adeptness in abolishing such rights whenever it becomes apparent that large numbers of people might need to exercise them. (The passage of the Immigration Act 1971, partly in response to desperate need of British Commonwealth citizens of Asian descent to leave Uganda at the time of Idi Amin is a disgraceful example of Britains alacrity in abandoning those people for whom it had taken on an imperial responsibility.)

32

See also Andrei Marmor, Entitlement to Land and Right of Return (paper prepared for this conference),

pp. 23 ff.

44

or Haifa. They are looking to expand their options, rather than responding sadly to a radical contraction of them. In general the logic of the settlement movement seems quite at odds with what I referred to at the end of section II as the spirit of the Supersession Thesis. The settlers do not regard themselves as stranded colonists, or the descendants of stranded colonists, abandoned by their homeland or abandoned by circumstances, who are now seeking to make the best of a bad situation, and who are willing to share resources on a new and just basis with those who were in the territories when they arrived. Instead, many of the settlers see themselves as pioneers, spearheads of a movement that is one of conquest (or reconquest) , a movement that may well involve the expulsion or ethnic cleansing of Palestinians in their vicinity. I dont mean to suggest, however, that the element of ethnic cleansing automatically disqualifies a settler movement so far as the application of the Supersession Thesis is concerned. It is one of the challenging and perhaps distressing aspects of the supersession of injustice that it may validate situations that are the result of successful ethnic cleansing. Of course ethnic cleansing should be condemned, opposed, and blocked at the time that it is being attempted, and those who incite or perpetrate it should be tried and punished for crimes against humanity. But if the enterprise of forcibly moving one population out of a territory actually succeeds, and if there is no real-world prospect of that populations return, then the demographics of the situation will actually have changed, and justice must respond to those changes in roughly the way that is envisaged in the Supersession Thesis.33 It is not out of the question that the settlements movement might succeed to that extent, which is at least one of the reasons Palestinian militants oppose and attack the settlements so furiously. (ii) Consider now the possibility that peoples sentiments, affections and expectations will change in relation to a given set of resources. People who are in possession of certain resources become accustomed to their possession, while people who are dispossessed may find their sentimental attachment to what they have lost gradually dissipating. The point was well put by David Hume: Such is the effect of custom, that it not only reconciles us to anything we have long enjoyd, but even gives us an affection for it, and makes us prefer it to other objects, which may be more valuable, but are less

In parts of the United States, such justice as there is in contemporary land-holding depends on some such development. The successful ethnic cleansing of Native Americans their movement to reservations and the decline in their numbers and aspirations there meant that, after many decades, they could not longer be regarded as serious claimants to the lands that were taken from them.

33

45

known to us. What has long lain under our eye, and has often been employd to our advantage, that we are always the most unwilling to part with; but can easily live without possessions, which we never have enjoyd, and are not accustomd to.34 This continues to be an important theme in modern property theory. In a number of interesting essays, Margaret Radin has explored the implications of the proposition that [m]ost people possess certain objects they feel are almost part of themselves, 35 and she argues that the trajectory of those feelings may affect the way we resolve disputes about property and distributive justice. For her, as for Hume, these sentiments are not just interesting psychological corollaries of possession; after a certain amount of time they figure among the moral grounds that there are for ratifying possession as just, for they are part of the relation between person and resource that justice may pay attention to. The point can be extrapolated from more traditional theories of property. Traditional theories of property often attribute moral importance to the fact that the producer or laborer has invested something of himself in the resources that he appropriates.36 They say that this personal or emotional investment mixing ones labor, to use Lockes phrase37 establishes a relation between person and resource that justice must pay attention to. These accounts are particularly convincing when, as in Lockes account, they are associated with First Occupancy, for in a case of First Occupancy the sentimental investment of the appropriator in the particular resource does not accrue at the expense of anyone elses sentimental investment in that resource. However, though that connection is very important, still the significance of the sentimental investment cannot simply evaporate when we are dealing with something other than First Occupancy. Even when the possessor is not the first occupier or even when he has actually dispossessed someone else the attachment to the resource that he develops must still have (or in time

34 David Hume, A Treatise of Human Nature, Second Edition, ed. L.A. Selby-Bigge and P. H. Nidditch (Oxford: Clarendon Press, 1978), p.503 (Book III, part 2, section iii). For discussion see Stephen R. Munzer, A Theory of Property (Cambridge: Cambridge University Press, 1990), pp. 194-5 and Waldron, Property, Honesty, and Normative Resilience, op., cit., at pp. 21-31.

Margaret Jane Radin, "Property and Personhood," reprinted in her collection Reinterpreting Property (Chicago: University of Chicago Press, 1993): 35-71, at p. 36.
36 See John Locke, Two Treatises of Government ed. Peter Laslett (Cambridge: Cambridge University Press, 1988), Second Treatise, Chapter V (on mixing ones labor) and G.W.F. Hegel, Elements of the Philosophy of Right, ed. Allen Wood (Cambridge: Cambridge University Press, 1991), pp. 73 ff. (esp. paragraphs. 41-64). See generally, Jeremy Waldron, The Right to Private Property (Oxford: Clarendon Press, 1988), pp. 171-207 (Locke) and 351-77 (Hegel). See also the paper by Tamar Meisels, The Ethical Significance of Settlement, prepared for this conference.

35

37

Locke, Two Treatises, op. cit, II, Ch. 5, section 27.

46

acquire) some moral importance of its own. (Otherwise the element of attachment could not be thought to add anything in the cases that do involve First Occupancy.) The argument about sentimental investment may affect both the perpetrators and the victims of the original injustice (and their respective descendants). On the one hand, a settlement that exists for several generations will almost certainly become a focus for the sentiments and affections of those who live there. And it is plausible to suggest that the case for sustaining the settlements grows stronger in proportion to the strength of the affection that the settlers and their descendants develop for the land. On the other hand, the particular attachment of those who were dispossessed to the resources of which they were dispossessed may well become weaker over time. If something was taken from me decades ago, any claim that it now forms the emotional center of my economic life becomes less credible. For I must have found some way to live in the meantime; I must have developed some structure of subsistence. And that will be where my efforts have gone, and where my sentiments have been focused.38 I may of course yearn for the lost resource and spend a lot of time wishing that I had it back. I may even organize my life around the campaign for its restoration. But over time that will become somewhat different from a Humean attachment to [w]hat has long lain under our eye, and has often been employd to our advantage.39 So we have the growth of an attachment on the one hand and the decline of an attachment on the other; and this is exactly the sort of change that may trigger the Supersession Thesis.40 I said earlier - in point (() in section IV41 - that our primary obligation in respect of injustice is to condemn it and stop it at the time that its perpetration is being attempted, and if that does not succeed to reverse it as soon as possible thereafter. And that continues to be true in respect of the account I have just given: we are not permitted to qualify this primary obligation by anticipating the changes in affectionate attachment that I have suggested might accrue from an injustice over time. What I have called the

This may seem harsh and it may excite, once again, the worry about moral hazard. But I do not see any way of avoiding this conclusion. We cannot pretend that a long-stolen resource continues to play a part in its original owner's life when in fact it does not, or that subjective attachment has a certain quality when in fact that quality has faded, merely in order to avoid a moral hazard.
39 See above, text accompanying note 34. I have adapted this last paragraph from Waldron, Superseding Historic Injustice, op. cit., pp 18-19.

38

40 For a powerful argument to the contrary, see Andrei Marmor, Entitlement to Land and Right of Return (paper prepared for this conference), pp. 16 ff.

41

Above, p. 40.

47

primary obligation is particularly incumbent upon government; and it should be the particular task of law. After all, law promises justice and people are entitled to take their lead from the law as to what is just and unjust, particularly in issues as complex particularly in issues involving the solution of as many coordination problems as issues of property, justice, and distribution.42 And law monopolizes the force that might legitimately be used to oppose injustice. Now, it goes without saying that government and law sometimes neglect or betray these obligations. (Successive Israeli governments have certainly neglected and betrayed their responsibilities in regard to the settlements in the Occupied Territories.) When they do, their neglect and betrayal may have long-term effects which actually aggravate the changes in circumstances I have been talking about. We owe to Jeremy Bentham the point that law on account of both the factors we have mentioned (the promise law makes with regard to justice and the force that it monopolizes, allegedly in the service of that promise) is the most important source of the expectations that might matter in this account: "In matters of property ... hardship depends upon disappointment; disappointment upon expectation; expectation upon the dispensations, meaning the known dispensations of the law.43 We need not agree with Benthams view that possessory expectations unsupported by law are not worth considering, to see the force of his insistence that expectations that are supported by law may make all the difference. If law begins (wrongly) by supporting unjust possession, then law may find that it has no choice but to go on supporting it, to the extent that supporting becomes the only right thing to do.44 As I suggested in point (*) in section IV45 - this prospect makes it all the more important for the government to start off on the right foot, and not lend its support to settlements whose justice or illegitimacy may be problematic. (iii) A third set of possibilities concerns the equilibrium of forces which, some theorists have conjectured, lies behind any talk about justice. By
42 Cf. Jeremy Waldron, Does Law Promise Justice? Georgia State University Law Review, 17 (2001), 759. For the importance of authority in resolving the complex coordination problems associated with justice, see John Finnis, Natural Law and Natural Rights (Oxford: Clarendon Press, 1980), pp. 231 ff.

Jeremy Bentham, "Supply without Burthen" in Volume I of Jeremy Bentham's Economic Writings, edited by W. Stark (London: George Allen and Unwin, 1952), p. 291. I have discussed this in Property, Honesty, and Normative Resilience, op. cit., pp. 23-6, and in Supply Without Burthen Revisited, Iowa Law Review, 82 (1997), 1467.
44 Hence the conservatism of Benthams claim that the legislator owes the greatest respect to the expectations that he himself has encouraged. (See the extract from Jeremy Bentham, Principles of the Civil Code, excerpted in C.B. Macpherson (ed.) Property: Mainstream and Critical Positions (Oxford: Basil Blackwell, 1978): 41-58.)

43

45

Above, p. 41.

48

seizing and holding land in the Occupied Territories, it may be thought that the Israeli settlers are changing the forces that are in play in the Territories, and thereby making a difference to what must eventually be regarded as a just distribution of land in that region. The seizure itself may be objectionable on grounds of justice. But if successful, it means that the forces that will eventually determine what counts as just will be different from those that would have determined this if the settlements had not taken place. Once again, David Humes work is seminal in the philosophical background of this line of argument. Hume argued that institutions of property and justice take their origin from a convention to respect de facto defensible holdings. We start from an assumption of conflict: people grab things and use them; they argue and fight over them; they try and defend what they have and take as much as they can from others. Over time, the holdings determined in this way are going to be largely arbitrary. Nevertheless if any sort of stable pattern of possession emerges, then something like a peace dividend may be available. It may be possible for everyone to gain, both in terms of the diminution of conflict and in terms of the prospects for market exchange, by an agreement not to fight any more over possessions. I agree to respect what you have managed to hang on to, and you agree to respect what I have managed to hang on to: "By this means, every one knows what he may safely possess."46 I observe, that it will be for my interest to leave another in the possession of his goods, provided he will act in the same manner with regard to me. He is sensible of a like interest in the regulation of his conduct. When this common sense of interest is mutually express'd, and is known to both, it produces a suitable resolution and behaviour; since the actions of each of us have a reference to those of the other, and are perform'd upon the supposition, that something is to be perform'd on the other part.47 Such an agreement, if it lasts, may amount over time to a ratification of de facto holdings as de jure property. On Humes account it is inappropriate to talk of justice or injustice in advance of such a convention, and it would be unwise to anticipate such a convention until we see how the forces that determine de facto possession
46 Hume, Treatise, op. cit., p. 489 (Bk. III, Part II, sect. ii). See also James M. Buchanan, The Limits of Liberty: Between Anarchy and Leviathan (Chicago: University of Chicago Press, 1975), esp. Chs. 1-4. For a discussion, see Jeremy Waldron, 'The Advantages and Difficulties of the Humean Theory of Property, Social Philosophy and Policy, 11 (1994), 85.

47

Hume, Treatise, op. cit., p. 490 (Bk. III, Part II, sect. ii). Emphasis in original.

49

actually play out. It is, he says, impossible there can be naturally any such thing as a fix'd right or property, while the opposite passions of men impel them in contrary directions, and are not restrain'd by any convention or agreement.48 So, we can say that the settlements take place initially in a domain of conflict unregulated by justice; but they help to establish the facts the equilibria, the stand-offs, the prospects of peace dividends, the viability of conventions that will eventually determine what is just and unjust in this domain. Now, in theory, this sort of account falls slightly outside the ambit of the Supersession Thesis, since it does not concede the injustice of the settlements to begin with. (Their initial justice or injustice is moot, on this approach, until the situation stabilizes.) Still it is close enough to the Supersession Thesis to be of interest to us here. And we can work up a version of it that may conform more rigidly to our model, in the following way. Suppose a Humean convention, C0, had established itself between 1949 and 1966 in the region we now call the Occupied Territories a convention which ratified various peoples possession as legitimate property.49 This convention, C0, would have established itself on the basis of the equilibrium of forces that then obtained. In 1967, however, there was a massive change: the forces that had governed the region (and thus sponsored C0) were defeated, and the region was occupied by Israeli forces. Now in principle, an occupying power has an obligation to respect existing property arrangements, and not effect any major change until the occupation is regularized.50 But, given the cavalier attitude of successive Israeli governments, clearly C0 was now very fragile and vulnerable either to the imposition of a new property regime or to the re-emergence of conflict over resources (a state of nature), in which case a new equilibrium would have to be worked out. In this unstable situation, a group of settlers might make a play for control of certain resources in this region. Formally speaking, their move is unjust by reference to C0. And it may also be unjust with respect to whatever indeterminate, unstable, and unreliable version of C0 well call it C1 prevails during the Occupation. Still, the settlers may make their move with a view to affecting and constraining the interplay of forces which will eventually lead some years hence to a new and stable convention, C2, concerning property in the region. When C2 emerges, it is

48

Ibid., p. 491.

49 Some of these possessions were built upon the dispossession of an earlier generation of Jewish settlers. (See Greg Myre, Israels Outpost Settlements Face a Moment of Truth, New York Times, May 26, 2003, p. 6: one settler noted that his outpost is built on the site of a Jewish kibbutz overrun by Arab troops in the 1948-49 war at Israels independence.

50

Refer to Kretzmers paper for this conference.

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likely to ratify some of their holdings as just, even though they might have been unjust with reference to C1 and C0. Of course there is nothing inevitable about this. But it is not out of the question that something like this would occur, and it is a version of the supersession effect. Notice once again what this argument offers and what it does not offer. It offers an account of what may happen in the course of time, as the conflict continues and eventually draws to its end. It does not offer an account of what ought to happen now, nor does it legitimize what the settlers are currently doing. At best, what it shows (on Humean grounds) is that their present actions cannot be condemned as unjust so long as the opposite passions of men impel them in contrary directions, and are not restrain'd by any convention or agreement.51 More importantly the frank acknowledgment of the role of force in this line of argument leaves the settlers with no ground for complaint about attacks on the settlements by Palestinian militants. Palestinian militants presumably also want to contribute to the interplay of forces that will eventually determine a stable Humean distribution of resources in this arena of conflict. Their force too will have to be reckoned in the vector that eventually determines an equilibrium of forces in the Occupied Territories. The Humean argument is notoriously non-committal on the means that are used to establish de facto possession, and it has to be non-committal also on the means that are used to oppose it. So the argument gives the settlers no right to be protected from Palestinian attacks. (No doubt the attacks can be condemned on other grounds, but not buy virtue of this argument.) Their proposal to establish and maintain settlements at the point of a sword, in the hope that theat will affect the way that justice is eventually established, means that they must expect to be opposed at the point of a sword. Their justice-based argument assumes or hopes that they may prevail; but it does not give them any right to prevail. Notice finally that this argument is a little different from the others. Arguments (i) and (ii) assumed that the same theory of justice that condemned S1 might ratify S2, and that it is only the circumstances that have changed. Argument (iii), however, looks to the application of different principles in S1 and S2, for among the changes in circumstances that it envisages are changes relating to the genealogy of justice. However, in a broader sense it is an argument of the same general type. Though it looks behind justice to the considerations under which it becomes worth talking

51

See above text accompanying note 48.

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about justice, still it assumes that the genealogy of justice is an intelligible process, governed by values and principles that are more or less constant.52

VI. The possibilities just sketched might seem more like realpolitik than moral philosophy. Interplay of forces, redefining the arena of conflict what do these have to do with justice and injustice, right and wrong? Nobody has ever denied that in time the settlements might be made legitimate by sustained application of violence against those who oppose them and those who have been dispossessed or otherwise adversely affected. But we are supposed to be considering the morality of settlements. This is the final objection to the Supersession Thesis that I shall consider. Here are two responses. First, the application of the Supersession Thesis even in the extreme case of (iii) is not just submission to power, nor is it simply the prostitution of morality and justice to the claims of the tank, the bullet, and the bulldozer. It is rather a recognition that facts which are established by violence do not on that account cease to be worth considering from the point of view of justice. A principle of justice, J, may hold categorically that anyone who is N has a right to R. The fact that X is N by virtue of Xs wrongdoing or the wrongdoing of someone else may be the basis of an exception to J (in which case J ought to have been stated more careful). If it is not an exception, however, we are required simply to deal with it, irrespective of our distaste at the mode of its establishment. Likewise a principle of justice, J, may be applicable in a situation only when condition 8 is satisfied. Unless there is some specific exception to this metaprinciple (about the applicability of J), the fact that 8 is satisfied as a result of someones unjust action is neither here nor there. Whether principle J or the meta-principle which imposes condition 8 are sensitive to issues about violence and injustice is something to be established by reasoning about their particular content. It is not something we can assume wholesale on the basis of our general distaste for violence or our general opposition to injustice. Secondly and maybe this is just another way of putting the same point although the Supersession Thesis responds to facts established by violence, it responds to those facts inasmuch as they present features that are made relevant by the principles of justice themselves. Think back to our

52 Thus Hume builds up his account of the artificial virtue of justice, using material from a constant set of natural virtues. or a much more chaotic account of the genealogy of justice, which could not be used in this way, see Friedrich Nietzsche, On the Genealogy of Morality, edited by Keith Ansell-Pearson (Cambridge: Cambridge University Press, 1994), esp. Second Essay. (See also Waldron, Right to Private Property, pp. 258-9, for further discussion on this point.)

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second and third water-hole scenarios.53 Though the presence of the Fs at water-hole Hg is a product of violence, it is not the violence that the theory of justice responds to when the water-holes are drying up. It is the presence of thirsty human beings in the vicinity of available water, and the principles of justice applied by the Supersession Thesis in the resulting situation are simply principles about the proper distribution of water to the thirsty. The same would be true of anything that the Supersession Thesis commanded in relation to long-established settlements in the Occupied Territories. The Supersession Thesis would respond not to the influence of force, but to the presence of people in a region who had nowhere else to go (if indeed they did have nowhere else to go) or it would respond to their attachments and expectations (in the event that such sentiments really had grown up around the land they had settled). I guess that what offends many critics of the Supersession Thesis sis that it refuses to be distracted from these concerns by a preoccupation with the violence that brought about these states of affairs. And maybe the critics are right to be appalled by that: I am far from adamant that the analysis behind the Supersession Thesis is correct. Still, it is worth noting that it is they and not the defenders of the Supersession Thesis who are fixated on force. For the critics, the unjust force that led to S2 is the most important thing about S2. But for those of us who are toying with the Supersession Thesis, the most important things about S2 may be the occurrent human realities, to which in the end a theory of justice is obliged to pay the closest attention.

53

Above, pp. 4-5.

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Appendix: Mostly in this paper, I have concentrated on changes in circumstances from S1 to S2. But there are also important issues about changes in personnel that is, changes in the nature of the persons to whom the injustice is supposed to have been done. . In relatively recent cases, like the case of the Israeli settlements, we can still point to the persons who were harmed and whose injury still subsists, as a result of the original injustice. But as time passes, this may be more difficult: the victim of the injustice perpetrated at S1 may not be alive at S2, and it may not be easy to maintain that the grievance is inheritable. To some extent , this difficulty is solved if the injustice is conceived of as an injustice done to groups or communities. A group may endure from S1 to S2 even though the members of the group die and are replaced by their children and grandchildren. But even then there are still difficulties about the nature of the group.54 What is it for a group (such as a tribe) to survive over (say) four or five generations, in the context of claims about injustice? My hunch is that survival in the relevant sense may not be the same as the notional inheritance of a group name and structure. It is not enough to point to some present-day entity or group that may be regarded for some purposes as identical to an entity or group whose rights were violated in the past. We must be sure that they are identical in a sense that is relevant and appropriate so far as the issue of justice is concerned. For example, suppose an injustice is done to a certain family, Gm, at a time, m, when families have comprehensive responsibility for the social and economic well-being of their members: there is no social safety-net beyond that, no public education etc. The injustice at m deprives Gm of most of its wealth. As time passes - and that specific injustice remains unrectified - the social structure changes, and now the wider community or the state takes on the socio-economic responsibilities that were previously vested in the family. But G survives - at least nominally - as an enduring entity that outlasts its individual members: the family at time m, i.e. Gm, has survived through to time n, many generations later. It now presents itself as Gn. And Gn demands reparation of the original injustice. Are we so sure, in light of the changed social structure, that Gn is identical in the relevant sense to Gm? They are certainly identical in some sense, but can we be sure that the sense in which Gn and Gm are identical is a sense that is relevant for the purposes of restitution and historic reparation? The violation against Gm was a very serious one. But the best account of that seriousness makes reference to

54 What follows is taken from Jeremy Waldron, Taking Group Rights Carefully, in Grant Huscroft & Paul Rishworth (eds.) Litigating Rights: Perspectives from Domestic and International Law (Oxford: Hart Publishing, 2002), 203-220.

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Gms responsibilities for the welfare of its members, which are responsibilities Gn does not have. G has endured as Gn, but Gn does not play the role that Gm played. Can we say that the outstanding violation - now conceived as a violation against Gn - is as serious now as it was when it took place? Or suppose that people organize themselves into groups at time n on quite a different basis than the basis on which they organized themselves into groups at the time, m, when the injustice was committed. The original group survives, in some sense, but people configure themselves differently in relation to groups. Take a concrete example - the issue posed in a recent New Zealand case about Maori fishing rights.55 The Court of Appeal had to consider whether schemes to settle Maori grievances about the expropriation of fishing rights in the nineteenth century should be focused solely on traditional tribes or iwi or whether beneficiaries might also include more recently constituted Urban Maori Authorities. Justice Thomas provides some background: With the advent of colonization after 1840, the tribes were systematically dispossessed of their lands by purchase, confiscation or legal artifices. From the 1860s Maori fishing rights were under threat, and Maori struggled to retain fishing rights independent of land. ... Gradually the rights were all but fully lost. A burgeoning Maori population on an inadequate land base meant that life in tribal polities was no longer tenable. Urban migration followed, especially in the post-war years, actively encouraged by the urban relocation programme of the government of the day. ... Maori underwent the fastest urbanization of any indigenous peoples in the world. In 1956, 76 per cent of Maori were considered rural; by 1976, 78 per cent had become urban. ... The reality for Maori today is that most no longer live in compact kin-based tribal collectives on a defined land base. Their people live in scattered whanau units both within and away from the old tribal boundaries. ... A number of Maori, 112,566 to be precise, indicated in the last census taken that they did not know the name of their iwi, while another 40,917 neither specified nor identified their iwi. Twenty-five per cent of Maori either do not know their iwi or for some reason or other choose not to affiliate with it. ... But Maori are a communal people. The ... transformation of tribalism ... led to the emergence of quasi-tribes in the form of urban Maori organizations. A mix of tribal, religious and secular groups were formed for the purpose of providing material and spiritual support for Maori and the preservation of Maori culture. These voluntary groups perform the

55

E.g., Te Waka Hi Ika o Te Arawa v. Treaty of Waitangi Fisheries Commission [2000] 1 NZLR 285.

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functions once carried out by the tribe. Urban marae developed. ... Many of these groups became delivery and service mechanisms for the government. To the forefront in this transformation have been the Urban Maori Authorities (UMA).56 However, the political process whereby redress for historic injustice is sought under the auspices of the Treaty of Waitangi (1840) has been dominated, on the Maori side, by representatives of the traditional iwi, for they through their chiefs were of course the signatories to the Treaty. The settlement reached in regard to fisheries provided, in effect, that the assets held by the Treaty of Waitangi Fisheries Commission be distributed to traditional iwi, or other descent-based groups. A number of UMA challenged this settlement, on the grounds that it would not benefit a very large number of urban Maori no longer affiliated with iwi. The response by counsel, Joseph Williams, for the Commission was that since iwi had had the fishing rights wrongfully taken away from them, it is to iwi that they should be returned: UMA had not suffered comparable injustice, for they did not exist at the time the expropriations took place, and so they were not entitled to any redress. That argument prevailed with the majority in the Court of Appeal (insofar as they went beyond simple statutory interpretation). The settlement was of the historical grievances of a tribal people. It ought to be implemented in a manner consistent with that fact. With all due respect to UMA, who are formed on the basis of kaupapa not whakapapa, they cannot fulfil such a role. In saying this we do not intend to disparage UMA. They are worthy organizations of great value to Maoridom and to the wider New Zealand community. They are, and should be, held in high regard. In their short histories they have accomplished much good and their role in the delivery of benefits emanating from central and local government is vital and increasing. But they cannot legitimately claim to be tribes or the successors of tribes.57 But it seems to me the dissenting Appeal Court judges had a point when they remarked that the argument confuses the benefit of collective rights of individual Maori with the benefit to be conferred pursuant to the settlement. ... Mr. Williams asserts that the benefit of the settlement should be
56

Ibid., at 338-9 (per Thomas J., dissenting). Ibid., 377-8 (per Blanchard J.).

57

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directed to those who have lost their rights; that is, on his argument, the traditional tribes. This, he argued, is only logical. But the settlement is for the benefit of all Maori, not just the traditional tribes. In whatever manner distribution is effected, the benefit of the settlement is to go to all Maori, not just the members affiliated with the tribes who claim to have been the holders of the fishing rights which have been extinguished.58 In other words, there is a sort of unhealthy formalism about an argument that moves from the sociological proposition that [t]he settlement was of the historical grievances of a tribal people to the conclusion that the particular tribal entities that suffered the violation should be the sole beneficiary of the settlement, notwithstanding the very different and attenuated position that those entities presently occupy in modern Maori society. And I think this formalism is the occupational hazard of those who simply cast around to find a way - any way will do - of sustaining the business of historic reparations without regard to the human circumstances of those they claim to be benefitting.

58

Ibid., 341 (per Thomas J., dissenting)

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