The return of treasures to indigenous peoples

• Author: Piers Davies
• Position: Barrister and Solicitor of the High Court of New Zealand, specializing in Maritime Law and Entertainment Law
• Pages: 127-142

THE RETURN OF TREASURES

TO INDIGENOUS PEOPLES

PIERS DAVIES*

EXISTING LAW

INTRODUCTION

The tradition of the spoils going to the conqueror has had a very long

history. Egyptian murals and Roman pillars record the despoliation of defeated

peoples and this tradition has carried on during the last 2,000 years.

Mosques were turned into churches (as in Cordoba) and churches into

mosques (as in St Sophia, Istanbul). During the last 500 years the practice

has attained even greater dimensions as European nations developed technology

that allowed them to develop worldwide empires.

Most empires are structured like the spokes of a wheel, with the imperial

state at the centre and the countries conquered or assimilated on the rim.

This pattern is not only one of trade but also of the migration of objects of

cultural value towards the imperial centre.

Initially, this was just opportunistic and random but increasingly, in the

18th and 19th Centuries, it was a matter of deliberate policy, especially after

the establishment of great museums and Art Galleries in London, Paris, Berlin

and St Petersburg.

In the 19th and

20th

Centuries, the desire to obtain objects that would

be of scientific or artistic value reached its peak with:

(a) The rapacious spread of imperialism by European countries and the

westwards spread of the USA across the North American Continent.

* Barrister and Solicitor of the High Court of New Zealand, specializing in Maritime Law and

Entertainment Law. Consultant with Wackrow Smith and Davis, Auckland and a member of the

Cultural Heritage Law Committee of the ILA. This paper was prepared as part of the Blueprint for

the Development of Cultural Heritage Law Project of the Cultural Heritage Law Committee of the

International Law Association ILA Regional Conference, Barbados, March

2003.

(b) The establishment of the great museums and art galleries in the

USA as the financial wealth of that country expanded in the late

19th Century and the 20th Century.

(c) The application of "Darwinian" concepts in justification.

(d) The technological improvements in weaponry which placed non-

European countries, and especially indigenous people, at a severe

disadvantage.

(e) The patterns of trade, with the European product being particularly

technologically advanced and attractive, and therefore receiving a

highly valuable consideration.

(f) The increasing amount, depth and variety of scientific study.

Today, the legacy is not only loss of land and cultural heritage, but

indigenous people often occupy social and economic positions at the margins

in the non-indigenous societies they host.1

Definitions

I take Indigenous Peoples as meaning First Peoples. The Draft Declaration

of the Rights of Indigenous Peoples does not contain a definition of indigenous

peoples, but it does provide in Article 32 the way in which such peoples

define themselves. In many instances, who the indigenous people are is clear

in practical terms, such as the Maori people of the main islands of New

Zealand. In other countries, (eg England), that would be rather hard to work

out. The population concerned is significant; in 1990 more than 300 million

people were identifiable as Indigenous Peoples.2

Although I use "return" in the title of this paper, it is a neutral word.

Maori talk about "repatriation of taonga" (treasures) and this gives the emotional

and spiritual context which is so important.

Indigenous treasures include not only buildings, structures, sculptures,

carvings, weapons, clothing and jewellery, but also human remains, (ie whole

bodies, collections of bones, preserved tattooed heads). Some of these items

were obtained for scientific study and some for curiosity value.

1 "Tirohia" - Quarterly Newsletter of the New Zealand Human Rights Commission, Komihana

Tikanga Tangata - November 1997, page 22.

2 The Rights of Indigenous Peoples" - United Nations Centre for Human Rights - Fact Sheet No. 6,

May 1990, p 1. Defining Indigenous Peoples is becoming a subject for academic debate. Professor

Jeremy Waldron's Quentin - Baxter Memorial Lecture at the Victoria University Law School on 5

December 2002 explores the issue in depth. 26 The Capital Letter 3 (1187).