Prior to the first repatriation from Rouen in 2011, French law recognised the Toi moko as cultural objects, rather than as human remains. This obstacle meant that repatriation was not legally possible. It became necessary to create a new piece of legislation that would address the status of Toi moko as human remains in order to be able to repatriate them.
Professor Robert Paterson, speaking in a joint University of Auckland Faculty of Law and International Law Association seminar in 2010, explained that the difficulty about repatriation from France arose because of the country’s museum system. Central government controls regulate most French museums, including an inalienability principle (Article L.451-5 of the Code du Patrimoine) which holds that all property constituted in French museum collections is part of the public domain and thus items could not be transferred or sold.
The Administrative Tribunal of Rouen met in 2007, to discuss whether the Toi moko was a body part that could be returned for proper burial, or whether it was a collection object for the French public that must be declassified before it could be returned. The repatriation of the Toi moko as a body part was authorised by the Municipal Council of Rouen, but following an appeal by the French Ministry of Culture it was annulled. The Ministry’s argument was that the Toi moko was a collection object which was subject to the inalienability principle. Thus the only possibility to repatriate the Toi moko was to declassify it under a 2002 amendment which gave the power to do so to the French National Scientific Commission, but they had never had such a case before.
In May 2010, the French Parliament passed Loi No. 2010-501, the member’s bill proposed by Rouen Senator Catherine Morin-Desailly and Senator Richet, which held that “the Maori heads kept by [French National Museums] shall cease to be part of their collections in order to be returned to New Zealand”.
This very narrow exception applies only to Toi moko. Interestingly, it does not apply to universities, for which repatriation is dealt with by the French National Scientific Commission.
“Minister Mitterand has been instrumental in helping to reconcile the past and bring Māori communities and their ancestors closer together. His support for repatriation helps indigenous people understand the circumstances of how and why these ancestors were taken and gives them an opportunity to reunite with them physically and spiritually” says Michelle Hippolite, Kaihautū at Te Papa.
These sentiments are also supported by Michael Houlihan, Chief Executive at Te Papa, who says “many museums are returning ancestral remains to their communities of origin. This is a positive move and helps to build enduring relationships between these museums and communities”.
Māori Heads Return to New Zealand from France after 200 years, draft article by Jean Choi, 2012.
Repatriation of Maori Heads from France, 2012: An Examination of Maori Repatriation Policy and Significance for the Pacific Region, draft report by Jean Choi, 2012.
Professor Robert Paterson, 'Seeking repatriation of Maori heads has proved difficult', 2010. Auckland District Law Society http://www.adls.org.nz/resources/news-details?Newsld=38ba426b-c4c7-4ab1-8d30-328fba042bf1