Collective Decision-Making versus Individual Rights: A Reflection on the 'Noken' Electoral System of Papua and the Operation of Native Title in Australia

Abstract

The electoral system is the principal mechanism through which ordinary persons can influence government policies and express their preferences for the governance of their country. In 2009, the Constitutional Court of Indonesia upheld a cultural practice called 'noken', whereby indigenous leaders in certain parts of Papua province can vote on behalf of their entire community in an election. This decision effectively abrogated the individual's right to vote as guaranteed by the Constitution, and instead allowed for a collective vote to be accepted. The Court decided, in a brief judgement, that the noken system was consistent with the Constitution; that it was a lawful manner to determine the popular vote; that it reflects the laws and customs of 'customary law societies'; and that the imposition of one-person, one-vote could cause conflict and disintegration in and between those traditional communities. This judgement sparked an ongoing debate between those who hold the view that the use of the noken system in democratic elections is unconstitutional, and those who argue that recognition of the noken system shows how modernity and traditionalism can be harmonised. In a similar vein, the High Court of Australia in 1992 changed the course of legal history in that country by acknowledging the existence of native title. This set Australia on an unprecedented path to recognise indigenous ownership of land. This chapter highlights the challenges experienced by Indonesia and Australia in balancing competing objectives when responding to claims to recognise indigenous rights: how to balance modernity and traditionalism? International law strives to achieve outcomes that on the one hand place the individual at the centre of political, social, cultural, and economic rights; while at the same time there is also recognition in international law that in traditional, indigenous societies the community is a de facto and even de jure bearer of rights, with individual rights only being exercised within the context of the laws, traditions, and customs of the community. These competing objectives are evidenced in the way the two countries have responded to noken and native title. This chapter examines three crucial issues regarding indigenous communities and their rights: how indigenous rights are proven; how to determine the content of such rights; and how to establish the membership of indigenous communities.