Vito Breda – The New Caledonia 2018 Referendum: Crisis in Consociative Democracies Redux

Last November, New Caledonia rejected, albeit with a less than expected majority (at 56.7% of the vote), the possibility of becoming a sovereign nation. The indication of a leaning towards secession was confirmed in the  last  elections in which loyalist political parties held on to a two-seat majority in the New Caledonian Congress. External observers have also reported on the increased racial tension between the Kanak, who are the original inhabitants of the archipelago, and the newcomers, who are predominantly of French heritage. The political parties that associated themselves with secession maintained strong control over the North Province of the main island (called La Grande Terre) thanks also to a favorable voting system. The Loyalists instead maintained a crucial foothold in the urban South. In this post I want to compare, by way of a brief set of considerations, a few of the consequences of two decades of decentralisation policies in New Caledonia with analogous experiences in Northern Ireland and South Tyrol, which are two other consociative local democracies within a larger state.

According to Articles 76 and 77 of the Constitution of France, New Caledonia is officially a  non-self-governing territory controlled by the Republic of France that holds a sui generis constitutional status.  As is the case for other consociative democracies that are situated in a region of a larger and relatively ethnically homogeneous constitutional system such as those of Northern Ireland in the UK and the South Tyrol in Italy, the special power-sharing arrangement of New Caledonia does not affect other French regions. Following the constitutional reform of Loi 99-209, the New Caledonian Congress obtained all the legislative and administrative competences of a federal state bar the so-called royal prerogatives (raising an army, controlling the currency, deciding on immigration etc.). The distinctiveness of the archipelago’s arrangements might surprise a few of the more mature readers of this blog, who – just as I used to – perhaps think that France should be considered in the kaleidoscope of governance systems that distinguishes European nations as the archetype of the unitary or regional state. One of the many corollaries of the model is a normative implementation of the principle of equality that has denied the existence of minority groups. The assumption is, David Marrani explained, as much normative as it is socially fabricated. France is a multinational state and its neighboring countries do recognise French-speaking groups (e.g. Catalan and Basque) and their languages as a part of what has become the standard package for political and minority rights in multinational states.

The idea of being part of a nation of culturally-neutered citizens entails a series of benefits and costs, so to speak, for New Caledonian residents. The concept of a culturally-neutered citizenship fosters a Republican pride and perhaps, related to is, a distinctive form of militant democracy. However, the imposition of French as the only official language of the Republic has the effect of politically disempowering minorities. In New Caledonia, and independently from the normative persuasiveness or its contra-factuality, the concept of the culturally-neutered citizen has been rejected by the Kanak population. This rejection has become more vocal in the past three decades.

In the first part of the colonisation period, the archipelago benefited from a level of administrative autonomy, yet in the 1960s, the discovery of the rich mining resources and the development of France’s nuclear strategy led to a progressive clawing back of previously devolved powers. The French centralisation process and its militarisation of the archipelago were coupled with a promoted immigration from metropolitan France that had the effect, among many, of making the Kanak a minority in their ancestral lands. It also concentrated the wealth of the archipelago in an urban area of the South where civil servants preferred to reside and, in practice, this led to the accumulation and concentration of wealth being in the hands of only a small number of colonial families. In the 1970s, the revival of sub-state nationalism by Kanak elites, many of whom were educated in France, reinvigorated the demands for decolonisation, constitutional recognition, and direct access to the management of the rich mining resources. It also helped the cause of the Kanak when, in 1986, the UN re-inserted New Caledonia in the list of territories ‘in need of decolonisation’ and then successively condemned French immigration policies.

French institutions were slow to react to the changed environment, and the Kanak elites, who were fully aware of dealing with a faltering empire during a time of political and economic crisis, either resorted to or silently condoned political violence. It was, as they were made aware of during their time as students in French universities, a proven and effective strategy against the French propping up their colonial administrations in Vietnam and in Africa. It might have worked in New Caledonia too, but the cost, in terms of spilled blood, became too high for all involved. Les Événements, as the period of open political violence is called, included a series of bloody events that culminated in the kidnapping of several police officers and the subsequent killing of the Kanak kidnappers at the hands of the French army. The Noumea Accord and the Matignon–Oudinot Accord were peace treaties that signalled the end of Les Événements. The Noumea Accord, like the Belfast Agreement in 1998, had constitutional implications, but it did not include ‘tough’ international supervision.

The Kanak need not have worried. In the decades that followed the Noumea Accord, and despite the lack of international supervision, a series of French governments fully implemented the agreement. This included multiple legislative activities as well as the aforementioned constitutional reform (Loi 99-209). One of the distinctive elements of the application of the Noumea Agreement, by way of comparison to the Belfast Agreement or the Gruber–De Gasperi Agreement in South Tyrol, was the insertion of a schedule for three referenda over independence. As mentioned earlier, the first of the three referenda took place in New Caledonia last year. The representatives of the Kanak instead committed their nation to peace. This was, as is the case in many communities that have experienced the effects of an ethic civil war, a difficult promise to keep.

It is a matter of speculation as to whether the two-tier system, à la Northern Ireland, was selected instead of the multi-layered system adopted in South Tyrol. In fact, one of the most evident lacunae in the constitutional reform Loi 99-209 that followed the Noumea Accord is the lack of a multi-layered institutional setting in which the asymmetrical territorial distribution of the two identity groups (the Kanak in the North and the

Credit: BBC

French-speaking settlers in the South of La Grande Terre) is considered. In the case of South Tyrol, joint legislative committees with an equal representation of the majority/minority groups have the task of approving legislation and the implementation of administrative policies in each province. Note that independently from the size of the number of linguistic groups included in the province, the ethnic representation is numerically the same.  So  if a community were composed by   two groups  that represent 95% and 5% of the community, and if the legislative committee that represent that community  were composed  by 12 members, each group would be represented by  6 members.  Thus, a relatively small enclave still has the possibility to prevent the approval of a regional law implementation of administrative polices that single out a minority.

Nevertheless, Loi 99-209, following the example of Northern Ireland, adopted a two-tier system. French central institutions are the first tier and New Caledonian regional institutions such as the Congress of New Caledonia are part of the second tier. It is difficult to speculate whether an alternative to the dual layer might help to reduce the tension between communities in New Caledonia. However, multi-layered systems of governance that include a regional law or a local regulation having to be approved by all the ethnic groups have the tendency to mitigate the frustration of minorities that reside in the surrounding enclaves. For instance, a multi-layered system of joint legislative or administrative committees tasked with the implementation of regional policies can be designed to have the opportunity to decide (and crucially to veto) the implementation of local policies when they perceive that they are not in the best interests of all the ethnic groups within a province. One of the historical effects of this process in South Tyrol is an increased recognition of cultural diversity (which includes several linguistic enclaves) and, as a corollary, a high number of regulations and laws that acknowledge in practice the effect of such diversity. This wealth of rules and regulations affects all areas of the law, but it is more evident in those domains in which resources are distributed (e.g. multilingual education) and in public jobs.

New Caledonia’s territorial repartition of ethnic groups and their distinctive demands should be accommodated by the interaction between the Customary Senate and the Congress. However, the Senate is a consultative body within the New Caledonian parliamentary system and has a very narrow set of competences. It is also clear that, at the time of the Noumea Accord negotiation, such a narrow role was not fully understood by the representatives of the Kanak. Nevertheless, it is a requirement to distribute the ministerial roles based on the size of the pollical party that allows Kanak representatives to participate in the government of the archipelago. The allocation of seats in the cabinet is similar to the allocation of government seats in the Northern Irish government. These types of arrangements are unfortunately a proxy for awkward relationships between political representatives of identity groups.

Representatives of major political parties find themselves projected into roles as cabinet ministers and are forced to work with their political opponents. Two decades after the Noumea Accord it is becoming apparent that such an arrangement might foster instability. Again, consociative democracies demand sophisticated institutional arrangements, yet it is reasonably clear that co-opted ministers might find themselves in the position of having to alienate their identity group by approving policies that they might perceive to be beneficial for the commonwealth and thus losing their job in the next election.

So, in a multi-layered system of governance where ethnic communities must reach a consensus at the regional and at the provincial level, minorities have the possibility of monitoring the activity of the central executive. This requirement dispenses with imposing a multi-ethnic composition on the government and has the advantage of allowing elected politicians to maintain a coherent relationship with their constituencies. The possibility of preventing the implementation at provincial level of a regional policy reduces the chance that a minority might be discriminated against or forsaken for whatever political gain. The debate within the joint committees also transforms the process of policy implementation from a result-driven activity to a consensus-based process. In the long term, these deliberative policy practices are what tend to establish a history of professional collaboration between those who are involved in the process of implementing policies.

It would be quixotic to suggest that New Caledonia should adopt a system of governance which was designed for a specific multi-ethnic community. Legal transplants are complex and, even when they are not painted with a veneer of racism, tend to have a poor success record. In this post, I suggest instead that deliberative activities between local politicians tend to sediment long-term relationships between professionals (who might have very different perceptions of the common good). These politicians tend to accept that deliberation and persuasion might be the best method to foster civic coexistence in highly diversified societies. The negative effect of having such a complex institutional setting is that it might perhaps entrench diversity beyond its sell-by date.

In conclusion, it is a matter of speculation as to whether the support for independence might continue to increase and how the New Caledonian electorate might vote in the next referenda. It is, however, reasonably clear that in the future, New Caledonian institutions, with or without France, should consider the possibility of reviewing the way ethnic tensions are eased by deliberative institutions.

Posted by Dr Vito Breda, Senior Lecturer in Law at the University of Southern Queensland and Professor in Comparative Law (Tier II, Rome 2016). Vito is the editor of Legal Transplants in East Asia and Oceania, Cambridge University Press, (pre-order) 2019.