1 Introduction
The preverbal elephant in the room of minority and Indigenous-protection arrangements is how to determine who in fact belongs to the protected community. On the one hand the principle of freedom of association implies that no encumbrance should be placed on the right of association, on the other hand practical reality requires that a group claims the right pursuant to their self-determination to ascertain whether a purported claim to membership is factually correct.1
A plethora of literature have been published in an attempt to secure a universally applicable definition for the term minority.2 There is as of yet no internationally agreed definition of minority or any of the other terms that refer to minority communities (De Villiers 2012, 67).3 In practice the meaning
Whereas international and constitutional law recognise the right of individuals to associate with other individuals with the common objective to speak and promote their language and practice their culture, there is no collective group-right in international law upon which a community can rely to promote and protect their interests as a legal entity.4 Since an individual is regarded by international law as a legal subject by birth with justiciable rights and interests, a group is not regarded as a legal entity since it is in effect a sociological, fluid concept. Individuals may, of course, pursuant to their right to free association establish a legal entity in the form of a club, association or other non-governmental association to promote their linguistic, cultural and religious interests.
The challenge faced by minority and Indigenous protection arrangements is not necessarily the definition of the minority or Indigenous group the subject of the protection.5 The challenge, for purposes of this chapter, is to determine who belongs to a minority or Indigenous community and how disputes about
In this chapter consideration is given to those three Indigenous communities, the Sámi, MÄori and Aboriginal peoples, and the way in which disputes about membership are resolved. In doing so the chapter attempts to develop general principles for dispute resolution about membership of a community and to be provide practical proposals for a country such as South Africa where Section 235 of the Constitution speaks about the right to self-determination of cultural and linguistic communities without defining those communities and failing to give guidance how disputes about membership would be resolved.
It is noted in the outset that a distinction is drawn in international law between the protection of the rights of minorities and the protection of the rights of Indigenous peoples. This distinction in international law is also applied in practice in many states where special arrangements may exist for Indigenous peoples without similar arrangements for other minorities. When it comes to questions of membership of their community, minorities and Indigenous peoples share a common challenge namely how to ascertain if someone who claims to belong to the community, is indeed a member of that community? Is it solely at the discretion of the individual to elect to be part of the community pursuant to the right of free association or does the community have some discretion to consider purported membership and make a ruling thereon?7
Contemporary international law and state constitutional law are, generally speaking, receptive to different legal and practical arrangements in states to accommodate the rights and aspirations of communities, be it minorities or Indigenous peoples. The post-Berlin Wall phase of constitutional design has witnessed the emergence of a plethora of unique constitutional arrangements and practices to grant special protections, programmes, policies, legal measures and initiatives to language and cultural minorities (Malloy, Osipov and Vizi 2015). In similar vein the protection of the rights of Indigenous peoples
This chapter draws specifically on the experiences of the three Indigenous communities to seek answers to the question under consideration, namely how does one ascertain whether an individualâs claim to be part of a community, be it a minority or an Indigenous community, is correct? The findings are then applied to the possible operationalisation of Section 235 of the Constitution of South Africa and specifically to the potential it may offer to the Afrikaans-speaking community.
2 The Birth of Section 235 of the Constitution of South Africa
Section 235 of the Constitution of South Africa can only be assessed in its proper historical context if account is taken of the manner in which it found its way into the Constitution and the nature of the political settlement that gave rise to its birth.
Section 235 is clouded in mystery. On the one hand it represents an essential compromise that enabled the first democratic election in 1994 to take place without right-wing violence. On the other hand it has been dormant since the enactment of the Constitution and it may never be activated by legislation. Section 235 did what seemed at the time unthinkable in the political philosophy of parties such as the African National Congress and the Communist Party. It inserted into the new Constitution the promise of self-determination for any community that share a common language and cultural heritage.8 In light of the apartheid background of South Africa, the concept of community self-determination of any sort was counter-revolutionary, but the circumstances at the time and the spirit of reconciliation opened the door for the section to be inserted into the Constitution.
The right of the South African people as a whole to self-determination, as manifested in this Constitution, does not preclude, within the framework of this right, recognition of the notion of the right of self-determination of any community sharing a common cultural and language heritage, within a territorial entity in the Republic or in any other way, determined by national legislation.
Section 235 does not in itself contain any specifics about how the promise of community self-determination would become operational (De Villiers 2014, 458). The section is at best promissory in nature or at worst placating with no intention for it to be given practical or legal effect. Time will tell if it will become operational (Van der Vyver 2011).
An essential question at the heart of Section 235 is however how will the membership of a community be determined?
The transition from apartheid to democracy took place in two phases. The first phase concluded with the enactment of the 1993 (interim) Constitution. The second phase concluded with the enactment of the 1996 (current) Constitution. These two Constitutions were linked by 34 Constitutional Principles. The Constitutional Principles were contained in the 1993 Constitution and the 1996 Constitution had to comply with those Principles. One of those Principles gave rise to Section 235 in the 1996 Constitution (Henrard 2002, 72). The two-step Constitution drafting process was arguably the most significant contribution the South African transition had made to international democratisation theory and practice.9
The two-step process meant that the leaders of the political parties and political movements negotiated the 1993 Constitution under which the first democratic election took place in 1994. Those leaders who negotiated the 1993 Constitution were not elected by the general population, but it was accepted that they collectively had adequate legitimacy and credibility to negotiate an interim Constitution. The parliament, elected pursuant to the 1993 Constitution, had a dual obligation, namely to make general laws for the country and at the same time to act as the Constitutional Assembly to draw up the 1996 Constitution.10 The Constitutional Court had to certify that the
- 1.This Schedule and the recognition therein of the right of the South African people as a whole to self-determination, shall not be construed as precluding, within the framework of the said right, constitutional provision for a notion of the right to self-determination by any community sharing a common cultural and language heritage, whether in a territorial entity within the Republic or in any other recognised way.
- 2.The Constitution may give expression to any particular form of self-determination provided there is substantial proven support within the community concerned for such a form of self-determination. If a territorial entity referred to in paragraph 1 is established in terms of this Constitution before the new constitutional text is adopted, the new Constitution shall entrench the continuation of such territorial entity, including its structures, powers and functions.
The Constitutional Assembly hence negotiated and drafted the 1996 Constitution. In order to give effect to Constitutional Principle 34, the Constitutional Assembly adopted Section 235 in the 1996 Constitution. The Constitutional Court, as part of the process of ratification, considered Section 235 and concluded that the section complied with Constitutional Principle 34. The Court found that Constitutional Principle 34 did not oblige the Constitutional Assembly to create institutions of self-determination, but that the recognition of the principle of self-determination as espoused by Section 235 was adequate to comply with Constitutional Principle 34 (Ex Parte Chairperson 1996, paras. 218â91).
Section 235 does not specify a timeframe for parliament to enact legislation to give effect to the self-determination of communities. There has to date not been any demonstrable demand by any political party or by non-governmental organisations, in the Afrikaans community or otherwise, for Section 235 to be given greater detail by law.11
3
Section 235 was inserted into the Constitution in response to demands by the Afrikaans community and more particularly by conservative White Afrikaners who were insisting on a form of Volkstaat (Afrikaner homeland).12 The Afrikaans community is of course not regarded as Indigenous pursuant to the United Nations Declaration on the Rights of Indigenous Peoples, however, the experiences of the three case studies in how to deal with membership disputes may assist if legislation is enacted in South Africa to give effect to the promise of self-determination of communities.13
Self-determination pursuant to Section 235 is available to all communities in South Africa that share a common language and culture background. If Section 235 is ever put into operation, it would likely be at the request of the Afrikaans community or a part of the community.14 As mentioned above, there has however not been, up to the time of writing, any coherent or representative proposal or demand by the Afrikaans community or part of it or by any other political party or non-governmental organisation, for legislation to be enacted to give practical content to Section 235 (or Section 185) (Geldenhuys 2021).15
As spoken language of choice Afrikaans is used by around 6.8 million persons of a population of 57 million. This means that Afrikaans (12%) is the third largest spoken language in South Africa after Zulu (25%) and Xhosa (15%). (Most spoken languages, 2019) Afrikaans is spoken by all racial groups in roughly the following percentages: White (61%); Coloured (77%); Asian (1.5 %); and Black (1%) (Population Estimates 2020).16
As a territorially distributed language Afrikaans users are scattered throughout the country which makes any territorial self-determination option unviable. This explains why Sections 185 and 235 had been included into the Constitution since those sections recognise the possibility of non-territorial forms of self-determination. The territorial distribution of the Afrikaans community is roughly as follows with Afrikaans indicated as a percentage of the population: Western Cape (49.7%); Eastern Cape (10.6%); Northern Cape (83.8%); Free State (12.7%); KwaZulu-Natal (1.6%); North West (9%); Gauteng (12.4%); Limpopo (2.6%); and Mpumalanga (7.2%).
As a political force the Afrikaans community in the 2019 general election principally supported two political parties at a national level, the centrist Democratic Alliance and the conservative Freedom Front Plus (Saba 2019). In the election the Freedom Front Plus nearly doubled its support to 2.4 % of the total turn-out â principally from white Afrikaners (Fihlani 2019).17
As a cultural community the Afrikaans speakers represent a smorgasbord of identities. Some conservative Afrikaans leaders emphasise the importance of the Afrikaner identity whereby elements of race; Christianity; European origin; and certain traditional customs and practices are included. On the other hand there are Afrikaans leaders who emphasise Afrikaans as an African language with many internal cultural and religious characteristics within the single language community. Some in the Afrikaans community emphasise the status of Afrikaners as a distinct community within the Afrikaans community, whereas others are of the view that the broadest common denominator of language should be used to promote the interests of the Afrikaans language. To add to this complexity there are distinct differences of opinions between the leadership of Afrikaans speakers in the Western Cape and those in the northern parts of South Africa about how the language and culture should in future be safeguarded and promoted.
There is, in short, no broad agreement within the Afrikaans community about (a) what should or could be done to safeguard and promote the future of the Afrikaans language and culture; (b) whether self-determination under Section 235 should be pursued; and (c) who would qualify for membership of a to be established cultural council.
The strength and the weakness of Afrikaans lay in the richness of identities of its users. Compared to many other internationally minority communities who often live concentrated in small numbers and seek some form of territorial self-determination, Afrikaans-speakers are large in numbers; but spread over a massive territory; they do not share the same religion, heritage or customs; they have divergent political interests; and they have distinct regional characteristics, albeit that they speak Afrikaans. It is ironic that the challenge facing the Afrikaans community is not the numerical size of the community, but rather the internal diversity of the Afrikaans community and the geographical distribution of Afrikaans speakers.
The essential question arising from this chapter for the Afrikaans community is how disputes about membership of the community would be dealt with if Section 235 is ever operationalised?
4
Whereas international law endorses the principle of individual freedom of association, the ability of a community to exercise some form of control over its membership is also recognised in international and constitutional law. In some stances, like Hungary, self-identification is absolute which means a decision by a person to register on the electoral roll of any of the 13 nationalities cannot be challenged. In other instances, like Finland, a combination of a subjective and objective test is applied to ascertain if a person is indeed Sámi. Whereas in New Zealand the registration of a person on the MÄori list is only open to very limited challenge. In Australia Aboriginal peoples self-regulate but disputes about membership are ultimately resolved by the Federal Court.
The experiences of the courts in Australia, New Zealand and Finland in dealing with disputes about claims by individuals to be part of the local Indigenous communities, may be instructive to give content to Section 235 in South Africa and to other international minority-protection arrangements where disputes may arise about claims of membership.
4.1 Australia: When Is a Person âAboriginalâ?
The question how to ascertain whether a person is Aboriginal has always been intriguing and controversial in Australia. Aboriginality remains relevant in contemporary Australia in various contexts, for example whether a person forms part of a native title (land) claim group; whether a person is entitled to a member of an Aboriginal corporation;18 whether a person could vote in the (now disbanded) Aboriginal and Torres Strait Islander Commission elections and for the proposed advisory Voice;19 whether a person may qualify for a position reserved for Aboriginal persons; or whether a person may share in benefits that are only available to Aboriginal persons under government grants or
An Aboriginal or Torres Strait Islander is a person of Aboriginal or Torres Strait Islander descent who identifies as an Aboriginal or Torres Strait Islander and is accepted as such by the community in which he (she) lives.
Department of Aboriginal Affairs 1981
This working definition rests on three criteria, namely descent; self-identification; and acceptance by the community. The question is, of course, what weight is given to these respective criteria?
The courts have been reluctant to adopt a rigid stance to weighting the respective criteria, with pragmatism rather than a formulaic approach having been adopted. It has been argued that the application of descent as a criterion has over time become âdiffusedâ with a greater emphasis by the courts of self-regulation of membership by communities (De Costa 2014, 64).
Membership of the indigenous people depends on biological descent from the indigenous people and on mutual recognition of a particular person's membership by that person and by the elders or other persons enjoying traditional authority among those people.
Mabo (no. 2) v Queensland 1992, para. 70
In my opinion, in order for someone to be described as an âAboriginal personâ within the meaning of that term in the Act, some degree of Aboriginal descent is essential, although by itself a small degree of such descent is not sufficient. (â¦) The less the degree of Aboriginal descent, the more important cultural circumstances become in determining whether a person is 'Aboriginal'. A person with a small degree of descent who genuinely identifies as an Aboriginal and who has Aboriginal communal recognition as such would I think be described in current ordinary usage as an 'Aboriginal person' and would be so regarded for the purposes of the Act. But where a person has only a small degree of Aboriginal descent, either genuine self-identification as Aboriginal alone or Aboriginal communal recognition as such by itself may suffice, according to the circumstances.
Desmond Gibbs v Lyle Capewell 1995, para. 238
This declaration by Justice Drummond highlights the challenges presented by descent, particularly to an Indigenous community where records of descent may be poor and where persons may come from mixed forebears or children may have been removed from their parents at a young age. Although the Court did not abandon the criterion of descent, the emphasis seems to have shifted to contemporary evidence of claims of membership, association, acceptance, and the communityâs response thereto.
In the Shaw judgment (1998) Justice Merkel endorsed the approach adopted in the Gibbs judgment that some degree of Aboriginal descent is necessary, but that descent is in itself not conclusive to determine the question of aboriginality. Justice Merkel emphasised the importance of the social element of identity and interaction with other persons as an indicator whether a person is part of
The development of identity as an Aboriginal person cannot be attributed to any one determinative factor. It is the interplay of social responses and interactions, on different levels and from different sources, both positive and negative, which create self-perception and identity. (â¦) These quotations [of witnesses] reinforce the view that Aboriginal identity cannot be assessed according to inflexible notions of what characterises an Australian (or Tasmanian) Aboriginal person. In my view the current Australian community accepts that the widely divergent and differing histories and experiences of the process by which an Aboriginal person acquires and develops an Aboriginal identity is, inherently, a process personal to and discrete for each individual.
Shaw v Wolf 1998, para. 223; emphasis added
Justice Merkel acknowledged however that each of the three criteria of membership utilised by the courts is potentially problematic. In essence the three-pronged test is a product of Western dispute resolution and not necessarily reflective of Aboriginal laws and customs. For example, to ascertain descent, historical data may not be available about a personâs forebears; persons may
In the Aplin matter (2010) the question arose how disputes about the assertion of a person that they form part of an Aboriginal native title claim group ought to be resolved (Aplin 2010, para. 256). The court observed that it is primarily the responsibility of the claim group to determine whether a person is a member of the group, but the court noted that such a decision cannot be made arbitrarily. The decision of the community must be informed by fact and in accordance with the standards and processes of traditional laws and customs that apply to that community. The court acknowledged that acceptance of membership by a community is âinherent in the nature of a societyâ, but that the subjective assertion of membership may be adequate for a community to accept a person.
In the Harrington-Smith matter (2007) the Federal Court highlighted that ultimately the Court decides who comprises the native title group. The Court may, for example, find that persons who had been excluded by the claim group, ought to be included in the community that holds the native title. The Court must of course given consideration to the opinions of the community, but those opinions about membership do not restrict the discretion of the Court (Harrington-Smith 2007, para. 296).24
The approach adopted by the Australian courts in regard to native title proceedings is not without criticism since the question remains who makes a decision on behalf of a community; what level of support is required for acceptance of an individual claim of membership; what evidence is relied upon; what weight is to be attached to the opinion of expert witnesses; and what factors are to be conclusive to determine membership?25 The emphasis on the criterion of acceptance by the community may cause an imbalance in the weighting of the three criteria to the detriment of the weight accorded to descent since as far as native title groups are concerned their claims are inevitably linked to the community that had rights to the land under common law and therefore descent is an important consideration.26
The methodology generally adopted by the Federal Court of Australia to resolve disputes about membership affecting Aboriginal peoples can be summarised as follows: (a) in general a tripartite test is applied whereby descent; subjective choice of the individual; and community acceptance of the
4.2 Finland: When Is a Person a âSámiâ?
The Sámi are Indigenous people that traditionally live in parts of Finland, Sweden, Russia, and Norway. Each of these countries have enacted special measures of different degree to address the demands by the Sámi for self-determination.
In Finland, which is the subject of this chapter, the Sámi can elect their own parliament.27 The term parliament is arguably not entirely appropriate since the body has principally advisory and administrative powers rather than legislative sovereignty (Josefsen 2010). Relevantly for purposes of this chapter is however that the Sámi parliament makes decisions about membership of the Sámi and in doing so it decides who can vote in elections of the Sámi parliament.28
In order to register as a voter for the Sámi parliament a person must prove they are Sámi (Aikio-Puoskari and Pentikainen 2001, Annex 1) The test to prove Sámi identity is not simple: A person must consider themselves as Sámi and give evidence that they speak the Sámi language; or prove that their parents or grandparents speak or have spoken Sámi at home, or that a parent is or has been on the Sámi electoral register.29 The registration requirement has been described as an âambiguous legal regulationâ (Riekkinen and Suksi 2019).
riekkinen and suksi 2019
[T]his [review mechanism] is probably the most significant ambivalent aspect of indigenous autonomy in Finland: the fact that the judicial authorities have a final saying in matters related to the self-governance and self-determination of the indigenous peoples. In a system following the rule of law, this is necessary, but at the same time, the final say is not with the representative body of the indigenous people.
The test of being able to speak the Sámi language is potentially arbitrary and discretionary in its application.36 Whereas the ability to speak the language of a community is an important indicator of association, it is potentially a problematic criterion particularly in the case of a traditional language which may not be widely taught or spoken. The level of competency demanded by the Sámi parliament for an individual to speak a language may also give rise to discretions and abuse (Joona 2016, 155). The Sámi parliament is inevitable placed in a position of potential conflict, where as an elected body it also approves the voters for the next election.37 The majority party may therefore favour the registration of persons who support that party.
In similar vein as the Federal Court of Australia, the Supreme Administrative Court of Finland has gone through various phases in assessing whether a claim of Sámi membership is sound. The Supreme Administrative Court at first applied a rather rigid test, whereas in recent years the Court has adopted adopting a more holistic approach by reflecting on all relevant information of association and acceptance. The approach adopted by the Supreme Administrative Court is akin to the Federal Court of Australia, albeit that the jurisdiction of the court in Australia to determine membership disputes is not as contentious as the jurisdiction of the Supreme Administrative Court in Finland.
Whereas initially descent was treated as an objective criterion with high reliability, the Supreme Administrative Court now tends to place more weight on an individualâs total interaction and engagement with the Sámi community
In a recent decision wherein the Court allowed 93 persons to be registered as Sámi, the Court emphasised that it placed much reliance on self-identification and the recognition of fundamental human rights to free association, but it also acknowledged the right of the community to define themselves separately from the rest of the society (Supreme Administrative Court 2016a). The Court concluded that in disputes where the outcome of the language test is ambivalent, subjective association by the individual and objective acceptance by the community ought to determine the outcome.41 The discretion of the Court rather than a rigid application of an objective test were therefore preferred.
The Sámi parliament has also over time tended to adopt an expanded approach to registration as voter. The expanded approach does not rely solely on the ability to speak the Sámi language, but for the individual to also demonstrate interaction with the land and knowledge and practice of traditional livelihoods and the Sámi lifestyle (Suksi 2015, 108). There are clearly two philosophical approaches to registration as Sámi â a restricted approach and an integrative approach. The restricted approach emphasises objective criteria of language capacity and customary knowledge, whereas the integrative approach emphasises societal acceptance and integration.42 The dispute about who should finally determine questions of membership of the Sámi â be it the Sámi parliament or the Supreme Administrative Court â remains controversial (Riekkinen and Suksi 2019).43
The test to register as a Sámi is onerous. Whereas the requirement of descent is consistent with the approach adopted in Australia, the evidence of ability to speak the language; knowledge of lands and adherence to traditions do not apply to Aboriginal peoples. These stringent requirements seem to favour older and rural-based Sámi.44 These requirements are substantially more arduous than those that apply to Aboriginal peoples in Australia and the MÄori in New Zealand. Whereas the discretion of the Federal Court in Australia is unrestricted to take into account any relevant information to consider evidence of community acceptance since there is no statutory definition
4.3 New Zealand: When Is a Person a âMÄoriâ?
In New Zealand a quota applies whereby seven seats in the national parliament are reserved for persons who identify themselves as MÄori.46 MÄori means âperson of the Maori race of New Zealand; and includes any descendant of such a personâ.47 All persons of a MÄori descent, regardless of the degree of decent, can choose every five years to have their names registered on the General or MÄori electoral roll.48 Prior to 1974 various attempts had been made to introduce some form of objective measure to ascertain whether a person qualifies as a MÄori. Initially, some form of proven descent was required, for example, those persons with more than half MÄori descent were not allowed to vote in a European electorate, whereas those with less than half MÄori descent did not qualify to vote in a MÄori electorate. Between 1893 and 1975, only those of exactly half of MÄori descent were able to choose whether to vote in a MÄori or European electorate. Since 1974 the option of self-identification has been adopted.
Self-identification means that no MÄori person is obligated to be registered on the MÄori roll and a MÄori person may change their preference on which roll they want to be registered after each census. A four month period is given prior to each election for persons to record their names on the MÄori list.49
The decision to register on the MÄori roll is entirely by personal choice, no documentation is required and the assertion cannot be legally challenged unless the Registrar questions a registration. In such an event the person is given an opportunity to respond to any query about registration on the Maori roll. This is dissimilar to the approach adopted in Hungary where there can be no legal challenge to registration on a nationality list. No MÄori person can be obliged to register on the separate roll (New Zealand Royal Commission 1986). If a MÄori person does not change their registration from a previous election, the registration remains the same for the next election.51 There is no statutory requirement that the candidates for the MÄori seats must be MÄori of origin.52 The freedom to nominate for an election for the MÄori seats rests on the assumption that a non-MÄori person can also promote the interests of the MÄori.
This means that the decision of a person to register on the MÄori roll and the decision of a candidate to put their name for election on the MÄori list are entirely personal. The MÄori arrangement contrasts with that of the Sámi, where a person can be registered on the Sámi list for elections of the Sámi parliament and on the general list for elections of the national parliament. The same applies in Australia where Aboriginal persons could participate in Aboriginal and Torres Strait Islander Commission elections and in elections for national parliament.
5 Essential Considerations to Resolve Disputes about Membership
The elephant in the room for constitutional arrangements aimed at special protection for minority and Indigenous communities is firstly how to ascertain who belongs to the community and secondly who should resolve disputes about membership. Whereas in international law the principle of free association is applied to any scheme endeavouring to create special rights or privileges for a community, in state practice membership disputes are not uncommon. This is apparent in the formulation of Section 235 of the Constitution of
The insights gained from the Sámi, Aboriginal peoples and MÄori in dealing with membership disputes are potentially relevant not only to other Indigenous peoples but also to minority communities who seek special rights or privileges under public law.
Any minority community or Indigenous people who wishes to be the beneficiary of special collective rights would have to meet the following considerations:
First, clarity is required about who constitutes the minority or the Indigenous people. In Australia, New Zealand and Finland there is no serious dispute about the general description of the Aboriginal, MÄori and Sámi identities, but there is no statutory definition of Aboriginal peoples in Australia or MÄori persons in New Zealand, whereas in Finland the Sámi are statutorily defined. In addition to defining the community, mechanisms are required to resolve disputes about purported membership. There has been extensive litigation in Australia and Finland to resolve membership disputes. The approach adopted by the Sámi parliament is in effect to restrict membership of the Sámi pursuant to the statutory definition of Sámi, whereas the approach followed by the Federal Court in Australia is based on a more inclusive definition of Aboriginal based on societal acceptance, while in the case of the MÄori it is solely based on self-identification. In the case of South Africa there is no agreement about who constitutes the Afrikaans community. Defining the Afrikaans community is further complicated by the fact that within the Afrikaans community some prefer a restricted definition based on race, religion and descent; whereas others prefer an inclusive definition solely based on the Afrikaans language.
Second, in order to resolve disputes about membership a legal entity of some sort or other customary laws or traditional practices are required to deal with membership issues. In Australia Aboriginal peoples often have local family and clan-like processes to deal with disputes such as membership. The Federal Court of Australia also plays an active role to ascertain on the basis of local, social and local linkages whether a person is accepted as part of the Aboriginal
Third, whatever membership-review procedures are adopted by a minority group or an Indigenous community, any decision ought to be open to judicial review. Ultimately legislation enacted to grant collective rights to a community in public law must comply with principles of international law as well as the equality and free association rights. Any attempt to unduly restrict membership of a community should be the subject of legal scrutiny and judicial oversight.54 If Section 235 is to become operational in South Africa, clarity is first required about the definition of language and cultural communities and secondly a mechanism would have to be devised to deal with membership disputes.
Fourth, the tripartite test to resolve membership disputes adopted by the Federal Court of Australia and the Supreme Administrative Court of Finland may bear relevance to other communities whereby descent; subjective assertion of membership; and objective community acceptance of membership are weighted. The weight attached to the respective criteria may differ depending on the country in which the criteria are employed. The Federal Court and the Supreme Administrative Court have in effect adopted an inclusive approach whereby all relevant information is considered pursuant to the right to freedom of association. Indigenous peoples can often rely more readily on criteria such as descent; adherence to laws and customs; and community acceptance to ascertain membership, whereas other minority communities are principally formed solely on the basis of free association.
Sixth, the question of residence is potentially important and even controversial. Must a member of a minority be resident in the country or a traditional area to be accepted as a member of the community? In the case of Aboriginal peoples in Australia residence is not a pertinent issue provided the person can prove descent and association, whereas in the case of the Sámi parliament residence in Finland is not a requirement. In New Zealand a person can register as a MÄori voter even if they do not reside in New Zealand. Since many Afrikaans speakers live abroad, the Afrikaans community in South Africa would need to establish whether for purposes of any institutions created pursuant to Section 235, residence in South Africa is required.
Seventh, any dispute about membership of minority and Indigenous institutions should be in the final instance within the jurisdiction of the highest court of the land to ensure that the principles contained in the Constitution as well as obligations under international law are respected. The criticism expressed by the United Nations against judicial oversight of the decisions by the Sámi parliament is noted, but account must also be taken that whereas courts may be required to take into account Indigenous laws and customs, the supremacy of the Constitution and highest court must apply to all citizens.
6 Conclusions
This chapter considered the complexity to resolve disputes about membership of a minority community or Indigenous people. Useful insights are gained by reflecting on the way in which Indigenous communities in Finland, Australia and New Zealand deal with questions of membership. Other Indigenous communities in the world as well as minority groups that aspire to some special rights and privileges may benefit from the experiences of those three case studies.
The chapter highlights that whereas demands for special rights for minority groups or Indigenous peoples are common, the elephant in the room is how to deal with disputes about membership of such a community or Indigenous people. Whereas strict membership criteria may be justified to retain the unique identity of a community, those very exclusions to define a community may be inconsistent with the principles of a liberal democracy and the fundamental rights contained in the Constitution. The experiences of Australia, New Zealand and Finland make for potential useful application to other case studies. But it must be noted that whereas Indigenous peoples can often rely on criteria such as descent; adherence to laws and customs; and community acceptance to ascertain membership, other minority communities are principally formed on the basis of free association.
Finally it is concluded that if and unless membership of a minority can be dealt with in a manner consistent with international law, any effort to pursue self-determination by way of a form of group right would be legally and politically doomed. This is likely to be the outcome of any attempt by the Afrikaans community to operationalise Section 235.
See for example how in Brussels candidates for community elections must demonstrate acceptance of the community whom they seek to represent; in Hungary individuals must register on a nationality register for purposes of elections of community institutions; in Australia a personâs claim of aboriginality for purposes of Aboriginal and Torres Strait Islander Commission elections or native title proceedings can be challenged; and in New Zealand a separate electoral roll is kept for those voters claiming to be MÄori.
The term minority generally refers to a community of individuals who share a common language, cultural, ethnic and/or religious identity and who, within the context of a specific state or a region within the state, are in a position of non-dominance and require special measures in support and protection of their identity. Terms also used to describe minorities are community; nationality; or peoples, but for sake of consistency minority is used in this chapter unless a specific case study is referred to, e.g. community in South Africa, Aboriginal peoples in Australia, Sámi in Finland and MÄori in New Zealand.
See the working definition proposed by Capotorti (1979, para. 38) which, although widely quoted, is not accepted in international law as definitive. The definition proposed by Capotorti has not been endorsed by the United Nations and as a result the United Nations continues to refer to minority without having exhaustively or conclusively defined it. The best solution currently is to assume there is no generally agreed definition of minority (United Nations 2014, 14).
The only binding international legal instrument that deals with the rights of minorities is the European Framework Convention for the Protection of National Minorities. The Convention was adopted by the Committee of Ministers of the Council of Europe on 10 November 1994 and entered into force on 1 February 1998. It is however binding only on signatory states. Whereas the Convention is arguably the most advanced international legal instrument to protect the rights of minorities, the actual rights conferred by the Convention are applicable to âpersons and not on minorities as entitiesâ (Marsal and Palermo 2018, 105).
Many countries side-step the definitional challenge by simply naming the minorities the subject of the protection, e.g. see how in countries such as Hungary; Belgium and South Tyrol the community the subject of protection is specifically named. The naming of the minority does not however resolve the challenge about how to settle disputes about membership.
In this chapter the term Aboriginal peoples is used as a collective noun to describe the traditional owners of the land of Australia, including the islands to the north of Australia of which the traditional owners are the Torres Strait Islander peoples.
As is highlighted in this chapter, Indigenous peoples can often rely on criteria such as descent; adherence to laws and customs; and community acceptance to ascertain membership, whereas other minority communities are principally formed solely on the basis of free association.
Section 235 must be read with Section 185 which refers to the possible establishment of cultural councils for communities.
The Constitutional Principles were in effect a political and legal guarantee that an elected Constitutional Assembly would be bound by core democratic, power-sharing and power-distribution principles. The impact of majority rule within the Constitutional Assembly was therefore in effect attenuated by the Constitutional Principles.
The question can be asked if there is a political or a legal obligation on Parliament to enact legislation pursuant to Section 235 or at least for Parliament to commence a policy discussion in a parliamentary committee about the possible operationalisation of Section 235.
The percentage of white Afrikaners who support a volkstaat-idea has consistently been around 20%, but of those, very few (around 2000) have been willing to physically relocate to the Afrikaner Orania self-styled homeland in the Northern Cape.
Note in this regard that the Constitution drafters in South Africa deliberately chose not to use the words minority or Indigenous but rather the more neutral expression of language and cultural community. Whereas some might argue that Afrikaans speakers are not a minority in international law due to their economic power, the use of the word community circumvents the question whether the Afrikaans speakers is a minority under international law.
No other community has been so persistent in their demands for a form of self-government and no other community has developed such elaborate non-governmental language and cultural services and networks, as the Afrikaans community. Section 235 does not specify that community self-determination must be at a national level. It may be possible, for example, for regionally or locally concentrated Afrikaans communities to pursue self-determination as has happened in Brussels, Kosovo, Russia, Hungary and South Tyrol.
It is not within the scope of this chapter to explore the reasons why Section 235 has remained dormant, but it may be for a variety of reasons such as the political atmosphere in South Africa that is not conducive to the implementation of Section 235; many of the leaders who had agreed on Section 235 have moved into retirement; there is no agreement within the Afrikaans community about viable options to operationalise Section 235; conservative Afrikaners prefer to utilise non-governmental organisations such as Solidariteit and Afriforum for a type of informal self-determination; and the Afrikaans community is deeply divided along racial, religious, regional and ideological lines about what has to be done to secure the future of the Afrikaans language and culture (De Villiers 2018a, 47).
Anecdotal information suggests that Afrikaans as a language of first choice amongst Coloured, Black and Indian voters is in decline due to various factors such as the emphasis on English as a language of education and commerce; the lack of Afrikaans teaching as a second language in schools; the official language status of Afrikaans alongside English has diminished; the status value of English; and due to the historical and ongoing political baggage associated with Afrikaans (Jansen 2019).
This may seem a relatively low percentage of the total vote, but given that it is exclusively from conservative, white Afrikaners, it suggests possible polarisation of the electorate. The trend within Afrikaans voting away from the Democratic Alliance towards the Freedom Front Plus has continued in by-elections since the general election in 2019.
Aboriginal persons may register a corporation pursuant to the Corporations (Aboriginal and Torres Strait Islander) Act 2006. This Act aims to address the needs for simple, easy to run legal structures for Aboriginal communities. Non-aboriginal persons cannot register a corporation under the Act.
The Aboriginal and Torres Strait Islander Commission was an elected, self-administration and advisory body for Aboriginal peoples, but it was abolished in 2005. Proposals are now on foot to enact a so called Voice for Aboriginal peoples to give advices to the federal government. Since it is proposed that the Voice would be elected, disputes about who would qualify as an Aboriginal voter are likely to arise (De Villiers 2018b).
The Australian Law Reform Commission recommended that greater regard be had to Indigenous laws and customs in the legal process. The Commission expressed the view that there was no need to develop an exact definition for the term Aboriginal since âthere are distinct advantages in leaving the application of the definition to be worked out, so far as is necessary, on a case by case basisâ (Law Reform Commission 1986, para. 95).
See Gardiner-Garden (2002) for an overview of the complex history of Australia in regard to classification of Aboriginal peoples.
This may be for various reasons, one such reason being that in Australia many Aboriginal children of light (fair) skin were removed from their parents by government agencies to be raised in Christian missions or by white adoptive parents. This is generally referred to as the stolen generations. For such persons to prove their genealogical link to an Aboriginal ancestor may be daunting or even impossible (Australian Human Rights Commission 1997).
See below the discussion of disputes in the Sámi where it was alleged by the Sámi parliament that individuals attempted to register as Sámi in order to influence policy discussions of the Sámi. Membership of the Sámi has therefore become highly political. This is not dissimilar to Hungary where non-members of nationalities have registered as being of a specific nationality and in Australia where purported membership of specific native title communities is often claimed due to the perceived benefits that may be gained in the form of royalty payments or other benefits.
Note in this regard how the jurisdiction of the Federal Court in Australia to determine disputes about aboriginality is generally accepted by Aboriginal peoples, whereas in Finland the role of the Supreme Administrative Court to determine questions about Sámi membership remains in dispute.
For an analysis and discussion to define membership of native title claim groups in a manner that satisfies traditional laws and customs as well as the native title statutory scheme under which claims can be lodged, see Duff (2014).
According to Section 61(1) of the Native Title Act 1993, the native title holders are the community âwho, according to their traditional laws and customs, hold the common or group rights and interests comprising the particular native title claimedâ. Refer in this regard to the recently concluded Noongar native title settlement in the south west of Western Australia of which one of the characteristics for purposes of this chapter is that a person who wishes to register to become a member of the Noongar Corporation must be linked to an apical ancestor to the area. The test in this case is therefore not only of being Aboriginal, but more restricted to a specific set of Aboriginal ancestors (Hobbs and Williams 2018; De Villiers 2019).
Constitution of Finland, Section 121(4). The self-government applies to the Sámi Homeland in the areas of language and culture.
It must be noted that whereas in Finland the Sámi can vote for the Sámi parliament as well as for the national parliament, in New Zealand the MÄori only votes for the national parliament since there is no other advisory or administrative elected body for the MÄori that can be compared to the Sámi parliament.
Act on the Sámi Parliament 974/1995, Section 3. The question is of course how far one goes back to forebears to ascertain the identity of an ancestor. See for example Supreme Administrative Court (2003) and Supreme Administrative Court (1999) in which the Court had to consider evidence of Sámi-connection by forebears. In the 2003 judgment the question arose from the scenario where a personâs father had been enrolled on the basis of the personâs grandfathersâ proficiency in one of the Sámi languages. The Sámi parliament refused registration but the court granted it (Supreme Administrative Court 2003). In 1999 it was held that the qualification to vote via property rights had gone too far back and was no longer a basis for registration (Supreme Administrative Court 1999).
All the languages and dialects spoken by the Sámi are regarded as âthreatenedâ or âextremely threatenedâ, which in itself highlights the potential that persons who regard themselves culturally as Sámi, may not be able to speak the language fluently (United Nations 2016, para. 17).
This is contentious since up to 60% of Sámi live outside of Finland and up to 70% Sámi children are born outside their traditional lands. A non-Finish Sámi who reside in another country can therefore register as voter for the Sámi parliament in Finland, whereas a Finish Sámi-resident may not qualify due to the strictness of the language test.
Act on the Sámi Parliament 974/1995, Section 23a.
Ibid., Section 22.
Ibid., Section 26b.
The United Nations recently criticised these review powers of the Supreme Administrative Court as unduly interfering with the self-management of the Sámi parliament (Yle Uutiset 2019).
See Council of Europe (2015) about the challenges that face the Sámi languages in an age of modernisation. There are about 10 dialects that make up the Sámi languages. An added complexity is that Sámi who do not reside in traditional areas are often very slow to take up teaching the language to their children. This raises the obvious question: is it reasonable to make language proficiency an absolute test for registration as a Sámi voter? (Magga and Skutnabb-Kangas, 2001).
Pettersen highlights that the actual size of the Sámi community is much greater than those who have been accepted for registration as voters for the Sámi parliament (Pettersen 2011, 23).
In this judgment the Court looked at all circumstances related to identity, including where the person live; with whom the person associate; and his lifestyle, to conclude that he was indeed Sámi albeit that he did not meet any of the other objective sub-categories. The Sámi parliament has been concerned that persons who are not generally accepted as Sámi, have attempted to register as Sámi in order to influence policy issues on which the Sámi parliament deliberate (United Nations 2016, 57). Also see in this regard how in nationality elections in Hungary, non-community interests have made attempts to influence the outcome of elections â so called âethno-businessesâ (Deets and Stroschein 2005, 293). The potential abuse of registration by non-community members has been identified by the Sámi parliament, Australia and in Hungary, but any restriction of freedom of association is approached by courts with scepticism.
See in this regards judgments of the Supreme Administrative Court (2015a and 2015c).
The Court did however acknowledge that the greater a personâs claim to membership relies on historic material, the more diligently the court must consider contemporary material to ascertain the strength of the claimed connection to the Sámi.
The judgment was criticised by the United Nations Human Rights Committee on the basis that it eroded the sovereignty of the Sámi parliament to make final decisions about matters of membership of the Sámi. The Committee was particularly critical of the courtâs âoverall considerationâ-approach whereby regardless of the failure to fulfil an objective criterion such as language, a person could be registered as a Sámi on the basis of self-identification and acceptance by the community (Yle Uutiset 2019). The Human Rights Committee noted that âthe Committee accordingly considers that the Sami Parliament constitutes the institution by which the State party ensures the effective participation of the members of the Sami people as an indigenous community in the decisions that affect themâ and that the parliament should determine the eligibility of members (Human Rights Committee 2019, para. 6.10) and that the reasoning of the Court âwas not based on reasonable and objective criteriaâ (Ibid., para. 6.11).
This is not dissimilar to the debate amongst the Afrikaans community in South Africa, whereby some prefer an integrative approach whereby speaking Afrikaans is the only criterion, whereas others prefer a restrictive approach whereby Afrikaans is linked to specific cultural, historic and religious traits.
The following comment by the Human Rights Committee summarises the unresolved issue: âMoreover, the Court, in these decisions, failed to properly apply national legislation, which nevertheless clearly established an objective criterion of membership, as desired by the Sámi themselves. By not applying this criterion and replacing it with a self-identification criterion, which the Court itself interpreted on a case-by-case basis, the Court restricted the right of the Sámi people to participate in public affairs in the context of institutions designed to uphold their rights as members of an indigenous people, as set out in article 27 of the Covenantâ. (Human Rights Committee 2019, Annex 1, para. 3).
The focus of the election committee of the Sámi parliament on the objective criterion of language capability, inevitable reduces the potential scope of persons who may qualify to register as Sámi (Sarivaara 2016, 203).
The United Nations rapporteur had expressed concern that whereas the Court has final jurisdiction in regard to membership disputes, the composition of the Court does not include justices from the Sámi and there is no requirement for justices to have any knowledge of the Sámi culture (United Nations 2016, para. 57). The rapporteur concluded that the review power of the Supreme Administrative Court in regard to Sámi membership breaches the inalienable right of Indigenous peoples to determine their political status in general and their membership in particular. The rapporteur did not however explain why the decision-making of Indigenous persons should not be subject to judicial oversight and the rule of law. The Court has refused to overturn its previous judgments (Supreme Administrative Court 2011; 2015a; and 2015c) and by doing so affirmed that it is the final arbiter when membership disputes arise about who is a Sámi (Supreme Administrative Court 2019).
New Zealand Electoral Act 1993, Section 45.
New Zealand Electoral Act 1993, Section 3. One of the major political parties, the Nationals, has previously expressed themselves in favour of abolishing the reserved seats but have undertaken not to do so unless the MÄori agree (Mutu 2011, 196).
New Zealand Electoral Act 1993, Section 76(1). The delineation is therefore by way of cultural association, rather than hereditary acceptance (McLeay 1980, 47).
New Zealand Electoral Act 1993, Section 77(1), (2).
Refer to the explanation given by the electoral commission to persons who may want to register on the MÄori list (Electoral Commission 2020).
New Zealand Electoral Act 1993, Section 78(4), (9).
Until 1967 only MÄori candidates were eligible for election to the reserved MÄori seats, but that limitation was removed by the Electoral Amendment Act of 1967.
This will be particularly challenging to the Afrikaans community in light of the multi-identities of Afrikaans speakers; the lack of an agreed definition of who constitutes the Afrikaans community; the racial undertones of many who promote Afrikaans; and the lack of a decision-making structure to consider and determine claims of membership.
The complexity to operationalise Section 235 is reflected by Suksi when he observes on the basis of the Sámi experience that âconsiderable definitional problemsâ may be encountered by any institution that is set up to control the membership of a community (Suksi 2015, 108). On the one hand unlimited free association may lead to inflation of membership of a community, whereas on the other hand if persons are excluded on subjective or objective criteria it may give rise to concerns of elitism; discrimination and self-interest.
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Case Law
Please refer to the list on pages viiiâxvi.