urt of Justice in Nauru arbitration Nauru is a small Pacific island and the people of that country sought legal redress They claimed compensation from an international tribunal for the massive mismanagement of their resources and the actions of colonial powers in exploiting the natural resources of that country to the detriment of the indigenous population Nauru. It was established that large quantities of phosphate had been removed from Nauru.
The people of the country had been deprived of their natural wealth and it was held that they were entitled to substantial compensation by way of legal redress for the wrongs that had been inflicted upon them. So those developments have occurred both at the national level and at the international level.
Now let us consider some of the rights that are important to indigenous people and the ways in which these have been recognised by contemporary legal systems. It is important to recognise here that values and attitudes vary. We should not assume that our approach is the only possible approach, that nothing else is rational or logical.
About five years ago, I gave a series of lectures in the University of Papua New Guinea in Port Moresby, and in the course of my visit to Papua New Guinea I learnt some very interesting things about the legal system of Papua New Guinea with particular reference to their attitudes to land tenure.
In Papua New Guinea, of course, there is a substantial aboriginal population and they are very sensitive to the rights of indigenous people. The cornerstone of their system of land tenure is collective ownership. Land is not owned by individuals. It belongs to a tribe or to a community and it is not merely a matter of moral obligation but a matter of mandatory and enforceable obligation, that the more vulnerable, the more disadvantaged members of the tribe are entitled to be supported by the more affluent people belonging to that tribe.
There is the concept, there is the notion that land is held in trust. Land is not something that you own absolutely. You can use it, you can abuse it, you can exploit it in whatever way you like. That is essentially a Western concept that goes back to the Roman law, the notion that there is no abuse possible. It is yours to do with as you please. That is a Western concept which has its roots in Roman jurisprudence. But certain Eastern legal systems which are fortified by indigenous traditions approach these problems from a totally different perspective. Land is something that you receive from God by way of trust.
It is yours to handle for the time being. But you are duty bound to utilise those resources in a manner that is beneficial to the community at large. It is a sacred trust that you are required to discharge. Now that is very much the ethos, the rationale of land tenure in Papua New Guinea.
Then let us take the attitude to justice Professor Gananath Obeysekere, in a recent work of his describes some of his experiences in the southern part of Sri Lanka. He says that when he went to Kataragama, he spoke to some of the devotees there and he asked them, "If you have a problem, what will you do? Would you seek the assistance of the courts? Will you take your problem to the judges of the established courts and will you ask them to hand down a judgment that will provide you with a solution to your problem?
He says the majority of the people he spoke to answered emphatically in the negative. They were horrified by the suggestion that they should invoke the assistance of the courts of law. They said ‘No, not at all. We would greatly prefer to seek the assistance of the Goddess Kali. It is from the Goddess Kali that we will expect relief because the Goddess will understand our problem and will give us the relief that we want.
The courts will not understand. That is a different world. Different values, different assumptions. There is nothing in common between them and us and it would be quite fanciful and unrealistic to expect the courts to understand our problems and sort them out in a pragmatic and satisfying manner.
So there is 