Why I’m excited about what can happen after Ihumātao & Mauna Kea

On the outset, let me be 100% clear, this is just one man’s opinion and I am sure that other people see it more nuanced than the way I do.

Because, I see self-determination as a crucial part of the indigenous rights movements around the world.

The problem is, Indigenous Peoples generally don’t talk about it. I know States see it as some kind of allergy, and confuse any discussion about it as an invitation to secession.

The truth is, Indigenous Peoples always had their own concept of self-determination, because we were there before the States. You just have to dig deep to come from a place of real indigenous self-determination.

From the conversations that do take place, I’m learning so much, especially from people from the Indigenous Peoples rights movement — particularly in the United Nations. You’ll learn that each and everyone has a vision or is building a legacy.

For me, I want to help build indigenous Nations like Maluku, but I want to do it by providing tools, platforms and frameworks that allows creativity to truly embrace our indigenous identity and self-determination.

Through all the conversations, I agree with them and they agree with me, that self-determination must be the first strategy.

Look at the causes for Ihumātao and Mauna Kea, on the macro level its colonization. On the micro level its lack of free, prior and informed consent. Both have strong ties to the self-determination of Indigenous Peoples.

In both cases I believe FPIC is a good way to go about for both the sprint as the marathon, here’s why:

1. It derives directly from the right to self-determination

Most States are allergic to talking about this product of the right to self-determination when it comes to access, projects and measures on the lands, territories, and resources of Indigenous Peoples.

FPIC is part of the UN Declaration on the Rights of Indigenous Peoples, therefore it applies to all Indigenous Peoples. Therefore its universal. Therefore it should be applied by the book, doesn’t matter whether you live in Hawaii, New Zealand, Cambodia, or Sweden.

The UN Declaration is not about creating new rights for Indigenous Peoples, the way I see it is that its a package of rights that Indigenous Peoples should have had all along.

So FPIC is meant for Indigenous Peoples to restore control over their lands, and restore the power balance between the Indigenous Peoples and the colonisers or increasingly the private sector.

Now I’m going to say something that people might find offensive. With right comes responsibility. What I’m trying to say is, is that you cannot expect that private sector and governments do things by the book.

Its your responsibility to do the work, be at the table, you don’t have to be a lawyer to know how to claim your right. We all have ethics, moral standards, and as Indigenous Peoples we honour the natural world, we have respect for it. If it doesn’t sound right, it most likely isn’t.

It goes to claiming your right to self-determination.

2. Only when the F, the P, and the I have been achieved, C can be received.

Let me start with a punchline: Only when the F, the P, and the I have been achieved, C can be received.

I’ll explain:

⁃ Free stands for free from intimidation, harassment, etc;
⁃ Prior stands for involving Indigenous Peoples as early as possible, in the design phase prior to any activity on the ground;
⁃ Informed, means that all information is provided in a way that all the potentially impacted Indigenous Peoples understand;
⁃ Then, C for consent can be generated through Indigenous Peoples’ own processes.

Let’s back it up a little bit. We already established that self-determination and FPIC are in the UN Declaration on the Rights of Indigenous Peoples.

The unique nature of the UNDRIP is that it contains collective rights. Human rights are individual rights, and Indigenous Peoples rights are collective rights, and these collective rights are our safeguards. FPIC is not an individual right, so it cannot be claimed by an individual.

So, for example TMT has to go back and must consult ALL Indigenous Peoples that are potentially impacted, through their own indigenous institutions and respect the decision making process of those institutions, doesn’t matter how long it might take. Now there might be some indigenous proponents and opponents but, TMT must support indigenous consensus building without intervention.

What does Indigenous Peoples institutions mean in the context of FPIC and for example Mauna Kea? Its not up to me, and entirely up to Hawaii. Again, goes to self-determination. Only Hawaii can determine for themselves who can represent the Indigenous Peoples of Hawaii, is it one organisation? It can be a consortium of organisations, movements, etc.

For Ihumātao same thing, not my place.

So, if you go back to my explanation of FPIC, I have 2 takes on this:

First, FPIC is binary, either you have consent or you don’t, while others might say that there are some nuances. Second, lets say TMT already obtained FPIC, then still Indigenous Peoples are in their right to temporarily or not, withhold consent.

Let’s zoom in on Mauna Kea.

Its TMT’s obligation to be diligent in its procedures to obtain FPIC from the Native Hawaiians, and the responsibility of the USA is to oversee that its happening according to FPIC standards.

Now, here’s the disconnect between the international norm of FPIC and USA policy, I remember in 2010 when USA changed its position to political support forthe UNDRIP from having voted against it in 2007.

I was there when they made that statement, and it commented specifically on FPIC, something along the lines of “seeking consultations, but not necessarily the agreement” of tribal leaders. I believe that also includes Hawaii.

If you go more recent, USA’s submission to EMRIP’s study on FPIC, said that a council on historic preservation is required to hold consultations but don’t require federal agencies to obtain the agreement of Indigenous Peoples on their decisions.

3. Do it the indigenous way

Ihumātao and Mauna Kea not only exposes the lack of consensus building of the project developers and governments with the Indigenous Peoples.

I also see an opportunity, as it exposes a void that can be filled by Indigenous Peoples themselves.

It would be interesting to see Indigenous Peoples develop their own protocols for FPIC. Otherwise you have non-indigenous guidelines for FPIC imposed on you. Again, you don’t ask for your right to self-determination, you claim it.

I’m sure that the Maori and the Native Hawaiians — by the way I’d like some guidance if Native Hawaiians is more appropriate or Kanaka Maoli, I’m leaning towards Kanaka Maoli by the way. Coming back to my point, I’m sure that both Hawaii and Maori have had their protocols, orally or written.

So, my intuition says that not only Hawaii, but Indigenous Peoples in general are better off starting to claim their right and develop their protocols.

Now, I’ve been in training programs that try to develop a one size fits all protocol with some tweaks here and there depending on where FPIC is applied. They’re good programs don’t get me wrong. But I do believe that if we dug deep into our histories we already have them.

I am sure you will find protocols that will come natural to you, make sense to where you live, so its place based. And because its part of your culture, identity and heritage its much easier to remember than a protocol written by others.

Now, you will have massive disagreements with project developers and governments — Like we don’t have them already.

But to me the upside is, that you’re entering a discussion on your own terms, by putting self-determination front and centre rather than to saddle up the next generations with resentment, problems, complex constructions or a watered down version of FPIC or self-determination further down the road.

My fear is that by not putting it front and center, we glide further downwards towards complex constructions towards the point that we basically have relinquished that right or no longer can claim it.

A quick sidestep, I’ve seen great things emerging from Ihumātao and Mauna Kea, even though it’s ad hoc, still people are able to enjoy free education, legal advice, daycares, etc. Everyone chips in, there’s empathy, and solidarity. Now, that’s indigenous nation-building if you ask me.

Anyway circling back to FPIC.

As these are just my thoughts, I advise you three things:

First, to read studies of former Special Rapporteur on the Rights of Indigenous Peoples, Professor James Anaya;

Second, read the Expert Mechanism on the Rights of Indigenous Peoples’ study on FPIC;

Third, and maybe the most important one: Ask your leaders and elders what their concept is of self-determination. Embrace it and apply it.

Because, I’m sure these resources are much more comprehensive on FPIC than my 5 minute rant.